# C_2004273EN.01001502.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/15 |
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6.11.2004

EN

Official Journal of the European Union

C 273/15

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Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health

(Case C-372/04)

(2004/C 273/29)

Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 12 July 2004, which was received at the Court Registry on 27 August 2004 for a preliminary ruling in the case of The Queen on the application of Yvonne Watts and 1) Bedford Primary Care Trust 2) Secretary of State for Health on the following questions:

Question 1

Having regard to the nature of the NHS and its position under national law, is Article 49 EC, read in the light of Geraets Smits, Muller-Faure and Inizan to be interpreted as meaning that in principle persons ordinarily resident in the United Kingdom enjoy an entitlement in EU law to receive hospital treatment in other Member States at the expense of the United Kingdom National Health Service (‘the NHS’).

In particular on the true interpretation of Article 49 EC:

| (a) | Is there any distinction between a State funded national health service such as the NHS and insurance funds such as the Netherlands ZFW scheme, in particular having regard to the fact that the NHS has no fund out of which payment must be made? |
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(a)

Is there any distinction between a State funded national health service such as the NHS and insurance funds such as the Netherlands ZFW scheme, in particular having regard to the fact that the NHS has no fund out of which payment must be made?

| (b) | Is the NHS obliged to authorise and pay for such treatment in another Member State, notwithstanding that it is not obliged to authorise and pay for such treatment to be carried out privately by a United Kingdom service provider? |
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(b)

Is the NHS obliged to authorise and pay for such treatment in another Member State, notwithstanding that it is not obliged to authorise and pay for such treatment to be carried out privately by a United Kingdom service provider?

| (c) | Is it relevant if the patient secures the treatment independently of the relevant NHS body, and without prior authorization or notification? |
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(c)

Is it relevant if the patient secures the treatment independently of the relevant NHS body, and without prior authorization or notification?

Question 2

In answering Question 1, is it material whether hospital treatment provided by the NHS is itself the provision of services within Article 49 EC?

If so, and in the circumstances set out in the Statement of Facts, are Articles 48, 49 and 50 EC to be interpreted as meaning that in principle;

| (1) | the provision of hospital treatment by NHS bodies constitutes the provision of services within Article 49 EC; |
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(1)

the provision of hospital treatment by NHS bodies constitutes the provision of services within Article 49 EC;

| (2) | a patient receiving hospital treatment under the NHS as such exercises a freedom to receive services within Article 49 EC; and |
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(2)

a patient receiving hospital treatment under the NHS as such exercises a freedom to receive services within Article 49 EC; and

| (3) | NHS bodies providing hospital treatment are services providers within Articles 48 and 50 EC? |
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(3)

NHS bodies providing hospital treatment are services providers within Articles 48 and 50 EC?

Question 3

If Article 49 EC applies to the NHS, may it or the Secretary of State rely as objective justification for refusing prior authorisation for hospital treatment in another Member State on:

| (a) | the fact that authorisation would seriously undermine the NHS system of administering medical priorities through waiting lists; |
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(a)

the fact that authorisation would seriously undermine the NHS system of administering medical priorities through waiting lists;

| (b) | the fact that authorisation would permit patients with less urgent medical needs to gain priority over patients with more urgent medical needs; |
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(b)

the fact that authorisation would permit patients with less urgent medical needs to gain priority over patients with more urgent medical needs;

| (c) | the fact that authorisation would have the effect of diverting resources to pay for less urgent treatment for those who are willing to travel abroad thus adversely affecting others who do not wish or are not able to travel abroad or increasing costs of NHS bodies; |
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(c)

the fact that authorisation would have the effect of diverting resources to pay for less urgent treatment for those who are willing to travel abroad thus adversely affecting others who do not wish or are not able to travel abroad or increasing costs of NHS bodies;

| (d) | the fact that authorisation may require the United Kingdom to provide additional funding for the NHS budget or to restrict the range of treatments available under the NHS; |
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(d)

the fact that authorisation may require the United Kingdom to provide additional funding for the NHS budget or to restrict the range of treatments available under the NHS;

| (e) | the comparative costs of the treatment and the incidental costs thereof in the other Member State? |
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(e)

the comparative costs of the treatment and the incidental costs thereof in the other Member State?

Question 4

In determining whether treatment is available without undue delay for the purposes of Article 49 EC, to what extent is it necessary or permissible to have regard in particular to the following:

| (a) | waiting times; |
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(a)

waiting times;

| (b) | the clinical priority accorded to the treatment by the relevant NHS body; |
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(b)

the clinical priority accorded to the treatment by the relevant NHS body;

| (c) | the management of the provision of hospital care in accordance with priorities aimed at giving best effect to finite resources; |
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(c)

the management of the provision of hospital care in accordance with priorities aimed at giving best effect to finite resources;

| (d) | the fact that treatment under the NHS is provided free at the point of delivery; |
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(d)

the fact that treatment under the NHS is provided free at the point of delivery;

| (e) | the individual medical condition of the patient, and the history and probable course of the disease in respect of which that patient seeks treatment? |
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(e)

the individual medical condition of the patient, and the history and probable course of the disease in respect of which that patient seeks treatment?

Question 5

On the proper interpretation of Article 22(1)(c) of Regulation 1408/71 (1) and in particular the words ‘within the time normally necessary for obtaining the treatment in question’:

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| (a) | Are the applicable criteria identical with those applicable in determining questions of undue delay for the purposes of Article 49 EC? |
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(a)

Are the applicable criteria identical with those applicable in determining questions of undue delay for the purposes of Article 49 EC?

| (b) | If not, to what extent is it necessary or permissible to have regard to the matters set out in question 4? |
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(b)

If not, to what extent is it necessary or permissible to have regard to the matters set out in question 4?

Question 6

In circumstances where a Member State is obliged in EU law to fund the hospital treatment in other Member States of persons ordinarily resident in the first Member State, is the cost of such treatment to be calculated under Article 22 of Regulation 1408/71 by reference to the legislation of the Member State where the treatment is provided or under Article 49 EC by reference to the legislation of the Member State of residence?

In each case:

| (a) | What is the precise extent of the obligation to pay or reimburse the cost, in particular where, as in the case of the United Kingdom, hospital treatment is provided to patients free at the point of delivery and there is no nationally set tariff for reimbursement of patients for the cost of treatment? |
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(a)

What is the precise extent of the obligation to pay or reimburse the cost, in particular where, as in the case of the United Kingdom, hospital treatment is provided to patients free at the point of delivery and there is no nationally set tariff for reimbursement of patients for the cost of treatment?

| (b) | Is the obligation limited to the actual cost of providing the same or equivalent treatment in the first Member State? |
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(b)

Is the obligation limited to the actual cost of providing the same or equivalent treatment in the first Member State?

| (c) | Does it include an obligation to meet travel and accommodation costs? |
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(c)

Does it include an obligation to meet travel and accommodation costs?

Question 7

Are Article 49 EC and Article 22 of Regulation 1408/71 to be interpreted as imposing an obligation on Member States to fund hospital treatment in other Member States without reference to budgetary constraints and, if so, are these requirements compatible with the Member States' responsibility for the organisation and delivery of health services and medical care, as recognised under Article 152(5) EC?

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(1)  Regulation (EEC) No 1408/71 of the Council, of 14 June 1971, on the application of social security schemes to employed persons and their families moving within the Community.

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