B.S.M. Geraets-Smits v Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v Stichting CZ Groep Zorgverzekeringen.
Date: 2001-07-12
44 In order to answer the questions as thus reformulated, it should be remembered at the outset that, according to settled case-law, Community law does not detract from the power of the Member States to organise their social security systems (Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16, Case C-70/95 Sodemare and Others [1997] ECR I-3395, paragraph 27, and Case C-158/96 Kohll [1998] ECR I-1931, paragraph 17).
45 In the absence of harmonisation at Community level, it is therefore 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 (Case 110/79 Coonan [1980] ECR 1445, paragraph 12, Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 15, and Kohll, paragraph 18) and, second, the conditions for entitlement to benefits (Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira [1997] ECR I-511, paragraph 36, and Kohll, paragraph 18).
46 Nevertheless, the Member States must comply with Community law when exercising that power.
Application to hospital care of the provisions on freedom to provide services
50 Some of those governments also maintain that it follows from Case 293/83 Gravier [1985] ECR 593 and Case C-109/92 Wirth [1993] ECR I-6447, paragraph 17, that a further condition to be satisfied before a service can constitute an economic activity within the meaning of Article 60 of the Treaty is that the person providing the service must do so with a view to making a profit.
52 None of those arguments can be upheld.
53 It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Society for the Protection of Unborn Children Ireland, paragraph 18, concerning advertising for clinics involved in the deliberate termination of pregnancies; and Kohll, paragraphs 29 and 51).
54 It is also settled case-law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10, and Kohll, paragraph 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of Articles 59 and 60 of the Treaty (Kohll, paragraph 21).
55 With regard more particularly to the argument that hospital services provided in the context of a sickness insurance scheme providing benefits in kind, such as that governed by the ZFW, should not be classified as services within the meaning of Article 60 of the Treaty, it should be noted that, far from falling under such a scheme, the medical treatment at issue in the main proceedings, which was provided in Member States other than those in which the persons concerned were insured, did lead to the establishments providing the treatment being paid directly by the patients. It must be accepted that a medical service provided in one Member State and paid for by the patient should not cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another Member State's sickness insurance legislation which is essentially of the type which provides for benefits in kind.
56 Furthermore, the fact that hospital medical treatment is financed directly by the sickness insurance funds on the basis of agreements and pre-set scales of fees is not in any event such as to remove such treatment from the sphere of services within the meaning of Article 60 of the Treaty.
57 First, it should be borne in mind that Article 60 of the Treaty does not require that the service be paid for by those for whom it is performed (Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraph 16, and Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 56).
58 Second, Article 60 of the Treaty states that it applies to services normally provided for remuneration and it has been held that, for the purposes of that provision, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (Humbel, paragraph 17). In the present cases, the payments made by the sickness insurance funds under the contractual arrangements provided for by the ZFW, albeit set at a flat rate, are indeed the consideration for the hospital services and unquestionably represent remuneration for the hospital which receives them and which is engaged in an activity of an economic character.
61 According to settled case-law, Article 59 of the Treaty 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 purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33).
62 In the present case, while the ZFW does not deprive insured persons of the possibility of using a provider of services established in another Member State, it does nevertheless make reimbursement of the costs incurred in another Member State subject to prior authorisation and provides for such reimbursement to be refused where the two requirements referred to in paragraph 60 above are not satisfied.
64 As regards the second requirement, namely that provision of hospital treatment in another Member State must be a medical necessity, which will be the case only if adequate treatment cannot be obtained without undue delay in contracted hospitals in the Member State in which the person seeking treatment is insured, this requirement by its very nature will severely limit the circumstances in which such authorisation can be obtained.
65 The Netherlands Government and the Commission have stressed, however, that it was open to the sickness insurance funds to enter into agreements with hospital establishments outside the Netherlands and that in such a case no prior authorisation would be required in order for the cost of treatment provided by such establishments to be assumed under the ZFW.
66 Even disregarding the fact that no such possibility is apparent from the provisions of national law to which the Court has been referred, the order for reference points out that in practice, having regard, in particular, to the contracting conditions, it will be mainly hospital establishments in the Netherlands that will strike contractual arrangements with the sickness insurance funds. It must also be recognised that, with the exception of hospitals situated in areas adjoining the Netherlands, it seems unlikely that a significant number of hospitals in other Member States would ever enter into agreements with the Netherlands sickness insurance funds, their prospects of admitting patients insured by those funds remaining uncertain and limited.
69 It follows from the foregoing considerations that rules such as those at issue in the main proceedings deter, or even prevent, insured persons from applying to providers of medical services established in another Member State and constitute, both for insured persons and service providers, a barrier to freedom to provide services (see, to that effect, Luisi and Carbone, paragraph 16, Case C-204/90 Bachmann [1992] ECR I-249, paragraph 31, and Kohll, paragraph 35).
70 Consequently, it is necessary to examine whether, in so far as they concern medical services provided within a hospital infrastructure, such as those at issue in the main proceedings, such rules can be objectively justified.
71 In that regard, it is first necessary to determine whether there are overriding reasons which can be accepted as justifying barriers to freedom to provide medical services supplied in the context of a hospital infrastructure, then to determine whether the prior authorisation principle is justifiable in the light of such overriding needs and last to consider whether the conditions governing the grant of prior authorisation can themselves be justified.
Overriding considerations which may be relied on to justify barriers to the exercise of freedom to provide services in the sphere of hospital treatment
72 As all the governments which have submitted observations to the Court have pointed out, the Court has held that it cannot be excluded that the possible risk of seriously undermining a social security system's financial balance may constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services (Kohll, paragraph 41).
73 The Court has likewise recognised that, as regards the objective of maintaining a balanced medical and hospital service open to all, that objective, even if intrinsically linked to the method of financing the social security system, may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC), in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50).
74 The Court has further held that Article 56 of the Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival of, the population (Kohll, paragraph 51).
75 It is therefore necessary to determine whether the national rules at issue in the main proceedings can actually be justified in the light of such 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 (Case 205/84 Commission v Germany [1986] ECR 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).
The prior authorisation requirement
76 As regards the prior authorisation requirement to which the ZFW subjects the assumption of the costs of treatment provided in another Member State by a non-contracted care provider, the Court accepts, as all the governments which have submitted observations have argued, that, by comparison with medical services provided by practitioners in their surgeries or at the patient's home, medical services provided in a hospital take place within an infrastructure with, undoubtedly, certain very distinct characteristics. It is thus well known that the number of hospitals, their geographical distribution, the mode of their organisation and the equipment with which they are provided, and even the nature of the medical services which they are able to offer, are all matters for which planning must be possible.
77 As may be seen, in particular, from the contracting system involved in the main proceedings, this kind of planning therefore broadly meets a variety of concerns.
78 For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned.
79 For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage is all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for health care are not unlimited, whatever the mode of funding applied.
80 From both those perspectives, a requirement that the assumption of costs, under a national social security system, of hospital treatment provided in another Member State must be subject to prior authorisation appears to be a measure which is both necessary and reasonable.
81 Looking at the system set up by the ZFW, it is clear that, if insured persons were at liberty, regardless of the circumstances, to use the services of hospitals with which their sickness insurance fund had no contractual arrangements, whether they were situated in the Netherlands or in another Member State, all the planning which goes into the contractual system in an effort to guarantee a rationalised, stable, balanced and accessible supply of hospital services would be jeopardised at a stroke.
82 Although, for the considerations set out above, Community law does not in principle preclude a system of prior authorisation, the conditions attached to the grant of such authorisation must none the less be justified with regard to the overriding considerations examined and must satisfy the requirement of proportionality referred to in paragraph 75 above.
The condition that the proposed treatment be normal
86 The Court has thus held, in particular, that it is not in principle incompatible with Community law for a Member State to establish, with a view to achieving its aim of limiting costs, limitative lists excluding certain products from reimbursement under its social security scheme (Duphar and Others, paragraph 17).
87 The same principle must apply to medical and hospital treatment when it is a matter of determining which treatments will be paid for by the social security system of the Member State concerned. It follows that Community law cannot in principle have the effect of requiring a Member State to extend the list of medical services paid for by its social insurance system: the fact that a particular type of medical treatment is covered or not covered by the sickness insurance schemes of other Member States is irrelevant in this regard.
89 Thus it follows from the Court's case-law that the list of medicinal preparations excluded from reimbursement must be drawn up in accordance with Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and that this will be so only where the list is drawn up in accordance with objective criteria, without reference to the origin of the products (Duphar, paragraph 21).
90 It likewise follows from settled case-law that a scheme of prior authorisation cannot legitimise discretionary decisions taken by the national authorities which are liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 23 to 28, and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37). Therefore, in order for a prior administrative authorisation scheme to be justified even though it derogates from such a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir and Others, paragraph 38). Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings.
94 Only an interpretation on the basis of what is sufficiently tried and tested by international medical science can be regarded as satisfying the requirements set out in paragraphs 89 and 90 above.
99 Under the rules at issue in the main proceedings, the grant of authorisation allowing assumption of the costs of a medical service provided abroad is subject to a second condition, namely that it be proved that the insured person's medical treatment requires that service.
100 As the national court states, it follows from the wording of Article 9(4) of the ZFW and Article 1 of the Rhbz that in principle that condition applies irrespective whether the request for authorisation relates to treatment in an establishment located in the Netherlands with which the sickness insurance fund has no contractual arrangements or in an establishment located in another Member State.
101 As regards the provision of hospital treatment outside the Netherlands, the national court states, however, that in practice this condition often appears to be interpreted as meaning that the provision of such treatment is not to be authorised unless it appears that appropriate treatment cannot be provided without undue delay in the Netherlands. No distinction is therefore drawn in this respect between whether the treatment could be provided by a contracted establishment or by a non-contracted establishment.
102 The Netherlands Government explains that the legislation at issue in the main proceedings does not compel refusal of a request for authorisation if the treatment sought is available in the Netherlands. Under Article 9(4) of the ZFW, read in conjunction with Article 1 of the Rhbz, authorisation must be refused only where the treatment required by the insured person's state of health is available from contracted providers of treatment. The Netherlands Government points out that the sickness insurance funds appear, however, to regard a care provider's country of establishment as a relevant factor, an interpretation which it considers inappropriate.
103 In view of what is stated in paragraph 90 above, it can be concluded that the condition concerning the necessity of the treatment, laid down by the rules at issue in the main proceedings, can be justified under Article 59 of the Treaty, provided that the condition is construed to the effect that authorisation to receive treatment in another Member State may be refused on that ground only if the same or equally effective treatment can be obtained without undue delay from an establishment with which the insured person's sickness insurance fund has contractual arrangements.
104 Furthermore, in order to determine whether equally effective treatment can be obtained without undue delay from an establishment having contractual arrangements with the insured person's fund, 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 but also of his past record.
105 Such a condition can allow an adequate, balanced and permanent supply of high-quality hospital treatment to be maintained on the national territory and the financial stability of the sickness insurance system to be assured.
106 Were large numbers of insured persons to decide to be treated in other Member States even when the hospitals having contractual arrangements with their sickness insurance funds offer adequate identical or equivalent treatment, the consequent outflow of patients would be liable to put at risk the very principle of having contractual arrangements with hospitals and, consequently, undermine all the planning and rationalisation carried out in this vital sector in an effort to avoid the phenomena of hospital overcapacity, imbalance in the supply of hospital medical care and logistical and financial wastage.
107 However, once it is clear that treatment covered by the national insurance system cannot be provided by a contracted establishment, it is not acceptable that national hospitals not having any contractual arrangements with the insured person's sickness insurance fund be given priority over hospitals in other Member States. Once such treatment is ex hypothesi provided outside the planning framework established by the ZFW, such priority would exceed what is necessary for meeting the overriding requirements referred to in paragraph 105 above.