European law - Right to hospital treatment abroad
It is contrary to EU law for a member state to absolutely exclude reimbursement of costs incurred by its nationals when receiving hospital treatment in another member state, the European Court of Justice has recently ruled.In this case, a Greek...
It is contrary to EU law for a member state to absolutely exclude reimbursement of costs incurred by its nationals when receiving hospital treatment in another member state, the European Court of Justice has recently ruled.
In this case, a Greek resident sought and paid for treatment in a private hospital in the United Kingdom. He sought to recover the amount of fees paid from his health insurance. However, the insurers refused to reimburse him on the basis of the fact that, in terms of Greek law, the cost of treatment in private hospitals abroad is recoverable only when it relates to children under 14 years of age. Proceedings were initiated before the national courts and the case was eventually referred to the European Court of Justice for a preliminary ruling as to whether Greek legislation was consistent with the freedom to provide services as enshrined in the EC Treaty.
The European Court of Justice affirmed that EU member states have the discretion to organise their own social security systems. Each member state is free to determine the conditions on which social security benefits are granted. However, in exercising such discretion, member states must at all times comply with Community law and in particular with the principle of freedom to provide services. The Court maintained that this means that member states cannot introduce or maintain unjustified restrictions on the exercise of that freedom in the healthcare sector.
The Court observed that, in terms of Greek law, a citizen who receives treatment in a public hospital, or in a private hospital which is located in Greece and with which an agreement has been entered into, has no costs to pay for his treatment. On the other hand, he must bear the costs himself if he is admitted to a private hospital in another member state. Moreover, whereas a patient is reimbursed the costs of emergency treatment in a private hospital in Greece even though no agreement has been entered into with such hospital, the same does not apply to emergency treatment received by that same patient in a private hospital in another member state.
The European Court of Justice concluded that such legislation deters, or even prevents, patients from seeking treatment from providers of hospital services established in other member states. This constitutes a restriction on the freedom to provide services. Furthermore, such an absolute prohibition as the one sanctioned by Greek law could not be objectively justified. Alternative measures such as a system of prior authorization or a determination of scales for reimbursement would have been more in keeping with Community law, the court affirmed.
This is not the first time that the European Court of Justice has had the occasion to pronounce itself on EU citizens' right to seek healthcare in member states other than their own. One can trace a consistent line of case law advocating patient mobility across Europe and ensuring the freedom to provide healthcare services. Healthcare services are not currently regulated by the Services Directive or by any other EU law. Furthermore, drawing on the European Parliament's recent rejection of specific EU legislation on health services, neither does new legislation seem to be in the pipeline.
However, the European Parliament did call upon the Commission to seek to codify the current case law of the European Court of Justice in an attempt to secure the right of EU citizens to seek healthcare in member states other than their own.
To my mind, in one way or another, it is indispensable that both patients and healthcare service providers are imminently provided with more legal certainty in order to ensure the freedom to provide and receive services across EU borders even in the healthcare sector.
• Dr Vella Cardona is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.
In this case, a Greek resident sought and paid for treatment in a private hospital in the United Kingdom. He sought to recover the amount of fees paid from his health insurance. However, the insurers refused to reimburse him on the basis of the fact that, in terms of Greek law, the cost of treatment in private hospitals abroad is recoverable only when it relates to children under 14 years of age. Proceedings were initiated before the national courts and the case was eventually referred to the European Court of Justice for a preliminary ruling as to whether Greek legislation was consistent with the freedom to provide services as enshrined in the EC Treaty.
The European Court of Justice affirmed that EU member states have the discretion to organise their own social security systems. Each member state is free to determine the conditions on which social security benefits are granted. However, in exercising such discretion, member states must at all times comply with Community law and in particular with the principle of freedom to provide services. The Court maintained that this means that member states cannot introduce or maintain unjustified restrictions on the exercise of that freedom in the healthcare sector.
The Court observed that, in terms of Greek law, a citizen who receives treatment in a public hospital, or in a private hospital which is located in Greece and with which an agreement has been entered into, has no costs to pay for his treatment. On the other hand, he must bear the costs himself if he is admitted to a private hospital in another member state. Moreover, whereas a patient is reimbursed the costs of emergency treatment in a private hospital in Greece even though no agreement has been entered into with such hospital, the same does not apply to emergency treatment received by that same patient in a private hospital in another member state.
The European Court of Justice concluded that such legislation deters, or even prevents, patients from seeking treatment from providers of hospital services established in other member states. This constitutes a restriction on the freedom to provide services. Furthermore, such an absolute prohibition as the one sanctioned by Greek law could not be objectively justified. Alternative measures such as a system of prior authorization or a determination of scales for reimbursement would have been more in keeping with Community law, the court affirmed.
This is not the first time that the European Court of Justice has had the occasion to pronounce itself on EU citizens' right to seek healthcare in member states other than their own. One can trace a consistent line of case law advocating patient mobility across Europe and ensuring the freedom to provide healthcare services. Healthcare services are not currently regulated by the Services Directive or by any other EU law. Furthermore, drawing on the European Parliament's recent rejection of specific EU legislation on health services, neither does new legislation seem to be in the pipeline.
However, the European Parliament did call upon the Commission to seek to codify the current case law of the European Court of Justice in an attempt to secure the right of EU citizens to seek healthcare in member states other than their own.
To my mind, in one way or another, it is indispensable that both patients and healthcare service providers are imminently provided with more legal certainty in order to ensure the freedom to provide and receive services across EU borders even in the healthcare sector.
• Dr Vella Cardona is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.