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Summary European Labour and Social Security Law - Literature Summaries week 7
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Summaries of the readings for European Labour and Social Security Law week 7: - A.P. van der Mei, Freedom of Movement for Patients: Recent Developments in the Case Law of the European Court of Justice; - A.P. van der Mei, The New Directive on Patients’ Rights in Cross-Border Healthcare, Maastrich...

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  • 7 oktober 2020
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European Labour and Social Security Law – Literature Notes Week 7: Coordination of Social
Security II – Cross-border access to health care
A.P. van der Mei, Freedom of Movement for Patients: Recent Developments in the Case Law of the
European Court of Justice
1 Introduction
In 1984 the Court of Justice of the European Communities (ECJ) held that Article 49 of the EC Treaty confers
upon all European citizens the right to travel to other Member States for the purpose of receiving medical
services, though this did not have much practical significance until the 1998 Kohll judgement. Here, the ECJ
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. This contribution provides an analytical
overview of the case law of the ECJ since 1998.

2 Main features of the 1408/71 and Kohll procedures

2.1 1408/71 procedure
Articles 18-36 of Regulation 1408/71 seek to co-ordinate the national health care and insurance
systems in such a manner that persons who reside in or travel to another Member State than the one
in which they are insured can obtain, where necessary, medical care at the expense of their insurer.

 Persons who reside in a Member State other than the competent State and those who merely
travel to or visit another State can obtain treatment in the Member State wherein they live.
Frontier workers (i.e. residing outside the competent state) enjoy a right to choose in which
of the two States concerned they wish to receive treatment.
 Persons who merely travel to or visit another State, may be divided in:
o Persons who become in need of medical care during a short stay are covered by
Article 22(1)(a), which, read in conjunction with Article 22a, confers upon insured
persons, whose condition requires ‘benefits in kind’ which become necessary on
medical grounds during a stay in another Member State, the right to receive medical
care.
o Persons who move to another Member State for the purpose of receiving medical
care are covered by Article 22(1)(c), which grants all insured patients who have been
authorised by the competent institution to go to the territory of another Member
State in order to receive medical treatment, the right to obtain medical care. In
principle, the competent institutions are under no obligation to offer authorization.
Such a duty only exists, as follows from Article 22(2) where the treatment in question
(i) is among the benefits provided for by the legislation of the Member State on
whose territory the person concerned resides and (ii) where the patient cannot be
given the treatment in question within the time normally necessary for obtaining this
treatment in the Member State of residence. The resulting system of cooperation
between the health (insurance) institutions of the states involved, firstly, the costs
must be paid by the institution to which beneficiaries have paid health premiums
(i.e. the competent institution). The institution of the ‘providing State’, under Article
36(1), is entitled to be fully refunded by the competent institution. Secondly, in all
cases medical care is to be provided in accordance with the legislation of the State
where the benefits are provided.

2.2 Kohll procedure
The Kohll judgement concerned a Luxembourg resident who had requested authorisation for the
treatment of his daughter by an orthodontist in Trier, Germany. The request was rejected on the
ground that the treatment in question was not urgent and could have been obtained in Luxembourg
itself. The ECJ concluded that national rules which make the reimbursement of the cost of cross-
border care conditional upon prior authorisation by a sickness fund may deter patients from

, approaching providers of medical services established in another Member State and thus constitute
an, in principle, prohibited barrier to freedom to provide services. However, the Court also held that
Member States or their competent institutions can refuse or limit reimbursement of the cost when,
and is as far as, this necessary for protecting the financial stability of health insurance schemes (para
41) or for ‘maintaining a balanced medical and hospital service open to all’ (paras 50-51). This new
procedure is co-existent with the procedure under Regulation 1408/71 and has the advantage over the
regulation that patients are no longer dependent on the willingness of their insurer to grant
authorisation. However, when the costs of medical care abroad are higher than at home, the patients
will have to pay the differences themselves. Furthermore, the patients have to pay the providing
institution themselves and will only be reimbursed upon their return home.

3 Clarifying Kohll

3.1 Geraets-Smits en Peerbooms: Hospital care and benefit in kinds system
In this case, two patients challenged the legality of the Dutch prior authorisation rules after having
been treated abroad. The Court found that, first, medical services provided in a Member State other
than the state of insurance and paid for by the patients themselves do not cease to fall within the
scope of the Treaty provisions on the free movement of services merely because the legislation in the
state of insurance is based on the principle of benefits in kind (para 55). Second, it recognised that
hospital care, by comparison with non-hospital care, shows certain distinct characteristics, in which
regard it ruled that ‘the assumption of cost of hospital treatment provided in another Member State 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’ (paras 80-81). Thus, the ECJ established that prior authorisation applied to hospital care, in
principle, can be justified and thus lawfully applied. This did not imply, however, that Member States
and their sickness funds are wholly free in doing so. The Court did require that the conditions attached
to the grant of authorization are necessary to safeguard the financial stability of social security
schemes or to maintain a ‘balanced medical and hospital service open to all’.

3.2 Müller-Fauré and van Riet: Non-hospital care and waiting lists
Geraets-Smits en Peerbooms, however, did not indicate whether or when prior authorisation rules for
non-contracted non-hospital care could be justified and what precisely must be understood by “undue
delay.” Müller-Fauré concerned the rejection for an application for reimbursement because, inter alia,
under the Dutch system insured persons are only entitled to medical treatment itself and, in principle,
not to reimbursement of costs. Van Riet, then, concerned the refusal to reimburse because the
appropriate treatment was available in the home Member State within a reasonable period. As
regards non-hospital services, the ECJ stated that it did not see why authorization rules were needed.
The ECJ recognised that the removal of authorisation requirements could adversely affect the ways in
which health care expenditure may be controlled in the State of affiliation, but the ECJ was not
persuaded that such removal would seriously upset the financial balance of the Dutch social system
(paras 95-98). As regards the issue of waiting lists and the criterion of ‘undue delay’, the ECJ specified
its holding in Geraets-Smits that national authorities must have regard to all the specific circumstances
of each specific case and take due account of not only the patient’s medical condition at the time
when authorisation is ought, but also of his medical history (paras 90-92).

3.3 Watts: Waiting lists and national health services
Watts concerned the UK’s NHS, which employs waiting lists because of its limited budget. UK residents
who wish to move to another Member States in other Member States will have to ask for
authorization (see Article 22(2) of Regulation 1408/71). The case concerned a UK patient who was in
need of treatment but was put on a waiting list and was not considered to be in a position of ‘undue
delay’. She nevertheless underwent a hip replacement operation in France and payed the fees herself,
after which she commenced legal proceedings to recover the cost. As regards the UK’s policy rules for
patients placed on waiting lists, the ECJ observed that prior authorization cannot be refused on the
sole ground that waiting lists exist and without carrying out in each individual case an objective
medical assessment of the patient’s medical condition, the history and probable course of his illness,

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