Overriding reasons for maintaining the financial balance of the compulsory sickness insurance scheme of the Netherlands, which provides only benefits in kind, justify restrictions on the freedom to provide hospital care within the Union. In any event, the Advocate General, Mr Ruiz-Jarabo, considers that medical care, provided as a benefit in kind, does not constitute a service and therefore is not subject to the Treaty
Mrs Geraets, née Smits, of Dutch nationality, was suffering from Parkinson's disease and was cared for, without obtaining prior authorisation from her Dutch sickness insurance fund, in a specialised German clinic. Her application for reimbursement of the costs incurred was rejected on the ground that satisfactory and adequate care for that illness was available in the Netherlands and that the treatment given in Germany did not afford any additional advantage.
Mr Peerbooms, of Dutch nationality, fell into a coma following a road traffic accident. He received special intensive therapy in an Austrian clinic, which improved his condition. Mr Peerbooms did not meet the conditions for admission to two establishments in the Netherlands which offered treatment on an experimental basis using the same medical technique (such treatment being available in the Netherlands only to persons aged under 25). Mr Peerbooms's sickness insurance fund in the Netherlands also refused to reimburse to Mr Peerbooms the costs incurred by him since, according to the authority to which the request was made, the treatment given to the patient whilst in a coma in Austria was no more beneficial than the care offered in the Netherlands.
The social security legislation in the Netherlands provides that patients may not receive medical care either in the Netherlands or abroad provided by establishments not having an agreement with the sickness insurance fund until prior authorisation has been obtained.
The Netherlands court hearing the proceedings between the insured parties and their sickness insurance funds sought from the Court of Justice a ruling as to the compatibility of legislation of that kind with the principle of the freedom to provide services.
In his Opinion, the Advocate General, Mr Ruiz-Jarabo, examines how the medical treatment at issue should be classified. He considers it necessary to determine whether medical care, as provided for by the Netherlands rules governing sickness insurance, falls within the scope of the freedom to provide services. He points out, firstly, that the care in question consists in benefits in kind: the costs incurred are not reimbursed to the persons covered by the insurance since the agreements concluded between the sickness insurance funds and certain hospitals and medical practitioners provide for direct settlement arrangements. As a result the sickness insurance funds do not make a separate payment to medical practitioners or hospitals on every occasion that medical treatment is provided. Their financial contribution consists in either payment at a flat rate to the doctor for each patient on his list or, in the case of hospitals, payment in accordance with a scale of charges per day of hospital treatment which does not cover the actual cost.
The Advocate General considers, in those circumstances, that, since the benefits in kind thus provided do not involve any element of remuneration, they are not services within the meaning of the Treaty.
However, Mr Ruiz-Jarabo continues his analysis in case the Court of Justice should not share his opinion and takes the view that services within the meaning of the Treaty are involved.
He goes on to examine whether the Dutch rules constitute a restriction on the freedom to provide services.
He notes that those rules provide that prior authorisation will be granted only:
Those cumulative conditions do indeed, in the Advocate General's view, constitute a restriction on the freedom to provide services. It is therefore necessary to verify whether or not that restriction is justified under Community law.
The Advocate General examines in particular the overriding reasons of public interest put forward by the social security organisations, supported by eleven Member States and two States of the European Economic Area. The States consider that the rules on prior authorisation enable health-care expenditure to be controlled and enable each State to adjust its health priorities in accordance with the resources available to it. What is at issue therefore is the need to maintain the financial balance of the compulsory sickness insurance scheme, to guarantee a medical and hospital service which is balanced and accessible on an equal footing to all insured persons and to maintain the capacity to provide health care and the necessary competence to do so within national territory.
In those circumstances, the establishment of a system of prior authorisation seems to the Advocate General to be justified and constitutes, in his view, a necessary and proportionate means of attaining the objective of maintaining the financial balance of the system.
There will now be a subsequent undetermined period of deliberation by the judges of the Court of Justice (in which the Advocate General takes no part) before a judgment is delivered.
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