The free flow of health ICT
Ontwerp van Zorg-adressering
The Dutch Ministry of Health, Welfare and Sport (VWS) recently opened a consultation on the concept Global Technical Design (GTO) of the Generic Function Addressing: a kind of address book for healthcare providers. This is an important step for Dutch healthcare, but if you view this document through a European lens, I do see some tension.
National health law versus EU free flow of services
The Ministry of Health, Welfare and Sport (VWS) seems to argue, based on health law (Article 168, paragraph 7 TFEU & the autonomy of Member States to organize their healthcare systems), that this structure is permissible. The system relies on typically Dutch anchors: the Chamber of Commerce (KvK) and the UZI/DEZI register. However, my legal intuition tells me that we are overlooking broader European market rules here. Doesn’t this technical design erect a wall for foreign ICT suppliers?
Can a Dutch CC registration be mandatory?
If a German software developer (e.g. of an EHR solution) is forced to have a Dutch Chamber of Commerce registration in order to connect their systems to the LRZa, this directly infringes upon Article 56 TFEU (the free movement of services) and the European Services Directive, which prohibits Member States from forcing foreign service providers to register in a local or national register in order to be allowed to provide their digital services. Furthermore, such a closed national approach seems to me to be at odds with the intended beneficial effect of the eIDAS Regulation and the European Health Data Space (EHDS). After all, these exist precisely to break down cross-border digital friction and vendor lock-in at the national level.
Which other Ministry knows more about this?
Are there experts in European law and/or the Services Directive who recognize this tension? Is the Netherlands building a legally untenable digital border here? I would like to brainstorm with someone knowledgeable about the free movement of ICT services to see if my intuition is correct and whether it makes sense to respond to this consultation together. Perhaps someone from the Ministry of Economic Affairs and Climate Policy? I look forward to hearing your thoughts and suggestions for experts.
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