WRITTEN QUESTION E-2389/01

by Christopher Huhne (ELDR) to the Commission

(20 August 2001)

Subject: Health care

Will the Commission give its view of EU law on the circumstances under which a Member State must pay for the health care of one of its citizens in another Member State?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(19 October 2001)

The Commission wishes to draw the Honourable Member's attention to the fact that Community rules exist concerning the coordination of social security systems; these rules are contained in Regulations (EEC) No 1408/71(1) and No 574/72(2), which feature a detailed chapter on sickness benefits whose purpose is to offer real protection to persons moving within the Union. These regulations are designed neither to alter the structure or content of national social security legislation nor to harmonise these legislations. Their basic function is to coordinate these laws at Community level.

Pursuant to these Community rules, there are three circumstances in which health benefits may be funded by the sickness insurance institution with which a person is registered although the benefits are provided in another Member State:

- when the person resides in a Member State other than the one in which he is insured (such as a frontier worker);

- when unforeseen emergency care is provided during a temporary stay in another Member State (for example, during a tourist visit);

- when a person intentionally travels to another Member State with a view to medical treatment and has obtained an authorisation to do so from the sickness insurance institution with which he is registered.

In these three circumstances the health benefits are provided in accordance with the legislation of the Member States providing them, but the costs are charged to the sickness institution with which the insured person is registered.

The authorisation system provided for by Regulation No 1408/71 when a person travels abroad with a view to medical treatment leaves the Member States wide discretion as regards granting or refusing authorisation and mandates authorisation only in strictly defined circumstances. The competent institutions have been given responsibility for authorisation because it is important that the Member State institutions be able to fund treatment provided outside their territory so that they can reimburse the institutions of the Member States in which the treatment has been provided.

The Honourable Member should note that the Court of Justice, while acknowledging the validity of the authorisation system enshrined by Regulation No 1408/71, has reinforced the rights of insured persons as regards the reimbursement of medical services provided in another Member State, on the basis of the provisions of the EC Treaty enshrining the freedom to provide services and the free movement of goods.

The Court of Justice held that the insured person is entitled to additional reimbursement from the Member State of registration if the latter's legislation provides for a higher level of reimbursement than the Member State in which the services were provided(3). Besides the Court has endorsed the right to reimbursement for certain non-hospital benefits and medical products, in accordance with the law of the Member State of registration, even in the absence of authorisation(4). Finally, in the context of a case concerning the reimbursement of hospital treatment obtained voluntarily in a Member State other than the Member State of registration, the Court of Justice held that a national administrative authorisation scheme might be justified for overriding reasons provided it is based on objective, non-discriminatory criteria which are known in advance(5).

All the consequences of this case law that has been progressively developed by the Court of Justice are currently being examined by the Commission.

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community OJ L 149, 5.7.1971.

(2) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community OJ L 74, 27.3.1972.

(3) See Banbraeckel, C-368/98, judgment handed down on 12 July 2001.

(4) See Kohll and Decker, judgments handed down on 28 April 1998.

(5) See Smits-Peerbooms, C-157/99, judgment handed down on 12 July 2001.