Brussels, 01/03/2010 (Agence Europe) - According to Advocate General Paolo Mengozzi, publishing his conclusions on 25 February 2010 in Case C-211/08 (Commission vs. Spain), refusal of additional reimbursement for medical expenses arising from unplanned hospital treatment abroad is contrary to the freedom to provide services. Expenses charged to the patient in the country of treatment must also be reimbursed where the level of cover is lower in that country than in the country of affiliation, he adds. The advocate general's conclusions are not binding on the Court of Justice, whose judges are now beginning to examine the case in question. The final decision will be issued at a later date.
In this case, the European Commission took the case to the European Court of Justice to get it to confirm that by refusing to refund beneficiaries of the Spanish state healthcare system for medical expenses incurred in another member state for unplanned hospital treatment, Spain infringed Article 22 of EU Regulation 1408/71 of 14 June 1971 (on application of social security systems to paid workers and their families moving around within the EU). Spain refused to pay on the grounds that the level of coverage in the member state where the treatment was given (France) is less than the coverage provided in Spain (such hospital treatment is free-of-charge in Spain). The Commission argued that Spain failed to meet its obligations in this connection.
Mr Chollet, a Frenchman living in Spain and insured with the Spanish social security system, unexpectedly needed to be admitted to hospital during a visit to France. The Spanish social security institution refused his application for refund of the percentage of the costs charged to him by the French hospital (known as the “ticket modérateur”) in accordance with French legislation. This led Chollet to lodge an appeal with the European Commission, which initiated an infringement procedure against Spain. This is the first time that the reimbursement of medical expenses - a matter which has already proved to be a fertile source of case-law - has been addressed in proceedings against a member state for failure to fulfil obligations.
Before the European Court of Justice, the Commission claims that by refusing persons affiliated to the Spanish national health system additional reimbursement for medical costs arising from unplanned hospital treatment in another member state, insofar as the level of cover in that state is lower than that provided for under Spanish legislation, Spain is in breach of the EU law principles relating to the freedom to provide services. The Commission argues that the Spanish health legislation has a restrictive effect both on the provision of the services that initially motivated travel to and temporary stay in another member state and on the subsequent provision of hospital medical services in that state.
The advocate general points out that whenever the legislation of the member state of the disbursing institution provides (as in France, in the case of Chollet) that a percentage of the costs of the services is to be borne by the recipient, then that legislating will also apply where the person in question is insured with another member state. He points out that the Court of Justice has already had occasion to confirm, in cases concerning planned health treatment, the right of persons affiliated to the social security scheme of a member state to additional reimbursement, corresponding to the difference between the level of cover offered by the institution in the state in which treatment was received and the level of cover provided in the state of affiliation, but within the limits set by the tariffs applicable in the state of affiliation. Paolo Mengozzi adds: “The restriction on the freedom of movement, which takes the form of refusal to grant additional reimbursement, cannot be justified by reference to the risk of financial repercussions on the national health service. Indeed, the state of affiliation is not required in any case to reimburse more than the cost that it would have borne if treatment had been given in the national territory”.
The advocate general adds that “the risk of a resurgence of 'health tourism' is offset by the fact that the reimbursement is conditional in any event upon the existence of a medical need and that it is also possible to trigger mechanisms for administrative cooperation between the member states in order to prevent abuse”' (L.C./transl.fl)