Brussels, 28/01/2011 (Agence Europe) - By failing to provide, in its regulations in force in 2008, for the reimbursement of costs for biomedical analyses and examinations when these services are provided in another member state, Luxembourg restricted the freedom to provide services (art.49 EC). This was the verdict of the Court in its ruling of Thursday 27 January in Case C-490/09, which supported the concerns of the European Commission (recourse brought on 30 November 2009).
In its reasoned opinion of October 2008, the Commission essentially laid out two objections: - on the one hand, these medical costs are reimbursed in Luxembourg only through the system directly covering the costs (known as the “third-party payment system”), which does not apply if the patient uses a laboratory established outside the country, which would then deny the interested party the option to be reimbursed; - additionally, costs for analyses and examinations carried out in other member states are not reimbursed if these services were not carried out in the full respect of conditions laid down by Luxembourg legislation. For example, the Luxembourg authorities do not reimburse the costs for these analyses and examinations unless they were carried out by a separate analysis laboratory, whereas in certain member states, they are carried out by the doctors themselves. These national provisions, therefore, constitute a restriction on freedom to provide services, the Commission argued.
The Court supported these arguments, firstly indicating that the former objection relates only to healthcare services provided by service providers which have not concluded an agreement with the Luxembourg health insurance companies, as care supplied by agreed service providers “is covered under the third-party payment system”. And although the laws of Luxembourg do not prevent holders of social insurance from consulting service providers established outside the country, they do not allow the costs for services provided by a non-accredited provider to be reimbursed, even though reimbursement is the only way of covering the cost for this care. It appears “illusory (…) to imagine that large numbers of service providers situated in the other member states are led to conclude agreements with Luxembourg health-insurance companies”.
As a result, Luxembourg law in practice rules out de facto the possibility of covering the costs of laboratory analyses and examinations carried out by “almost all, or even all” providers of medical services established in other member states; it “discourages, or even prevents” people affiliated to a Luxembourg social security policy from turning to these service providers, which constitute an obstacle to the freedom to provide services.
Additionally, the Court agrees with the Commission's opinion that Luxembourg has not demonstrated that its laws could be justified by the objective of maintaining a well-balanced medical and hospital service which is accessible to all, or by the objective of ensuring public health protection aims. (F.G./transl.fl)