WRITTEN QUESTION E-2338/99 by Ioannis Marínos (PPE-DE) to the Commission. Free movement of capital in the health sector.
Date: 1999-12-13
Institutions: European Parliament, Provisional data
Subjects: health service

C 303 E/50

Official Journal of the European Communities

EN

24.10.2000

(2000/C 303 E/044)

WRITTEN QUESTION E-2338/99

by Ioannis Mar(cid:237)nos (PPE-DE) to the Commission

(13 December 1999)

Subject: Free movement of capital in the health sector

With the advent of the new century, the provision of health services has assumed great importance in its
own right. While no common health policy yet exists within the EU, I am confident that, despite all
difficulties, this will be achieved at some stage.

Can the Commission say:

(cid:129) Can any form of restriction be imposed on the free movement of capital in the EU health services
is it possible for Member States to impose
sector? Within the framework of health programmes,
quantitative restrictions or encourage preferential arrangements for the equipping of hospitals or the
possibility for any EU Member State national to work in the health services sector?

(cid:129) Do arrangements for the free movement of capital and persons include non-governmental, non profit-
making organisations, for example religious bodies? Is it possible for any religious denomination to set
up one or more clinics in any Member State of its choice?

Answer given by Mr Bolkestein on behalf of the Commission

(2 February 2000)

The Honourable Member(cid:146)s question concerns different internal market freedoms, such as free movement of
capital (Article 56) (ex Article 73B) of the EC Treaty, right of establishment (Article 43) (ex Article 52), free
movement of services (Article 49) (ex Article 59), and free movement of workers (Article 39) (ex Article 48).

As far as health services are concerned, free movement of capital is an EC Treaty freedom which applies
essentially to all types of investments that can be made in companies active in this particular sector
(i.e. direct and portfolio investments in such companies). While some discriminatory measures could
possibly be imposed on the above investments in pursuance of EC Treaty exceptions (like public order,
public security, or public health), their compatibility with Treaty provisions could only be assessed after a
thorough analysis of the measures. Furthermore, non-discriminatory measures could also limit investments
in companies active in the health services sector provided these measures fulfil four basic conditions. They
must be applied in a non-discriminatory manner, they must be justified by imperative requirements in the
general interest, they must be suitable for securing the attainment of the objective that they pursue, and
they must not go beyond what is necessary in order to attain it. Once again, the compatibility of such
measures could only be assessed on the basis of a detailed analysis of the measures involved.

The above provisions and principles equally apply to non-governmental, non-profit-making organisations,
for example religious bodies. As far as religious bodies are concerned, they benefit also from the freedom
of capital movement as enshrined in the EC Treaty, but only insofar as such freedom is not restricted by
national measures which could be justified on grounds of public security, public order, public health, or
more generally (cid:145)general interest(cid:146) considerations as expressed above.

As for the right of establishment and free movement of services, Member States are entitled to retain
restrictions in their national rules, provided that the national measures can be justified by the reasons set
out in Article 46 (ex Article 56) of the EC Treaty (public policy, public security, and public health) or
overriding reasons relating to a public interest, and are not disproportionate to the objective pursued by
the Member State in this context. The right of establishment is conferred upon any profit-making
economic operator established in the Union who wishes to establish in another Member State. Free
provision of services applies both to those economic operators established in a Member State who wish to

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Official Journal of the European Communities

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provide a cross border service without being required to establish, and to the recipients of services (such as
patients receiving health services).

National requirements that hospitals should be non-profit making are compatible with the EC Treaty. The
Court of justice confirmed this principle already enshrined in Article 48 (2) (ex Article 58) of EC Treaty in
the case (cid:145)Sodemare(cid:146) (case C-70/95, judgement of 17.6.1997, ECR I 3395). Other restrictions need to be
examined in the light of the jurisprudence of the Court in the (cid:145)Kohll(cid:146) case (C-158/96,
judgement of
28.4.1998, ECR I 1931) which refers to public health considerations, and more particularly, the need to
maintain a balanced medical and hospital service open to all as well as to a specific overriding public
interest linked to the need to avoid seriously undermining the financial viability of the social security
system concerned. Quantitative restrictions or preferential arrangements must be compatible with these
requirements. In any event, they may not lead, in law or de facto, to discrimination between citizens of the
Union.

As for the possibility for citizens of the Union to exercise economic activities in the health services sector
under Article 39 (ex Article 48) of the EC Treaty, as regards employed activities in hospitals the conditions
for employment are laid down by the Member States. However, domestic rules must comply with
Community law, in particular Council Directives 89/48/EEC (1) and 92/51/EEC (2) on the general system
for the recognition of professional qualifications and Council Directives 77/452/EEC (3), 78/686/EEC (4),
80/154/EEC (5), 85/433/EEC (6) and 93/16/EEC (7) concerning the mutual recognition of diplomas of
respectively nurse responsible for general care, dental practitioner, midwife, pharmacist and doctor.

(1) OJ L 19, 24.1.1989.
(2) OJ L 209, 24.7.1992.
(3) OJ L 176, 15.7.1977.
(4) OJ L 233, 24.8.1978.
(5) OJ L 33, 11.2.1980.
(6) OJ L 253, 24.9.1985.
(7) OJ L 165, 7.7.1993.

(2000/C 303 E/045)

WRITTEN QUESTION E-2349/99

by Roger Helmer (PPE-DE) to the Commission

(13 December 1999)

Subject: EU grant funding

What is the procedure for remunerating the intermediary bodies (private companies contracted to the
European Commission) who administer European grant funds?

On average, what percentage of the funds does such remuneration represent?

Answer given by Mrs Schreyer on behalf of the Commission

(25 February 2000)

Intermediary bodies which provide the Commission with technical or administrative assistance for the
management of Community funds under a private-law contract can be paid in two ways: either by a lump
sum covering all services, where no additional cost can be invoiced to the Commission (with the exception
of costs relating to ad hoc audits required by the Commission), or on a time-rate basis, possibly containing
flat-rate sums, in which case refundable costs may also be charged (travel, cost of equipment, overheads
and audit costs).

Payment for services is calculated on the basis of the specifications annexed to the contract within the
limits of the estimate. An original invoice must be produced for each payment. Costs are reimbursed on
the basis of original supporting documents or certified true copies.