WRITTEN QUESTION P-0706/00

by Bart Staes (Verts/ALE) to the Commission

(3 March 2000)

Subject: Amendments to the Netherlands Exceptional Medical Expenses Act

In the Netherlands, everybody is covered by the Exceptional Medical Expenses Act (AWBZ). Since 1 January 2000, Netherlands nationals living abroad who are not insured with a health insurance fund have no longer been covered by the AWBZ. However, Netherlands nationals residing in Belgium cannot subscribe to a health insurance fund because Belgian social legislation regards this as incompatible with the Dutch AWBZ facilities.

This is very much a Catch 22 situation: Netherlands nationals residing in Belgium must subscribe to a health insurance fund in order to be entitled to AWBZ facilities, but Belgian health insurance funds refuse to accept them as members because they are entitled to AWBZ facilities.

1. Does the decision by the Netherlands Government to exclude Netherlands nationals who reside abroad and are not insured with a health insurance fund from AWBZ facilities as of 1 January 2000 violate European law, inter alia the freedom of citizens and patients to settle in other EU Member States (ECJ, 28 April 1998, no. C-158/96)? (a) If so, what will the Commission do to remedy this situation? (b) If not, does not the Netherlands Government's measure detract from European law, inter alia the freedom of citizens and patients to settle in other EU Member States (ECJ, 28 April 1998, no. C-158/96)?

2. Does the decision by the Netherlands Government violate the principle of trust, since the persons concerned have moved abroad in good faith in the knowledge that they will continue to enjoy full cover for medical expenses under the AWBZ? If not, does not the Commission consider that the Netherlands' measure detracts from the principle of trust?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(3 April 2000)

According to the Commission's information, as of 1 January 2000, beneficiaries of long-term social security benefits from the Netherlands (WAO, AOW) residing in another Member State, who are not subject to the compulsory sickness insurance scheme but who are insured privately, are no longer covered by the Exceptional Medical Expenses Act (AWBZ) and are no longer required to pay the corresponding social contributions. The introduction of this residence clause has been accompanied by a transitional measure allowing persons insured voluntarily prior to 1 January 2000 to retain entitlement to financial compensation for the costs of certain forms of on-going hospital treatment, provided that the care is necessary.

The Commission has received a large number of complaints from persons affected by this amendment to the Netherlands law.

The Commission draws the Honourable Member's attention to the existence of Community provisions coordinating the national social security systems, in particular Regulations (EEC) No 1408/71 and 574/72, which are intended to coordinate the statutory social security schemes of the Member States (last consolidated version: Regulation (EC) No 118/97)(1).

Since those concerned are subject privately to the legislation on exceptional medical costs, the protection guaranteed by Regulation (EEC) No 1408/71 mentioned above may not be invoked in this case.

Furthermore, Community law does not detract from the powers of the Member States to organise their social security systems. In the absence of social security harmonisation at Community level, it is therefore for the legislation of each Member State to determine the conditions concerning the right or duty to be insured with a social security scheme and the conditions for entitlement to benefits. These principles result from settled case-law of the Court of Justice, referred to in points 17 and 18 of the judgment given on 28 April 1998 (C-158/96).

It follows from the above that Community law cannot prevent the Netherlands whose social security system is based on a condition of residence from making access to its legislation on exceptional medical costs (AWBZ) subject to the condition of being resident in the Netherlands.

As regards the principle of legitimate expectations, it cannot be interpreted in such a way as to exclude any amendment to the law which is compatible with Community law.

(1) OJ L 28, 30.1.1997.