Access to Health Care in the Netherlands: The Influence of (European) Treaty Law

E.g., den Exter A. P. Hermans H. E. G. M. , “The Constitutional Right to Healthcare,” European Journal of Health Law 3 (1998): 261–290; den Exter A. P. Hermans H. E. G. M. , eds., The Right to Healthcare in Several European Countries (The Hague: Kluwer Law International, 1999); den Exter A. P. , “The Right to Healthcare in International Law,” in den Exter A. P. Sándor J. , eds., Frontiers of European Health Law (Rottendam: Erasmus University Press, 2003): 12–26; Toebes B. C. A. , The Right to Health as a Human Right in International Law (Antwerp: Intersenntia, 1999).

den Exter A. Buijsen M. , “Keuze voor Solidariteit. Kanttekeningen bij het Voorstel Zorgverzekeringswet,” (“In Favour of Solidarity,” in Dutch) TvGR (Journal of Dutch Health Law) 1 (2005): 111–117.

As an exception to that rule, the courts may review the constitutionality in terms of international and European law.

According to Article 22(1) of the Dutch Basic Law the authorities shall take steps to promote public health. This provision has been generally interpreted as a “mere” obligation of the government to be concerned with setting up health facilities and facilitating access to necessary healthcare. den Exter A. P. Hermans H. E. G. M. , o.c. (1999): 271.

Ziekenfondswet of October 15, 1964, Bulletin of Acts, Orders and Decrees 1992, 391, as most recently amended by the Act of December 23, 2004 (Bulletin of Acts, Orders and Decrees 2004, 725). There is a universal scheme covering the whole population, the so-called “AWBZ”-scheme covering exceptional medical expenses. Beyond this citizens who don't are over the income threshold for the Ziekenfondswet may be covered by a private insurance standard policy for special categories of insured (based on the Health Insurance Access Act [WTZ 1998]) and/or voluntary private health insurance schemes.

The conditions differ by type of care and include prescription by a general practitioner, quantitative maxima for prescribed pharmaceuticals and prior approval by the insurance fund.

Appeal court's Hertogenbosch July 2, 1990 (RZA 1990): 127.

E.g., International Labour Organisation (ILO) Conventions concerning minimum standards of social security and maternity protection (102 and 103), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Council of Europe's Social Charter (ESC) and the European Code on Social Security.

E.g., the Railroad strike judgment of the Dutch Supreme Court (Hoge Raad, “Spoorwegstakingarrest” 30 mei 1986, NJ 1986, 688; CRvB January 5, 1988 (RSV 1988): 199; HR May 7, 1993, 440 (NJ 1995): 259.

In the past courts ruled differently whether or not so-called instructive norm setting treaties are self-executing. See also Fleuren J. W. A. , “Een ieder verbindende bepalingen van verdragen (Treaty provisions that are binding on all persons, in Dutch),” diss. Boom Juridische uitgevers (2004); CRvB April 10, 1991 (AB 1991): 510; CRvB January 24, 2001, AA 9693, CRvB May 29, 1996 (RZA 1996): 134.

The Central Appeals Tribunal concluded that national regulation that imposed cost sharing in case of maternity assistance was a violation of Article 10 of the ILO Convention 102 setting minimum standards on social security (CRvB May 29, 1996, RSV 1997/9). According to the Tribunal the imperative nature of the treaty obligation (obligation to ensure), and the concrete wording of the treaty provision prohibit the introduction of cost sharing measures. As a consequence of this ruling, the Dutch government annulled the Decree introducing own contributions for hospital admissions.

CRvB December 17, 1991, RSV 1992/164; CRvB March 31, 1995 (RSV 1996): 28; HR 28 April 2000 (NJ 2000): 430; HR January 30, 2004 (RvdW 2004): 26.

E.g., In General comment no. 3 on the nature of States Parties obligations (Art. 2(1) of the ICESCR). UN Doc. E/1991/23, para. 5, the Committee claims that: “any suggestion that the provisions indicated are inherently non self-executing would seem to be difficult to sustain”; General comment no. 14 on health. The right to the highest attainable standard of health. UN Doc. E/C.12/2000/4, para. 30; UN Doc. E/C.12/1/Add.25.

ECrtHR Marzari v. Italy May 4, 1999, App. No. 36448/97; Zehnalovà and Zehnal v. the Czech Republic May 14, 2002, App. No. 38621/97; Sentges v. Netherlands July 8, 2003, App. No. 27677/02.

Supra note 14, Article 8 of the Convention which, in so far as relevant, provides as follows: […] everyone has the right to respect for his private […] life; 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country […].

Lopez Ostra v. Spain, judgment on December 9, 1994, Guerra and Others v. Italy, judgment on February 19, 1998, Botta v. Italy, judgment on February 24, 1998, Reports of judgments and Decisions 1998-I;.

E.g., Stubbings and Others v. the United Kingdom, judgment on October 22, 1996 (Reports 1996-IV): 1505, 62.

See, Nitecki v. Poland, judgment on March 21, 2002, App. No. 65653/01 §1, where the Court considered that: “it cannot be excluded that the acts of omissions of the authorities in the field of healthcare policy may in certain circumstances engage their responsibility under Article 2.”

The new EU Constitutional Treaty will replace the previous Treaty of the European Union incorporating previous amendments, OJ 2004/C 310/01. However, since the French and Dutch rejection of the Treaty by referendum (June 2005), it is unlikely that this new Treaty will come into force.

Kapteyn P. J. G. Verloren van Themaat P. , 3rd ed., Introduction to the Law of the European Communities (London: Kluwer Law Int., 1998): 77, confirmed by the ECJ's landmark case Van Gent en Loos ECR (1963): 1.

Treaty establishing the European Community (Amsterdam consolidated version). Official Journal C 325 of December 24, 2002 Hereafter, references to the treaty refer to this version, available at <http://europe.eu.int/eur-lex/lex/en/treaties/dat/12002E/pdf/12002E_EN.pdf> (last visited October 4, 2005).

Inter alia, articles 94 and 308 EC. Both provisions are aimed at the realisation of the common market. Further restriction of intra-communautaire trade however, can be found in other relevant treaty provisions aimed at the protection of health and life of humans, for instance article 30 EC.

And therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community, Article 5 EC.

Roscam Abbing H. D. C. , “Public Health in the Treaty of Amsterdam,” European Journal of Health Law 2 (1998): 173.

van der Mei A. P. Waddington L. , “Public Health and the Treaty of Amsterdam,” European Journal of Health Law 2 (1998): 135.

Article 152(4)(a)(b) EC.

EC competition rules fall out of the scope of this paper since these principles are primarily of relevance in the context of competition among health providers and social health insurance funds. See, for instance, Jost T. S. Dawson D. den Exter A. P. , “The Role of Competition in Health Care: A Western European Perspective” Journal of Health Politics, Policy and Law (in press); see also: den Exter A. P. , “Blending Private and Social Health Insurance in the Netherlands: Challenges Posed by the EU,” in Flood C. M. Roach K. Sossin L. , eds., Access to Care Access to Justice. The Legal Debate over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005): 257–277.

E.g., the mutual recognition directives, which facilitate a general system for the recognition of diplomas of certain health professionals (Directives 89/48/EEC and 92/51/EEC).

Social security co-ordination regulation 1408/71 OJ No. L149 of July 5, 1971 as amended by Regulation 859/2003 of May 14, 2003 PB No. L 124, 20/5/2003.

Art 234 EC.

Decker v. Caisse de Maladie des Employés Privés C-120/5 (1998) ECR I-1831 and Kohll v. Union des Causes de Maladie C-158/96 (1998) ECR I-1931. The European Court of Justice overruled the pertinent Luxembourg regulations, which made reimbursement by the social security system of medical services provided in another Member State – respectively orthodontic treatment and the supply of spectacles – conditional on prior authorization. The Decker and Kohll ruling has initiated a number of cases questioning the Dutch health insurance system, e.g., Geraerts-Smits/Peerbooms C-157/99 (2001) ECR I-5473; Müller-Fauré/Van Riet C-385/99, (2003) ECR I-4409; Van der Duin v. Onderlinge Waarborgmaatschappij ANOZ Zorgverzekeringen and Onderlinge Waarborgmaatschappij ANOZ Zorgverzekeringen v. Van Wegberg-van Brederode C-156/01 (2003) ECR I-7045, whereas more recent cases concern the Inizan v. Caisse primaire d'assurance maladie des Hauts-de-Seine C-56/01, (2003) ECR I-12403; the Leichtle case, C-8/02 (2004), ECR I-2641, and the Keller case, C-145/03, April 12, 2005, nyr.

Smits/Peerbooms Müller-Fauré/Van Riet Van der Duin Wegberg-Van Brederode , supra note 31

In a benefit-of-kind system, the insured is entitled only to statutory benefits, provided by health providers having an agreement with sickness funds. This is different from a reimbursement system in which health insurers reimburse the costs of treatment to the insured. In such a model there is no contractual relationship between the health insurer and the health provider.

Based on settled case-law of the Central Appeals Tribunal (CRvB) May 23, 1995 (RZA 1995) No. 126.

Smits/Peerbooms, supra note 31, at para 96.

Smits/Peerbooms, supra note 31, at para 98.

Temmink H. A. G. , “Kroniek van het Europees recht (European law column, in Dutch),” Nederlands Juristenblad 31 (2001): 1502.

Müller-Fauré, supra note 31.

Müller-Fauré, ibid, para 77.

Müller-Fauré, ibid, para 85. Under the proportionality test, if a less invasive alternative measure or arrangement could perform an assigned task under the same conditions as the arrangement being challenged, the less invasive alternative should be chosen.

Müller-Fauré , ibid, para 95.

Ludwig Leichtle v. Bundesanstalt für Arbeit Case C-8/02 (2004), ECR I-2641, and the Keller case, Keller v. Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud) C-145/03, April 12, 2005, nyr, being discussed by the author in: den Exter A. P. , “Patient Mobility in the European Union: Health Spas in Italy,” Croatian Medical Journal 46, no. 2 (2005): 197–200; den Exter A. P. , “The European Court of Justice and the Keller case: A Bridge too Far?” Medicine and Law (2005).

Leichtle, supra note 42, para. 35.

Conclusion A-G Ruiz-Jarabo Colomer, Case C-8/02. ECR (2004): supra note 42, para 34.

Keller, supra note 42, para. 50.

Keller, supra note 42, para. 57.

Vanbraekel C-368/98, ECR (2001) I-5363, para 32.

Keller, supra note 42, para. 37.

Smits/Peerbooms , supra note 31, para. 54.

Müller-Fauré , supra note 31, para. 103.

Duphar and Others C-238/82 (1984) ECR I-523 para. 16 and Case C-158/96; Kohll , supra note 31, para. 17.

E.g., Kohll ibid. para. 18. In the Dutch situation, the nature and scope of entitlements are being set by the main social insurance scheme, the Sickness Fund Act (“Ziekenfondswet”).

Duphar and Others ibid. para. 16.

Smits/Peerbooms, supra note 31, para. 87.

This means, for instance, that they should respect basic community principles, including the non-discrimination principle. Ferlini v. Centre hospitalier de Luxembourg C-411/98 (2000), ECR I-8081. In this case, the Court ruled that the application, on a unilateral basis, by a group of healthcare providers to EU officials of scales of fees for medical and hospital maternity care that are higher than those applicable to residents affiliated to the national social security scheme constitutes discrimination on the ground of nationality prohibited under Article 12(1) EC, in the absence of objective justification.

Verstrekkingenbesluit ziekenfondsverzekering (Sickness Funds Decree on Entitlements article 3(1), “Huisartsenzorg te verlenen door een huisarts omvat genees- en heelkundige zorg naar de omvang bepaald door hetgeen in de kring der beroepsgenoten gebruikelijk is, … (GP care includes medical care as determined by what is normal in the professional circles concerned),” and mutatis mtuandis article 12(1)(a), and 13(1):

This means, for instance, to include evidence from clinical randomized controlled trails (stage III studies), see, Health Care Insurance Board (CVZ) February 22, 2005 (RZA 2005): 37; District Court Utrecht, December 8, 2004 (RZA 2005): 58.

Smits/Peerbooms , supra note 31, para. 103.

Here, the Central Appeals Tribunal refers to standards, so-called “Treek-normen,” defining the maximum acceptable waiting time for a specific medical intervention. The underlying idea is that hospitals, for planning and efficiency reasons, need a certain waiting time, CRvB June 18, 2004, para. 92. Also, CRvB June 18, 2004, USZ 2004/277, 11 month waiting time for a hip replacement is not considered as “timely.”

CRvB November 5, 2003, USZ 2004/17; CRvB July 20, 2004 identical treatment timely available.

Kohll, supra note 31, para. 41; Müller-Fauré/Van Riet, supra note 31, para. 72.

As a rule, the Health Care Insurance Board (CVZ) decided that hospital care requires at least one day admission in an hospital institution. Letter no 03/35, June 25, 2003.

Also suggested by Advocate General Colomer in his opinion on Smits/Peerbooms, supra note 31, para. 61. The risk of denial of reimbursement is also present in case a non-hospital treatment still requires hospital admission, for instance due to medical complications. In such a case, since prior authorization is absent, the costs of hospital admission and treatment will not be reimbursed.

Inizan v. Caisse Primaire d'Assurance Maladie des Hauts-de-Seine C-56/01(2003) E.C.R. I-12403 at para. 55.

Maastricht District Court, September 26, 2003, AL3183, the Netherlands.

See also Davies G. , “Health and Efficiency: Community Law and National Health Systems in the Light of Müller-Fauré,” Modern Law Review 67, no. 1 (2004): 103.

A similar interpretation – mutatis mutandis – was used by the Court in the Vanbraekel case, supra note 47, when ruling that the level of reimbursement for foreign hospital services should have been the same had the same services been received in the home country.

Operation Market Garden was aimed at crossing the bridge of Arnhem, near the German borders, in order to march on to Berlin. Unfortunately, British paratroops were dropped behind enemy lines, whereas allied forces could not release them since the German army occupied the bridge over the river Rhine. This historic battle inspired Hollywood filmmakers to shoot a film titled “A Bridge too Far.”

The “Zorgverzekeringswet” (Zvw) was approved by Parliament on June 14, 2005 and will come into force on January 1, 2006; (Official Journal of the State 2005): 358.

An English summary of the new Health Insurance Act is available at <http://www.minvws.nl/images/The%20new%20healh%20insurance%20system%20in%20brief_tcm11–56142.pdf> (last visited October 20, 2005).

E.g., den Exter A. P. , “De Europese kwetsbaarheid van de Zorgverzekeringswet (EU legal implications of the new Health Insurance Act),” NJB, Dutch Law Journal 2 (2005): 87–93; see also, den Exter A. P. , ed., Competitive Social Health Insurance; Yearbook 2004 (Rotterdam: Erasmus University Press, 2005).

TK 2003–2004, 29483, no. 5, p. 4 (“De no-claim teruggaafregeling,” the No-claim refund).

Since treaty law also excludes medical care in case of occupational injuries. See in this respect: Resolutions from the Council of Ministers of the Council of Europe, in which cost-sharing measures were considered incompatible with the European Code (Part IV), the European equivalent of ILO Convention 102. There it was stipulated that “[…] the Code makes no provisions for cost-sharing by insured in the cost of medical care in case of occupational injury […].” Resolution CSS(86)10, February 17, 1986; resolution CSS (87) 10, March 12, 1987, and resolution CSS (90) 11, February 21, 1990.

Irrespective the suggested “healthcare allowance,” since only a limited number of insured will profit this allowance, an income-related contribution to the cost of the nominal insurance premium that will be introduced with the “Zorgverzekeringswet” simultaneously.

See also, Wetters-Bronsgeest M. W. , “Eigen bijdragen aan een zijden draadje?” (“Own payments by a threat, in Dutch”), Rechtspraak Zorgverzekering , RZA (2004): 979–980. The European Code corresponds to ILO Convention 102, but foresees in (maximized) co-payments but avoiding hardship.

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment no. 3, at 9. The nature of State parties obligations, Art. 2(1) UN Doc. E/1991/23 Fifth session, 1990.

General Comment no. 14. The right to the highest attainable standard of health (Art. 12, par. 1), UN Doc. E/C12/2000/4 (Twenty second session, 2000): At 32.

Under the new regime, the insured will pay a nominal insurance premium to their health insurer. To keep the health insurance system financially affordable for all, a “healthcare allowance” will be introduced. But that allowance will not compensate premium cost entirely.

Concluding Observations Iraq UN Doc. E/1998/22, at 253, in which the UN Committee concluded that economic sanctions imposed by the UN on Iraq do not justify retrogressive measures towards Iraq's treaty obligation to guarantee food and pharmaceuticals. Although the standstill clause is not absolute, see: Sepúlveda Carmona M. M. , The Obligations of the State under the International Covenant on Economic, Social and Cultural Rights, (Utrect: Utrecht University [diss.], 2002): 348–349.