# C_2009124EN.01001701.xml

| 4.6.2009 | EN | Official Journal of the European Union | C 124/17 |
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4.6.2009

EN

Official Journal of the European Union

C 124/17

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

of 19 December 2008

in Joined Cases E-11/07 and E-1/08 Olga Rindal (Case E-11/07); Therese Slinning, represented by legal guardian Olav Slinning (Case E-1/08) and The Norwegian State, represented by the Board of Exemptions and Appeals for Treatment Abroad

(Social security — Freedom to provide services — National health insurance systems — Hospital treatment costs incurred in another EEA State — Experimental and test treatment)

(Social security — Freedom to provide services — National health insurance systems — Hospital treatment costs incurred in another EEA State — Experimental and test treatment)

2009/C 124/07

In Joined Cases E-11/07 and E-1/08, between Olga Rindal (Case E-11/07), and Therese Slinning (Case E-1/08) and the Norwegian State, represented by the Board of Exemptions and Appeals for Treatment Abroad – REQUEST to the Court by Borgarting lagmannsrett (Borgarting Court of Appeal) and Oslo tingrett (Oslo District Court), concerning the interpretation of the rules on the free movement of services in the European Economic Area, in particular the interpretation of Articles 36 and 37 of the EEA Agreement, and of Article 22 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as adapted to the EEA Agreement by Protocol 1 thereto, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Henrik Bull and Thorgeir Örlygsson, Judges, gave judgment on 19 December 2008, the operative part of which is as follows:

| 1. | It may be compatible with Articles 36 and 37 of the EEA Agreement to refuse coverage of expenses for treatment abroad which according to international medicine must be considered experimental or test treatment when there is no entitlement to such treatment in the home State. Firstly, that will be the case if the system for reimbursement of costs for treatment abroad does not place a heavier burden on those who receive treatment abroad than on those who receive treatment in hospitals forming part of the social security system of the home State. Secondly, it will be the case if any such heavier burden only results from necessary and reasonable means being employed to attain aims which may legitimately justify restrictions on the free movement of hospital services. |
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1.

It may be compatible with Articles 36 and 37 of the EEA Agreement to refuse coverage of expenses for treatment abroad which according to international medicine must be considered experimental or test treatment when there is no entitlement to such treatment in the home State. Firstly, that will be the case if the system for reimbursement of costs for treatment abroad does not place a heavier burden on those who receive treatment abroad than on those who receive treatment in hospitals forming part of the social security system of the home State. Secondly, it will be the case if any such heavier burden only results from necessary and reasonable means being employed to attain aims which may legitimately justify restrictions on the free movement of hospital services.

| 2. | It is without significance that the method of treatment itself is internationally recognised and documented for other medical indications than those which the patient in question has.
  It is without significance for the answer to the first question that the method of treatment in question must be considered to be implemented in a home State which only provides it in the form of research projects or, exceptionally, on a case by case basis. Nor does it matter that the home State is considering its implementation in the future. |
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2.

It is without significance that the method of treatment itself is internationally recognised and documented for other medical indications than those which the patient in question has.

It is without significance for the answer to the first question that the method of treatment in question must be considered to be implemented in a home State which only provides it in the form of research projects or, exceptionally, on a case by case basis. Nor does it matter that the home State is considering its implementation in the future.

| 3. | It may be compatible with Articles 36 and 37 EEA to refuse coverage of expenses for hospital treatment abroad if the patient in the home State can receive an offer of adequate medical treatment assessed according to accepted international methods within a justifiable time limit.
  It is without significance for the answer to the third question that the patient, having decided to receive treatment abroad rather than an adequate treatment in the home State, does not get coverage for the costs of treatment abroad to the same extent as the adequate treatment offered in the home State would have cost. |
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3.

It may be compatible with Articles 36 and 37 EEA to refuse coverage of expenses for hospital treatment abroad if the patient in the home State can receive an offer of adequate medical treatment assessed according to accepted international methods within a justifiable time limit.

It is without significance for the answer to the third question that the patient, having decided to receive treatment abroad rather than an adequate treatment in the home State, does not get coverage for the costs of treatment abroad to the same extent as the adequate treatment offered in the home State would have cost.

| 4. | It is without significance for the answers to the first question and to the third question, first paragraph, that






  — | the home State as a matter of fact does not offer the treatment received abroad; |
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4.

It is without significance for the answers to the first question and to the third question, first paragraph, that

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the home State as a matter of fact does not offer the treatment received abroad;

| — | the patient as a matter of fact has not been offered the treatment in question in the home State, because the patient was never assessed for that treatment, even if the treatment is offered there; |
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the patient as a matter of fact has not been offered the treatment in question in the home State, because the patient was never assessed for that treatment, even if the treatment is offered there;

| — | the patient has been assessed in the home State, but has not been given the offer of further surgical treatment because the patient is not considered to get documented benefit from the treatment; |
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the patient has been assessed in the home State, but has not been given the offer of further surgical treatment because the patient is not considered to get documented benefit from the treatment;

| — | the treatment given abroad actually resulted in an improvement of the specific patient’s state of health. |
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the treatment given abroad actually resulted in an improvement of the specific patient’s state of health.

However, it may be of significance to the third question, first paragraph, that the patient in question, within a medically justifiable time limit, as a matter of fact has not been offered an adequate treatment in the home State. This is so when the home State refuses to cover treatment abroad in a situation where it has not been able, within a medically justifiable time limit, to honour an obligation under its own social security law to provide the treatment to the patient in one of its own hospitals.

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