Keywords

Summary



Keywords

1. Freedom to provide services – Services – Definition – Medical care provided in another Member State and paid for by the patient – Included

(Art. 49 EC)

2. Social security for migrant workers – Sickness insurance – Benefits provided in another Member State

(Council Regulation No 1408/71, Art. 22)

3. Freedom to provide services – Restrictions – National legislation on the reimbursement of medical expenses incurred in another Member State

(Art. 49 EC)

Summary

1. Medical services supplied for consideration fall within the ambit of the provisions on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment.

Furthermore, 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, to make adjustments to their national systems of social security, but it does not follow that this prejudices their sovereign powers in the field.

The fact that the applicable national rules are social security rules and, more specifically, provide, as regards health insurance, for benefits in kind rather than reimbursement does not mean that medical treatment falls outside the scope of that freedom. Furthermore, the provision of medical services does not cease to be a provision of services for the purposes of Article 49 EC simply because, after paying the foreign provider for the care received, the insured person subsequently seeks reimbursement of the related costs through a social security system.

It follows that Article 49 EC applies to cross-border healthcare.

(see paras 46, 49-52)

2. Article 22 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, does not in any way lay down the principle that prior authorisation is required for any treatment in another Member State.

The fact that a national measure may be consistent with a provision of secondary legislation, such as Article 22 of Regulation No 1408/71, does not have the effect of removing that measure from the ambit of the provisions of the Treaty. Moreover, Article 22(1) of Regulation No 1408/71 is intended to enable an insured person, authorised by the competent institution, to go to another Member State to receive treatment there appropriate to his condition, to receive sickness benefits in kind, on account of the competent institution but in accordance with the legislation of the State in which the services are provided, in particular when the need for the transfer arises because of the state of health of the person concerned, without that person’s incurring additional expenditure. On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light of its purpose, is not intended to regulate and accordingly does not in any way prevent reimbursement by the Member State of affiliation, at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State, even without prior authorisation.

(see paras 69-70)

3. A Member State which makes no provision, other than in the circumstances specified in Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, for reimbursement in respect of non-hospital medical care provided in another Member State, which does not involve the use of major and costly equipment exhaustively listed in the national legislation or, in the cases in which that national legislation, laying down the conditions for reimbursement of medical expenses incurred abroad, allows the reimbursement of such expenses, has, by making reimbursement subject to prior authorisation, failed to fulfil its obligations under Article 49 EC.

Although such a rule does not directly prevent the patients concerned from approaching providers of medical services established in another Member State, the prospect of financial loss if the national health system should refuse to meet the medical costs as a result of an unfavourable administrative decision is, per se, clearly liable to deter them. The complexity of the authorisation procedure, when that is manifested in its three-stage arrangement, constitutes an additional deterrent factor as regards turning to cross-border healthcare services. Furthermore, since the national legislation makes provision for meeting the costs of medical care abroad solely in exceptional cases in which the treatment needed for patients affiliated to the national health system is not available under that system, that condition, by its very nature, will severely limit the circumstances in which such authorisation can be obtained.

Such a restriction is not justified by a risk of seriously undermining the financial balance of the social security system since the documents before the Court do not indicate that removal of the requirement for prior authorisation for non-hospital care in another Member State would result in patients travelling to other countries in such large numbers – notwithstanding linguistic barriers, geographical distance and the cost of staying abroad – that the financial balance of the national social security system would be seriously upset and that, as a result, the overall level of public health protection would be jeopardised, a situation which might constitute proper justification for a barrier to the fundamental principle of freedom to provide services.

Furthermore, the requirement of prior authorisation for reimbursement of the medical care in question cannot be justified on public health grounds relating to the need to control the quality of healthcare services provided abroad. Nor do the essential characteristics of the national system, such as the lack of a mechanism for the reimbursement of medical expenses and the fact that, in order to arrange a consultation with a specialist, it is compulsory to attend a general practitioner first, justify the requirement of such prior authorisation.

The grounds relating both to the restrictive nature of the prior authorisation requirement and the lack of legitimate justification for that requirement clearly apply a fortiori in the case of non-hospital medical care for which there is no possibility of reimbursement.

(see paras 62-63, 76, 83-84, 88, 92, 95, operative part)