WRITTEN QUESTION E-3533/01

by Charles Tannock (PPE-DE) to the Commission

(8 January 2002)

Subject: Patients' rights to seek treatment (including operations) in other EU Member States

Does the Commission believe that the judgment in the case of B. S. M. Geraets-Smits v Stichting Ziekenfonds and H. T. M. Peerbooms v Stichting CZ Groep Zorgverzekeringen (Case C-157/99) before

the European Court of Justice in July of this year, in which the Court held, inter alia, that medical services, so long as they are sufficiently tried and tested by international medical science do indeed fall within the scope of freedom to provide services, and that authorisation can be refused only if the patient can receive the same or equally effective treatment without undue delay from an establishment with which his sickness fund has contractual arrangements, has implications for British citizens travelling to other Member States to receive surgery such as heart or hip operations or any other form of internationally-recognised medical treatment? Specifically, does the Commission believe that, if they were subject to an unreasonable delay in receiving treatment in the UK, they would be entitled to undergo treatment in another Member State without prior authorisation and present the bill to the British Government on return?

Joint answerto Written Questions P-3476/01 and E-3533/01given by Mr Bolkestein on behalf of the Commission

(11 February 2002)

The Commission is aware of the important issues raised by the succession of rulings of the Court of Justice on the reimbursement of health care costs incurred in other Member States.

According to settled case-law of the Court of Justice, Community law does not detract from the powers of the Member States to organise their social security systems. In the absence of harmonisation at Community level, it is for the relevant 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. The Member State must nevertheless comply with Community law when exercising such powers.

Therefore, Articles 28 to 30 (ex Article 30 to 36) of the EC Treaty will apply to national measures in social security matters which may affect the possibility of acquiring a medical appliance or a medical product and influence the possibilities of importing those products (see para 24 of Decker)(1). Furthermore, the special nature of certain services does not remove them from the ambit of the application of Articles 49 and 50 of the EC Treaty (ex Articles 59 and 60) on free movement of services (see para 21 of Kohll(2)). The Court has recognised, in consequence, that in certain circumstances prior administrative authorisation for reimbursement for health care and products purchased in another Member State may constitute a barrier to the free movement of goods and services in the Community.

However, the Court also considered that overriding reasons of public policy may be capable of justifying such a barrier. Such reasons could be the maintenance of the social security system's financial stability and the maintenance of a balanced medical and hospital service accessible to all (B. S. M. Geraets-Smits v Stichting Ziekenfonds VGZ and H. T. M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen(3)).

Nonetheless, application by a Member State of such reasons would be subject in each relevant case and the circumstances of that case to a proportionality test. The Court has said that conditions imposed by Member States in order to be justified must be based on objective, non discriminatory criteria which are known in advance.

The Commission is aware that the Court's rulings in these cases have given rise to a number of questions of interpretation including the practical application of the proportionality test and is collaborating with Member States in order to resolve them.

(1) Case C-120/95.

(2) Case C-158/96.

(3) Case C-157/99.