Week 7
Coordination of Social Security II – Cross-border access to health care
Regulation 883/2004 contains a specific Chapter on the coordination of sickness benefits. It
covers two types of benefits: ‘cash benefits’, which provide insured persons with a benefit
replacing their salary in the event of illness, and ‘benefits in kind’, which basically involve a
right to be reimbursed for the costs of health care that insured persons incurred in
another Member State than the one in which they are insured.
This week we focus mainly on benefits in kind, even though some attention is given to cash
benefits (Paletta case) and the distinction between such benefits and healthcare benefits
(Molenaar case). As to cross-border health care, we discuss the rights of migrant workers,
frontier and their family members, Union citizens who become in need of health care while
visiting another Member State and, above all, Union citizens who wish to travel to another
Member State for the sole purpose of receiving health care (‘free movement of patients’).
Until the late 1990s, however, this right to freedom of movement for patients did not have much
practical significance. In principle, patients had no right to have the cost of cross-border care
paid or reimbursed by their sickness fund; they had to bear these cost themselves. Starting-point
of both the health care and insurance rules of the Member States and the relevant provisions of
EC Regulation 1408/71(now 883/2004) on the coordination of social security systems was that
only medical care provided by doctors or hospitals established on the national territory is eligible
for reimbursement. Patients who wish to go to another Member State to receive treatment were
only entitled to reimbursement of the cost when they have obtained prior authorisation from their
sickness fund. A right to get such authorisation existed only in exceptional circumstances. In
principle, authorisation was not a right, but a privilege that was only exceptionally given.
In 1998, however, the CJEU gave strong impetus to the freedom of movement for patients. In
the landmark judgment in Kohll the CJEU ruled that national rules that make reimbursement of
the cost of cross-border care subject to the grant of prior authorisation, hamper the free
movement of (medical) services. Absent justification, prior authorisation rules are incompatible
with Article 49 EC (now Article 56 TFEU). In Kohll the CJEU introduced an additional possibility
and procedure for the reimbursement of the cost of cross-border care, which, unlike the
procedure of Regulation 1408/71, does not require prior authorisation and is based on the
assumption that sickness funds in principle must pay the cost. Under the “Kohll-procedure,”
reimbursement is a right, not a privilege.
Kohll triggered extensive debates about the potential impact of the economically determined
freedom of movement for services on the social, solidarity-based, national health systems and
the question when, which of the two procedures can or must be applied. It was inevitable that
new cases would be referred to the CJEU in which this court would be asked to clarify the
conditions under which patients are entitled to have the cost of cross-border care reimbursed by
their sickness fund. In addition, Kohll triggered political responses. Member States asserted that
the co-existence of the two procedures caused legal uncertainty and claimed that decision-
making in health care had to be moved back from the juridical to the political sphere. This has
ultimately led to the adoption on 9 March 2011 of Directive 2001/24/EU on the application of
patients’ rights in cross-border healthcare (hereinafter: Patients’ Rights Directive – PRD).
Reading Materials (for lecture and tutorial group):
A.P. van der Mei, Freedom of Movement for Patients: Recent Developments in the Case Law of
the European Court of Justice, available on Eleum.
, A.P. van der Mei, The New Directive on Patients’ Rights in Cross-Border Healthcare, Maastricht
Journal of European and Comparative Law, 2011, Issue 3, pp. 382-392, available on Eleum.
Case C-160/96, Molenaar, ECLI:EU:C:1998:84
Case C-158/96, Kohll, ECLI:EU:C:1998:171
Case C-268/13, Petru ECLI:EU:C:2014:2271
This case was about a patient in a Romanian hospital. She needed treatment, but the hospital
did not have the materials to treat her. She wanted to go to Germany for treatment and the
question was how article 22 (old) should be interpreted. Can you say; the quality is so bad so I
am going to Germany? No, she cannot do that and this decision is fair. According to the court of
justice, the Romanian court has to check whether there are other hospitals in Romania that can
provide in the treatment that she wants to receive. The costs in Romania are are very low
compared to the costs in Romania. Romania has to pay these costs, which is a huge financial
burden. If the court of justice would have decided differently, it could lead to big damages to
Romanian health care. So article 20 and 35 should be used very reservedly.
Case C-679/16, A, ECLI:EU:C:2018:601 A case:
This case was about a disabled boy who needed an assistant in order to be able to go to college
in another member state. Is this a sickness benefit case?
No, it is a disabled child who needs assistant to do daily tasks. This has nothing to do with
sickness, so it doesn’t fall within the scope ‘sickness benefit’. So it falls outside the material
scope of the directive.
This boy still won the case because he argued that when he would have studied in Finland
(home member state), he would have gotten an assistant. The fact that he is not getting an
assistant when he goes to Estland is a restriction of the freedom to study. This is prohibited in
article 21.
Another important thing to remember is that 2/3 of the member states have national health
system (HAS). The health care is financed by tax. In the Netherlands we don’t have this system.
We have to prevent Dutch people going to the UK for free healthcare. The UK has therefore the
restriction that you need to be a resident of the UK to receive free healthcare.
Another problem is the free movement of national health services. Because there is an in-
between time when you move from one member state to another that isn’t covered. You could
use commercial private health insurances, but when you are older this will cost you a lot. The
premiums will be enormous.
Watts-case
This case was about a woman in a wheelchair in a England. She wanted a hip surgery but had
to wait for too long in England. She went to France and received the treatment. She then
wanted a reimbursement from England. The British say that they are not going to pay for the
surgery, because they have a national health services where she could have receive the
treatment for free. A service is something which is done in return for payment. They argue that
Watts didn’t get a service, because in England it is for free. There is a free movement of
services, so you get nothing reimbursed.
What is wrong about this argumentation?
She received a treatment in France and when England doesn’t pay, then it is a restriction on the
freedom of movement.
So the solution is that the services a free in England for the British residents. For others, there is
a price list. So there is a service and a payment. When Watts goes to France, she had to pay as
well because then it is also a service. This way, the patients directive becomes applicable to all.
