Keywords

Summary



Keywords

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 — Conditions — 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))

Summary

1. Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (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, authorisation 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 treatment 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 national authorities 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 difficult for him to carry out a professional 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 condition, cannot amount to a properly justified restriction on freedom to provide 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 linguistic barriers, geographic distance, the cost of staying abroad and lack of information about the kind of care provided there, that the financial balance of the social security system concerned 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