The proposed patient mobility directive; something left to desire?

In a recent TILEC discussion paper, TILEC member Wolf Sauter (NZA, TILEC) discusses the European Commission's proposal for a Directive on the application of patients' rights in cross-border healthcare, against the background of an overview of the preceding patient mobility case law of the European Court of Justice. The author finds that the proposal is not a full codification of the case law as it leaves out certain guarantees developed by the Court. The Court had accepted public interest justifications for prior authorisation requirements with respect to hospital treatment, and focused on developing substantive and procedural guarantees of patients' rights. In its proposal, the Commission takes a different approach, by both requiring Member States to actually demonstrate the need for a prior authorisation regime, and at the same time showing that in most cases this is unlikely to be warranted. Because the case law-based criteria for "undue delay" would no longer be used to determine when authorisations must be granted, there will be no clear EU standard to apply if any authorisation requirements survive. New in the proposal are the patients' rights to accountability and transparency, which apply to all patients in each Member State. This represents a first step from negative integration (liberalisation) to positive integration (harmonisation).