WRITTEN QUESTION E-3533/01 by Charles Tannock (PPE-DE) to the Commission. Patients' rights to seek treatment (including operations) in other EU Member States.
Date: 2002-01-08
Institutions: European Parliament, Provisional data
Subjects: EU Member State, EU national, freedom to provide services, health care, health expenditure, patient's rights, redemption

6.6.2002

EN

Official Journal of the European Communities

C 134 E/237

Answer given by Mr Solbes Mira on behalf of the Commission

(11 February 2002)

The Commission looked into swap transactions carried out by Member States. These transactions involved
management of debt and it was decided that debt had to be valued after swap transactions. For
measurement of the impact of swap transactions on the deficit in 1997, the European System of National
and Regional Accounts in the Community (ESA) 79 was the manual of reference. However, the ESA 79
dealt only with swap on foreign exchange and not with swaps on interest which could have a potential
effect on the deficit. In the absence of a clear regulation of the ESA 79 on interest rate swap, Eurostat
would have treated such transactions by using the ESA 95 as a reference manual. ESA 95, at that date,
treated interest rate swaps as transactions which would have had an effect (positive or negative) on the
deficit.

This principle has been recently reaffirmed in a special Regulation concerning the treatment of swaps in
the framework of the Excessive Deficit Procedure (EDP), Regulation (EC) No 2558/2001 of the Parliament
and of the Council of 3 December 2001 amending Council Regulation (EC) No 2223/96 as regards the
reclassification of settlements under swaps arrangements and under forward rate agreements (1).

If the Member State in question has used the swap facilities for reducing its deficit, this would not be
objectable from a statistical point of view because of the treatment foreseen by ESA 79 and ESA 95.

(1) OJ L 344, 28.12.2001.

(2002/C 134 E/251)

WRITTEN QUESTION P-3476/01

by Charles Tannock (PPE-DE) to the Commission

(10 December 2001)

Subject: Patients’ rights to medical appliances in other Member States

It has been reported in the British press that British citizens have recently travelled to Denmark to be
fitted-out at their own expense with digital-technology hearing aids which are not widely available on the
British state-funded National Health Service.

Is it the Commission’s understanding that following the Decker and Kohll judgements at the European
Court of Justice, which gave two Luxembourg nationals the right to claim the costs of spectacles and false
teeth from their government after receiving treatment in Germany and France, that citizens of a Member
State, if unable to acquire a medical appliance such as a hearing aid within a reasonable time through their
own national healthcare delivery system, would be entitled to purchase that medical appliance in another
Member State and present the bill to their own government, and that this would apply equally to citizens
of a state such as the U. K. where the national healthcare delivery system does not involve a national
insurance component?

(2002/C 134 E/252)

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

C 134 E/238

Official Journal of the European Communities

EN

6.6.2002

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 answer
to Written Questions P-3476/01 and E-3533/01
given 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.