Cross-Border Access to Health Care within the European Union: Some Reflections on Geraets-Smits and Peerbooms and Vanbraekel
| DOI | 10.1177/1023263X0200900204 |
| Date | 01 June 2002 |
| Author | Anne Pieter van der Mei |
| Published date | 01 June 2002 |
| Subject Matter | Article |
Anne Pieter
van der Mei∗
9 MJ 2 (2002) 189
Cross-Border Access to Health Care within the European
Union: Some Reflections on Geraets-Smits and Peerbooms
and Vanbraekel
§ 1. Introduction
The health care and health insurance systems of the Member States of the European
Community have traditionally been based on the principle of territoriality. For patients
this implies that they must obtain medical treatment from a provider based on the
national territory and that they, in principle, are not entitled to be reimbursed for the
costs of medical care obtained outside the national territory. Sickness funds only have to
pay ‘foreign medical bills’ when it concerns emergency care or when they have given
patients prior authorization for treatment abroad. A right to get such authorization only
exists in exceptional cases.1
Until 28 April 1998 European Community law did not seem to object to the territorial
restrictions on the right to gain access to medical care. In the health care and health
insurance sectors it was generally assumed that cross-border access to medical care was
exclusively governed by the provisions of Regulations 1408/71 and 574/722 which
thwart the territoriality principle only to a limited extent.3 In brief, the Regulations
* Department of International and European Law, Maastricht University.
1. Palm et al., Implications of Recent Jurisprudence on the Co-ordination of Health Care Protection
Systems, (AIM, 2000), 46-65 and Kesteloot et al., ‘The Reimbursement of the Expenses for Medical
Treatment Received by “Transnational” Patients in EU-countries’, 23 Health Policy (1995), 43 et seq.
schemes to employed persons and their families moving within the Community, O.J. English Spec. Ed
1971 (II), p. 416. The most recent codified version of that Regulation can be found in Council Regulation
118/97/EC of 2 December 1997, [1997] O.J. L28/1.
3. For a description of the health care provisions of the two regulations see Van der Mei, Free Movement of
Persons within the European Community – Cross-Border Access to Public Benefits, (Hart Publishing,
2002, forthcoming), Chapter 4, Section 3 and Stiemer, ‘Sickness Insurance – Viewpoint of the EU-
Æ
Cross-Border Access to Health Care within the European Union
190 9 MJ 2 (2002)
ensure that Union citizens who, while staying or residing in the territory of another
Member State, become in need of medical care are entitled to receive the required
treatment at the expense of their sickness fund or the health institution they are affiliated
to. The Regulations do not, however, confer upon Union citizens the right to travel to
another Member State in order to obtain medical care. More specifically, Article 22 of
Regulation No 1408/71 allows application for prior authorization and only confers upon
beneficiaries a right to obtain authorization where the treatment in question is among
the benefits provided for by the legislation of the Member State on whose territory the
person concerned resides, and where the patient, taking account of his current state of
health and the probable course of the disease, cannot be given the treatment in question
within the time normally necessary for obtaining this treatment in the Member State of
residence.
As described earlier in this journal,4 however, on 28 April 1998 the European Court of
Justice concluded in Decker and Kohll5 that national rules which make the
reimbursement of the costs of medical care obtained in other Member States conditional
upon the prior authorization of sickness funds unlawfully hamper the free movement of
goods and services within the European Community.
Such rules, the Court held, can only be lawfully applied when necessary for protecting
the financial stability of health insurance schemes6 or for ‘maintaining a balanced
medical and hospital service open to all’.7 Decker and Kohll caused a stir in the health
care and health insurance sectors. The territoriality of the health care systems seemed
broken. The rulings suggested that the decision whether or when an insured person can
go to other Member States for medical treatment could not only be made by sickness
funds but also by the patients themselves. Reimbursement of the costs of cross-border
care no longer seemed a rarely granted privilege but rather a judicially enforceable right
that could only in some cases, and under certain conditions, be limited.
Not surprisingly, Decker and Kohll triggered extensive debates about their precise
meaning and implications. These debates involved concrete questions concerning the
Æ Member States’, in Jorens/Schulte (eds.), Coordination of Social Security Schemes in Conn ection with the
Accession of Central and Eastern European States, (Die Keure, 1999), 225-253.
4. Van der Mei, ‘Cross-border Access to Medical Care within the Euro pean Union: Some Reflections on the
Judgments in Decker and Kohll’, 5 Maastricht Journal of European and Comparative Law 3 (1998), 277.
5. For comments on the two judgments see e.g. Van der Mei, Free Movement of Persons within the
European Community – Cross-Border Access to Public Benefits, Chapter 4 Section 2; Sieveking, ‘The
Significance of the Transborder Utilisation of Health Care Benefits for Migrants’, 2 European Journal of
Migration and Law 2 (2000), 143; Cabral, ‘Cross-border Medical Care in the European Union – Bringing
Down a First Wall’, 24 European Law Review (1999), 387; Giessen, Annotation Decker and Kohll, 36
Common Market Law Review (1999), 341 and Van der Mei, 5 Maastricht Journal of European and
Comparative Law 3 (1998), 277.
6. Case C-120/95 Decker [1998] ECR I-1831, 39 and Case C-158/96 Kohll [1998] ECR I-1931, 41.
7. Case C-158/96 Kohll [1998] ECR I-1931, 50-51.
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