Social Security : Case Law on Healthcare and Freedom of Movement

Article excerpt

Reimbursing healthcare received by patients in another EU member state would normally fall under social security regulations. But this does not mean that this question cannot also fall under the freedom to provide services and goods, provided for by the EC Treaty. This has been established by case law over the past ten years, as described below.

Case law has long established that medical activities as such fall under the scope of the freedom to provide services without the need to make a distinction between services provided within a hospital and those outside hospitals (Luisi and Carbone,Paragraph 16).

It also explains that the specific nature' of the provision of certain services does not mean that these activities can escape the fundamental principle of freedom of movement. The fact that national regulation falls under the domain of social security does not mean that Articles 49 and 50 of the EC Treaty on the freedom to provide services does not apply (Kohll, Paragraph 20, Smits and Peerbooms, Paragraph 54). The applicability of Regulation 1408/71 on social security does not therefore exclude the possibility that the concerned patient may at the same time be entitled under Article 49 of the EC Treaty to have access to healthcare in another member state under different conditions to those provided for by the regulation (Vanbraekel, Paragraphs 37 to 53).

The European Court of Justice has also maintained that regulations that discourage patients from seeking medical attention in member states other than the country in which they have their social insurance constitute an impediment to the freedom to provide services (Smits and Peerbooms, Paragraphs 61 and 69).


This distinction was initially introduced by the Social Security Regulation (1408/71, replaced by Regulation 883/04), which provides for two separate procedures and forms (the E111, subsequently replaced by the European Health Card, and E112), dependent on whether the person travelling in another member state falls sick or is involved in an accident and needs care (unplanned care) or whether the person decided to go to another member state in order to receive treatment (planned care).

In the first case (Article 22-1a of the regulation), a person who is temporarily visiting another member state will be treated in the same way as those citizens insured in that member state. If he has to pay for the treatment, he will be reimbursed in his home country based on the fees being practised in the member state where the care was provided. It is worth noting that in the reform of the Social Security Regulation, the evolution of case law was taken into account and the emergency criterion was dropped, meaning that a citizen is entitled to receive care if his condition warrants it.

In the second case (Article 22-1c), the person wanting to receive treatment in another member state must be given authorisation "which cannot be refused" if the treatment figures in the list of services provided by the affiliated member state and if the treatment cannot be given "within the usual time period required to receive the treatment" in the member state of residence. …