The internal market and the right to cross-border medical care

Abstract:

The question of knowing whether and under which conditions persons insured in a Member State can obtain (and be reimbursed for) medical care obtained in another Member State has in recent years become a central issue in Community law. It raises numerous difficulties as it requires reconciling free movement and economic integration on the one hand and the imperatives of social protection and Member States' national interests in preserving the balance of their social security systems and health infrastructures on the other. If, unlike until recently, the right to cross border medical care in the European Union is no longer contained within the limits of the strict rules of Regulation 1408/71, this is largely the result of the Court's jurisprudence. This article seeks to review the key aspects of this case law. It first looks at how the Court has qualified medical activities as services within the meaning of Arts 49 and 50 EC and later examines how, on the basis of that qualification, the Court has proceeded to define the conditions under which reimbursement of medical expenses incurred in other Member States may be obtained. In that regard, a fundamental distinction is drawn in our analysis between the cases where the reimbursement is to take place according to Art.22 of Regulation 1408/71 and the cases where it is to take place outside the scope of application of that provision.