Medical treatment in the EU without prior authorisation

In the obstacle course to obtainmedical treatment in another EU country, the Court of Justice of the European Union has intervened. In its ruling of 4 September (C-489/23), it opened the door to greater freedom of movement for patients, rejecting conditions set by states that are substantial obstacles to the free provision of services. In particular, the Court ruled that while a check on the conditions justifying a medical service outside the state of residence is legitimate, measures that have a dissuasive effect, including those that make reimbursement conditional on authorisation for hospitalisation by a doctor from the national public service of the patient's state, are not compatible with EU law.

The story started with a Romanian citizen who had to undergo a surgery through a robot. In his country, the equipment was not working, so the man turned to a specialised institute in Germany. He asked his national health system for an E112 form for treatment abroad, but was refused. Summoned urgently by the German facility, the patient obtained the surgical service, but the Romanian health care company denied the reimbursement of 13,000 euro for the costs incurred because the receipt on the need for hospitalisation drawn up by the general practitioner was not attached.

The EU Court starts from the premise that Article 56 of the Treaty on the Functioning of the European Union (TFEU), which includes the right of the patient to move within the EU area in order to obtain a service, precludes the application of national legislation that has the effect of making the provision of services between member states more difficult than purely domestic provision. In addition to direct barriers, there are indirect barriers consisting of certain conditions or administrative/bureaucratic rules that "have the effect of dissuading the use of cross-border health services".

Among the conditions rejected by the Court, precisely the authorisation to hospitalisation by a doctor of the national public service, which has a deterrent effect on the freedom to provide services and could only be justified if it is essential to ensure high quality care or cost control, but without going beyond what is necessary to achieve it. Financial balance is an objective to be pursued, but if states have already established that reimbursement does not exceed the cost of national care, no further conditions may be required.

Having said that, however, the Court makes it clear that if the patient has received cross-border healthcare without having sought prior authorisation, reimbursement can be limited "within the limits of the coverage guaranteed by the sickness insurance scheme with which he is affiliated" except in cases where the patient, for reasons of urgency or related to his state of health, has had to skip the procedure provided for in his country.