EN Official Journal of the European Union CE 84/172

(2004/C 84 E/0212)

WRITTEN QUESTION E-0195/04

by Avril Doyle (PPE-DE) to the Commission

(29 January 2004)

Subject: Access to medical treatment in Member States

Can the Commission confirm that it is the case that under a ruling of the EU courts, patients who cannot access essential medical treatment within a reasonable timeframe in their own State have the right to access such treatment in other EU Member States and that their own State will meet the bill for such treatment?

Answer given by Mr Bolkestein on behalf of the Commission

(11 March 2004)

The Commission confirms that in its judgments in the Smits and Peerbooms (1) and Müller-Fauré/van Riet (2) cases, the Court of Justice stated that, pursuant to Article 49 of the EC Treaty, authorisation to undergo hospital treatment in another Member State cannot be refused in the event that the same or equally effective treatment for the patient cannot be obtained without undue delay within the national territory.

The Court of Justice specified that ‘in order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in an establishment having an agreement with the insured person's fund, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient's disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history’ (Müller-Fauré/van Riet judgment, paragraph 90).

The Court of Justice also specified that such authorisation could not be refused solely on the grounds that there were waiting lists on national territory for the hospital treatment concerned, without account being taken of the specific circumstances attaching to the patient's medical condition.

Under Article 22 of Regulation (EEC) No 1408/71 (3), the competent institution in the Member State where the individual is insured is responsible for reimbursing the medical costs incurred in another Member State by patients with an authorisation. Responsibility for these costs is borne according to the principles of that Regulation (application of the conditions of the country where benefits are provided), and Article 36 of the Regulation determines the practical conditions for taking responsibility between social security institutions. It should be noted that in the Vanbraekel judgment (4), the Court of Justice considered that this Regulation ‘does not in any way prevent the reimbursement by Member States, at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State (see Case C-158/96 Kohll [1998] ECR I-1931, paragraph 27) where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the tariffs applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided.’

(1) Judgment of 12 July 2001 in Case C-157/99 Smits and Peerbooms [12.07.01], ECR 2001, p. I-05473.

(2) Judgment of 13 May 2003 in Case C-385/99 V.G. Müller-Fauré v. Onderlinge Waarborgmaatschappij O.Z. Zorkverzekeringen UA and E.E. M. Van Riet v. Onderlinge Waarborgmaatschappij ZAO Zorkverzekeringen, ECR 2003, p. I-04509.

(3) 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, as updated by Regulation 118/97, OJ L 28, 30.1.1997.

(4) Judgment of 12 July 2001 in Case C-368/98 Vanbraekel, ECR 2001, p. I-05363.