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Since 1952, the Court of Justice of the European Union (CJEU) has ensured that EU law is respected and properly applied in the Member States. Over time, it has adopted judgments which, by granting citizens increasingly extensive rights, have strengthened European integration, particularly in the area of health care. The following pages present some of the Court's decisive rulings in this area.


THE LEGAL SITUATION UP TO 1998





Since 1971, the issue of cross-border healthcare has been regulated at EU level by the "Regulation on cross-border healthcare".
No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

In general, this legislation allows patients to go to another Member State for health care after having obtained prior authorisation from their sickness insurance fund (S2 form). Where such authorisation is granted, the costs of treatment are, as a general rule, borne or reimbursed to the patient at the rates applicable in the country of treatment, even if those rates are higher than those of the patient's country.

At the beginning of the 1990s, the European Union became an area without frontiers, which facilitated the free movement of persons. As more and more patients have opted for healthcare from doctors established in another Member State, the central question has arisen as to whether, in order to do so, they would systematically need prior authorisation from their health insurance fund. In 1998, the Court of Justice ruled on two cases where patients had not applied for or obtained prior authorisation, but nevertheless wished to be reimbursed by their sickness insurance fund.







THE 1998 KOHLL AND DECKER JUDGMENTS





The Kohll judgment: no prior authorisation is required for outpatient treatment planned in another Member State

In 1994, Mr Kohll, a Luxembourg national, wanted his minor daughter to be treated by an orthodontist established in Germany and had applied to the Luxembourg sickness insurance fund for authorisation. The latter refused that request on the ground that the treatment was not urgent and could be provided in Luxembourg. In relying on the freedom to provide services (and not on Regulation No 1408/71), Mr Kohll took the view that he was entitled to have his daughter cared for in Germany without prior authorisation and to claim reimbursement of the costs from his sickness insurance fund not on the basis of the tariffs of the country of treatment (Germany) but on the basis of the tariffs applied for that type of treatment in his country of registration (Luxembourg).

The Court of Justice has held that treatment given by a medical professional should be regarded as a service. Consequently, the fact that prior authorisation is required for scheduled outpatient treatment to be taken over at the rates applicable in the patient's country constitutes an obstacle to the freedom to provide services, since such authorisation discourages insured persons from seeking authorisation from medical service providers established in another Member State. The Court notes, moreover, that that legislation is not justified either by a risk of a serious change in the financial balance of the social security system or on grounds of public health (28 April 1998, Kohll, C-158/96).

The Decker judgment: no prior authorisation is required for the purchase, in another Member State, of medical products or devices on presentation of a medical prescription.

A patient can obtain a prescription for medicinal products or medical devices from a doctor established in one Member State and decide to buy the products in a pharmacy located in another Member State (either by going there physically or by mail order). This was the case with Mr Decker, who in 1992 bought glasses in Belgium with a prescription from an ophthalmologist established in Luxembourg. The Luxembourg sickness fund refused to reimburse the cost of the spectacles on the ground that they had been purchased abroad without prior authorisation.

The Court of Justice has held that a refusal to reimburse medical products purchased, without prior authorisation, in another Member State constitutes an unjustified obstacle to the free movement of goods, since such a requirement is not justified on public health grounds in order to ensure the quality of medical products supplied in other Member States. Since then, patients can purchase, without prior authorisation, their medical products or devices in another Member State and claim reimbursement from their health insurance fund at the rates applicable in their own country (28 April 1998, Decker, C-120/95).



INFLUENCE OF COURT JUDGMENTS ON EU HEALTHCARE LEGISLATION



With the delivery of the Kohll and Decker judgements on 28 April 1998 (see previous pages), the Court of Justice started a long series of judgements which inspired the EU legislator in substantially amending EU health care legislation.

The Kohll and Decker judgments have indeed shown that, alongside the system established by Regulation 1408/71 and its implementing regulation (Regulation 1408/71 and its implementing regulation), the Commission is committed to the development of a common approach to healthcare. 574/72), which provide for a prior authorisation mechanism for assumption of the cost of medical treatment scheduled in another Member State on the basis of the tariffs applied by that other Member State, the fundamental freedoms enshrined in the Treaties (freedom to provide services in the Kohll case and freedom of movement of goods in the Decker case) may be invoked in order to obtain, without prior authorisation from the social security institution, the assumption of responsibility for outpatient treatment or the purchase of medical products in another Member State on the basis of the tariffs applied by the patient's country.

By its case-law, the Court of Justice has therefore progressively contributed to the definition of the criteria to be taken into account in order to guarantee citizens' rights in this area. This case law has also been codified by the Union legislature through the adoption of Regulations Nos 883/04 and 987/09 and Directive 2011/24, which now provide citizens with detailed rules on the assumption of the cost of medical treatment and purchases in another Member State.

THE CASE LAW OF THE COURT OF JUSTICE ON THE 1971 REGULATION (CODIFIED IN THE 2004 AND 2009 REGULATIONS)










Following the Kohll and Decker judgments, the Court of Justice has had the opportunity to interpret the 1971 Regulation several times and, in particular, in two main areas: scheduled hospital care and unscheduled hospital care.

Planned hospital care
Where the authorisation required for a planned hospitalisation in another Member State has been wrongly refused and, for whatever reason, is granted subsequently to that hospitalisation, the patient is entitled to reimbursement of the costs incurred in the manner which would have applied if the authorisation had been granted in good time (12 July 2001, Vanbraekel and Others, C-368/98).
In order to be able to refuse a patient authorisation to be admitted abroad on the ground that he could be treated, after a certain waiting period, in a hospital in his own country, the national authorities must ensure that that waiting period does not exceed a medically acceptable period, having regard to the patient's state of health and clinical needs (16 May 2006, Watts, C-372/04). Moreover, prior authorisation may not be refused if a lack of essential medical supplies prevents the patient from receiving hospital treatment in his country within a reasonable time (9 October 2014, Petru, C-268/13).

On the other hand, prior authorisation may be refused if the medical services provided abroad are not reimbursable by the patient's social security system. However, if the treatment methodology applied abroad corresponds to benefits reimbursed in the patient's Member State, prior authorisation cannot be refused on the grounds that such methodology is not practised in that Member State (5 October 2010, Elchinov, C-173/09).
Where a patient has obtained authorisation to receive treatment in a hospital in another Member State and bears part of the cost of hospitalisation, he may request reimbursement from his sickness insurance fund of all or part of those costs on the basis of the cost of equivalent treatment in his country (16 May 2006, Watts, C-372/04).

Unscheduled hospital treatment
The 1971 Regulation, replaced by Regulation No 883/04, provides that an employed or self-employed person whose state of health requires immediate medical treatment during his stay in another Member State (emergency medical treatment) is entitled to reimbursement of that treatment by his sickness insurance fund, without its prior authorisation, in accordance with the tariffs in force in the country of treatment.

Where a pensioner travels to another Member State and must be hospitalised there as a matter of urgency, his sickness insurance fund may not make reimbursement of medical expenses subject to prior authorisation or to the condition that the illness from which he suffers has manifested itself suddenly, even if that condition is applicable to employed and self-employed persons. The difference in treatment between pensioners and workers is explained by the EU legislature's desire to promote the effective mobility of pensioners, taking account of their greater vulnerability and dependence as regards health (25 February 2003, IKA, C-326/00).
Moreover, if a person with prior authorisation receives treatment in another Member State and the doctors of that State decide to transfer him/her, for urgent medical reasons, to a hospital located in a non-EU country (Switzerland, for example), the patient may continue to benefit from reimbursement of medical expenses. The patient's sickness insurance fund must in fact trust the doctors in the Member State of treatment, who are in a more favourable position to assess what treatment the patient needs (12 April 2005, Keller, C-145/03).

Finally, if emergency hospital care is provided during a trip to another Member State, the patient's sickness insurance fund may refuse to reimburse the costs which, in the State of treatment, are charged to the patients (such as, for example, the moderator's ticket) (15 June 2010, Commission/Spain, C-211/08).

CASE LAW OF THE COURT OF JUSTICE UNDER THE FREEDOM TO PROVIDE SERVICES (CODIFIED IN THE DIRECTIVE
IN 2011)










n the wake of the 1998 Kohll judgment, the Court of Justice clarified its case-law concerning the case where a person decides to seek treatment in another Member State not on the basis of the 1971 Regulation but on the basis of the freedom to provide services. These clarifications relate only to planned medical treatment (outpatient or hospital) and not to emergency medical treatment (unscheduled treatment).
Planned outpatient treatment of a non-hospital nature
In line with the Kohll judgment, the Court of Justice held that prior authorisation was not necessary for non-hospital outpatient treatment provided in another Member State by non-contracted providers (13 May 2003, Müller-Fauré and Van Riet, C-385/99). Moreover, the Member States may not make the reimbursement of the costs of a spa treatment abroad subject to the condition that the prospects of success of that treatment in that place are much greater. (18 March 2004, Leichtle, C-8/02).
Member States must also provide in their national legislation for the possibility for insured persons to obtain reimbursement of the costs of laboratory tests and trials carried out in another Member State (27 January 2011, Commission/Luxembourg, C-490/09). Furthermore, Member States may not limit the cost of outpatient treatment provided abroad to the exceptional case where the national health system does not have the means to treat the patient registered in that system (27 October 2011, Commission/Portugal, C-255/09).

However, the Court of Justice has accepted that Member States may make outpatient treatment carried out in another Member State subject to prior authorisation where such treatment requires the use of heavy medical equipment (IRM, TEP-SCAN, for example). In view of their particularly onerous nature, such medical equipment, like hospital services, must be able to be the subject of a planning policy in order to guarantee, throughout the national territory, a rationalised, stable, balanced and accessible supply of care and to avoid wasting financial, technical and human resources. The requirement of prior authorisation for that type of care therefore constitutes a justified restriction on the freedom to provide services (5 October 2010, Commission/France, C-512/08).

Planned hospital treatment
The Court of Justice has held that, unlike outpatient non-hospital care (see previous page), the requirement of prior authorisation for hospital care can be justified by the need to ensure sufficient and permanent access to a balanced range of quality hospital care in the Member State concerned, to ensure cost control and to avoid wasting financial, technical and human resources. At the same time, the Court has indicated that the conditions for obtaining such prior authorisation must be justified, non-discriminatory and proportionate (12 July 2001, Smits and Peerboms, C-157/99). It follows that, in the case of planned hospital treatment, prior authorisation is always required, whether it is to obtain reimbursement on the basis of the tariffs applied in the country of treatment (2004 and 2009 Regulations) or on the basis of the tariffs applied in the country of the patient (2011 Directive).

Prior authorisation may be refused if there is treatment in the patient's country which is the same or equally effective as that provided abroad and if such treatment can be provided promptly in the patient's country. In this respect, the national authorities must take into account the patient's clinical picture, the patient's history, the probable course of the disease as well as the degree of pain or the nature of the illness (13 May 2003, Müller-Fauré and Van Riet, C-385/99).
A Member State may not limit the reimbursement of the costs of hospitalisation to certain categories of persons only (e.g. children), nor may it limit it to the public or private nature of the hospital providing the treatment. Such a wide exclusion of reimbursement of hospitalisation costs would be contrary to EU law, in that it would discourage, or even hinder, patients from being admitted to other Member States (19 April 2007, Stamatelaki, C-444/05).

Finally, if, for the hospital treatment in question, the tariffs in force in the country of treatment are lower than those in force in the patient's country, the patient is entitled to additional reimbursement corresponding to the difference between those two tariffs ('differential supplement') (12 July 2001, Vanbraekel and Others, C-368/98).





REIMBURSEMENT OF TRANSFER AND ACCOMMODATION COSTS





When a patient goes to another Member State to receive treatment, he is inevitably exposed to travel and accommodation costs. The question has therefore arisen as to whether the patient's health insurance fund should also reimburse these costs.

A patient who is authorised by his sickness insurance fund to travel to another Member State to receive treatment under the 1971 Regulation (or the 2004 and 2009 Regulations) cannot claim reimbursement of his travel expenses or, in the case of outpatient treatment, of his accommodation expenses. In the case of scheduled hospital treatment, the costs of accommodation and meals will be reimbursed. The obligation to reimburse only concerns the costs of healthcare obtained by the patient in the Member State of treatment (15 June 2006, Herrera, C-466/04).
This also applies where authorisation is granted under the freedom to provide services (2011 Directive). However, if the costs of transfer and accommodation are borne by the patient's sickness insurance for treatment provided on national territory, those costs must be reimbursed where the patient is receiving treatment in another Member State (16 May 2006, Watts, C-372/04).

In any event (both under the Regulations and the Directive), Member States are free, if they so wish, to reimburse the costs of travel and accommodation.

MAIL ORDER PURCHASE OF MEDICAL PRODUCTS OR DEVICES