Luxembourg, 06/06/2000 (Agence Europe) - Advocate General Ruiz-Jarabo has ruled that the Court of Justice should consider legitimate the prior authorisation that sickness insurance funds can require of a patient wishing to be hospitalised in another Member State and reimbursed for costs incurred. The Advocate General considers that "overriding reasons for maintaining the financial balance of the compulsory sickness insurance scheme … justify restrictions on the freedom to provide hospital care within the Union". Further, in his view, medical care provided as a benefit in kind does not constitute a service and therefore is not subject to the Treaty provisions on free provision of services.
Mr Ruiz-Jarabo's conclusions concern two specific cases in the Netherlands, but they obviously will have a far-reaching impact. Member States attach particular importance to this case, moreover, because -as the Advocate General recognised- the stability of sickness insurance funds is at stake. If patients could seek care anywhere they like, on an autonomous decision, and then demand reimbursement of costs incurred from the sickness insurance fund of the country of origin, the consequences would be incalculable. Obviously, the interests of patients and the quality of care are a priority, but prior authorisation seems a justified precaution, argues the Advocate General.
The following two cases were put before the Court: a) Mrs Smits, suffering from Parkinson's disease, sought care in a specialised German clinic without prior authorisation from her Dutch sickness insurance fund. The fund refused to reimburse the costs because satisfactory and adequate care is available in the Netherlands and the German treatment offered no additional advantage; b) Mr Peerboms, who went into a coma as a result of a road traffic accident, received special intensive therapy in an Austrian clinic. His Dutch sickness insurance fund refused to reimburse his costs because the treatment provided in Austria offered no advantage over care available in the Netherlands. The Dutch court to which the case was referred asked the European Court of Justice whether the condition of prior authorisation (which exists in the Netherlands for all establishments not having an agreement with the sickness insurance fund, whether national or in another Member State) is compatible with the principle of freedom to provide services.
The Advocate General first analysed the nature of the care in question, concluding that it represents "benefits in kind" which cannot be considered services. He nonetheless recognised that the Court might not agree with his interpretation and then examined whether the Dutch system contains elements that restrict the freedom to provide services. His conclusion was positive: yes, the Dutch system constitutes a restriction on freedom of services established under the Treaty. However, in his view, this restriction is justified by "overriding reasons of public interest" put forward by the social security organisations, supported by eleven Member States. These states consider that the prior authorisation scheme makes it possible to control health spending and adjust its health priorities in terms of available resources. What is at issue, therefore, concluded the Advocate General, is the need to "maintain the financial balance of the compulsory sickness insurance scheme, to guarantee a medical and hospital service which is balanced and accessible on an equal footing to all insured persons and to maintain the capacity to provide health care and the necessary competence to do so within national territory".
The Advocate General observed that restrictions on the freedom to provide services constitute a necessary and proportionate means of attaining the objective of maintaining the financial balance of the system.
The Court of Justice itself will now have to rule, probably within the coming months.