European Commission v Portuguese Republic.
Date: 2011-10-27
46. It should be noted in this connection that, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions on the freedom to provide services (see, inter alia, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 29, and Case C‑173/09 Elchinov [2010] ECR I‑0000, paragraph 36), there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraph 41; Case C‑385/99 Müller‑Fauré and van Riet  [2003] ECR I‑4509, paragraph 38; Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 86; and Commission  v France , paragraph 30).
47. Whilst it is established that EU law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits (see Case C‑490/09 Commission  v Luxembourg [2011] ECR I-0000, paragraph 32 and the case-law cited). It should also be noted that, under Article 152(5) EC, action by the European Union in the field of public health must fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care (see Watts , paragraph 146).
48. The fact nevertheless remains that, when exercising that power, Member States must comply with EU law and, in particular, with the provisions on the freedom to provide services (see, inter alia, Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 44 to 46; Müller-Fauré and van Riet , paragraph 100; Watts , paragraph 92; Elchinov , paragraph 40; Case C‑211/08 Commission  v Spain [2010] ECR I‑0000, paragraph 53; and Commission  v Luxembourg , paragraph 32).
49. Accordingly, the Court has held that Article 152(5) EC does not exclude the possibility that the Member States may be required under other Treaty provisions, such as Article 49 EC, to make adjustments to their national systems of social security, but that it does not follow that this undermines their sovereign powers in the field (see Watts , paragraph 147, and Commission  v Luxembourg , paragraph 45).
50. Likewise, with regard to the argument based on the nature of the Portuguese national health system, it should be noted that the fact that the applicable national rules are social security rules and, more specifically, provide, as regards health insurance, for benefits in kind rather than reimbursement does not mean that medical treatment falls outside the scope of that basic freedom (see, to that effect, Müller-Fauré and van Riet , paragraph 103; Watts , paragraph 89; Commission  v Spain , paragraph 47; and Commission  v Luxembourg , paragraph 36).
51. Furthermore, the provision of medical services does not cease to be a provision of services for the purposes of Article 49 EC simply because, after paying the foreign provider for the care received, the insured person subsequently seeks reimbursement of the related costs through a social security system ( Commission  v Spain , paragraph 47).
54. It is settled law that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services entirely within a single Member State (see, inter alia, Case C‑444/05 Stamatelaki [2007] ECR I-3185, paragraph 25 and the case-law cited).
60. It should be recalled, in this respect, that the Court has held that the mere requirement, for treatment planned in another Member State, of prior authorisation to which responsibility for payment by the competent institution is made subject, in accordance with the rules governing cover in force in the Member State to which that institution belongs, constitutes, both for patients and service providers, an obstacle to the freedom to provide services, since such a system deters, or even prevents, those patients from approaching providers of medical services established in a Member State to obtain the treatment in question (see, to that effect, Kohll , paragraph 35; Smits and Peerbooms , paragraph 69; Müller-Fauré and van Riet , paragraphs 41, 44 and 103; Watts , paragraph 98; and Commission  v France , paragraph 32).
62. Although the rules at issue do not directly prevent the patients concerned from approaching providers of medical services established in another Member State, the prospect of financial loss in the event of refusal by the national health system to meet the medical costs as a result of an unfavourable administrative decision is per se clearly liable to deter them (see, to that effect, Kohll , paragraph 35; Smits and Peerbooms , paragraph 69; and Müller-Fauré and van Riet , paragraph 44). The complexity of the authorisation procedure, which is manifested in particular in its three-stage arrangement, constitutes an additional deterrent factor as regards turning to cross-border healthcare services.
63. Furthermore, Decree-Law No 177/92 makes provision for meeting the costs of medical care abroad solely in exceptional cases where the treatment needed for patients affiliated to the Portuguese health system is not available under that system. By its very nature, that condition will severely limit the circumstances in which such authorisation can be obtained (see, to that effect, Smits and Peerbooms , paragraph 64, and Müller-Fauré and van Riet , paragraph 42).
68. In applying the case-law set out in paragraph 54 above, the conditions for the SNS’s assuming the cost of hospital treatment to be obtained in another Member State should not be compared with the position under national law in relation to hospital treatment received in private local hospitals. On the contrary, the comparison should be made with the conditions in which the SNS provides such services in its own hospitals ( Watts , paragraph 100).
70. As the Court has held, the fact that a national measure may be consistent with a provision of secondary legislation – in the present case, Article 22 of Regulation No 1408/71 – does not have the effect of removing that measure from the scope of the provisions of the Treaty. Moreover, Article 22(1) of Regulation No 1408/71 is intended to enable an insured person, authorised by the competent institution, to go to another Member State to receive treatment there which is appropriate to his condition, to receive sickness benefits in kind, on account of the competent institution but in accordance with the legislation of the State in which the services are provided, in particular where the need for the transfer arises because of the state of health of the person concerned, without that person incurring additional expenditure. On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light of its purpose, is not intended to regulate and accordingly does not in any way prevent reimbursement by the Member State of affiliation, at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State, even without prior authorisation ( Kohll , paragraphs 25 to 27).
72. The existence of a restriction on the freedom to provide services having been established, it needs to be determined whether the Portuguese rules at issue can be justified in the light of overriding reasons and, in such a case, in accordance with settled case-law, to make sure that they do not exceed what is objectively necessary for that purpose and that the same result cannot be achieved by less restrictive rules (see Case 205/84 Commission  v Germany  [1986] ECR I‑3755, paragraphs 27 and 29; Case C-180/89 Commission  v Italy  [1991] ECR I‑709, paragraphs 17 and 18; and Case C-106/91 Ramrath  [1992] ECR I‑3351, paragraphs 30 and 31).
– Maintaining the financial balance of the social security system
73. In that regard, the Court has acknowledged that it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services ( Commission  v Luxembourg , paragraph 43 and the case-law cited).
74. Accordingly, the Court has accepted that a requirement of prior authorisation may, under certain conditions, be justified by such a consideration in the context of hospital care (see, inter alia, Smits and Peerbooms , paragraphs 76 to 81; Müller-Fauré and van Riet , paragraphs 76 to 81; and Watts , paragraphs 108 to 110) and in the context of medical care which, although it may be provided outside a hospital setting, requires the use of major and costly equipment exhaustively listed in the national legislation (see, to that effect, Commission  v France , paragraphs 34 to 42).
77. Furthermore, care is generally provided near to the place where the patient resides, in a cultural environment which is familiar to him and which allows him to build up a relationship of trust with the doctor treating him. If emergencies are disregarded, the most obvious cases of patients travelling abroad are in border areas or where specific conditions are to be treated ( Müller-Fauré and van Riet , paragraph 96).
79. In any event, it should be borne in mind that it is for the Member States alone to determine the extent of the health cover available to insured persons, so that, when insured persons go without prior authorisation to a Member State other than that in which their sickness fund is established to receive treatment there, they can claim reimbursement of the cost of the treatment given to them only within the limits of the cover provided by the health insurance scheme in the Member State of affiliation ( Müller-Fauré and van Riet , paragraph 98).
– Controlling the quality of healthcare services provided abroad
80. With regard to the argument of the Portuguese Republic that prior authorisation is necessary to ensure the quality of the services provided, it should be noted that it is true that the Member States may limit the freedom to provide services on grounds of public health. However, that does not permit them to exclude the public health sector, as a sector of economic activity and from the point of view of freedom to provide services, from the application of the fundamental principle of freedom of movement ( Kohll , paragraphs 45 and 46).
81. The Court has held, in the case of non-hospital services, that the conditions for taking up and pursuing associated activities have been the subject of several coordinating or harmonising directives, so that the requirement of prior authorisation for reimbursement of medical expenses cannot be justified on grounds connected to the quality of services provided abroad (see Kohll , paragraph 49).
85. In that respect it should be noted that, even when applying Regulation No 1408/71, those Member States which have established a system providing benefits in kind, or even a national health service, are in any event required to provide mechanisms for ex post facto  reimbursement in respect of care provided in a Member State other than the competent State ( Müller-Fauré and van Riet , paragraph 105).
86. Likewise, the conditions on which benefits are granted, in so far as they are neither discriminatory nor an obstacle to freedom of movement of persons, remain enforceable where treatment is provided in a Member State other than that of affiliation. That is particularly so in the case of the requirement that a general practitioner should be consulted prior to consulting a specialist ( Müller‑Fauré and van Riet , paragraph 106).
87. Lastly, the Court has pointed out that nothing precludes a competent Member State with a benefits in kind system from fixing the amounts of reimbursement which patients who have received care in another Member State can claim, provided that those amounts are based on objective, non-discriminatory and transparent criteria ( Müller-Fauré and van Riet , paragraph 107).