The Netherlands sickness insurance scheme provides for the grant of benefits in kind:
care is provided free of charge to insured persons by providers (doctors or
hospitals) which have concluded agreements with the sickness funds. Patients may receive medical
care, either in the Netherlands or abroad, from non-contracted practitioners or establishments only
after they have obtained prior authorisation. Authorisation is subject to the condition that
the care is necessary and cannot be provided "without undue delay" by a
Netherlands contracted doctor.
Ms Müller-Fauré consulted a dentist while she was on holiday in Germany in
October and November 1994 without having obtained prior authorisation from her sickness fund.
On her return to the Netherlands, she applied to the Zwijndrecht sickness fund
for reimbursement of the cost of her treatment (the fitting of six crowns
and a fixed prosthesis).
Ms Van Riet, who had been suffering from pain in her right wrist
since 1985, asked the Amsterdam sickness fund to cover the cost of an
arthroscopy and an ulnar reduction, both of which she had undergone in May
1993 in Belgium, without first having obtained authorisation. Care before and after this
treatment, and the treatment itself, which could be carried out much sooner than
in the Netherlands, were provided partly in hospital and partly elsewhere.
In both cases the sickness fund refused to reimburse the medical costs on
the ground that necessary and appropriate medical care could be obtained in the
Netherlands within a reasonable time.
The competent court, the Centrale Raad van Beroep (Higher Social Security Court), seised
of the disputes between the persons concerned and their sickness funds, questions the
Court of Justice about the compatibility of the Netherlands legislation with the principle
of freedom to provide services laid down in the Treaty.
The Court finds that the Netherlands legislation deters, or even prevents, persons insured
with funds from applying to medical providers established in Member States other than
that of affiliation and constitutes, both for the insured and for the providers,
a barrier to freedom to provide services.
The Court considers whether the barrier can be justified. It observes that the
risk of seriously undermining the financial balance of the social security system and
the maintenance of a high-quality, balanced medical and hospital service open to all
are reasons capable of justifying that barrier. In the Court's view, a distinction
must be drawn between hospital services and non-hospital services.
Hospital care
The Court previously held in its judgment in Smits and Peerbooms that a
system of prior authorisation is necessary in the context of a health care
scheme based on agreements in order to ensure that there is sufficient permanent
access to a balanced range of high-quality hospital care, to ensure that costs
are controlled and to avoid any wastage of financial, technical and human resources.
The requirement for prior authorisation in the case of hospital care provided in
another Member State is therefore justified. The conditions to which grant of such
authorisation is subject must none the less be justified in the light of
the overriding reasons referred to above, must satisfy the requirement of proportionality and
must give the national authorities no scope for acting in an arbitrary manner.
Thus, as regards the condition concerning the necessity of the treatment, as provided
for in the Netherlands legislation, the Court finds that prior authorisation may be
refused only if treatment which is the same or equally effective can be
provided to the patient without undue delay in a contracted establishment. National authorities
must take account not only of the patient's actual medical condition and, where
appropriate, the degree of pain or the nature of the patient's disability, which
might, for example, make it impossible or extremely difficult for him to carry
out a professional activity, but also of his medical history.
Non-hospital care
The Court considers that the arguments put forward before it do not show
that removal of the requirement for prior authorisation for non-hospital care would give
rise to patients travelling to other countries in such large numbers (despite linguistic
barriers, geographic distance, the cost of staying abroad and lack of information about
the kind of care) that the financial balance of the Netherlands social security
system would be seriously upset and that the overall level of public-health protection
would be jeopardised, something which could constitute proper justification for a barrier to
the fundamental principle of freedom to provide services.
The Court also considers whether removal of the requirement for prior authorisation is
likely to undermine the essential characteristics of the Netherlands system of access to
health care.
In that regard, the Court observes that the Member States have power to
organise their social security systems. However, in exercising that power, the Member States
must comply with Community law. If fundamental freedoms such as freedom to provide
services are to be a reality, the Member States are inevitably obliged to
make some adjustments to their national social security systems.
The Court finds that:
) for the purpose of actually applying Regulation No 1408/71 in so far as
it relates to the social security of migrant workers and members of their
families, Member States which have set up a benefits-in-kind scheme have already had
to provide mechanisms for ex post facto reimbursement of the cost of care
provided in a Member State other than the competent State;
) insured persons can claim reimbursement of the costs of care received only within
the limits of the cover provided by the sickness insurance scheme in the
State of affiliation;
) where the competent Member State has a benefits-in-kind scheme, it may fix the
amounts of reimbursement which patients who have received care in another Member State
can claim, provided that those amounts are based on objective, non-discriminatory and transparent
criteria.
The Court concludes that it has not been established that removal of the
requirement for prior authorisation would undermine the essential characteristics of the Netherlands sickness
insurance scheme.
The principle of freedom to provide services therefore precludes legislation such as the
Netherlands legislation, which requires the insured to obtain prior authorisation, even under a
benefits-in-kind scheme, in the case of non-hospital care provided in another Member State
by a non-contracted provider.
|
Available in: Dutch, English, French, German, Greek, Italian and Spanish. For the full text of the judgment, please consult our internet page www.curia.eu.int at approximately 3 pm today. For additional information please contact: Christopher Fretwell tel: (00 352) 4303 3205; fax: (00 352) 4303 2034. Pictures of the hearing are available on "Europe by Satellite" European Commission, Press and Information Service, L-2920 Luxembourg, tel: (00 352) 4301 351 77; fax (00 352) 4301 352 49, or B-1049 Brussels, tel (00 32) 2 296 41 06; fax (00 32) 2 296 59 56 or (00 32= 2 230 12 80 |
Case C-157/99 Smits and Peerbooms of 12 July 2001 ) see Press
Release No 32/01.