ECJ cases may bolster health insurance claims

Date: 11/09/1997

By Leyla Linton

EUROPEAN citizens' right to choose which Union country they receive medical treatment in and to claim the costs from their insurance fund could be given a boost by opinions to be delivered by advocates-general on two similar cases before the European Court of Justice next week.

A Luxembourg lawyer who is battling to be reimbursed in his own country for a pair of spectacles he bought in Belgium says he is fighting the case as a matter of principle.

Nicolas Decker argues that his health insurance fund - La Caisse de Maladie des Employés Privés - is breaching a fundamental objective of the single market, namely the free movement of goods. He claims that the organisation's refusal to reimburse him for the glasses effectively represents a barrier to trade and is motivated by protectionism.

The health insurance fund refused to refund the cost of the glasses because Decker bought them abroad without its permission. The fund's rules say that its clients cannot be treated abroad without its authorisation except in emergencies. The fund cannot withhold its consent if the patient cannot be treated in Luxembourg or if the patient's doctor recommends medical care abroad.

The case has revealed a split between the European Commission, which supports Decker, and national governments, which are unwilling to be drawn into underwriting medical costs incurred in other member states.

The Commission says that the Luxembourg health care insurance system is likely to be in breach of the principle of freedom of movement of goods as it makes it difficult for individuals to buy medical accessories in other member states. It describes the fund's rules as discriminatory because permission is needed to purchase health care outside Luxembourg, but not within the Grand Duchy.

But the Luxembourg government told the ECJ that there was nothing to stop Decker buying and importing spectacles from Belgium, in accordance with single market rules. There was, however, no requirement in EU law for the cost to be reimbursed.

It pointed out that if the ECJ ruled in favour of Decker, member states would find themselves liable for the cost of treatment abroad whatever their own national budget restraints.

Belgium agreed it was the reimbursement which was at issue, not the import of the glasses. It said that taking away Luxembourg's control would put the whole health system at risk.

An advocate-general at the ECJ will give his opinion next Tuesday (16 September).

He will also give an opinion the same day on a similar case of a Luxembourger who was refused a refund from his health insurance fund for his daughter's orthodontic work which had been carried out in Germany.