New judgment (Greece) on the free movement of patients in Europe
(B2) "Legislation of a Member State which excludes any reimbursement, by a national social security body, of the costs incurred by the hospitalization of its insured persons in private care establishments located in another Member State" is contrary to the principle of freedom to provide services said the Court of Justice of the EC (judgment of 19 April 2007, Stamatelaki, C-444/05).
This judgment is part of a constant case law but insists in particular on the question of the control and agreement of private establishments abroad.
The facts - Suffering from bladder cancer, the Greek Dimitrios Stamatelaki, had been hospitalized in 1998 at London Bridge Hospital, a private British establishment, but had seen his request for reimbursement of the costs incurred (£13, just over 600 euros) refused by his health insurance fund.
Greek legislation provides, in fact, that if a patient affiliated, in Greece, to a social organization receives care in a public establishment or in a private establishment under agreement in Greece, he does not have to pay any sum. However, the situation is different when the patient is hospitalized in a private healthcare establishment located in another Member State, the person concerned then having to pay the hospitalization costs without benefiting from the possibility of reimbursement. If the private establishment is not under agreement, there is no reimbursement, except in the event of an emergency. This exception does not exist for an establishment located abroad.
The solution :
Restriction on the freedom to provide services - For the Court, there is indeed a restriction on the freedom to provide services. The Greek legislation "discourages, or even prevents, insured persons from contacting providers of hospital services established in Member States other than the Member State of affiliation and constitutes, both for these insured persons and for these providers, a restriction on freedom to provide services".
No justification in the general interest - This restriction cannot be justified by one of the three overriding reasons in the general interest already recognized by the Court:
1) "the risk of serious damage to the financial equilibrium of the social security system";
2) "the objective of maintaining a balanced medical and hospital service accessible to all", with a high level of health protection;
3) "the maintenance of a capacity for care or medical competence on the national territory essential for public health, even for the survival of its population".
Convention by the country of care - The Court refuses to elevate to the rank of overriding reason in the general interest the Greek government's argument emphasizing the lack of control, by the Greek social security bodies, of the quality of care provided in private healthcare establishments located in another Member State and the lack of verification of the possibility, for approved hospital establishments, of providing appropriate, identical or equivalent medical treatment. "It must be noted - underlines the Court - that (these) private healthcare establishments are also subject, in the other Member States, to quality controls and that the doctors established in these States, and who work in these establishments, offer professional guarantees equivalent to those of doctors established in Greece", in particular, since the 1993 directive on the mutual recognition of diplomas
Reimbursement without prior authorization - The Court refused to examine an argument of the Belgian government which considered that this case should be examined from the angle of Regulation No 1408/71 (application of social security schemes to workers moving to a another Member State) specifying the procedures for prior authorisation. Disregarding the absence of a request for prior authorisation, the Court considers that the dispute in question "relates solely to the failure of a Greek social security body to cover the care provided in a private establishment located abroad".
