C-385/99

OPINION OF MR RUIZ-JARABO — CASE C-385/99

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 22 October 2002 1

1. By the three questions which it has advantage of a holiday in Germany to visit referred under Article 234 EC, the Centrale the dentist without having obtained the Raad van Beroep (Netherlands) seeks to authorisation of her sickness insurance ascertain, essentially, whether Articles 59 fund. B e t w e e n 20 O c t o b e r a n d of the EC Treaty (now, after amendment, 18 November 1994, six crowns and a Article 49 EC) and 60 of the EC Treaty precision implant in the upper jaw were (now Article 50 EC) preclude legislation inserted. Her treatment included fillings, enacted by a Member State in the area of radiography and anaesthesia. On returning compulsory sickness insurance providing to the Netherlands, she applied to her only benefits in kind which makes reim- sickness insurance fund, the mutual insur- bursement of medical expenses in respect of ance company Onderlinge Waarborg- treatment, where it is necessary, dispensed maatschappij OZ Zorgverzekeringen UÀ, in another Member State by a medical (hereinafter 'OZ Zorverzerkeringen'), seek- practitioner or hospital with whom or ing reimbursement of the costs of the which no agreement has been concluded treatment, which amounted to DEM subject to prior authorisation of the sick- 7444.59 (EUR 3 806.35). Since most of ness insurance fund. the treatment carried out in Germany is not covered by the compulsory sickness insur- ance and are therefore not eligible for reimbursement, the dispute concerns, in actual fact NLG 465.05 (EUR 211.03). On the basis of the opinion of its advisory dental surgeon, the fund rejected the appli- cation in May 1995. I — The facts of the two disputes in the main proceedings

compulsory sickness insurance fund is char­ medical adviser of her sickness insurance acterised by the provision of benefits in company Onderlinge Waarborgmaatschap­ kind, which means that insured persons are pij ZAO Zorgverzekeringen (ZAO Zorg­ entitled to receive treatment. It is only in verzekeringen') should authorise her to exceptional cases that they may apply for have an arthroscopy, chargeable to ZAO, reimbursement, but in the case of Ms in Belgium, where it could be performed Müller-Fauré that was not possible since much sooner than in the Netherlands. That the treatment was not urgent for the request was rejected by letters of 24 June purpose of Article 22 of Regulation (EEC) and 5 July 1993 on the ground that such No 1408/71. 2Moreover, in order to obtain treatment could be provided in the Nether­ the treatment she sought, the patient had lands. no need to resort to a dental surgeon who had no contractual arrangements with OZ Zorverzerkeringen.

Without waiting for the response, Ms van Riet had the arthroscopy and an ulnar reduction performed in a sports medicine 4. The court before which proceedings clinic in Belgium. The insurance company were brought at first instance upheld that refused to reimburse the cost, which view and considered that the extent of the amounted to BEF 93 792 (EUR 2 325.04) treatment performed and the fact that it spanned a period of several weeks clearly indicated that it was not urgent.

6. On 23 September 1994, the Appeals Committee of the Board responsible for supervision of the management and admin­ istration of the sickness insurance funds B — The proceedings relating to Ms van upheld the decision to refuse reimburse­ Riet ment of the cost of the treatment. It found that the necessary and appropriate medical treatment was available in the Netherlands, within reasonable time, so that no emerg­ ency treatment for the purpose of Article 22 of Regulation (EEC) No 1408/71 was 5. On 5 April 1993, Ms van Rieťs doctor involved. requested, on behalf of his patient, that the

' 1 . Are Articles 59 and 60 of the EC Treaty (now Articles 49 and 50 EC) to be interpreted as meaning that in According to the case-law of the Centrale p r i n c i p l e a p r o v i s i o n such as Raad van Beroep, the insured person must Article 9(4) of the Ziekenfondswet have obtained authorisation from the sick- [Law on Health Insurance], read in ness insurance fund before treatment com- conjunction with Article 1 of the Regel- mences. The cost of the medical care ing hulp in het buitenland ziekenfonds- provided abroad cannot be reimbursed verzekering [Regulation on health care unless, for particular reasons, refusal of abroad under the sickness insurance the sickness insurance fund infringes a rules], is incompatible therewith in so general principle of law. That was not the far as it stipulates that in order to assert case with respect either to Ms Müller- his entitlement to benefits a person Fauré, who took the opportunity to visit insured with a health insurance fund the dentist while she was on holiday, or to requires the prior authorisation of that Ms van Riet, who did not wait until the fund to seek treatment from a person fund replied to her request when there was or establishment outside the Nether- no medical or other reason why she could lands with whom or which the health not wait until her application was dealt insurance fund has not concluded an with. agreement?

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MULLER-FAURÉ AND VAN RIET

2. If the first question is to be answered in 10. Under Article 8 ofthat Law, such funds the affirmative, do the objectives of the are under an obligation to ensure that Netherlands system of benefits in kind insured persons can exercise their right to referred to above [to ensure balanced obtain services. It is a system which pro- medical and hospital services open to vides only for health-care benefits in kind, all, the survival of the system of so that beneficiaries are not entitled to the benefits in kind and control of the reimbursement of sickness costs which they financial equilibrium by supervising the may incur, but to the provision of free costs] constitute an overriding reason treatment. 4 in the general interest capable of jus- tifying a restriction on the fundamental principle of freedom to provide ser- vices?

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OPINION OF MR RUIZ-JARABO — CASE C-385/99

if it has a valid scientific basis, it is defined 2. The insured person may choose from as a benefit within the meaning of the Law among the persons and establishments on Sickness Funds. 5 mentioned in paragraph 1, subject to the provisions of paragraph 5 and the provi- sions regarding conveyance by ambu- lance....

As regards dental care, the benefits to which insured persons are entitled are governed by Article 7(2). In 1994, the Government decided to abolish almost in its entirety entitlement of persons over 18 years of age to dental treatment under the compulsory sickness insurance system. 6It appears that, for the time being, only an 4. A sickness fund may, by way of deroga- annual screening check-up and any necess- tion from paragraphs 1 and 2 hereof, ary radiography are covered. authorise an insured person, for the pur- pose of claiming entitlement to a benefit, to apply to another person or establishment in the Netherlands where this is necessary for his health care. The Minister may deter- mine the cases and circumstances in which an insured person may be granted auth- orisation, in claiming entitlement to a 12. Article 9 of the Law on Sickness Funds benefit, to apply to a person or an estab- governs claims for entitlement to care and lishment outside the Netherlands.' provides, so far as is relevant:

13. The requirement of obtaining such authorisation is contained in Article 1 of ' 1 . ... an insured person wishing to claim the Regulation on health care abroad under entitlement to a benefit shall apply to a the sickness insurance rules of 30 June person or an establishment with whom or 1988, 7which provides: with which the sickness fund with which he is registered has entered into an agreement for that purpose....

14. In order to offer benefits in kind to insured persons, sickness funds must, under Article 44( I ) of the Law on Sickness Funds, conclude agreements with persons and establishments offering one or more forms Under Article 50 EC: of care. Article 44(3) thereof defines the content of such agreements, which are to include the nature and extent of the obli- gations and rights of the parties, the quality and effectiveness of the care, the cost and supervision of compliance with the terms of 'Services shall be considered to be "ser- the agreement. The insurance fund may vices" within the meaning of this Treaty terminate the agreement if the person or where they arc normally provided for remuneration, in so far as they are not governed by the provisions relating to 8 — The Agent for the Netherlands Government confirmed that freedom of movement for goods, capital point at the hearing. and persons.

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OPINION OF MR RUIZ-JARABO — CASE C-385/99

"Services" shall in particular include: parties in both cases, the latter replied, on 25 October 2 0 0 1 , that it did not wish to withdraw its questions.

18. After declaring the written procedure in the present case closed in February 2000, (d) activities of the professions. the Court decided in M a r c h 2002 to request the parties to the main proceedings, the Governments of the Member States, the Council, the Commission and any other ...' interested parties to comment in writing on the conclusions to be drawn from the judgment in Smits and Peerbooms, in view of the views expressed by the Centrale Raad van Beroep in its letter of 25 October 2001.

VI — The observations of the parties to these proceedings 22. O Z Zorverzerkeringen maintains that the requirement of prior authorisation before seeking the services of a non-con- tracted provider, whether in the Nether- lands or abroad, is an inherent part of the system of benefits in kind. Should it be deemed a barrier to freedom to provide 20. The views of those parties which have services, it would still be justified by the submitted observations, other than those of need to guarantee affordable, high-quality the appellants in the two sets of main health care and by the equality of insured proceedings, Belgium and the Commission, persons in respect of entitlement to bene- are largely the same except in a number of fits. It is not necessary to make a distinction distinct aspects which I shall discuss below. as to whether it is a medical practitioner or a hospital providing those services.

25. In the first observations submitted by the Commission, it maintained that hospi- tal and medical benefits are services within the meaning of the Treaty, including in those Member States which operate a public health system 11 which is totally Those belonging to the second group, separate on the one hand from medical composed of Spain, Finland, Italy and the practitioners who practise their profession Netherlands, defend the view that the privately and privately-funded hospitals on judgment in Kohll, 10 which concerned a the other. Under the sickness insurance sickness insurance system which reimburses system of the Netherlands, the benefits in part of the cost of treatment, cannot be kind, the agreements and the requirement applied to those which provide only bene- of prior authorisation are indissociable fits in kind, and there is no need, in that parts of a single scheme. However, to make regard, to distinguish between care pro- the grant of authorisation subject to the vided by a medical practitioner and that condition that the patient requires a benefit provided in a hospital. which a contracted establishment cannot provide without undue delay constitutes

9 — A view which I share, as I made clear in the Opinion I delivered in Case C-157/99 Smits and Peerbooms. See, in particular, points 35 to 49 in which I examine in detail the 11—The Commission acknowledges that, in some Member characteristics of the Netherlands compulsory sickness States, there exist public health-care systems in which insurance scheme and I state that the health-care benefits health-care providers are not members of a liberal in kind which it provides to insured persons lack the element profession, whose remuneration is not for medical care of remuneration and are not therefore services within the and hospitals do not pursue a commercial activity. At the meaning of Article 50 EC. hearing it gave as examples Denmark, Spain, Ireland and 10 — Case C-158/96 Kohll [1998] ECR I-1931. the United Kingdom.

28. With regard to the application of the freedom to provide services to treatment 26. In the document submitted at the provided by an orthodontist established in request of the Court following delivery of the judgment in Smits and Peerbooms, the another Member State, outwith any hospi- Commission acknowledges that there are tal infrastructure, the Court stated that, certain dental services the particular nature since t h e service w a s p r o v i d e d for rem u n - of which could cause them to be caught by 12 — Cited ahove. The Court on the same day also delivered the overriding reasons examined in the Case C- 1 2 0 / 9 5 Decker [1998] ECR I-1831, on which I will a b o v e m e n t i o n e d judgment concerning not comment because the facts of the case concerned the purchase of spectacles and thus fell within the scope of the treatment at hospital, so that it urges the free movement of goods. See my Opinion of 18 May 2000 Court to clarify its position in that regard. in Smits and Peerbooms for the views of the numerous authors who have commented on those two judgments.

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OPINION OF M R RUIZ-JARABO — CASE C-38J/99

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MULLER-FAURÉ AND VAN RIET

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OPINION OF MR RUIZ-JARABO — CASE C-385/99

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MUU.KR-IvUIRŕ. AND VAN RIFT

available for health care are not unlimited, permissible where what a person insured whatever the mode of funding applied. 1 7 under a system of benefits in kind seeks is medical attention which does not require admission into hospital. 1 8

VIII — Examination of the questions 39. The Centrale Raad van Beroep itself referred to the Court came to that conclusion in the letter it sent to the Court of Justice in which, first, it pointed out that Smits and Peerbooms, which concerned principally treatment offered after admission to hospital, did 38. As has been pointed out above, the not enable it to reply to the questions Court found in Kobll that, in the case of arising in the case brought by Ms Miillcr- treatment carried out by a medical practi­ Faure, where treatment had been dispensed tioner at his surgery, chargeable to a in the specialist's surgery. However, 'reimbursement' sickness insurance, the although Ms Van Riet had shown herself barrier to freedom to provide services in favour of maintaining the reference, the which the prior authorisation from the Netherlands court acknowledges that, in sickness fund constitutes was not justified. the light of the abovementioned judgment, However, in the judgment in Smits and there is no need to answer the questions but Peerbooms, which concerned treatment it nevertheless requests the Court of Justice provided in a hospital, chargeable to a to clarify the concept of 'without undue system of benefits in kind, the Court found, delay' employed in paragraph 103. without drawing a distinction between whether the system was one of reimburse­ ment or provided only benefits in kind, that a restriction on one of the fundamental freedoms under the Treaty could be justi­ fied by overriding reasons in the general interest. A — Questions I and 2

2. It is, none the less, appropriate to 42. Indeed, Article 49 EC precludes the reformulate them in view of the fact that application of any national rules which the Court has already dealt with the have the effect of making the provision of requirement of prior authorisation where services between Member States more dif- care is provided in hospital. ficult than the provision of services purely within one Member State. 19 Although the Netherlands legislation at issue does not deprive insured persons of the possibility of using a provider of services established in another Member State, in practice it makes assumption by the fund of the cost of the benefit subject to prior authorisation, which is moreover refused where the Thus, the national court must be under- abovementioned requirement is not satis- stood to be now seeking to ascertain fied. whether Articles 49 EC and 50 EC preclude rules of a Member State setting up a system of benefits in kind requiring insured per- sons to obtain prior authorisation from their fund before travelling to another Member State if they wish to be seen by a medical practitioner with whom the fund does not have contractual arrangements, bearing in mind that authorisation is granted only if treatment is necessary for the insured person, which implies that appropriate treatment which may be pro- vided without undue delay by a contracted As was shown with regard to care provided medical practitioner is not available within in hospitals in paragraph 67 et seq. in Smits the country. and Peerbooms, since only few medical practitioners established in other Member States are contracted to Netherlands sick- ness funds, in the majority of cases the assumption of the cost of consulting a medical practitioner established in another Member State is subject to prior auth- orisation, which would be refused if the 4 1 . The Court has already held, in Smits abovementioned requirement is not satis- and Peerbooms, that the requirement that fied. On the other hand, a visit to a insured persons obtain authorisation from contracted doctor established within the the sickness fund in order to exercise their territory and responsible for dispensing entitlement to benefits, at a hospital in most of the health care to insured persons another Member State, constituted a bar- under the Netherlands Law on sickness rier to freedom to provide services. I am of funds is not only free of charge to the the view that the restriction on the insured person is of the same order of magnitude where what is involved is a consultation 19 — Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17; Kohü, paragraph 33; and Smits and with a medical practitioner. Peerboom, paragraph 61.

44. The Court has already acknowledged, with regard to the provision of cross-border medical care, that there exists a number of overriding reasons in the general interest which, where they are fulfilled, are capable of justifying restrictions on the freedom to 45. It is therefore necessary to determine provide services irrespective of whether it is whether the barrier to freedom to provide provided as outpatient care under a system health services which is constituted by the of sickness insurance which reimburses part requirement, set by the Netherlands com­ of the benefits 21 or provided in hospital pulsory sickness insurance funds, to obtain under a system of benefits in kind. 2 2 prior authorisation before consulting a non-contracted medical practitioner is jus­ tified by any of those three reasons bearing in mind that it is settled case-law that national rules must not exceed what is objectively necessary for achieving the objective pursued and that such a result An analysis of the case-law reveals three must not be achievable by less restrictive reasons: one consists in avoiding the risk of m e a n s . 2 ' F u r t h e r m o r e , discriminatory seriously undermining the financial balance rules can only be justified on the general- of the social security system; another is the interest grounds referred to in Article 46

20 — Kohll and Stmts amd I'eerbuums, paragraphs .15 .ind 69 2.1 — Case 205/84 Commission v Germany | 19Kŕ,| ľCR 1751 respectively. paragraphs 27 and 2'); liase C-180/K9 Commission v Italy | I 9 9 1 | hCR 1709, paragraphs 17 and IK; Case C-106/91 21 — See paragraph 17 et seq. in the pidgnicnt in Kobll. Immilli 119921 ľ.CR I - U S I , paragraphs 10 and .11; and 22 — See paragraphs 72 to 75 in Smils ami Peerbooms. Smits ¡uiti Peerbooms, paragraph 75.

46. As I said in the Opinion I submitted in Smits and Peerbooms, the Netherlands 47. As pointed out in paragraph 76 of compulsory sickness system is characte- Smits and Peerbooms, unlike the services rised, first, by the fact that treatment is provided by practitioners in their surgeries free for insured persons who, in order to or at the patient's home, those provided in obtain the health-care benefits they require, a hospital take place within an infrastruc- must use one of the medical practitioners or ture with, undoubtedly, certain very dis- health-care institutions with w h o m or tinct characteristics, since the number of which their fund has concluded an agree- hospitals, their geographical distribution, ment so that, if they decide to use non- the mode of their organisation and the contracted providers, they are required to equipment with which they are provided, pay any costs they incur, without entitle- and the nature of the medical services ment to reimbursement; and, secondly, by which they are able to offer, must all be the fact that sickness funds, which have a planned for. statutory duty to obtain for insured persons appropriate treatment, operate by conclud- ing with health-care institutions and inde- pendent medical practitioners agreements in which they determine in advance the extent and quality of the benefits to be provided, and the financial contribution the fund will make, which, for medical practi- tioners, consists in the payment of a fixed flat-rate amount, and, for each hospital, in I am nevertheless of the opinion that, with the payment of an attendance charge, regard to a system of sickness insurance which is intended to finance the institution which is structurally organised to provide rather than to cover the real cost of hospital only benefits in kind, whether by providing accommodation on each occasion. itself with its own hospitals and contracted staff or, as in the Netherlands, by conclud- ing agreements with medical practitioners 24 — Case C-288/89 Collectieve Antennevoorrziening Gouda and hospitals, the distinction between care and Others [1991] ECR I-4007, paragraph 11; Case provided by medical practitioners in their C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 15; Case C-484/93 Svensson and Gustavsson surgeries and those provided in hospital is [1995] ECR I-3955, paragraph 15; and Case C-398/95 SETTG [1997] ECR I-3091, paragraph 23. blurred.

49. Furthermore, the charges which funds Provision is thus made in advance for the agree each year with medical practitioners, financing of all the health care patients may which differ according to the specialism need in the course of a year, as out-patients concerned, largely depend on the number for general practitioners, specialists and of patients registered with them. The dentists, in order to ensure that the funds charges are calculated by means of an do not in principle have to bear any arithmetical formula whereby one additional expenditure. In those circum- amount, 25 representing average income, is stances, the use by insured persons of added to another, representing the average non-contracted providers can have a sig- cost of running a practice, 26 the sum of nificant impact on the funding of the which is divided by a factor representing system, since it represents an additional the workload (on the basis, for example, of financial burden for the fund in every case, 2 350 patients a year, in the case of a and consequently risks seriously undermin- general practitioner). In respect of 2000, ing the financial balance of the system. that calculation produced the result that a general practitioner received from the sick- ness insurance fund with which he had 27 — That charge amounts to NIC, 157 per insured person over concluded an agreement the amount of 64 years of age. 28 — I he system of remunerations for contracted practitioners who provide their services within the context of the compulsory sickness insurance system is markedly d i f - ferent from the system governing private practice, where 25 — This includes salary, holiday pay, insurance, bonuses, there is no system of subscription charges, there being a premia and pension plans. Salaries are based on civil charge for each visit instead. service salary scales and are reviewed annually. 29 — See Chapter 5 of the publication produced bv the 26 — There are guidelines for calculating the cost of running Ministerie van Volksgezondheid, Welzijn en Sport-NL each profession's establishments. Account is taken of the May 2 0 0 1 , entitled Health Care. Health Policies and costs of accommodation, transport, assistant staff, tele- Health Care reforms in the Netherlands: 'General practi- phone, area covered, instruments and so forth. They are tioners and dentists receive capitation payments for their adjusted in accordance with new requirements, such as, for sickness fund insured, but usually lee for services from example, installing computers in surgeries. their private insured clients'.

51. I cannot agree. The Commission knows very well that there is a relatively large number of doctors benefiting from freedom 52. There is another reason why I believe of establishment in order to practise in there would be a relatively high number of Member States other than their own. If a patients who, if they could be certain of patient visits such a doctor who speaks the being reimbursed, would choose to travel patient's language, there is no longer a to another Member State in order to see a language barrier. Likewise, language specialist. They would be those who, borders in Europe are far from being having the means to afford it, would not coterminous with the territorial limits of wish to wait a relatively long time before the States and, across broad border areas, being seen by a doctor. The patient seeks, people often use the language of the neigh- with legitimate eagerness, to do everything bouring country. I would point out as in his power to look after himself. Let us examples Belgium and the Netherlands, bear in mind that, as far back as the eighteenth century, Molière was aware of that human tendency since Argan, the main 30 — At the hearing, the Netherlands Government informed the Court that, even all the disadvantages listed by the character in his comedy Le malade imagin- Commission and despite the mandatory nature of the aire, sought to marry his daughter Angé- prior authorisation requirement, some 14 000 insured persons received treatment abroad in 2001. lique, irrespective of her wishes, to a doctor

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54. Furthermore, so far as concerns the desire to maintain a broad range of medical 53. It must be borne in mind, when main- care which is balanced and open to all, it is taining the financial balance of the system, clear that the interest of practitioners in that the functioning of a system of benefits concluding agreements with the sickness in kind is characterised also by the import- funds is in direct relation to the number of ant role played by general practitioners, patients which they might be allocated and who are responsible for providing patients in respect of whom they collect charges with primary care, referring them, where every year. If insured persons, instead of necessary, to the relevant specialist, whom going to contracted practitioners, were to patients cannot consult directly. If insured go to non-contracted doctors, whether persons were able to sidestep that prior within the country or abroad, the funds stage and go on their own initiative to a would be unable to guarantee a number of specialist in another Member State, while insured persons per doctor. There would be the sickness fund remained obliged to a risk that many such practitioners would reimburse them, a large part would be lost lose interest in undertaking to make them- of the efficiency brought to the system by selves available to a definite extent and that method of controlling unnecessary use guarantee the quality and price of their of medical services, in particular in pre- services by concluding agreements with the venting specialists' waiting rooms being funds which manage the compulsory sick- filled with patients who prescribe such a ness insurance, preferring instead to treat- consultation for themselves without even private patients, who would certainly be knowing which specialist should deal with fewer but from whom they receive higher their complaint. Thus, that aspect of the fees. Thus, despite the efforts of the funds general practitioner's work, intended to to make plans for the provision of health contain costs and monitor the proper care, staffing and funding, it would not be matching of means to needs, fulfils, within possible to guarantee insured persons stable the system of contracted services, a func- and open access to medical practitioners, including a wide range of specialists, at affordable cost, so that the continuity of 31 — S e e Molière, Le malade unimaginaire , in particular Act I, Scene 5, Ed. Larousse, petits classiques, Paris, 1998, p. 6 1 . the system of benefits in kind, in its present It is interesting to note that, in scene 10 of Act III, Tomette, form, would be seriously jeopardised. It the servant, pretends to her employer to be a doctor and, foreshadowing the question of crossborder medical care, must be borne in mind that, as the Court claims to he an itinerant doctor, going from town to town, from province to province, from kingdom to kingdom, has consistently held, Community law does p. 167. not detract from the powers of the Member

In that context, the fact that it turns out that the cost of the actual treatment which an insured persons such as Ms Van Riet has 55. It is true that social security systems of obtained in another Member State was less benefits in kind are burdened with the than that which the fund would have had problem of waiting lists, arising from the to pay in the State of membership is ever-widening discrepancy between supply irrelevant, since the adverse consequences and demand in health care, both with of such a course of action for the system regard to admission to hospital and to cannot be assessed on the basis of just one seeing a doctor. 34 Faced with that situ- isolated case. 35 ation, prior authorisation from funds before seeking treatment from non-con- tracted sources is a mechanism which enables them to establish priorities for various forms of treatment, manage the available resources and ensure, in practice, health care in accordance with the needs which may arise at any time. If patients on doctors' waiting lists had free access to the 56. Likewise, where patients travel regu- non-contracted services market and were larly and systematically to other Member entitled to reimbursement, it would destroy States in search of medical treatment, the risk arises, in particular, for smaller coun- tries, that funds stop managing to maintain 32 — Case 238/82 Duphar and Others [1984] ECR 523, an acceptable level of professional compet- paragraph 16; Case C-70/95 Sodemare and Others [1997] ence in the treatment of rare or very ECR I-3395, paragraph 27; Kohll, paragraph 17; and Smits and Peerbooms, paragraph 44. complex conditions. 33 — Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira [1997] ECR I-511, paragraph 36; Kohll, paragraph 18; and Smits and Peerbooms, paragraph 45. 34 — This is not a problem which affects only sickness insurance 35 — Dubouis, L., 'La libre circulation des patients hospitallers, systems providing benefits in kind: one need only note the une liberté sous conditions', Revue de droit sanitaire et number of days patients are made to wait in Luxembourg, social, 37(4) 2001, pp. 721 to 726, in particular p. 726: '... a State which provides only for reimbursement of part of on peut se demander s'il est pleinement légitime d'accorder the costs of treatment incurred by insured persons, before au patient qui se déplace le droit de choisir entre le régime seeing a general practitioner or the number of weeks before de son État d'origine et celui de l'État dans lequel il se fait managing to see a specialist. soigner les éléments qui lui sont les plus favorables'.

59. Finally, the necessity of the treatment which the patient proposes to follow, by going to a non-contracted provider, as a condition for the granting of prior auth- orisation by the sickness insurance fund, 58. Belgium, where the sickness insurance was examined in detail in paragraphs 103 reimburses part of the costs of treatment, to 107 of the judgment in Smits and objects to prior authorisation of funds, ruled out under Kohll, being justified where systems of benefits in kind are concerned, 36 — Kohll and Smits and Peerboms, paragraphs 19 and 46 respectively. inasmuch as the freedom to provide ser- 3 7 — We have yet to see how insured persons would react since, vices cannot depend on the special nature instead of enjoying free health care, they would have to pay for it in advance and wait for a tune before being; of the social security system. reimbursed part of the actual cost.

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Interpreted thus, such a condition results, in the context of prior authorisation, in an However, once it is clear that the benefits adequate, balanced and permanent supply covered by the national insurance system of high-quality outpatient treatment being cannot be provided by a contracted prac- maintained within the national territory titioner, it is not acceptable that national and provides financial stability to the sick- practitioners not having any contractual ness insurance system. arrangements with the insured person's sickness insurance fund be given priority over doctors established in other Member 38 — That is the view taken in respect of hospital treatment by States since, once such benefits are ex the Arrondissementsrechtbank te Rotterdam, which had hypothesi provided outside the planning referred the question in that case, when it ruled on the merits of the main proceedings, on 3 October 2 0 0 1 , just framework established by national legis- two and a half months after receiving the Court's answer. lation, such priority would exceed what is It dismissed Ms Geraets-Smits' application on the ground that it had not been proven either clinically or scientifically necessary for meeting the overriding that the specific, multidisciplinary treatment provided in Germany was any better than the care available in the Netherlands and because the patient could have been seen in her own country at a hospital having contractual arrangements with her sickness fund. M r Peerboom's 39 — Dubouis, L., op. cit., p. 726 states, with regard to health application suffered the same fate, the court having found care provided in hospitals: 'Il reste que les incidences that the special intensive therapy by means of neurostimu- pratiques à moyen ou long terme de cette jurisprudence lation cannot be regarded as normal within professional paraissent difficiles à évaluer. Ne risque-t-elle pas d'induire circles, inasmuch as it has not been sufficiently researched un afflux excessif de candidats à l'admission dans les or recognised by international medical science. In coming établissements "en pointe", d'aggraver les difficultés des to that conclusion, the court relied on an expert opinion of systèmes de soins moins performants? Il apparaît souhait- 1994 on stimulation programmes, the report by a com- able que nos systèmes hospitaliers s'ouvrent aux vents de mittee of the Health Authority and a pilot study. See the l'Europe. Pour autant, on ne saurait oublier combien ils judgments in the 'National Decisions' database of the diffèrent les uns des autres, combien chacun est complexe Court, reference QP/03935-P1-A and QP/03935-P1-B. et repose sur des fragiles équilibres, financiers notamment.'

62. In view of all the foregoing consider­ In answer to the question I put to it in that ations, I am of opinion that Articles 49 EC respect, the Commission explained that it and 50 EC do not preclude legislation of a meant very expensive dental treatment Member State, setting up a social security which required the services of highly system which provides for sickness benefits specialised practitioners, since the avail­ ability of such services requires planning. It further acknowledged that there are no 40 — The Member States which attended the hearing, in exercise absolute means of differentiating between of their right of reply, showed themselves to he against that possibility. hospital and outpatient care: where a 41 — The possibility is not restricted to dental treatment. There patient is admitted, the authorisation are services such as scanning or magnetic resonance imaging, which are usually provided by radiologists, which requirement is justified, whereas if the do not recluiré admission to hospital and the availability of which is limited and undoubtedly requires planning by the service is provided at a surgery, that bodies which manage the sickness insurance fund.

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in kind, requiring insured persons to obtain C — The clarification sought by the Cen- prior authorisation from their sickness trale Raad van Beroep regarding the mean- insurance fund in order to travel to another ing of 'without undue delay' used in para- Member State, if they wish to be treated by graph 103 in the judgment in Smits and a non-contracted practitioner, and making Peerbooms the grant of such authorisation subject to the condition that the treatment is necess- ary for the person concerned, provided it is understood that it can be refused only if the same or equally effective treatment can be obtained without undue delay from a practitioner having a contractual arrange- 64. In the letter of 25 October 2 0 0 1 , the ment with the insured person's sickness national court asked the Court of Justice insurance fund. the meaning of that expression, which it did not find clear, in the following terms:

IX — Conclusion

68. In view of the foregoing, I propose that the Court's reply to the questions referred to it by the Centrale Raad van Beroep should be as follows:

(1) Articles 49 EC and 50 EC do not preclude legislation of a Member State, setting up a social security system which provides for sickness benefits in

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kind, requiring insured persons to obtain prior authorisation from their sickness insurance fund in order to travel to another Member State, if they wish to be treated by a non-contracted practitioner, and making the grant of such authorisation subject to the condition that the treatment is necessary for the person concerned, provided it is understood that it can be refused only if the same or equally effective treatment can be obtained without undue delay from a practitioner having a contractual arrangement with the insured person's sickness insurance fund.