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Legislation of a Member State that excludes the reimbursement of the costs of any treatment received in a private hospital in another Member State is not compatible with the principle of freedom to provide services. The Court of Justice analyses, in the light of this principle, national rules that treat a situation in which care is received in another Member State differently from a similar one in which the care is received on the national territory.

On the one hand, members of the public have to pay for hospital care received in a private establishment in another Member State without reimbursement, whereas no costs are payable in the event of hospitalisation in a public establishment, or in a private establishment with which an agreement has been concluded, in their own Member State; on the other hand, the costs of emergency hospital treatment in a private establishment in another Member State are not reimbursed, whereas they would have been if the treatment had been received in a private establishment in their own Member State with which no agreement had been concluded. An arrangement of this kind discourages or even prevents patients from seeking hospital treatment in the other Member States. The absolute nature of the ban is not in keeping with the aims; less restrictive measures that take greater account of the freedom to provide services could be envisaged.

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The meeting of the costs of travel, accommodation and meals of the insured person and the person accompanying him or her, in the case of hospital treatment in another member state, depends on the way in which these costs are met in the state of insurance.

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The obligation to reimburse the cost of hospital treatment provided in another Member State also applies to a national health service which provides such treatment free of charge. In order to be entitled to refuse a patient authorisation to receive treatment abroad on the ground of waiting time for hospital treatment in the State of residence, the NHS (United Kingdom National Health Service) must show that that waiting time does not exceed a medically acceptable period having regard to the patient’s condition and clinical needs

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The costs of medical treatment of a person holding forms E 111 and E 112 who, for urgent medical reasons, has to be admitted to hospital in a non-member State must be borne, in accordance with its rules, by the social security institution of the Member State of stay on behalf of the institution of the Member State of affiliation.

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German legislation applying to civil servants and governing the reimbursement of expenditure in respect of a health cure is, in part, contrary to the freedom to provide services. The condition by which the prospects of success must be greater outside Germany constitutes an unjustified barrier.

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This judgement fully confirms and supplements the previous judgement (Müller-Fauré). The Court of Justice specifies the purpose and role of the prior authorisation provided for in Article 22 of Regulation 1408/71. Recourse to Regulation 1408/71 offers insured persons certain rights which they would otherwise not enjoy. However, Regulation 1408/71 is only one way of exercising the right to the freedom to provide health care services. It is an instrument to facilitate that freedom.

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The principle of freedom to provide services precludes Netherlands legislation requiring prior authorisation for non-hospital care provided in another member state by a non-contracted provider. By contrast, in the case of hospital care, the requirement for prior authorisation may be justified. The Court confirms that the way in which health care systems are organised does not affect individuals' rights in respect of the meeting of costs.

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A Member State may not subject payment of the medical expenses of a pensioner who has visited another Member State either to authorisation or to the condition that the illness he suffers has manifested itself suddenly.

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The conditions for obtaining prior authorisation to receive hospital treatment in another member state must not give rise to an arbitrary refusal. The Court recognises that a system of prior authorisation constitutes an obstacle to freedom to provide hospital medical services. However, overriding reasons connected with the financial balance of social security systems and the maintenance of hospital services available to all justify that restriction. The Court circumscribes the criteria governing authorisation to receive hospital treatment in another Member State and defines the normal and necessary nature of the proposed treatment laid down in Netherlands legislation.

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Further developing its case-law concerning prior authorisation to receive medical treatment in another member state, the Court of Justice rules on the assumption of costs of treatment incurred when undergoing an operation in hospital. A person covered by social insurance who was incorrectly refused authorisation to receive hospital treatment in a Member State other than the State in which he is insured is none the less entitled to reimbursement of the costs incurred if authorisation for that hospital treatment is subsequently granted, by declaration of a court where appropriate. The reimbursement must be at least the same as the amount which would have been granted if the insured person had received hospital treatment in the Member State in which he is insured.

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Community nationals may obtain medical treatment in another member state without prior authorisation and be reimbursed in accordance with the tariffs of the state in which they are insured. The cases before the Court of Justice concerned reimbursement of the cost of spectacles and of orthodontic treatment outside hospital facilities.

For the text of the case Kohll, click here
For the text of the case Decker, click here 

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