WRITTEN QUESTION P-3666/03 by Mario Mantovani (PPE-DE) to the Commission. Health services and free movement of patients.
Date: 2003-12-02
Institutions: European Parliament, Provisional data
Subjects: case-law (EU), freedom to provide services, health care, health expenditure, health insurance, right to health, social security legislation

27.3.2004

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Official Journal of the European Union

C 78 E/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 (cid:1) 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:

(cid:1) 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?

(cid:1) 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?

(cid:1) 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?

(cid:1) 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?

(cid:1) 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?

(cid:1) 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)?

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

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 (1). In answering this Written Question, the
Commission will be able to provide more details.

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27.3.2004

As stated by the Honourable Member, in the Müller-Fauré/Van Riet judgment (2), 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 (3).
It should also be pointed out that the Court has delivered another ruling on this matter in the Inizan
case (4). 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 (5), 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.

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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) Written answer of 17.12.2003.
(2) 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.

(3) 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,
I-05473,

I-1831, Smits and Peerbooms judgment, Case C-157/99 of 12.07.01, ECR 2001 p.

ECR 1998 p.
Vanbraekel judgment, Case C-368/98 of 12.07.01, ECR 2001 p. I-05363.

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

published).

(5) 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.

(2004/C 78 E/0314)

WRITTEN QUESTION P-3693/03

by Armin Laschet (PPE-DE) to the Commission

(2 December 2003)

Subject: Unpublished study on anti-Semitism drawn up by the EUMC

1.
Can the Commission say whether it agrees with the European Monitoring Centre on Racism and
Xenophobia (EUMC) that the study drawn up by the Centre for Research on Anti-Semitism at the
Technical University in Berlin in October 2002 should not be published?

2.

If so, for what reasons?

If not, whether it will try to ensure that the study drawn up by the Centre for Research on Anti-

3.
Semitism at the Technical University in Berlin is published as soon as possible?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(13 January 2004)

The report on anti-Semitism to which the Honourable Member refers was carried out by the Berlin
Technical Institute under contract to the European Monitoring Centre on Racism and Xenophobia (EUMC)
and not the Commission. A statement by the EUMC issued on 26 November 2003 rejects the allegations
that the report was ‘shelved’. In this statement, the Chair of the Management Board stated that the
members of the Management Board ‘considered the work undertaken by the contractors to be of poor
quality and lacking in empirical evidence’. The Chair also made clear his regret that a ‘collective decision of
the Board based purely on the insufficient quality of the research carried out by the Berlin Centre has been
used to discredit the important work which the EUMC has to do in the fight against racism and
xenophobia in Europe’.