Opinion of the Advocate General — ECLI:EU:C:2002:602
Date: 2002-10-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

SUMMARY — CASE C-385/99 
S u m m a r y of the J u d g m e n t 
1. Freedom to provide services — Restrictions — National rules on reimbursement of 
medical costs incurred in another Member State — Treatment provided in a 
hospital — Requirement of prior authorisation from the insurance fund in the 
Member State in which the person concerned is insured — Grant subject to 
requirements that the treatment must be necessary — Whether permissible — Con­
ditions — Possibility of obtaining equally effective treatment without undue delay — 
Criteria for assessment 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 EC)) 
2. Freedom to provide services — Restrictions — National rules on reimbursement of 
medical costs incurred in another Member State — Non-hospital treatment — 
Requirement of prior authorisation from the insurance fund in the Member State in 
which the person concerned is insured — Not permissible — Whether justifiable — 
Threat to the financial balance of the social security system, the protection of public 
health and the essential characteristics of the national sickness insurance scheme ·— 
None 
(EC Treaty Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 EC)) 
1. Article 59 of the Treaty (now, after 
a m e n d m e n t , Art icle 49 EC) and 
Ar t i c l e 60 of the T r e a t y (now 
Article 50 EC) must be interpreted as 
not precluding legislation of a Member 
State, which (i) makes the assumption 
of the costs of hospital care provided in 
a Member State other than that in 
which the insured person's sickness 
fund is established, by a provider with 
which that fund has not concluded an 
agreement, conditional upon prior 
authorisation by the fund and (ii) 
makes the grant of that authorisation 
subject to the condition that such 
action is necessary for the insured 
person's health care. However, auth­
orisation may be refused on that 
ground only if treatment which is the 
same or equally effective for the patient 
can be obtained without undue delay in 
an establishment which has concluded 
an agreement with the fund. 
In order to determine whether treat­
ment which is equally effective for the 
patient can be obtained without undue 
delay in an establishment having an 
agreement with the insured person's 
fund, the nat ional authorit ies are 
required to have regard to all the 
circumstances of each specific case 
and to take due account not only of 
the patient's medical condition at the 
time when authorisation is sought and, 
where appropriate, of the degree of 
pain or the nature of the patient's 
disability which might, for example, 
make it impossible or extremely dif-
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MULLER-FAURÉ. AND VAN RIFT 
ficult for him to carry out a profes­
sional activity, but also of his medical 
history. 
However, a refusal to grant prior 
authorisation which is based not on 
fear of wastage resulting from hospital 
overcapacity but solely on the ground 
that there are waiting lists on national 
territory for the hospital treatment 
concerned, without account being 
taken of the specific circumstances 
attaching to the patient's medical con­
dition, cannot amount to a properly 
justified restriction on freedom to pro­
vide services. 
(see paras 90, 92, 109, operative part) 
2. Article 59 of the Treaty (now, after 
amendment, Article 49 EC) and 
Article 60 of the Treaty (now 
Article 50 EC) preclude legislation of 
a Member State which makes the 
assumption of the costs of non-hospital 
care provided in another Member State 
by a person or establishment with 
whom or which the insured person's 
sickness fund has not concluded an 
agreement conditional upon prior 
authorisation by the fund, even when 
the national legislation concerned sets 
up a system of benefits in kind under 
which insured persons are entitled not 
to reimbursement of costs incurred for 
medical treatment, but to the treatment 
itself which is provided free of charge. 
Such a restriction on the fundamental 
freedom to provide services is not 
justified where (i) removal of the 
requirement for prior authorisation 
for that type of care does not give rise 
to patients travelling to other countries 
in such large numbers, despite lin­
guistic barriers, geographic distance, 
the cost of staying abroad and lack of 
information about the kind of care 
provided there, that the financial bal­
ance of the social security system con­
cerned would be seriously upset and 
that, as a result, the overall level of 
public-health protection would be 
jeopardised and (ii) removal of the 
requirement for prior authorisation is 
not liable to undermine the essential 
characteristics of the sickness insurance 
scheme concerned, which guarantees 
benefits in kind. 
(see paras 95, 108-109, operative part) 
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