Brussels, 15/06/2010 (Agence Europe) - In a ruling delivered on Tuesday 15 June on Case C-211/08 (Commission v. Spain), the Court states that, where unscheduled hospital care is administered during temporary stay in a member state other than the member state of affiliation, the latter is not required to reimburse the patient as regards costs which, in the state where the care was administered, fall to be paid by the patient. The social security of the patient's state of affiliation is required to reimburse the institution of the member state of stay, in which the care was administered, only those costs incurred by that institution on the basis of the level of cover applicable in the member state of stay.
In this case, the Commission takes the view that Spain has failed in its obligations pursuant to Article 49 EC (free movement of services). Under the Spanish legislation on healthcare, it is a general rule that only the benefits provided under the national health system to persons covered by that system are entirely free of charge. Nonetheless, in accordance with the mechanism established in Regulation No 1408/71 (application of social security systems), where a person insured under the Spanish national health system receives unscheduled healthcare in another member state, the Spanish system reimburses the institution of the member state of stay, in which the care was administered, as regards the costs incurred by that institution on the basis of the level of cover applicable in the member state of stay. In principle, the person insured under the Spanish system therefore has no right to insurance cover at the expense of the Spanish social security institution in respect of that part of the cost of the care which is not covered by the institution of the member state of stay and which falls to be paid by the patient. The Commission maintains that the effect of the Spanish regulation is to restrict not only the provision of hospital care but also the provision of tourist or educational services, the obtaining of which can be the reason for a temporary stay in another member state. The unfavourable conditions of reimbursement would deter the person insured in Spain from going to another member state to benefit from these services.
The Court only took up part of this argument, saying one cannot consider that the Spanish regulation, generally speaking, is of a kind to restrict the free provision of care and hospital care, tourist services and educational services. It makes a distinction between unscheduled care, made necessary by the urgency of the situation during a temporary stay in another member state, and scheduled care, which a citizen seeks to receive in another member state because such care is either not available in the member state of affiliation, or because care with the same degree of efficacy is not available within an amount of time that is medically acceptable. In the first case, the Court points out, under the rules on the free provision of services, the member state of affiliation must ensure that the insured person has a level of coverage that is just as advantageous as that which he/she would be guaranteed if the care in question had been available on his/her territory in the same conditions of effectiveness and in the same timeframe. On the other hand, in the case of unscheduled care during a temporary stay in another member state, the Court considers that the conditions of unscheduled hospitalisation may, depending on the case, be more or less advantageous for the insured person, given national differences regarding social coverage (Regulation 1408/71 aims solely at coordinating but not harmonising national legislation).
The Court notes that the Spanish legislation cannot be viewed as restricting the provision of hospital care in another member state in exceptional circumstances requiring “urgent, immediate and vital care”, as long as the Spanish system bears the full cost of the care administered in another member state. The circumstances in which such care is administered does not give the insured person a choice between hospitalisation in the member state of temporary stay and return to Spain. Furthermore, when circumstances leave the insured person this choice, the Court concludes that the possibility that persons insured under the Spanish national health system might be induced to return early to Spain in order to receive hospital treatment there, made necessary by a deterioration in their health, or to cancel a trip to another member state because they cannot count on the competent institution making a complementary contribution, appears too uncertain and indirect. Also, by contrast with scheduled treatment, the number of cases of unscheduled treatment is unpredictable and uncontrollable. The Court therefore holds that the application of Regulation No 1408/71 is based on the principle of overall compensation of risk. The mechanism established by that regulation for unscheduled treatment operates in such a way as to create a general counterbalancing of costs.
Accordingly, the fact of imposing on a member state the obligation to guarantee to persons insured under the national system that the competent institution will provide complementary reimbursement whenever the level of cover applicable to the member state of stay in respect of unscheduled hospital treatment proves to be lower than that applicable under its own legislation, would ultimately undermine the very fabric of the system which Regulation 1408/71 sought to establish. In every such case, the member state of affiliation would be systematically exposed to the highest financial burden, whether through the application of the legislation of the member state of stay under which the level of cover is higher than that provided for under its own or through the application of its own legislation in the contrary situation. Consequently, the Court has dismissed the action brought by the Commission. (F.G./transl.jl)