Euro Brief
1 - 15 March 2005. No: 5/2005
- Cercas report signals deal on opt-out and compensatory rest - go to section
- Patients entitled to reimbursement even if sent to a non-EU state - go to section
- Treating pregnancy sick leave as regular illness contravenes directive on equal treatment of working conditions - Advocate General - go to section
- New EU centre for infection prevention sets sights on non-communicable diseases - go to section
- Barroso orders re-write of the services directive - go to section
Alejandro Cercas MEP has issued his draft report on the Commission's proposals to amend the European Working Time Directive.
In September last year, the European Commission released its draft directive which proposed to keep the controversial individual opt-out, used extensively in the UK; let Governments extend the reference periods (used to measure average weekly working hours) to up to 12 months; and change the definition of working time so that the inactive part of on-call time is not considered "working time".
The Cercas Report fully opposes Commission plans to keep the opt-out. Instead, he wants to phase-out the opt-out "within a reasonable transition period".
Cercas says that if the opt-out remained, "we would not be making the regulations more flexible. but doing away with them completely, which is unacceptable."
Cercas also disapproves of the proposals for annualisation of reference periods. At present the standard reference period is 4 months (Article 16(b)) to which exceptions can be made (Arts 17 and 19) whereby a period can be extended to 6 or even 12 months by collective agreement. However, Cercas says that annualisation might be acceptable under conditions guaranteeing health and safety.
This confirms information gained by the BMA during behind-the-scenes negotiations between Socialist MEP and Centre-Right EPP-ED MEPs regarding the trade-off that would be most acceptable to the Parliament as a whole. Socialists would be able to dump the opt-out as long as the Centre- Right can guarantee more flexibility with increased reference periods.
Cercas recognises that considering the inactive part of on on-call duty as working time creates serious financial problems in the health sector but does not concur with the Commission's proposed solution to over-turn the rulings of the European Court of Justice (Jaeger and SIMAP). He says, "We cannot lightly...legislate against the case law of the Court of Justice, which has repeatedly and supremely well argued that on-call duty is working time". He points to the dearth of health professionals in Europe as being the most serious issue.
He wants to keep the current SIMAP/Jaeger definitions but allow the inactive part of on-call time to be valued in a different way when calculating the maximum working week.
His amendment to Article 17 is in line with the Jaeger judgement on compensatory rest, also. He wants compensatory rest to be awarded immediately after the periods of work concerned - unless there is a collective agreement stating otherwise.
His report has been tabled for discussion by the European Parliament's Employment and Social Affairs Committee on the 15th March. A deadline will be set for amendments at the meeting and the Committee is expected to vote in mid-April, paving the way for a first reading vote by full plenary in May. Cercas is known to be eager for an early vote.
Patients entitled to reimbursement even if sent to a non-EU state
An Advocate General at the European Court of Justice has found that health authorities are compelled to cover costs incurred by an individual incurred in a non-EU State - even though the patient was sent to the non-EU State by an EU country where the patient was visiting (and not by his/her own member state).
The non-binding Opinion was given in the case of a German who was living in Spain but fell ill while visiting Germany and German doctors had sent her to Switzerland to remove a brain tumour (Keller v Institutio National de la Salud C-145/03)
The Spanish health authorities (the Insalud) have a similar model of medical insurance as the UK and many retired Brits and Germans are covered by it which means they can expect treatment in Spain for free and without an E1-11 or special permission from the UK/Germany.
However, many ex-pat pensioners feel that access to the NHS/German health system should be just as easy.
This may have been the case for Mrs Keller. With an E1-11 form while in Germany, when she fell ill, the German doctor would simply send the form to the Insulad in Spain for reimbursement.
However, even if she did have an E1-11 form, it would not cover planned treatment (she would need to apply for an E1-12). The problem arose because the German doctor sent her to Switzerland for emergency treatment. The Insulad complained that she should have sought permission first.
The Attorney General has said that the rules under Regulation 1408/71 which co-ordinates social security schemes by use of E1-11s, E1-12s and the new EU Health Insurance Card, means that the principle of equal treatment applies. If the individual is covered for that treatment at home and it is available at home, then they should be reimbursed if it was done abroad. The unique point about this case is that this principle applies where a referral has been made by member state (which is not the patient's "own") for treatment in a non-EU state. The ECJ ruling will be out later this year.
Treating pregnancy sick leave as regular illness contravenes directive on equal treatment of working conditions - Advocate General
An Advocate General at the European Court of Justice has found that absence from work because of pregnancy-related illness should be treated differently than regular illness.
The non-binding opinion was given in the case of a pregnant worker in Ireland, who, on medical advice, took sick leave for virtually the entire term of her pregnancy.
Her employer treated her pregnancy -related illness in the same way as any other illness and deducted the sick days from her total entitlement. (North-Western Health Board v Margaret McKenna (C191/03)). Mrs McKenna argued this contravened Directive 76/207 on equal treatment of working conditions as only women could suffer pregnancy-related illness. National authorities should take measures to end this form of discrimination. The Court will rule later this year
New EU centre for infection prevention sets sights on non-communicable diseases
The new European Centre for Disease Prevention and Control has ambitions to take on responsibilities for mental health and the health effects of tobacco and obesity.
The Centre, which is gearing up for a threatened influenza epidemic and bracing itself for European cases of bird flu in humans, has just appointed its Director, Zsuszanna Jakob from Hungary.
Many scientists have slammed the Centre for being a lame duck because of a skeleton staff and small initial budget, but Mrs Jakob, who has a background in public health advocacy with the WHO, is keen for it to roll out responsibilities to cover non-communicable diseases in three years time.
The Centre will, for now, focus on infectious diseases, providing a permanent hub for a network of national surveillance systems in order to provide rapid reaction against an outbreak of SARS, bird flu and an influenza epidemic, as well as monitoring HIV/AIDS and responding to chemical bio-terrorism threats
Mrs Jakob will appoint 35 staff this year growing to 130 by 2007.
Barroso orders re-write of the services directive
President of the European Commission, Jose Manuel Barroso told the European Commission that the controversial Services Directive should be re-written.