Opinion of the Advocate General — ECLI:EU:C:2005:784
Date: 2005-12-15
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public health;Freedom to provide services;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Social security for migrant workers – Health insurance – Services in kind supplied in another Member State – Second subparagraph of Article 22(2) of Regulation No 1408/71 (Council Regulation No 1408/71, Art. 22(2) second subpara.) 2. Freedom to provide services – Services – Meaning (Art. 49 EC) 3. Freedom to provide services – Restrictions (Art. 49 EC) 4. Freedom to provide services – Restrictions (Art. 49 EC) 5. Social security for migrant workers – Health insurance – Services in kind supplied in another Member State – Article 22(1)(c)(i) of Regulation No 1408/71 (Council Regulation No 1408/71, Art. 22(1)(c)(i)) 6. Freedom to provide services – Restrictions (Art. 49 EC) 7. Freedom to provide services – Social security for migrant workers – Health insurance – Services in kind supplied in another Member State – Article 22 of Regulation No 1408/71 (Arts 49 EC and 152(5) EC; Council Regulation No 1408/71, Art. 22) 1. The second subparagraph of Article 22(2) of Regulation 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 amended and updated by Regulation No 118/97, must be interpreted as meaning that, in order to be entitled to refuse to grant the authorisation to go to the territory of another Member State to receive treatment referred to in Article 22(1)(c)(i) of that regulation on the ground that there is a waiting time for hospital treatment in the Member State of residence, the competent institution is required to establish that that time does not exceed the period which is acceptable on the basis of an objective medical assessment of the clinical needs of the person concerned in the light of all of the factors characterising his medical condition at the time when the request for authorisation is made or renewed, as the case may be. (see paras 63, 79, operative part 1) 2. Article 49 EC applies where a person whose state of health necessitates hospital treatment goes to another Member State and there receives such treatment for consideration, there being no need to determine whether the provision of hospital treatment within the national health service with which that person is registered is in itself a service within the meaning of the Treaty provisions on the freedom to provide services. The fact that reimbursement of the hospital treatment in question is subsequently sought from a national health service does not mean that the rules on the freedom to provide services guaranteed by the Treaty do not apply. It has already been held that a supply of medical services does not cease to be a supply of services within the meaning of Article 49 EC on the ground that the patient, after paying the foreign supplier for the treatment received, subsequently seeks the reimbursement of that treatment from a national health service. (see paras 89, 123, operative part 2) 3. Article 49 EC must be interpreted as meaning that it does not preclude reimbursement of the cost of hospital treatment to be provided in another Member State from being made subject to the grant of prior authorisation by the competent institution. A refusal to grant prior authorisation cannot be based merely on the existence of waiting lists intended to enable the supply of hospital care to be planned and managed on the basis of predetermined general clinical priorities, without carrying out an objective medical assessment of the patient’s medical condition, the history and probable course of his illness, the degree of pain he is in and/or the nature of his disability at the time when the request for authorisation was made or renewed. Where the delay arising from such waiting lists appears to exceed an acceptable time having regard to an objective medical assessment of the abovementioned circumstances, the competent institution may not refuse the authorisation sought on the grounds of the existence of those waiting lists, an alleged distortion of the normal order of priorities linked to the relative urgency of the cases to be treated, the fact that the hospital treatment provided under the national system in question is free of charge, the obligation to make available specific funds to reimburse the cost of treatment to be provided in another Member State and/or a comparison between the cost of that treatment and that of equivalent treatment in the competent Member State. (see paras 113, 119-120, 123, operative part 2) 4. Article 49 EC must be interpreted as meaning that where the legislation of the competent Member State provides that hospital treatment provided under the national health service is to be free of charge, and where the legislation of the Member State in which a patient registered with that service was or should have been authorised to receive hospital treatment at the expense of that service does not provide for the reimbursement in full of the cost of that treatment, the competent institution must reimburse that patient the difference (if any) between the cost, objectively quantified, of equivalent treatment in a hospital covered by the service in question limited, if necessary, to the total amount invoiced for the treatment provided in the host Member State and the amount which the institution of the latter Member State is required to reimburse under Article 22(1)(c)(i) of Regulation 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 amended and updated by Regulation No 118/97, on behalf of the competent institution pursuant to the legislation of that Member State. (see para. 143, operative part 3) 5. Article 22(1)(c)(i) of Regulation 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 amended and updated by Regulation No 118/97, must be interpreted as meaning that the right which it confers on the patient authorised by the competent institution to go to another Member State and there receive treatment appropriate to his state of health relates exclusively to the expenditure connected with the healthcare received by that patient in the host Member State, namely, in the case of hospital treatment, the cost of medical services strictly defined and the inextricably linked costs relating to his stay in the hospital. The purpose of that provision is not to settle the question of ancillary costs, such as the cost of travel and any accommodation other than in the hospital itself. (see paras 138, 143, operative part 3) 6. Article 49 EC must be interpreted as meaning that a patient who was authorised to go to another Member State to receive there hospital treatment or who received a refusal to authorise subsequently held to be unfounded is entitled to seek from the competent institution reimbursement of the ancillary costs associated with that cross-border movement for medical purposes provided that the legislation of the competent Member State imposes a corresponding obligation on the national system to reimburse in respect of treatment provided in a local hospital covered by that system. (see para. 143, operative part 3) 7. The obligation of the competent institution under both Article 22 of Regulation 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 amended and updated by Regulation No 118/97, and Article 49 EC to authorise a patient registered with a national health service to obtain, at that institution’s expense, hospital treatment in another Member State where the waiting time exceeds an acceptable period having regard to an objective medical assessment of the condition and clinical requirements of the patient concerned does not contravene Article 152(5) EC, according to which Community action in the field of public health is to respect fully the responsibilities of the Member States for the organisation and delivery of health services and medical care. Article 152(5) EC does not exclude the possibility that the Member States may be required under other Treaty provisions, such as Article 49 EC, or Community measures adopted on the basis of other Treaty provisions, such as Article 22 of Regulation No 1408/71, to make adjustments to their national systems of social security. It does not follow that this undermines their sovereign powers in the field. Furthermore, the requirements arising from Article 49 EC and Article 22 of Regulation No 1408/71 are not to be interpreted as imposing on the Member States an obligation to reimburse the cost of hospital treatment in other Member States without reference to any budgetary consideration but, on the contrary, are based on the need to balance the objective of the free movement of patients against overriding national objectives relating to management of the available hospital capacity, control of health expenditure and financial balance of social security systems. (see paras 145-148, operative part 4)