Patient Mobility Beyond Calais: Health Services Under WTO Law

HEALTH CARE AND EU LAW, J. van de Gronden, et al., eds., TMC Asser Press/Springer, 2011

21 Pages Posted: 19 Feb 2011

See all articles by Markus Krajewski

Markus Krajewski

University of Erlangen-Nuremberg-Friedrich Alexander Universität Erlangen Nürnberg - Law School

Date Written: June 30, 2010

Abstract

The paper analyses the impact of WTO law on transnational patient mobility by transplanting the Watts case of the European Court of Justice into WTO law. The first part of the paper concerns the question whether medical or hospital treatment abroad concerns “trade in (health) services” in the meaning of the GATS. This part identifies the legal construction of this notion through the four modes of supply and also gives a short factual account of the scope and structure of trade in health services on a global level. The next part will ask more directly which measures fall into the scope of the GATS. In particular, it has to be determined whether the exclusion of services supplied in the exercise of governmental authority from the GATS influences the application of the agreement to health and medical services. Having determined under which circumstances the GATS applies to measures affecting the cross-border supply of health services, the subsequent part of the chapter discusses the substantive obligations of the GATS. After a short overview of the main principles of the GATS, the chapter will provide an in depth inquiry into the specific commitments in health services of the EU and other WTO Members, because only the exact analysis of the limitations and qualifications of these schedules allows us to clearly determine the impact of the GATS on the cross-border to provision of health services. In addition, the potential of the general exception clause of the GATS to justify regulations of health systems which violate GATS obligations needs to be ascertained. Lastly, the legal status of GATS in the EU legal order, in particular the contentious issue of direct effect, needs to be assessed, because only if the GATS is directly applicable would a patient who received medical treatment abroad be able to rely on the agreement to claim reimbursement of the costs of said treatment.

Keywords: WTO, GATS, Trade in Services, Patient Mobility, Healthcare, Health Services

Suggested Citation

Krajewski, Markus, Patient Mobility Beyond Calais: Health Services Under WTO Law (June 30, 2010). HEALTH CARE AND EU LAW, J. van de Gronden, et al., eds., TMC Asser Press/Springer, 2011, Available at SSRN: https://ssrn.com/abstract=1763416

Markus Krajewski (Contact Author)

University of Erlangen-Nuremberg-Friedrich Alexander Universität Erlangen Nürnberg - Law School ( email )

91054, Erlangen
Germany

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