This has been explicitly litigated in the context of COVID vaccine coverage.

“Analysis of the relationship between the two EU legal instruments on cross-border healthcare,” in The relationship between the Regulations on the coordination of social security systems and the Directive on the application of patients’ rights in cross-border healthcare, https://eprints.whiterose.ac.uk/197636/

First, it could be argued that Covid-19 vaccination programmes are not sickness benefits. However, this would run counter the broad definition of sickness benefits in kind. The CJEU held that ‘the concept of social security [is] to be regarded as including the aim of preventing the spread of disease, which cannot be regarded as a mere measure of social assistance.’91 The Heinze judgment discussed above qualifies preventative measures aimed at fighting a contagious disease as sickness benefits. The fact that the Directive expressly excludes vaccination programmes further suggests that, if it was not for the exclusion, they would qualify as healthcare. From the start of the roll-out of the vaccines, it seems that they form part of the benefit basket. It may be assumed that the Covid-19 vaccination programmes are based on ‘legislation’ within the meaning of the Regulations.

Second, it could be argued that Covid-19 vaccination programmes constitute medical assistance, which is excluded from the scope of the Regulations.92 While medical assistance is a nebulous concept, it is to be interpreted narrowly and its connection to the need makes it unlikely to cover vaccination programmes intended for the whole (adult) population, even if the entitlement is staggered on the basis of age and risk profile.

Third, it could be argued that Covid-19 vaccination programmes fall under Article 3(5)(b) Regulation (EC) No 883/2004, which provides that the Regulation does not apply to:

‘benefits in relation to which a Member State assumes the liability for damages to persons and provides for compensation, such as those for victims of war and military action or their consequences; victims of crime, assassination or terrorist acts; victims of damage occasioned by agents of the Member State in the course of their duties; or victims who have suffered a disadvantage for political or religious reasons or for reasons of descent.’

This too seems an uneasy fit, as vaccination programmes neither concern liability for damage nor provide for compensation.93

Fourth, could it be argued that Covid-19 vaccination programmes are not social security, for they are discretionary? It is settled case-law that for a benefit to be considered as social security it must be ‘granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position’.94 That is the case where ‘the grant of a benefit is made with regard to objective criteria which if satisfied, give entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration’.95 While the timing and possibly number of vaccines depend on the risk profile, they are administered without individual and discretionary assessment of personal needs ̶ or at least without more individual assessment than is normal for healthcare. Fifth, while Covid vaccination programmes were not necessarily restricted to ‘insured persons’, given that most vaccines were administered to insured persons, this should not be decisive for their qualification under the Regulations.