WRITTEN QUESTION P-3476/01

by Charles Tannock (PPE-DE) to the Commission

(10 December 2001)

Subject: Patients' rights to medical appliances in other Member States

It has been reported in the British press that British citizens have recently travelled to Denmark to be fitted-out at their own expense with digital-technology hearing aids which are not widely available on the British state-funded National Health Service.

Is it the Commission's understanding that following the Decker and Kohll judgements at the European Court of Justice, which gave two Luxembourg nationals the right to claim the costs of spectacles and false teeth from their government after receiving treatment in Germany and France, that citizens of a Member State, if unable to acquire a medical appliance such as a hearing aid within a reasonable time through their own national healthcare delivery system, would be entitled to purchase that medical appliance in another Member State and present the bill to their own government, and that this would apply equally to citizens of a state such as the U. K. where the national healthcare delivery system does not involve a national insurance component?

Joint answerto Written Questions P-3476/01 and E-3533/01given by Mr Bolkestein on behalf of the Commission

(11 February 2002)

The Commission is aware of the important issues raised by the succession of rulings of the Court of Justice on the reimbursement of health care costs incurred in other Member States.

According to settled case-law of the Court of Justice, Community law does not detract from the powers of the Member States to organise their social security systems. In the absence of harmonisation at Community level, it is for the relevant Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme and, second, the conditions for entitlement to benefits. The Member State must nevertheless comply with Community law when exercising such powers.

Therefore, Articles 28 to 30 (ex Article 30 to 36) of the EC Treaty will apply to national measures in social security matters which may affect the possibility of acquiring a medical appliance or a medical product and influence the possibilities of importing those products (see para 24 of Decker)(1). Furthermore, the special nature of certain services does not remove them from the ambit of the application of Articles 49 and 50 of the EC Treaty (ex Articles 59 and 60) on free movement of services (see para 21 of Kohll(2)). The Court has recognised, in consequence, that in certain circumstances prior administrative authorisation for reimbursement for health care and products purchased in another Member State may constitute a barrier to the free movement of goods and services in the Community.

However, the Court also considered that overriding reasons of public policy may be capable of justifying such a barrier. Such reasons could be the maintenance of the social security system's financial stability and the maintenance of a balanced medical and hospital service accessible to all (B. S. M. Geraets-Smits v Stichting Ziekenfonds VGZ and H. T. M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen(3)).

Nonetheless, application by a Member State of such reasons would be subject in each relevant case and the circumstances of that case to a proportionality test. The Court has said that conditions imposed by Member States in order to be justified must be based on objective, non discriminatory criteria which are known in advance.

The Commission is aware that the Court's rulings in these cases have given rise to a number of questions of interpretation including the practical application of the proportionality test and is collaborating with Member States in order to resolve them.

(1) Case C-120/95.

(2) Case C-158/96.

(3) Case C-157/99.