Provision of the Directive

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Provision of the Directive Powered By Docstoc
					                                                                      Annex

                                                            Jurisprudence sources
Relevant judgements:
1998:
Decker, C-120/95
(Proceedings between Mr Decker, a Luxembourg national, and the Luxembourgish Caisse de Maladie des Employés Privés concerning a request
for reimbursement of the cost of a pair of spectacles with corrective lenses purchased from an optician established in Arlon, Belgium, on a
prescription from an ophthalmologist established in Luxembourg)

Kohll, C-158/96
(Proceedings between Mr Kohll, a Luxembourg national, and the Union des Caisses de Maladie concerning a request by a doctor established in
Luxembourg for authorisation for Mr Kohll's daughter, who was a minor, to receive treatment from an orthodontist established in Trier,
Germany.)

2000:
Ferlini, C-411/98
(Mrs Ferlini, the wife of an official of the Commission of the European Communities residing in Luxembourg, gave birth in Luxembourg and was
charged a discriminatory price as she was not affiliated to the Luxembourgish national social security scheme but to the Joint Scheme.)

2001:
Geraets-Smits and Peerbooms, C-157/99
(Mrs Geraets-Smits, a Dutch national, suffered from Parkinson's disease. She requested her health insurer to reimburse the costs of care
received at the clinic in Kassel, Germany for specific, multidisciplinary treatment of that disease. Mr Peerbooms, also a Dutch national, fell into
a coma following a road accident. He was taken to hospital in the Netherlands and then transferred in a vegetative state to the University Clinic
in Innsbruck, Austria for special intensive therapy using neurostimulation.)

Vanbraekel, C-368/98
(Proceedings between Abdon Vanbraekel and his six children, as heirs of Ms Descamps, a Belgian national, and the Alliance nationale des
mutualité chrétiennes concerning the latter's refusal to reimburse the costs of hospital treatment incurred by Ms Descamps in connection with
orthopaedic surgery which she underwent in a hospital in France.)




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2003:
Inizan, C-56/01
(Proceedings between Ms Inizan, , resident in France and covered by the CPAM, and the Caisse primaire d'assurance maladie(CPAM)
regarding the refusal by the CPAM to reimburse the cost of special pain treatment at the Berlin Moabit hospital in Germany.)

Muller-Faure and van Riet, C-385/99
(Ms Müller-Fauré, a Dutch national, underwent dental treatment in Germany without a prior authorisation from her sickness fund. Ms Van Riet,
a Dutch national, had arthroscopy of her right wrist carried out in Deurne hospital in Belgium where the treatment was available much quicker,
despite the fact that her request for prior authorisation was rejected by her sickness fund.)

2004:
Leichtle, C-8/02
(Proceedings between Mr Leichtle, a German national, and the Bundesanstalt für Arbeit concerning the latter's refusal to reimburse expenditure
to be incurred in connection with a health cure, normally covered by the German sickness insurance, which Mr Leichtle proposed to take in the
spa in Italy.)

2006:
Watts, C-372/04
(Proceedings arising from the refusal of Bedford Primary Care Trust to reimburse the cost of hospital treatment (hip replacement) received in
France by Mrs Watts, who resides in the United Kingdom.)

2007:
Stamatelaki, C-444/05
(Proceedings brought by Mr Stamatelakis, a resident of Greece, in order to obtain the reimbursement of costs incurred when he was admitted to
a private hospital in the United Kingdom.)




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Provision of the      Court of Justice case-law
Directive
Art.2 - Scope         - "Medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that
                      regard between care provided in a hospital environment and care provided outside such an environment."
                      (Geraets-Smits, C-157/99, paragraph 53)

                      - "The special nature of certain services does not remove them from the ambit of the fundamental principle of
                      freedom of movement."
                      (Geraets-Smits, C-157/99, paragraph 54)

                      - "A medical service does not cease to be a provision of services because it is paid for by a national health service
                      or by a system providing benefits in kind. The Court has, in particular, held that a medical service provided in one
                      Member State and paid for by the patient cannot cease to fall within the scope of the freedom to provide services
                      guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under
                      another Member State's sickness insurance legislation which is essentially of the type which provides for benefits
                      in kind (Smits and Peerbooms, paragraph 55). The requirement for prior authorisation where a person is
                      subsequently to be reimbursed for the costs of that treatment is precisely what constitutes, as has already been
                      stated in paragraph 44 above, the barrier to freedom to provide services, that is to say, to a patient's ability to go to
                      the medical service provider of his choice in a Member State other than that of affiliation. There is thus no need,
                      from the perspective of freedom to provide services, to draw a distinction by reference to whether the patient pays
                      the costs incurred and subsequently applies for reimbursement thereof or whether the sickness fund or the national
                      budget pays the provider directly."
                      (Müller-Fauré and van Riet, C-385/99, paragraph 103)

                      It follows that Article 49 EC applies to the situation of a patient who, like Mr Stamatelakis, receives, in a Member
                      State other than his Member State of residence, medical services in a hospital environment which are provided for
                      consideration, and it is immaterial whether the establishment in question is public or private.
                      (Stamatelaki, C-444/05, paragraph 22)
Art.6 - Healthcare    "34. While the national rules at issue in the main proceedings do not deprive insured persons of the possibility of
provided in another   approaching a provider of services established in another Member State, they do nevertheless make
Member State          reimbursement of the costs incurred in that Member State subject to prior authorisation, and deny such


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                            reimbursement to insured persons who have not obtained that authorisation. Costs incurred in the State of
                            insurance are not, however, subject to that authorisation.
                            35. Consequently, such rules deter insured persons from approaching providers of medical services established in
                            another Member State and constitute, for them and their patients, a barrier to freedom to provide services (see
                            Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 16, and
                            Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31)."
                            (Kohll, C-158/96, paragraph 34 and 35)

                            "In any event, it should be borne in mind that it is for the Member States alone to determine the extent of the
                            sickness cover available to insured persons, so that, when the insured go without prior authorisation to a Member
                            State other than that in which their sickness fund is established to receive treatment there, they can claim
                            reimbursement of the cost of the treatment given to them only within the limits of the cover provided by the
                            sickness insurance scheme in the Member State of affiliation."
                            (Müller-Fauré and van Riet, C-385/99, paragraph 98)

                            "In the present case, there is no doubt that the fact that a person has a lower level of cover when he receives
                            hospital treatment in another Member State than when he undergoes the same treatment in the Member State in
                            which he is insured may deter, or even prevent, that person from applying to providers of medical services
                            established in other Member States and constitutes, both for insured persons and for service providers, a barrier to
                            freedom to provide services (see, by analogy, Luisi and Carbone, paragraph 16, Case C-204/90 Bachmann v
                            Belgium [1992] ECR I-249, paragraph 31, and Kohll, paragraph 35)."
                            (Vanbraekel, C-368/98, paragraph 45)

                            "Likewise, the conditions on which benefits are granted, in so far as they are neither discriminatory nor an
                            obstacle to freedom of movement of persons, remain enforceable where treatment is provided in a Member state
                            other than that of affiliation. That is particularly so in the case of the requirement that a general practitioner should
                            be consulted prior to consulting a specialist."
                            (Müller-Fauré and van Riet, C-385/99, paragraph 106)

Art.7 – Non-hospital care   "93. As regards non-hospital medical services, no specific evidence has been produced to the Court to support the
                            assertion that were insured persons at liberty to go without prior authorisation to Member States other than those
                            in which their sickness funds are established in order to obtain those services from a non-contracted provider, that


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                        would be likely seriously to undermine the financial balance of the Netherlands social security system."

                        "95. However, the documents before the Court do not indicate that removal of the requirement for prior
                        authorisation for that type of care would give rise to patients travelling to other countries in such large numbers,
                        despite linguistic barriers, geographic distance, the cost of staying abroad and lack of information about the kind
                        of care provided there, that the financial balance of the Netherlands social security system would be seriously
                        upset and that, as a result, the overall level of public-health protection would be jeopardised - which might
                        constitute proper justification for a barrier to the fundamental principle of freedom to provide services."
                        (Müller-Fauré and van Riet, C-385/99, paragraphs 93 and 95)

Art. 8 – Hospital and   "In that regard, the distinction between hospital services and non-hospital services may sometimes prove difficult
specialised care        to draw. In particular, certain services provided in a hospital environment but also capable of being provided by a
                        practitioner in his surgery or in a health centre could for that reason be placed on the same footing as non-hospital
                        services."
                        (Müller-Fauré and van Riet, C-385/99, paragraph 75)

                        "76. As regards the prior authorisation requirement to which the ZFW subjects the assumption of the costs of
                        treatment provided in another Member State by a non-contracted care provider, the Court accepts, as all the
                        governments which have submitted observations have argued, that, by comparison with medical services provided
                        by practitioners in their surgeries or at the patient's home, medical services provided in a hospital take place
                        within an infrastructure with, undoubtedly, certain very distinct characteristics. It is thus well known that the
                        number of hospitals, their geographical distribution, the mode of their organisation and the equipment with which
                        they are provided, and even the nature of the medical services which they are able to offer, are all matters for
                        which planning must be possible.
                        77. As may be seen, in particular, from the contracting system involved in the main proceedings, this kind of
                        planning therefore broadly meets a variety of concerns.
                        78. For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a
                        balanced range of high-quality hospital treatment in the State concerned.
                        79. For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage
                        of financial, technical and human resources. Such wastage is all the more damaging because it is generally
                        recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the
                        financial resources which may be made available for health care are not unlimited, whatever the mode of funding


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                           applied."
                           (Geraets-Smits, C-157/99, paragraph 76-79)

                           "Were large numbers of insured persons to decide to be treated in other Member States even when the hospitals
                           having agreements with their sickness insurance funds offer adequate identical or equivalent treatment, the
                           consequent outflow of patients would be liable to put at risk the very principle of having agreements with
                           hospitals and, consequently, undermine all the planning and rationalisation carried out in this vital sector in an
                           effort to avoid the phenomena of hospital overcapacity, imbalance in the supply of hospital medical care and
                           logistical and financial wastage."
                           (Geraets-Smits, C-157/99, paragraph 106)

                           "The Court has already held that it is possible for the risk of seriously undermining the financial balance of a
                           social security system to constitute an overriding reason in the general interest capable of justifying an obstacle to
                           the freedom to provide services.

                           The Court has likewise acknowledged that the objective of maintaining a balanced medical and hospital service
                           open to all may also fall within the derogations on grounds of public health under Article 46 EC in so far as it
                           contributes to the attainment of a high level of health protection.

                           The Court has also held that Article 46 EC permits Member States to restrict the freedom to provide medical and
                           hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is
                           essential for the public health, and even the survival, of the population.

                           It is therefore necessary to determine whether the restriction at issue can in fact be justified in the light of such
                           overriding reasons, and if such is the case to make sure, in accordance with settled case-law, that it does not
                           exceed what is objectively necessary for that purpose and that the same result cannot be achieved by less
                           restrictive rules."
                           (Watts, C-372/04, paragraphs103-106)
Art. 9 - Procedural        "Therefore, in order for a prior administrative authorisation scheme to be justified even though it derogates from
guarantees regarding use   such a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are
of healthcare in another   known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is
Member State               not used arbitrarily (Analir and Others, paragraph 38). Such a prior administrative authorisation scheme must


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likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for
authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant
authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings."
(Geraets-Smits, C-157/99, paragraph 90)

"(…) a refusal to grant prior authorisation cannot be based merely on the existence of waiting lists enabling the
supply of hospital care to be planned and managed on the basis of predetermined general clinical priorities,
without carrying out in the individual case in question an objective medical assessment of the patient’s medical
condition, the history and probable course of his illness, the degree of pain he is in and/or the nature of his
disability at the time when the request for authorisation was made or renewed."
(Watts, C-472-04, paragraph 119)




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