Brussels, 5 May 2010
Patient rights: Commission acts to protect patients' rights in Spain, Slovakia and Denmark
The European Commission has decided to refer Spain to the Court of Justice, and to send Slovakia a formal request to comply with its obligations, over their rules on reimbursement of medical expenses incurred in another Member State. Patients from Spain and Slovakia are being wrongly denied reimbursement claims following medical treatment elsewhere within the EU. They are then faced with medical bills that, according to EU rules, should be paid by their own Member State. Also, Denmark will be sent a formal request regarding its refusal to recognise medical prescriptions issued by doctors in Member States other than Sweden or Finland. The Commission's requests to Slovakia and Denmark take the form of so-called reasoned opinions under EU infringement procedures.
What is the aim of the EU rules in question?
Reimbursement of medical expenses
Under EU rules on freedom to provide services, patients as recipients of services have a general right to be reimbursed for medical treatment received in another Member State. The rights differ according to whether the treatment involves non-hospital care – such as dental treatment or consultation at a doctor's practice – or hospitalisation – such as cancer treatment.
For non-hospital care, patients have the right to be reimbursed, without prior authorisation, for treatment received in another Member State – provided the treatment would be paid for in their own Member State.
In contrast, for hospital treatment, Member States may require prior authorisation for treatment as long as a clear and transparent system is in place for issuing the authorisations. However, an authorisation can only be refused if the same or equally effective treatment can be obtained without undue delay in the patient's own Member State.
Recognition of prescriptions issued in other Member States
Again under EU rules on freedom to provide services, Member States should recognise medical prescriptions issued by doctors from other Member States. The requirements for admission to the profession of doctor have been harmonised and have to be recognised in other Member States. As a result, the prescribing of a medicinal product by a doctor established in another Member State offers the same guarantee for the patient as a prescription issued by a doctor in the Member State where the pharmacy in question is located.
How are Spain, Slovakia and Denmark not respecting these rules?
Under its national legislation, Spain would only reimburse hospital or non-hospital care in cases of 'vital emergency' which is contrary to patients' rights under the freedom to provide services. In addition, under Regulation 1408/71 on social security schemes, Spain is required to grant authorisations for treatment abroad when the conditions foreseen in this Regulation are fulfilled. Nevertheless, Spain systematically refuses to reimburse hospitalisation costs where the request for authorisation is submitted late, i.e. during or after treatment in another Member State, which in the Commission's view is unreasonable.
Under Slovak legislation, patients from Slovakia cannot be certain that they will be reimbursed for medical treatment received in other Member States in line with the principle of the freedom to provide services.
Danish law does not allow the recognition of medical prescriptions issued by a doctor in another Member State (except for Sweden and Finland). In the Commission's view, this is not justified by the public health reasons cited by the Danish authorities, especially given the fact that the medicines will be delivered on the basis of a medical prescription legally issued by a doctor in another Member State. Furthermore, Swedish and Finnish prescriptions have been recognised for some time without having produced the harmful effects claimed by the Danish authorities.
The Commission does not challenge the ability of a pharmacist not to dispense a medicine when there is a serious and justified doubt as to the authenticity of the prescription. However, the sole fact that the doctor who issued the prescription is established in another Member State cannot of itself constitute grounds for refusing to dispense medicines on the basis of such a prescription.
How are EU citizens suffering as a result?
Spain and Slovakia
Spanish patients are denied the right to be reimbursed for non-hospital treatment provided in another Member State while the treatment would have been paid for if it had been provided in Spain. Regarding hospital care, patients are being required to pay sometimes substantial bills just because they did not seek authorisation beforehand.
Similarly, Slovakian patients cannot be certain that they will be reimbursed for medical treatments in another Member State in line with the principle of the freedom to provide services.
The rights of patients to have prescriptions issued in another Member State recognised are being restricted, as are the rights of doctors not established in Denmark to issue prescriptions to Danish patients.
What are the next steps?
Spain has been referred to the Court of Justice. In due course the Court will decide whether Spain will have to change its laws. Meanwhile the Commission's requests to Slovakia and Denmark take the form of "reasoned opinions", the second stage of the infringement procedure. If the Member State concerned does not reply satisfactorily within two months, the Commission may refer the matter to the Court.
About infringement procedures
The European Commission has powers under Article 258 of the Treaty on the Functioning of the European Union (TFEU) to take legal action – known as infringement procedures – against a Member State that is not respecting its obligations under EU rules. These procedures consist of three steps. The first is that the Member State receives a letter of formal notice seeking information if the Commission has concerns that there may be a breach of EU law and has two months to respond. If the Commission's concerns about a breach of EU legislation are confirmed, the Commission sends a reasoned opinion requiring the Member State to comply with EU law within two months. If there is no satisfactory reply, the Commission can refer the matter to the Court of Justice in Luxembourg. If the Court rules against a Member State and the Member State does not comply with the Court's ruling, the Commission can also request that the Court impose a fine on the country concerned.
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