EN Official Journal of the European Union CE 78/311

(2004/C 78 E/0313)

WRITTEN QUESTION P-3666/03

by Mario Mantovani (PPE-DE) to the Commission

(2 December 2003)

Subject: Health services and free movement of patients

In the Müller-Fauré/Van Riet judgment (C-385/99), the Court of Justice drew a clear distinction between out-patient treatment and hospital treatment, stipulating that requests for prior authorisation are contrary to the principle of the freedom to provide services only in the case of out-patient treatment provided in another Member State by a non-contracted provider. In its report on the future of health care (December 2002 — A5-0452/2002), for which I was rapporteur, the European Parliament pointed out that the achievement of the objectives of sustainability, accessibility and quality of health services requires inter alia the creation of an internal market in health services and products which must guarantee high quality health care accessible to, and affordable for, all, taking into account the viability and capacity of the Member States' systems and guaranteeing both free movement of citizens and access to services in all countries of the Union, with due regard for the principle of subsidiarity.

Why did the Court's ruling not follow these principles, with regard to hospital treatment?

Will the Commission answer the following questions, in particular:

— how can it reconcile this ruling with the rights of European citizens, whose right to health care is now guaranteed only in the case of out-patient treatment, and not hospital treatment, a measure based purely on economic grounds?

— how can it reconcile this ‘dual’ regime, where there is freedom of choice for out-patient treatment, but a requirement for prior authorisation for hospital treatment, with the guarantee of a high level of health protection provided for in the Treaties?

— how can the exercise of free choice by European citizens jeopardise the financial balance of a national system, when it does not pay a higher rate of reimbursement for services provided in another Member State than it does under its own system?

— given that, under the terms of Regulation No 1408/71 (1) on the application of social security schemes to employed persons and their families moving within the Community, the Member States have already introduced mechanisms for subsequent reimbursement of treatment provided in another Member State, how can it justify the technical problems placed in the way of reimbursement between Member States in cases where European citizens have exercised their freedom to choose the location of hospital treatment?

— the requirement to request prior authorisation for hospital treatment not a means of denying freedom of choice to patients on the basis of quality and accessibility to all, thereby discriminating against citizens who cannot afford to side-step the required authorisation and obtain the treatment they need without delay?

— given that completion of the internal market requires full recognition of the four basic freedoms, when will everyone be able to benefit from the freedom to provide services (both patients and providers)?

Answer given by Mr Bolkestein on behalf of the Commission

(15 January 2004)

The Commission has already replied to the Honourable Member's Oral Question H-763/03 on the same subject during question time at the December 2003 session (2). In answering this Written Question, the Commission will be able to provide more details.

As stated by the Honourable Member, in the Müller-Fauré/Van Riet judgment (3), the Court of Justice ruled on the question of authorising the reimbursement of health care provided in another Member State. This judgment follows a series of others which have been delivered by the Court on this issue since 1998 (4). It should also be pointed out that the Court has delivered another ruling on this matter in the Inizan case (5). It is on the basis of this body of case-law that the questions put to the Commission should be examined.

In these judgments, the Court recognised the right of patients to receive reimbursement of the costs incurred for medical care in another Member State. However, the Court attached to the exercise of this right conditions aimed at protecting the financial balance of the social security system and ensuring a high level of health protection. These considerations lie behind the distinction drawn by the Court between non-hospital and hospital treatment. It should, however, be emphasised that even in the case of hospital treatment where the Court felt that reimbursement was justified, it nonetheless considered that there was no proper justification for this requirement in cases where the patient faced excessive waiting times given the state of his/her health. The Court therefore gave priority to protecting the health of the patient over purely economic considerations which, moreover, according to settled case-law, cannot justify a barrier to the fundamental principle of freedom to provide services.

With regard to non-hospital care, the Court recognised that patients had freedom of choice in stating that the requirement for prior authorisation for reimbursement was not justified and should be removed. The Court confirmed that, in order not to jeopardise the financial balance of the social security system in the Member State of affiliation, reimbursement of these costs should be within the limits of the cover received by patients under the sickness insurance scheme of their Member State of affiliation. Thus, the Member State of affiliation is only obliged to reimburse the cost of health care provided in another Member State insofar as this same health care is reimbursed by its social security system when the treatment is provided on its own territory, these costs are reimbursed at the rates of the Member State of affiliation, and the conditions imposed by Member States on according non-hospital care on their territory, such as the requirement to consult a general practitioner prior to consulting a specialist doctor, remain applicable for health care provided in another Member State.

With regard to hospital care, the Court acknowledged that the requirement for authorisation was justified by the Member States' planning needs. The aim is to allow them to ensure that there is sufficient and permanent accessibility to a balanced range of high-quality hospital treatment on their territory, as well as to help them control costs and prevent, as far as possible, any wastage of technical and human resources. Retaining the requirement for authorisation in this case is, therefore, in the interests of patients who should be able to receive appropriate treatment in their own Member State. The Court also stated that if this was not the case, perhaps because there are waiting lists on the national territory to receive the care required by the patient's state of health, a refusal to authorise treatment in another Member State would not be justified. The Court did, in fact, emphasise that authorisation to receive treatment in another Member State may be refused only if treatment which is the same or equally effective for the patient can be obtained without undue delay on the national territory. It ruled that ‘in order to determine whether such treatment could be obtained without undue delay, 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.’ Thus, citizens can now obtain financial reimbursement of the hospital care costs required by their state of health, even in cases where this care is provided in another Member State. The possibility of seeking health care abroad is no longer therefore solely restricted to those patients with sufficient financial resources to bear the cost of these medical expenses without assistance from the social security system.

Regulation 1408/71 (6), which supports and facilitates the freedom to provide services under Article 49 of the EC treaty, aims to grant assured persons the right to benefits in kind provided in the Member State of stay on behalf of the competent institution in accordance with the legislation of the Member State in which the benefits are provided, as though the insured person were insured with it. In this respect, Community law does not detract from the powers of the Member States to organise their social security systems and, in the absence of harmonisation at Community level, it is for the legislation of each 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.

Article 22 of Regulation 1408/71 has in fact made provision for a mechanism for the reimbursement of expenses for treatment which patients have been authorised to undergo in another Member State, particularly for hospital care. Article 36 of the Regulation organises the practical conditions for this reimbursement between social security institutions. With regard to treatment which a person intends to undergo in another Member State, the aforementioned Article 22 sets out cases in which Member States cannot refuse authorisation for the financial reimbursement of treatment abroad. It therefore leaves the Member States every opportunity to determine other circumstances in which authorisation can be accorded under their national legislation. The problems to which the Honourable Member refers have been raised by Member States with regard to the reimbursement of hospital care obtained directly in another Member State under the freedom to provide services and not under Regulation 1408/71. This does, in fact, require prior authorisation for hospital care, which the Court feels is justified. This instrument does therefore contain technical and administrative solutions for the reimbursement of patients in another Member State under guaranteed conditions, provided that the Member States use it more broadly and more transparently.

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

(2) Written answer of 17.12.2003.

(3) V.G. Müller-Fauré v. Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA and E.E.M. van Riet v. Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen judgment. Case C-385/99 of 13.05.03, ECR 2003 p. I-04509.

(4) Kohll judgment, Case C-155/96 of 28.04.98, ECR 1998 p. I-1931, Decker judgment, Case C-120/95 of 28.04.98, ECR 1998 p. I-1831, Smits and Peerbooms judgment, Case C-157/99 of 12.07.01, ECR 2001 p. I-05473, Vanbraekel judgment, Case C-368/98 of 12.07.01, ECR 2001 p. I-05363.

(5) Patricia Inizan/Caisse Primaire d'Assurance Maladie des Hauts de Seine judgment, Case C-56/01 of 23.10.03 (not yet published).

(6) 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, version updated by Regulation 118//97, OJ L 28, 30.1.1997.