Wed, 02 May 2012
By Ramby De Mello
1. Under the Treaty on the Functioning of the European Union (TFEU) a national a Member State may travel to another Member State to receive services which are normally provided for remuneration. If the treatment is provided under the Member State’s national health care system the patient will normally be entitled to receive that treatment in the host Member State. The patient will also be reimbursed by his own Member State without prior authorisation up to the amount he would have been entitled to receive in his home country.
2. The provision of medical services does not cease to be a provision of services under the Treaty 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 in the home country.
3. On average 1% of public healthcare budgets or about €10 billion per year is spent on cross-border healthcare. According to a Eurobarometer study, 4% of Europeans received medical treatment in another EU Member State in 2006-2007. Cross-border healthcare is more frequent for the treatment of rare diseases and in border regions, smaller Member States and areas with large numbers of tourists.
4. The European Court of Justice has consistently held that the freedom to provide services involves not only the freedom of the provider to carry out services for recipients established in a Member State other than that in which the provider is established but also the freedom to receive or to benefit, as recipient, from the services carried out by a provider established in another Member State, without being hampered by restrictions; so that a EU citizen visiting another Member State who because of an accident receives treatment in that State will be covered by the Treaty.
5. The Court is beginning to draw a distinction between those citizens of the EU who travel as tourists to another Member State and those who plan hospital treatment in another Member State. Given, the ever-increasing mobility of citizens within the European Union, particularly for reasons of tourism or education, is likely to mean an ever greater number of cases of unscheduled hospital treatment in the Member State of stay which they cannot control. For example there is uncertainty as to whether hospital treatment will be needed during a visit to another Member State and how this will impose a burden on that state.
6. Let us consider this example: if a Greek citizen who is visiting Spain suffers an accident with serious injuries and is taken by ambulance to the nearest hospital for treatment which turns out to be private and then has to pay for it, he will be surprised by the bill on the grounds that if he was in Greece the bill would be paid by his insurance policy. Is he entitled to reimbursement in Greece on his return there if he meets all the conditions for reimbursement?
7. The freedom to provide services includes medical care provided for remuneration both in a hospital environment and outside such an environment; it also includes the freedom, for the recipients of services, to go to another Member State in order to receive the necessary care. Community law does not intrude on the power of the Member States to organise their social security systems as there is no harmonisation of these systems in the EU. It is for the legislation of each Member State to determine the conditions for entitlement to benefits but when exercising that power Member States must comply with Community law which means that they cannot introduce or maintain in force unjustified restrictions on the exercise of the freedom to provide and receive health services.
8. The case law in the European Court of Justice is developing rapidly.
9. The Court of Justice has recognised that certain overriding reasons in the general interest may justify a barrier to the freedom to provide hospital services, such as the risk of seriously undermining a social security system’s financial balance, the objective of maintaining a high quality balanced medical and hospital service open to all or the maintenance of treatment capacity or medical competence on national territory.
10. The Court has acknowledged that the number of hospitals, their geographical distribution, the way in which they are organised and the facilities with which they are provided, and the nature of the medical services which they are able to offer, are all matters for which it must be possible to plan in such a way as to meet a variety of concerns, including those of ensuring that there is sufficient and permanent access to a range of high-quality hospital treatment, or of controlling costs and preventing any wastage of resources, principally financial resources, which are not unlimited, whatever the mode of funding applied. If patients were at liberty to use the services of any kind of hospital, including hospitals with which their health insurance fund had no agreement, the planning work would be adversely affected in Member States.
11. The Court has also held that that provision of the EC 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 public health, or even the survival of the population.
12. In one of the first cases, Mr Kohll who resided in Luxembourg and was insured there sought reimbursement from the authorities for the dental treatment received by his daughter in Germany. The ECJ held that the service provision of the EC Treaty precluded national rules under which reimbursement, in accordance with the level of the State insurance scheme, of the cost of dental treatment provided in Germany is subject to authorisation by the authorities in Luxembourg: Case C 158/96 Kohll [ 1998] ECR I 1931. This case concerned medical treatment which had been provided outside of a hospital.
13. The principle of reimbursement also applies to medical treatment provided in a hospital environment. In later cases the EJC held that the principle of reimbursement also applied where the treatment was available in the home country of the persons travelling to another Member State to receive that treatment.
14. However the ECJ ruled 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’. According to the Court, the fact that hospital medical treatment was financed directly by the sickness insurance funds on the basis of agreements and pre-set scales of fees did not remove the treatment from the sphere of services within the meaning of the Treaty. The Court therefore found that the national legislation in question was restrictive but concluded that the requirement that the person should obtain prior authorisation for the treatment in another Member State was ‘a measure which is both necessary and reasonable’, since it was justified by the dual need to ensure ‘that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned’ and ‘to prevent, as far as possible, any wastage of financial, technical and human resources’: Case C 157/99 Smits and Peerbooms  ECR I 5473.
15. On the same day the EJC gave judgment in Smits it also delivered a judgment in the Vanbraekel case. Ms Descamps, a Belgian national insured under the compulsory Belgian sickness and invalidity scheme, had sought authorisation to undergo orthopaedic surgery in France. Authorisation had been refused on the ground that the request had not been adequately supported. Despite the refusal, Ms Descamps had nevertheless gone ahead with the operation and had brought an action against the sickness fund with which she was insured for reimbursement of the expenses incurred.
16. The Court observed that the authorisation sought by Ms Descamps to have an operation in France had been wrongly refused. It concluded that the Treaty “... is to be interpreted as meaning that, if the reimbursement of costs incurred on hospital services provided in a Member State of stay is less than the amount that the Member State would provide to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by the competent institution”: Case C 368/98 Vanbraekel and Others [ 2001] ECR I 5363.
17. In the Müller-Fauré and van Riet judgment which again involved the sickness insurance system in the Netherlands, the Court repeated the rulings it had made in Kohll and in Smits and Peerbooms. Ms Müller-Fauré had undergone dental treatment without recourse to any hospital facilities while on holiday in Germany. Upon her return to the Netherlands she had applied for reimbursement of the cost, which was refused. For her part, Ms van Riet had requested authorisation to have an arthroscopy performed in Belgium. Authorisation had been refused on the ground that the test could also be performed at a contracted hospital in the Netherlands. Ms van Riet had nevertheless had the procedure carried out, partly at a hospital, and had applied for reimbursement of the cost, which had been refused. The Court repeated that the requirement to obtain prior authorisation as a condition for the reimbursement of expenses incurred in another Member State for hospital treatment performed outside contracted facilities was compatible with Articles 59 and 60 of the EC Treaty and stated that authorisation may be refused for lack of medical necessity ‘only if treatment which is the same or equally effective for the patient can be obtained without undue delay in an establishment which has concluded an agreement with the [sickness] fund’. The Court recognised that delay in obtaining treatment in the home country is an important factor which may justify the citizen travelling to another Member State to receive that treatment which his home country delayed in providing. The Court thus required each case to be assessed individually in the light of the state of health of the person concerned and the urgency of the treatment the patient must undergo. With regard to the cost of out-patient treatment received abroad, the Court confirmed its findings in the Kohll judgment, in particular rejecting the objections raised by the Government of the Netherlands based on the fundamental difference between a reimbursement system, such as that provided for under the Luxembourg legislation at issue in the Kohll case, and a system based on the provision of benefits in kind, such as that of the Netherlands: Case C 385/99 Müller-Fauré and van Riet  ECR I 4509.
18. The question of the reimbursement of the cost of hospital treatment incurred by the patient in private hospitals abroad by the patient’s sickness insurance system where the legislation of the State of registration refuses reimbursement for such treatment when provided in private establishments in that State was considered by the Court in Case C 444/05 Stamatelaki [ 2007] ECR I 3185.
19. In this case Dimitrios Stamatelakis had an insurance policy. He suffered from cancer and received treatment in a private hospital in London. He paid for this treatment. Sadly he died. His widow claimed on the behalf of his estate reimbursement from the insurers which was turned down. A reference was made by the domestic court to the EJC as to whether she was entitled to reimbursement of the cost of treatment in the private hospital. The ECJ concluded that the Treaty applies to the situation of a patient who, like Mr Stamatelakis, receives, in a Member State other than his Member State of residence, medical services in a hospital environment which are provided for consideration, and it is immaterial whether the establishment in question is public or private. Further the Treaty precludes legislation of a Member State which excludes all reimbursement by a national social security institution of the costs occasioned by treatment of persons insured with it in private hospitals in another Member State.
20. In another case Mrs Watts a UK national sought authorisation from the Secretary of State under Article 22(1)(c) of Regulation No 1408/71 to have an operation abroad. Authorisation had been denied on the basis that she could receive similar treatment in a local hospital ‘without undue delay’. During the period of the action brought against that refusal, Mrs Watts, whose health had deteriorated in the meanwhile, had had the operation performed in France at her own expense. She claimed reimbursement from the authorities in UK which was refused. The ECJ (now CJEU) found that the Treaty applied in the circumstances of the case ‘regardless of the way in which the national system with which [the person concerned] is registered and from which reimbursement of the cost of those services is subsequently sought operates’. It ruled that the UK legislation was a restriction of the freedom to provide services, even if, under that legislation, treatment provided at private hospitals in England and Wales was not reimbursed by the NHS. The Court confirmed that a national measure which makes prior authorisation a condition for a patient’s right to obtain hospital treatment in another Member State at the expense of the system with which that person is registered is compatible with Article 49 EC: Case C-372/04 Watts  ECR I 4325.
21. In European Commission –v- Spain Case C 211/08 the Court more recently stated that in relation to an insured person who travels to another Member State for reasons relating to tourism or education, for example, and not because of any inadequacy in the health service of the home State, the Treaty on freedom of movement offer no guarantee that all hospital treatment services which may have to be provided to him unexpectedly in the Member State of stay will be the same in terms of cost. Given the disparities between one Member State and another in matters of social security cover the conditions attached to a hospital stay in another Member State may, according to the circumstances, be to the insured person’s advantage or disadvantage. In the case of an arranged hospital treatment in another Member State, the insured person is, as a general rule, able to obtain an overall estimate of the cost of that treatment in advance, enabling him to compare the levels of cover respectively applicable in the Member State of stay and the Member State of affiliation. In the case of a visitor accessing the hospital care in the visiting state unexpectedly is too uncertain to provide a definite rule of the level of reimbursement under the Treaty.