Project Description

Towards a political way out

In Luxembourg, employees, the self-employed and members of their families are, by law, compulsorily insured by the National Health Fund (Caisse nationale de santé – CNS). The law further provides that staff or pensioners of an international organisation subject to a health insurance scheme (such as the JSIS) are not covered by the CNS.

In Luxembourg, there is a general and mandatory convention system. All doctors and dentists are therefore automatically and mandatorily covered by agreements and have to comply with the nomenclature and charging scheme in force. It is on this basis that medical expenses are covered by the CNS.

The CNS has concluded agreements with each group of healthcare providers and with the Federation of Luxembourg Hospitals (FHL), which set out the legal framework for their relations.

A Luxembourg hospital applies to a person insured under a statutory scheme of another EU or EEA Member State and Switzerland the same rates as the ones it applies to CNS insured persons.

Agreement with doctors: terminated

In 2005, the Commission and the EIB concluded an agreement with the Association of Doctors and Dentists (AMMD), in which the signatory doctors committed to apply the scale of fees set out in the national nomenclature increased by 15%, which, at that time, was intended to prevent unlimited overpricing.

In 2018, the Commission terminated this agreement relying upon Directive 2011/24/EC on the application of patients’ rights in cross-border healthcare, whose applicability to JSIS insured persons was not unanimously accepted. The AMMD transmitted the Commission’s letter to its members without taking a position. Results were mixed.

Agreement with hospitals: terminated

However, what weighs much more heavily on our health insurance and on the insured/patients are hospital charges. In 1996, the Commission and the EIB concluded, with the Entente (subsequently renamed ‘Federation’) of Luxembourg Hospitals (FHL) and the Luxembourg State, an Agreement which provided for the establishment of a Technical Committee, which would determine the charging scheme applicable to the persons insured under the JSIS and the EIB Fund. These would be increased by 15%. The principle of generalised third-party payment (direct billing) was adopted for inpatients (which means that, in the event of the patient’s stay in hospital, invoices were sent directly to the JSIS).

However, the Technical Committee met for the first time only in 2018. The rates charged to JSIS affiliates were often exorbitant and inexplicable.

The Wattiau judgment and its aftermath

The applicant in case T-737/17, a pensioner from the EP, challenged the JSIS’ statement showing the portion of costs that remained payable by him in connection with treatment carried out with a particular item of technical equipment. The EU General Court declared the 1996 Convention illegal, as causing indirect discrimination on grounds of nationality.

In order to annul the contested decision, it would have been sufficient to find that the rates applied were illegal because they were fixed ‘on a unilateral basis’, since the Technical Committee provided for by the Agreement had not been established, in order to determine the rates applicable to JSIS-insured persons.

However, the judgment bases the illegality on a different reasoning: it compares the costs borne by the applicant with the costs which would have been incurred by a CNS-insured person, whose “members are not invoiced for any costs in association with the same treatment”.

At issue is the 1996 Agreement, which “establishes a charging system whereby a patient who is a JSIS member must bear both the variable costs and the fixed costs associated with that treatment“, unlike CNS members, who “do not have to pay anything for a session” of treatment.

How Luxembourg hospitals are funded

Taking into account exclusively what a CNS member is “invoiced” is disregarding the fact that all insured employees contribute 2.8% of their gross salary or their gross pension. Through the Global Budget Envelope, they thus jointly fund Luxembourg hospitals, making their operation possible. This envelope includes both fixed costs and variable rates (see chart).

Disregarding this eminently supportive mechanism, by which the bulk of hospital costs is borne by all the scheme’s members rather than by the patient, calls this system into question. To be made “comparable” to the JSIS, the Luxembourg regime would have to give up a mechanism that makes it exemplary.

The legal basis of the JSIS, as opposed to that of statutory national systems, as well as a presentation of the Luxembourg health insurance system, are set out in

The JSIS, a system of reimbursement of expenses, was not designed in the same way as the CNS. Nor can it be shaped on the Luxembourg model without amending the Staff Regulations, which is a high-risk operation.

Deregulation is not on the side of social progress

Following the termination of the 1996 Agreement with hospitals, we found ourselves in a legal vacuum. Since 1.1.2020, no agreement has been in force. And, as we all know, deregulation does not favour the weaker party to a contract.

First measure announced: since hospitals are now non-contracted, the principle of generalised third-party payment (or automatic direct billing) for JSIS-insured persons admitted as inpatients has been abolished. To get direct billing, members must ask the Luxembourg hospital for an estimate (a quote), in order to enable the JSIS to analyse the file. If in doubt, they are advised not to sign it!

In this way, the JSIS weakens the position of its members at a time when they need peace of mind and legal certainty the most.

Whatever the Commission’s unilateral declarations are worth and in the absence of a binding and indisputable legal framework, the prevailing legal uncertainty lets each party draw their own conclusions. Prices applied are sometimes much higher, sometimes much lower.

The solution will be political

The confrontation of economic interests (pursuit of profit, on the one hand, efforts to make savings, on the other) under a legal cover leads to a dead end. A solution must be sought at the political level, which will lay the foundations for an agreement, and then go down to the technical level, which will specify the modalities.

The agreement concluded by the Commission,  CZ Zorgpass in the Netherlands for JSIS affiliates (Vox 119), should serve as an example to be followed for Luxembourg.

On this basis, the CNS would provide JSIS members with a “social security” card valid in Luxembourg, which would open access to healthcare at the prices that the CNS has negotiated with healthcare providers. All charges would be paid by the CNS and invoiced to JSIS, which would then recover the member’s share in accordance with its own rules (e.g., 15% or 20%).

In this way, JSIS members in Luxembourg would benefit from the same ‘rates’ (which does not mean the same ‘invoices’) as persons insured by the CNS. The savings made for our scheme through lower rates would offset any additional administrative costs incurred for the CNS.

The political interlocutors of the European institutions will have to take into account not only the vested interests of the economic operators involved, and in particular the hospitals, but also the attractiveness of the Luxembourg site for the European institutions, which is suffering in particular from the spiralling rise in housing prices.

At the technical level, it will be up to us to establish active links with the Luxembourg trade unions, which account for a third of the votes on the CNS Steering Committee.

No social progress is to be taken for granted. Everything will depend on your correct information and your involvement.

Vassilis Sklias

EPSU-CJ Secretary General.

Articles suivants

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05 May 2022|0 Comments

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