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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Stamatelaki (Freedom to provide services) [2007] EUECJ C-444/05 (19 April 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C44405.html Cite as: [2007] ECR I-3185, [2007] EUECJ C-444/05, [2007] EUECJ C-444/5 |
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(Restrictions on the freedom to provide services Reimbursement of the cost of treatment in private hospitals Justification for, and proportionality of, the exclusion)
In Case C-444/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Diikitiko Protodikio Athinon (Greece), made by decision of 30 December 2004, received at the Court on 14 December 2005, in the proceedings
Aikaterini Stamatelaki
v
NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE),
composed of C.W.A. Timmermans, President of the Chamber, P. Klūris (Rapporteur), K. Schiemann, J. Makarczyk and J.'C. Bonichot, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 29 November 2006,
after considering the observations submitted on behalf of:
the Greek Government, by K. Georgiadis, S. Vodina, M. Papida and S. Spiropoulos, acting as Agents,
the Belgian Government, by L. Van den Broeck, acting as Agent,
the Netherlands Government, by P. van Ginneken, acting as Agent,
the Commission of the European Communities, by G. Zavvos and N. Yerrell, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 11 January 2007,
gives the following
National law
Statutory provisons
'1. In the case of exceptionally serious illnesses, hospital treatment abroad shall be permitted for:
(a) ...
(b) ...
(c) persons insured with social security institutions or services falling within the competence of the Ministry of Health, Welfare and Social Security ...
2. Hospital treatment abroad shall be authorised by decision of the relevant body after the opinion of the competent medical board as provided for in paragraph 3 has been obtained.
3. Opinions on the necessity of hospital treatment abroad for the persons indicated in paragraph 1 shall be delivered by medical boards set up by decree of the Minister for Health, Welfare and Social Security, which shall be published in the Official Gazette ...
4. The cases in which hospital treatment abroad is permitted, the manner of, and procedure for, authorising the hospital treatment of the patient and any donor, the use of a person to accompany the patient, the nature and extent of the services, the amount of the expenditure, the possibility of a contribution from the insured person towards the cost of hospital treatment and the amount of that contribution, and all other details necessary for application of this Article shall be determined by decree of the Minister of Health, Welfare and Social Security, which shall be published in the Official Gazette'.
Provisions of secondary legislation
'The hospital treatment abroad of persons insured under all sickness bodies and branches, irrespective of their name and legal form, which fall within the competence of the General Secretariat for Social Security shall be authorised by decision of the relevant insurance body following the issue of a reasoned opinion by one of the Special Medical Boards provided for in Article 3 of this Decree. Hospital treatment as referred to above shall be provided in cases where the insured person:
(a) is suffering from a serious illness which cannot be treated in Greece, either because the appropriate scientific resources do not exist or because the particular method of medical diagnosis and treatment that is required is not applied;
(b) is suffering from a serious illness which cannot be treated sufficiently promptly in Greece and any delay in treatment places his life in danger;
(c) goes abroad as a matter of urgency, without observing the prescribed procedure for prior authorisation from the insurance body concerned, because his case necessitates immediate treatment;
(d) is for any reason temporarily in a foreign country and owing to a violent, unexpected and unavoidable event is suddenly taken ill and treated in a hospital.
In cases (c) and (d) a posteriori authorisation of his hospital treatment shall be possible.'
'Special Medical Boards shall have the power to deliver opinions on hospital treatment abroad for patients insured with insurance institutions falling within the competence of the General Secretariat for Social Security.'
'...
2. The competent board shall issue an opinion on the nature of the illness, the particular reasons as enumerated in Article 1 which necessitate going abroad, the probable duration of hospital treatment, the country and/or the particular hospital establishment in which the insured person will be treated ...
3. Opinions issued by Medical Boards which reject hospital treatment shall be binding on insurance institutions.
...
6. The cost of treatment in private hospitals abroad shall not be paid for, except in situations concerning children.
7. The procedure, the method of payment and, generally, all matters relating to the sending and repayment of bills shall be governed by the statutes of each body ...'
'1. The hospital care provided shall include treatment of the patient in public hospitals and clinics, and also in private hospitals with which the OAEE enters into an agreement ...'
'1. Persons insured with the OAEE shall be entitled to hospital treatment abroad, following a decision by the Administrator and authorisation by the Special Medical Board, in so far as they satisfy the conditions laid down in each particular case by the ministerial decrees on hospital treatment abroad.
2. The costs reimbursed for hospital treatment abroad shall comprise the following:
(a) the whole of the cost of hospital treatment in public hospitals abroad ...
The concept of 'hospital treatment' shall include: hospital charges, doctors' fees, all necessary medical interventions, medicines, laboratory tests, physiotherapy, any additional article necessary for surgical intervention and also extra-hospital costs incurred for diagnosis of the illness or completion of the treatment provided that they have been deemed necessary on the recommendation of the hospital concerned. The costs of treatment in private hospitals abroad shall not be paid, except where they relate to children under 14 years of age.
(b) the cost of the outward and return journey of the patient and of any necessary person accompanying him or donor;
(c) expenditure on board and lodging incurred by the patient and by any necessary person accompanying him or donor, in the case of the patient or donor for the time that is spent outside hospital and, in that of the person accompanying the patient, throughout the necessary duration of his stay abroad ...'
The main proceedings and the questions referred for a preliminary ruling
'(1) Does a national rule which excludes in all circumstances reimbursement by a domestic insurance body of the cost of treatment of a person insured with it in a private hospital abroad except in cases concerning children under 14 years of age, while on the other hand providing for the possibility of reimbursement of the relevant cost if the treatment in question takes place in a public hospital abroad, following authorisation which is granted provided that the insured person cannot obtain appropriate treatment without undue delay from a hospital that has entered into an agreement with his insurance body, constitute a restriction on the principle of freedom to provide services within the Community which is enshrined in Article 49 et seq. of the EC Treaty?
(2) If the answer to the first question is in the affirmative, can that restriction be regarded as dictated by overriding reasons in the general interest, such as in particular the need to avoid the risk of seriously undermining the financial balance of the Greek social security system, or the maintenance of a balanced hospital and medical service open to all?
(3) If the answer to the second question is in the affirmative, can a restriction of this nature be regarded as permissible in the sense that it is not contrary to the principle of proportionality, that is to say that it does not go beyond what is objectively necessary in order to attain the objective at which it is aimed and that the same result cannot be achieved by less restrictive rules?'
Consideration of the questions
Costs
On those grounds, the Court (Second Chamber) hereby rules:
Article 49 EC precludes legislation of a Member State, such as that at issue in the main proceedings, which excludes all reimbursement by a national social security institution of the costs occasioned by treatment of persons insured with it in private hospitals in another Member State, except those relating to treatment provided to children under 14 years of age.
[Signatures]
* Language of the case: Greek.