WRITTEN QUESTION E-0824/00

by Ieke van den Burg (PSE) to the Commission

(21 March 2000)

Subject: Access to Social Insurance (Additional Categories of Persons) Decree 1999 (Royal Decree of 24 December 1998): Exceptional Medical Expenses Act

1. Is the Commission aware that since 1 January 2000 the Netherlands Exceptional Medical Expenses Act (AWBZ) has no longer applied to Dutch retired people who reside abroad and have private medical insurance? One consequence of this is that the AWBZ scheme no longer meets expenses, for example, of care in a residential care home or of home care or rehabilitation. People belonging to this category, who are now in effect excluded without any transition period, have contributed to the AWBZ scheme for decades. It is impossible to obtain private insurance to cover the risks hitherto covered by the AWBZ, particularly in the case of those who are medically at risk. People insured with health insurance funds, on the other hand, are still covered by the AWBZ.

2. Does not this treatment of people with private insurance violate the principle of free movement of persons within the European Union, freedom of residence for citizens and patients (cf. the judgment of the Court of Justice of 28 April 1998 in case C-158/96) in other Member States and Article 10(1) of Regulation No 1408/71(1)?

3. Will the Commission take any measures against this step by the Netherlands Government, and if so, what?

(1) OJ L 149, 5.7.1971, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(29 May 2000)

According to the information at the Commission's disposal, it is true that since 1 January 2000 beneficiaries of long-term Netherlands social security benefits (Wet op de arbeidsongeschiktheidsverzekering Act on Insurance against Incapacity to Work and Algemene Ouderdomswet General Old Age Insurance Act) residing on the territory of another Member State who are not members of the

compulsory sickness insurance scheme but are privately insured are no longer entitled to coverage for exceptional medical expenses (Algemene Wet Bijzondere Ziektekosten General Act on Exceptional Medical Expenses) and will no longer be required to pay the associated social contributions. In the context of introducing this residence clause, a transitional measure was adopted allowing persons who were voluntarily covered before 1 January 2000 to retain a right to financial compensation for expenses linked to certain forms of ongoing hospitalisation, as long as care is necessary.

Numerous complaints from persons affected by this Netherlands measure have also been submitted to the Commission.

However, the Commission wishes to draw the Honourable Member's attention to the fact that Community law does not impinge on Member States' powers to regulate their social security systems. In the absence of social security harmonisation at Community level, each Member State is free to determine the conditions governing the right or obligation to join a social security scheme and the conditions which create an entitlement to social benefits. These principles are based on the consistent case law of the Court, notably recalled in points 17 and 17 of the Kohll judgment of 28 April 1998 (C-158/96), mentioned by the Honourable Member.

It is true that Member States must respect Community law in exercising their powers. In this connection, one should note Articles 39 and 42 (ex-Articles 48 and 51) of the EC Treaty and Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their family moving within the Community(1) and Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71(2), which are designed to coordinate the statutory social security schemes of the Member States(3).

However, given that the parties affected by the Netherlands reform are privately insured in respect of exceptional medical expenses, the protection guaranteed by Regulations (EEC) Nos 1408/71 and 574/72 cannot be relied on in this particular case.

Hence, the Commission is not in a position to intervene in this area, which concerns the exclusive competence of a Member State.

(1) OJ L 149, 5.7.1971.

(2) OJ L 74, 27.3.1972.

(3) Latest consolidated version: Regulation (EC) No 118/97 OJ L 28, 30.1.1997.