Thursday, 27 October 2011

Should medical tourism be reimbursed by national social security system? - CJEU case in Commission v. Portugal C-255/09

27 October 2010: CJEU case C-255/09 Commission v. Portugal
Unfortunately, the fall while often beautiful in its various colours also leaves us susceptible to various infections. Our bodies have to adjust to lower temperatures, lack of sun, etc. and often cannot fight against a flu, throat infection, UTI... It seems appropriate that the CJEU ruled today in a case concerning consumers health issues and protection of their right to have the medical costs reimbursed by social security and insurance.

Article 22 of the Regulation 1408/71 on the application of social security schemes to employed persons and their families moving within the Community provides that within Europe consumers who travel to another country for non-hospital medical care are supposed to be reimbursed for the cost thereof in their own country. In a recent case of 5 October 2010 Commission v. France (C-512/08) the CJEU decided that a Member State could make reimbursement for non-hospital care planned in another Member State subject to prior authorisation if that care required the use of major and costly equipment.

In the current case, against Portugal, the CJEU considered whether Member States were allowed to introduce such a limitation of the need to obtain prior authorisation for medical treatment abroad in order to obtain reimbursement, when no costly or major equipment would be used. Portugal, namely, allows consumers to claim such reimbursement only after they fulfilled a threefold prior authorisation requirement. Additionally, consumers may claim such reimbursement only for 'highly specialised' foreign medical care, which cannot be provided in Portugal due to technical difficulties or a lack of qualified personnel.

The CJEU stated, first, that medical services are covered by the provisions on the freedom to provide services. (Par. 46) This means that Article 49 EC (of the Treaty) applies to cross-border healthcare. (Par. 52) On the basis of Article 49 EC Member States may not adopt national rules which make provision of services between Member States more difficult than provision of same services within a single Member State. In previous case law (e.g. Kohll; Smits and Peerbooms, Commission v. France) the CJEU confirmed that:

"the mere requirement, for treatment planned in another Member State, of prior authorisation to which responsibility for payment by the competent institution is made subject, in accordance with the rules governing cover in force in the Member State to which that institution belongs, constitutes, both for patients and service providers, an obstacle to the freedom to provide services, since such a system deters, or even prevents, those patients from approaching providers of medical services established in a Member State to obtain the treatment in question" (Par. 60)

In the current case it is foreseeable that Portuguese consumers would be deterred from seeking medical care abroad due to a prospect of financial loss in the event of refusal by the national health system to meet the medical costs. An additional deterrent factor is the complexity of the three-stage administrative authorisation procedure. (Par. 62) Moreover, the fact that reimbursement might be granted only when such a medical procedure is not available in Portugal further limits the possibility of consumers seeking medical care abroad. (Par. 63) This all indicates that prior authorisation is a restriction on the freedom to provide services. (Par. 71)

This restriction may not, in this case, be justified by an aim of maintaining the financial balance of the social security system (this argument for limitation was, e.g., accepted in Commission v. France). No evidence has been provided that in case the medical care is not 'major', the Portuguese social security system would be overburdened, taking into account that it's usually only consumers in border areas or where specific conditions are to be treated who travel for medical reasons. (Par. 77-79) As far as the claim was made by Portugal that such restrictions are necessary in order to protect the social security system, the CJEU observed that Member States are still free to set various conditions on which benefits (also, reimbursement) are granted:

"in so far as they are neither discriminatory nor an obstacle to freedom of movement of persons (...) That is particularly so in the case of the requirement that a general practitioner should be consulted prior to consulting a specialist" (Par. 86)

Additionally, Member States may fix the amounts of reimbursement which patients who have received care in another Member State can claim (objectively, without discrimination and using transparent criteria). (Par. 87)

Finally, the CJEU decided that the fact that Portugal does not provide for any possibility of reimbursement of non-hospital medical expenses incurred in another Member State in respect of a consultation with, e.g., a general practitioner or a dentist (not a highly specialised care) is contrary to the freedom of provision of services, as well. (Par. 95)

I agree with the CJEU that cross-border medical care is not likely to become a threat to social security systems, since consumers would most likely prefer to be treated close to their home, family and friends, as well as by doctors who speak their language. Therefore, it seems that when a consumer is looking for medical care abroad he has to have solid reasons to do so and should be enabled financial compensation just as he would have been compensated for undergoing the same treatment in his own Member State.

1 comment:

  1. Dear Joasia,
    Thank you for this informative article. I found it very useful but I do not agree with the last sentence. You said "for undergoing the same treatment in his own Member State." and the whole point of many recent cases (including Com v France) is that "same treatment" is simply impossible at home.