Ms Müller-Fauré, who is resident in the Netherlands, took advantage of a holiday in Germany to visit the dentist without being in possession of the authorisation of her insurance fund. On returning to her country of residence, she applied for reimbursement of the cost of treatment.

Ms Van Riet applied for authorisation from her medical insurance fund, seeking to have it meet the cost of an arthroscopy performed in Belgium, since it could be performed sooner in that country than in the Netherlands. Without awaiting a reply, she underwent the arthroscopy and surgery in Belgium.

In both cases, reimbursement of the costs incurred was refused because the necessary appropriate treatment was available in the Netherlands without undue delay.

The Court of Justice, in its judgment in Case C-157/99 Smits and Peerbooms, ¹ held that Netherlands legislation was compatible with Community law with regard to hospital treatment. One of the lawful conditions for refusing authorisation is that identical treatment or treatment which is equally effective for the patient may be obtained “without undue delay” in an establishment which has a contract with the health insurance fund to which is affiliated the insured person.

In the light of that precedent, the national court claims that the Court of Justice should:

_     make a ruling now as to whether the prior authorisation requirement is contrary to provisions in matters of freedom to provide services where what the person insured under a system of benefits in kind is seeking is out-patient treatment; and

_     interpret the concept of “without undue delay”.

The Advocate General's Opinion is not binding upon the Court of Justice. His role is to propose to the Court, acting with complete independence, a decision on the legal points in order that the cases referred to it may be resolved.

Compatibility of the national provision with provisions of Community law regarding freedom to provide services

The Advocate General, in line with the case-law of the Court of Justice, points out that the requirement for prior authorisation laid down in national law constitutes an obstacle to the freedom to provide services. Next, he examines the question whether there are any grounds which justify the measure in question and are proportionate to the objective pursued.

Mr Ruiz-Jarabo is of the view that the requirement for prior authorisation before out-patient treatment may be received and charged to a system of benefits in kind is justified on three grounds, namely: risk of serious damage to the financial equilibrium of the social security system; maintenance of a medical and hospital service which is balanced and accessible to all; and maintenance of a capability to deliver medical treatment within the country, which is essential to public health. Accordingly, provisions relating to freedom to provide services do not preclude the requirement for prior authorisation since it is objectively justified.

Interpretation of the expression “without undue delay” within the meaning of the case-law of the Court of Justice

Mr Ruiz-Jarabo takes the view that the condition "without undue delay" should be assessed from a strictly medical standpoint, regardless of the waiting time for the treatment requested. In arriving at that conclusion, he bases himself on the fact that the Court of Justicemade no reference in its judgment in Case C-157/99 to any reasons that were not medical in nature.

Unofficial document for media use only; not binding on the Court of Justice. Available in German, Spanish, French, English and Dutch. For the full text of the Opinion, please consult our internet page www.curia.eu.int  at approximately 3 pm today. For further information, please contact Mr Reinier Van Winden Tel. (352) 4303 3555 fax: (352) 4303 2731

    ¹Case C-157/99 Smits and Peerbooms [2001] ECR I-5473 (also available on the Court's website at www.curia.eu.int