WRITTEN QUESTION P-2496/99

by Raffaele Costa (PPE-DE) to the Commission

(16 December 1999)

Subject: Measures to facilitate Community-wide health care

Everyone knows that individual Member States have raised objections to the proposal to authorise their citizens to travel abroad for treatment to be reimbursed by the patient's country of origin when such treatment is not really feasible in that country.

However, everyone also knows that people are often prevented from making such journeys of hope for bureaucratic and mere financial reasons, even when the journeys are perfectly justified.

Can the Commission say what can be done at European level to ensure that Community citizens are allowed, or at least enabled, to obtain treatment, without financial burdens or at least on acceptable terms B and hence without excessive expense (as is the case at present) in all Community hospitals?

Might it be possible for a European fund to be set up for this purpose?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(17 January 2000)

The question concerns the possibility for Community citizens of travelling to a Member State other than their country of residence to obtain medical treatment. This possibility depends on two legal bases.

In the field of social security within the meaning of Article 42 (ex Article 51) of the EC Treaty, the rules on the coordination of the national social security systems are set out in Council 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 its implementing Regulation (EEC) No 574/72(2). Article 22(1)(c) of Regulation (EEC) No 1408/71 contains precise rules on the situation that arises when a person insured in one Member State visits another Member State with the express purpose of obtaining planned medical treatment and medical products and provides that the person concerned must obtain a prior authorisation from the sickness fund under which he is insured with a view to reimbursement of all the costs incurred. This authorisation is attested by Form E 112. In this case Article 22(2) of Regulation (EEC) 1408/71 provides that this authorisation may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resided and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease. Hence, under this rule, the authorisation system concerned requires Member States to issue the authorisation in precise cases, while leaving them completely free to choose in other cases. Besides, pursuant to these Community rules, planned treatment is always given by the institution at the place of stay provided for by the legislation applied by that institution and the costs are borne by the Member State.

As regards the freedoms of the internal market, and in particular the free movement of goods provided for in Article 28 (ex Article 30) of the EC Treaty and the freedom to provide services provided for in Article 49 (ex Article 59) of the EC Treaty, the Court of Justice has adjudicated in the context of two joined preliminary rulings (Kohll and Decker, C-158/96 and C-120/95), dated 28 April 1998. The Court found that national rules in the field of social security may not override the freedoms of the internal market and ruled that the prior authorisation requirement for the reimbursement of spectacles and dental treatment infringes Community law (guaranteeing the free movement of goods and the freedom to provide services) whenever no authorisation is required in internal situations. There exists a right to equal treatment without a distinction being made between an internal and a cross-border situation. As opposed to Article 22 of Regulation (EEC) No 1408/71, equal treatment allows the Member State in which the person is insured to maintain all the restrictions to its rules; hence equal treatment includes neither a direct right to reimbursement if the Member State of insurance does not enshrine such a right within its own jurisdiction nor a right to reimbursement of all the costs incurred in connection with medical treatment. On the other hand, permission for treatment by social security institutions cannot be refused simply because there is a cross-border situation. However, the Court has recognised the possibility of issuing a refusal on grounds of public health within the meaning of Articles 30 (ex Article 36) and 46 (ex Article 56) of the EC Treaty, in so far as the maintenance of a treatment facility or medical services on national territory is essential for public health and even the survival of the population of the Member State concerned. Likewise, the Court has allowed restrictions when there is a risk of seriously undermining the financial balance of the social security system but not as proven by the Member State of insurance.

Hence, given the Community rules pertaining to the internal market and social security, Community law does not currently entitle the Community to take measures affecting the funding of medical or hospital treatment in the Member States. Funding is a matter for the Member States. Hence, it is not possible to create specific funds in this context.

(1) OJ L 149, 5.7.1971.

(2) OJ L 74, 27.3.1972.