| EUROPEAN COMMUNITY — Social security — Medical treatment in another member state — United Kingdom resident receiving hospital treatment in France after refusal by NHS of authorisation — Whether refusal justifiable — Whether patient entitled to reimbursement of costs of treatment — EC Treaty, art 49 EC — Council Regulation (EEC) No 1408/71 (as amended), art 22
R (Watts) v Bedford Primary Care Trust and another (Case C-372/04)
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Schintgen, Colneric, Lenaerts, Klučka, Lõhmus, Levits and Ó Caoimh: 16 May 2006
Art 49 EC on freedom to provide services in principle entitled a resident of an EC member state with a free national health service to be reimbursed for hospital treatment in another member state which had or should have been authorised by the resident state’s health service; a decision on such authorisation had to be based on the patient’s state of health, and a refusal could not be based on the existence of waiting lists alone.
The Grand Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling by the Court of Appeal.
After a request by the claimant, a United Kingdom resident, for an E112 certificate for hip replacement surgery in France had been refused on the ground, in reference to art 22(2) of Council Regulation No 1408/71 on social security schemes, as amended by Regulation No 118/97 (“Regulation 1408/71”), that, within NHS targets, she could receive treatment in a local hospital without undue delay, the claimant had an operation in France notwithstanding and subsequently brought proceedings for judicial review of the refusal and for reimbursment of the cost of the operation, in the course of which the Court of Appeal referred a number of issues arising to the European Court for a preliminary ruling.
Art 22 of Regulation 1408/71 provides: “(1) [A person] … (c) who is authorised by the competent institution to go to the territory of another member state to receive … treatment … shall be entitled (i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay … (2) The authorisation required under paragraph (1)(c) may not be refused where … [the patient] cannot be given … treatment within the time normally necessary for obtaining the treatment … in the member state of residence taking account of his current state of health and the probable course of his disease …” Art 49 EC prohibits restrictions on freedom to provide services and art 152(5) provides: “Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services …”
THE COURT, on grounds stated by it, ruled as follows. (1) In order to be entitled, under art 22(2) of Regulation 1408/71, to refuse to grant the authorisation referred to in art 22(1)(c)(i) on the ground that there was a waiting time for hospital treatment, the social security institution of the state of residence (“the competent institution”) had to establish that that time did not exceed the period which was acceptable on the basis of an objective medical assessment of the clinical needs of the patient in the light of all the factors characterising his medical condition. (2) Art 49 EC (i) applied where a person whose state of health necessitated hospital treatment went to another member state (“the host state”) and there received such treatment for consideration and (ii) did not preclude reimbursement of the cost of hospital treatment to be provided in another member state from being made subject to the grant of prior authorisation. Where delay in treatment, arising from waiting lists intended to enable the supply of hospital care to be planned and managed on the basis of predetermined general clinical priorities, appeared to exceed an acceptable time having regard to the patient’s medical condition, prior authorisation could not be refused on the grounds of (i) the existence of those waiting lists, or (ii) an alleged distortion of the normal order of priorities linked to the relative urgency of the cases to be treated, or (iii) the fact that the hospital treatment provided under the national system in question was free of charge, or (iv) the obligation to make available specific funds to reimburse the cost of treatment to be provided in another member state, or (v) a comparison between the cost of treatment in the state of residence and the host state. (3) Art 49 EC had the effect that where the legislation of the state of residence provided that hospital treatment under the national health service was free of charge and did not provide for the reimbursement in full of the cost of treatment that had or should have been authorised, the competent institution had to reimburse the patient the difference (if any) between the cost, objectively quantified, of equivalent treatment in a hospital covered by the service in question up to the total amount invoiced for the treatment provided in the host state, and the amount which the institution of the latter state was required to reimburse under art 22(1)(c)(i) of Regulation 1408/71 on behalf of the competent institution pursuant to the legislation of that state. The right conferred on the patient by article 22(1)(c)(i) related exclusively to the expenditure connected with the healthcare received by that patient in the host state, namely, in the case of hospital treatment, the cost of medical services strictly defined and the inextricably linked costs relating to his stay in the hospital. Art 49 EC entitled a patient who was authorised to go to another state to receive hospital treatment, or who received a refusal to authorise that was subsequently held to be unfounded, to seek from the competent institution reimbursement of the ancillary costs associated with the cross-border movement for medical purposes, provided that the legislation of the state of residence imposed a corresponding obligation on the national system to reimburse in respect of treatment provided in a local hospital. (4) The obligation of the competent institution, under both art 22 of Regulation 1408/71 and art 49 EC, to authorise hospital treatment in another state in appropriate circumstances did not contravene article 152(5) EC.
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