Watts, R (on the application of) v Bedford Primary Care Trust & Ors [2003] EWHC 2228 (Admin)

“where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.”

“The Decision of the European Court of Justice (ECJ) in the case of Geraets-Smits/Peerbooms did in fact endorse the need for prior approval under the E112 arrangements in terms of control and management of healthcare and budgets across the EU. In considering the national legislation of the Netherlands which was at issue in this case, the ECJ said that Netherlands healthcare system, which required prior authorisation by the patient’s sickness insurance fund for treatment in other EEA countries, was contrary to the freedom to provide services provisions of the Treaty Establishing the European Community. However, the ECJ said that, provided certain conditions were met, such a rule was justified in the interests of maintaining the financial stability of the Dutch national health system. One of the rules of the Netherlands system was that it had to be proved that the patient’s medical condition required the service in question. The Court said that was justifiable provided that it was construed to mean that authorisation to receive treatment in another member state may be refused on grounds of necessity only if the same or equally effective treatment can be obtained without undue delay in the home state. The ECJ did not define what it meant by “undue delay”, by implication leaving that as a matter for national law and practice. The Department of Health takes the view that where an application for treatment is made abroad under the E112 arrangements on the grounds of undue delay, account should be taken of the national targets for waiting times as published in the NHS Plan, and of the individual patient’s clinical need. Ministers stated this publicly last year in answer to a Parliamentary Question. Patients do not have an automatic right to be referred abroad for treatment on the grounds that treatment could be made available more quickly elsewhere. The E112 procedures published in the leaflet “Health Advice for Travellers” do provide that the recommendation of a UK NHS consultant, rather than a GP, should be obtained. If the wait to see a consultant is in excess of the NHS target maximum outpatient waiting time, or the waiting time for an operation is in excess of the maximum inpatient waiting time for surgery (currently 15 months), this would be prima facie evidence of undue delay.”

“Form E111 will not cover you for free or reduced-cost treatment if you are going to another EEA country specifically for medical care, or if you require ongoing treatment for a pre-existing condition. For this, you will need Form E112 which is not issued automatically but requires authorisation from the Department of Health. Unless you have an E112, you will have to pay for the treatment you receive and you will not be able to obtain a refund of the costs. For pre-existing conditions that will require treatment during your time abroad – eg, blood tests, medication or injections, etc. – apply by letter enclosing details, including dates of treatment, supporting medical evidence from your GP and a copy of your E111 to the following address(es): … Please note, however, that form E112 is only available where a clear need for on-going treatment is established. The form is not available on a ‘just in case’ basis. If you need maternity care in another EEA country, write to the above address(es) explaining why you want care outside the UK and enclose a copy of your E111 and evidence from your GP or midwife of your expected date of confinement. For people going to another EEA country specifically for medical treatment or an operation, the issue of Form E112 will usually only be considered if: • your UK NHS Consultant recommends treatment in the other country; • your Health Authority in England and Wales … agrees to meet the cost of the treatment; • the treatment is available under the other country’s health insurance scheme; • you are entitled to Form E111. To apply for an E112 in these circumstances, write a letter explaining your reasons for seeking treatment outside the UK. Send this letter to your health authority … together with a letter from your NHS consultant explaining why he or she is recommending treatment in another EEA country. The health authority … should then send your application and their agreement to fund the treatment to the appropriate address.”

“1.14 Direct commissioning does not affect the long-established arrangements for referral of patients under European Community legislation – the so-called E112 system contained in Regulation (EEC) 1408/71. This Regulation contains provisions which permit the referral of patients specifically for treatment for a pre-existing medical condition. Benefits are provided on the same terms as are available to the insured people in the host state. 1.15 Prior authorisation is required where E112 referral is sought. Patients should first seek the opinion of their NHS Consultant and home PCT. Final approval of the Department of Health then needs to be obtained. It should be noted that the Regulations say that authorisation for E112 referrals cannot be refused if the treatment in question is a benefit provided under the state health care scheme of the home country and cannot be provided “within the time normally necessary for obtaining the treatment in question taking account of the patient’s current state of health and the probable course of the disease”. 1.16 However, even if the conditions leading to mandatory authorisation are not met there is still discretion to refer if a PCT and the Department believe this is warranted. 1.17 Further information is given in Department of Health leaflet “Health Advice for Travellers” available from Post Offices, and on the internet at www.doh.gov.uk/traveladvice. 1.18 The direct contracting and E112 schemes operate in tandem and PCTs may use whichever is most convenient. The E112 arrangements may be particularly useful where treatment has to be sought from a facility where the lead commissioners have no contract.”

“This lady was seen by me on 1.10.02 with severe bilateral hip pain. She has experienced severe deterioration in her function over the course of the last three months. She now has to use two walking sticks to mobilise. Clinical examination and X-ray examination show her to have severe arthritis of both hips. This lady requires bilateral total hip replacements. She is battling tremendously with her mobility and is in constant pain. This lady is certainly deserving of bilateral hip replacements. She is as deserving as any of my other patients who are waiting such surgery. Unfortunately my waiting list is approximately one year. As this lady’s function is severely hampered by her arthritis she wishes to enquire whether this surgery can be performed abroad at the cost of the NHS. She is certainly as deserving as any of the other patients of mine with severe arthritis who are on my waiting list. I note also that she has a valve replacement in her heart and is currently on Warfarin. She will therefore need to be admitted to hospital several days prior to surgery and her anti-coagulation levels monitored peri-operatively. I am able to confirm that the surgery is technically possible at her local hospital but the waiting list is approximately one year. Thank you for your assessment of this case.”

“Although Bedford PCT is sympathetic to your request on behalf of your mother, that Bedford PCT should agree to support your proposition that your mother should be able to have a bilateral total hip replacement performed overseas on the E112 scheme, Bedford PCT is unable to support this request for the following reasons: 1. Mr Edge, your mother’s NHS Consultant does not specifically support treatment overseas. He states that your mother’s clinical condition is “certainly as deserving as any of the patients of mine with severe arthritis who are on my waiting list”

“I am afraid that it is up to the discretion of the primary care trust to decide how it commissions care, and therefore which patients are eligible for treatment abroad. There is no system of appeal against any decision that the PCT may take.”

“Many thanks for asking me to see this charming lady once again regarding her bilateral painful hips. As you are aware she is involved in negotiations to get her hips done sooner rather than later, possibly at a hospital in Europe. I last saw her on 01.10.02 at The Manor Hospital. At that stage I noted that she had bilateral severe hip pain. She was able to mobilise with difficulty using one or [two] sticks and was battling to mobilise any significant distance. On questioning her today she says that the pain has now become significantly worse. She does, however, have minimal rest pain when lying in her bed at night. She is able to get down her stairs at home albeit very slowly and mobilises inside her home using 2 sticks all the time. She is now no longer able to mobilise on one stick. The right side is worse than the left. I note that she is taking Co-dydransol tablets 4 times a day and is unable to take non-steroidals because of her heart condition. She has no significant pain in her back or the abdomen. She has had no recent chest problems and her pedal oedema remains minimal. I do however note that she has lost one stone in weight since last seen by me 4 months ago. She has had no decrease in her appetite. On examination today she did battle to walk with a very shuffling gait using 2 walking sticks. She had difficulty in getting on and off the couch and had to lift up her legs using her arms to get onto the couch. Examination of the back was reasonable. The hips were extremely stiff with a range of flexion from 10 to 90 degrees, 20 degrees of adduction on the left and 10 degrees of adduction on the right. There was a jog of rotation. All movements were slow and painful. There was some pedal oedema with good pedal pulses. X-rays taken today show continued moderate to severe arthritis in both hips with no significant change from the previous films. She had a chest X-ray taken today which has gone for reporting. She has also been assisted by Jeremy Sizer, Consultant Anaesthetist today. He felt that she was essentially fit for surgery and was likely to remain fit for surgery into the foreseeable provided no new diagnoses were made. Under the circumstances I feel that this lady probably had deteriorated since last seen. Of course all the patients on my waiting list would have deteriorated in this time but she has perhaps got a little worse than the average patient. I am therefore prepared to re-categorise her as a “soon” case. You are of course aware that soon has no particular definition. It merely lies somewhere between a routine case and an urgent case. I have several urgent cases on my waiting list which will have to be done prior to Mrs Watts. Of great concern to me is the loss of one stone in weight over the course of the last 4 months. Patients do not tend to lose weight purely through immobility. She says that she is eating well and this therefore cannot account for her weight loss. I feel it would be prudent to investigate her one stone of weight loss prior to embarking on major reconstructive surgery. I therefore would be most grateful if you could thoroughly investigate her loss of weight (including full blood count, ESR, bone biochemistry and possibly a bone scan) and let me know the results before surgery.”

“Mr Edge has clarified this with the PCT to mean a wait for surgery of between three and four months. This will mean that Mrs Watts will be listed for surgery in either April or May 2003. Based on the recent clinical reassessment of Mrs Watts by Mr Edge on 31st January 2003, Bedford PCT has reassessed the application by Mrs Julie Harding on behalf of her mother, Mrs Yvonne Watts, which sought support from Bedford PCT in applying for overseas treatment under form E112. Having reassessed the new clinical assessment by Mr Edge, the PCT acknowledge that Mrs Watt’s clinical condition has deteriorated enough for Mr Edge to reprioritise Mrs Watts as requiring treatment more quickly than previously thought, within three to four months. This does not alter the PCTs previous determination in this application. Mrs Watts will be listed for surgery at Bedford hospital for hip replacement surgery between three to four months. This is within the National Plan target for inpatient treatment, which will be a maximum wait of 12 months as from the 1st April 2003. Bedford Hospital achieved the maximum 12 month waiting times target at the end of December 2002. Therefore, without support for overseas treatment from Mr Edge, Mrs Watts’s Consultant Orthopaedic Surgeon, or from Bedford PCT, (Bedford PCT reiterate previous reasoning for not supporting this application), Bedford PCT is unable to support the overseas treatment application under form E112.”

“I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.”

“The National Health Service Act 1977, by section 1(1), imposes on the Secretary of State a duty: “to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”

“to provide … to such extent as he considers necessary to meet all reasonable requirements … (e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; (f) such other services as are required for the diagnosis and treatment of illness.”

“As illustrated in the Cambridge Health Authority case [1999] 1 WLR 898 and Coughlan’s case [2001] QB 213, it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose – indeed, it might well be irrational not to have one – and it makes sense too that, in settling on such a policy, an authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure. Authorities might reasonably differ as to precisely where in the scale transsexualism should be placed and as to the criteria for determining the appropriateness and need for treatment of it in individual cases. It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in “exceptional circumstances” and to leave those circumstances undefined: see In re Findlay [1985] AC 318, 335-336, per Lord Scarman. In my view, a policy to place transsexualism low in an order of priorities of illnesses for treatment and to deny it treatment save in exceptional circumstances such as overriding clinical need is not in principle irrational, provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its individual merits. However, in establishing priorities – comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment – it is vital for an authority: (1) accurately to assess the nature and seriousness of each type of illness; (2) to determine the effectiveness of various forms of treatment for it; and (3) to give proper effect to that assessment and that determination in the formulation and individual application of its policy.”

“A number of propositions are clearly established, mainly by the decision of this court in R v Cambridge Health Authority ex p B [1995] 1 WLR 898. They are: 1. A health authority can legitimately, indeed must, make choices between the various claims on its budget when, as will usually be the case, it does not have sufficient funds to meet all of those claims. 2. In making those decisions the authority can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment; the seriousness of the condition that the treatment is intended to relieve; and the cost of that treatment. 3. The court cannot substitute its decision for that of the authority, either in respect of the medical judgments that the authority makes, or in respect of its view of priorities. I further agree with Mr. Pannick’s submission that it follows from the foregoing propositions that a health authority can in the course of performing these functions determine that it will provide no treatment at all for a particular condition, even if the condition is medically recognised as an illness requiring intervention that is categorised as medical and curative, rather than merely cosmetic or a matter of convenience or lifestyle. In all of this, the court’s only role is to require that such decisions are taken in accordance with equally well known principles of public law. Those principles include a requirement that the decisions are rationally based upon a proper consideration of the facts. The more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required of the decision-maker. A decision that, as is the evidence in this case, seriously affects the citizen's health will require substantial consideration, and be subject to careful scrutiny by the court as to its rationality.”

“Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”

“There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

“Article 8 imposes no positive obligations to provide treatment”

“The Convention does not give the applicants rights to free healthcare in general or to gender reassignment surgery in particular. Even if the applicants had such a right it would be qualified by the authority’s right to determine healthcare priorities in the light of its limited resources.”

“ … it is plain that in this case there has occurred no interference with either the applicants’ private life or with their sexuality. The ECHR jurisprudence demonstrates that a state can be guilty of such interference simply by inaction, though the cases in which that has been found do not seem to go beyond an obligation to adopt measures to prevent serious infractions of private or family life by subjects of the state … Such an interference could hardly be founded on a refusal to fund medical treatment.”

“As Mr. Pannick observed, if the applicants have no case under article 8 of failure to respect their private and family life, they could not, a fortiori, establish that they were victims of inhuman or degrading treatment under article 3 since the same essential issues arise: see Olsson v Sweden (1988) 11 EHRR 259, 292, paras 85-87. And, as he also observed, a breach of the article requires “a particular level” of severity which, of course depends on the circumstances of the case. It is plain, in my view, that article 3 was not designed for circumstances of this sort of case where the challenge is as to a health authority’s allocation of finite funds between competing demands.”

“Article 3 of the ECHR addresses positive conduct by public officials of a high degree of seriousness and opprobrium. It has never been applied to merely policy decisions on the allocation of resources, such as the present case is concerned with. That is clear not only from the terms of article 3 itself, and the lack of any suggestion in any of the authorities that it could apply in a case even remotely like the present, but also from the explanation of the reach of article 3 that has been given by the Convention organs.”

“Human rights are the rights essential to the life and dignity of the individual in a democratic society. The exact limits of such rights are debatable and, although there is not much trace of economic rights in the 50-year-old Convention, I think it is well arguable that human rights include the right to a minimum standard of living, without which many of the other rights would be a mockery. But they certainly do not include the right to a fair distribution of resources or fair treatment in economic terms – in other words, distributive justice. Of course distributive justice is a good thing. But it is not a fundamental human right. No one looking at the legal systems of the member states of the Council of Europe could plausibly say that they treated distributive justice as a fundamental principle to which other considerations of policy or expediency should be subordinated.”

“[R]estrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.”

“Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration … ‘Services’ shall in particular include … (d) activities of the professions.”

“Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States. ‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.”

“The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”

“Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.”

“ … the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments and that tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services.”

“The authorisation required under paragraph 1(c) may not be refused where the treatment in question cannot be provided for the person concerned within the territory of the Member State where he resides.”

“[17] Whilst the worker’s right to receive benefits in kind provided in another Member State is subject pursuant to the said paragraph to an authorization, the power of the competent institution to refuse the authorization is nevertheless limited by the requirement laid down by the regulation that the worker should be guaranteed the opportunity of receiving treatment appropriate to his state of health provided in any member State, whatever the place of his residence or the Member State to which the social security institution to which he is affiliated belongs. [18] The provision in the second subparagraph of Article 22(2) that the authorization “may not be refused where the treatment in question cannot be provided for the person concerned within the territory of the Member State in which he resides” means that the authorization may similarly not be refused in cases in which the treatment provided in the Member State of residence is less effective than that which the person concerned can receive in another Member State. … [22] The duty laid down in the second subparagraph of Article 22(2) to grant the authorization required under Article 22(1)(c) covers both cases where the treatment provided in another Member State is more effective than that which the person concerned can receive in the Member State where he resides and those in which the treatment in question cannot be provided on the territory of the latter State.”

“[10] … In setting a limit to the competent institution’s power of decision in this area, paragraph 17 of the said decision implicitly acknowledges that it is for that institution objectively to assess the medical grounds for granting or refusing the authorization required under Article 22(1)(c), having regard inter alia to the state of health of the person concerned, the seriousness of his sickness or disease and the effectiveness of the treatment in question. [11] When the competent institution, having made use of such power, acknowledges that the treatment in question constitutes an effective treatment of the sickness or disease from which the person concerned suffers, its power of decision is thus bound by the obligation clearly and unequivocally imposed upon it by the second subparagraph of Article 22(2) of the regulation not to refuse in that case the authorization required under Article 22(1)(c). [12] In fact it emerges from the provisions and the essential aims of Article 22 that it was the intention of the regulation to give medical requirements a decisive role in the decision of the competent institution to grant or refuse the aforesaid authorization by providing generally and unreservedly in the second subparagraph of Article 22(2) that authorization may not be refused “where the treatment in question cannot be provided for the person concerned within the territory of the Member State in which he resides”.

“the experience gained from implementing Regulations (EEC) No 1408/71 and (EEC) No 574/72 have revealed the need to make some improvements to those Regulations [and] consequently, the discretionary power of an institution of a Member State should be extended in granting or refusing authorization to a worker going to another Member State to receive appropriate medical treatment.”

“Selon la proposition de la Commission, la pratique avait démontré que l'application de la disposition donnait lieu à certains abus, car l'institution de sécurité sociale d'un État membre pouvait aisément se voir obligée d'accorder l'autorisation à un travailleur, même lorsqu'il n'avait jamais quitté son pays d'origine, dès lors qu'il souhaitait se rendre dans un autre État membre à seule fin d'y suivre un traitement médical qui n'était pas dispensé dans l'État membre d'affiliation. En outre, les difficultés financières des régimes nationaux d'assurance maladie justifiaient l'extension des pouvoirs d'appréciation des organismes de gestion, qui supportaient les frais exposés dans l'autre État, lors de l'octroi de l'autorisation. Elle a donc recommandé de modifier le paragraphe 2, deuxième alinéa, de telle sorte que l'autorisation ne puisse être refusée lorsque les soins figurent parmi les prestations prévues par la législation de l'État de résidence de l'assuré et ne peuvent être dispensés à ce dernier dans le délai normalement nécessaire pour l'obtenir.”

“The authorisation required under paragraph 1(c) may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.”

“[11] … It will likewise be necessary to determine whether Article 22 of the Regulation applies to the case and, if so, whether this fact of itself takes the matter outside the scope of Articles 30 and 59. On this point, I cannot refrain from observing right away that a provision of secondary legislation which is what Article 22 of the Regulation is, cannot in any event be regarded as capable of excluding an examination into whether or not Treaty provisions, such as Articles 30 and 59, have been infringed. I therefore take the view that even if, after examination, the Luxembourg rules are found to come within the scope of the Regulation and to be consistent with it, it does not follow that Articles 30 and 59 are inapplicable to this case. … [31] I now turn to the question whether the contested measure is in conformity with Article 22 of the Regulation. It is not in dispute that both measures (Community and national) make the reimbursement of medical expenses incurred in another Member State subject to prior authorisation. Both measures also require, in order for such authorisation to be granted, that the benefits sought by the insured person are among those eligible for reimbursement under the legislation of the Member State in question. I would also recall that Member States are bound to grant authorisation, under Article 22(2), only where the treatment sought cannot be provided within such time as to ensure its effectiveness, thereby leaving all other eventualities to the Member States’ discretion. For their part, the national rules in force in Luxembourg, specifically Article 25 of the UCM Statute, provide that authorisation is to be granted only if the treatment sought is not available in Luxembourg or if the standard of the health-care provided is inadequate for the particular ailment from which the insured person is suffering. Accordingly, there can be no doubt that the contested rules are consistent with Article 22 of the Regulation. It is quite clear that those rules, at least in terms of their wording, do not go beyond the limits laid down by the latter provision. [32] That finding, however, as already indicated, does not mean, contrary to the contention of a number of governments during the proceedings, that there is no possibility of the contested rules conflicting with Articles 30 and 59 and that, consequently, there is no need to examine whether the former are compatible with the latter. Furthermore, the arguments put forward in support of this view are, even on the face of it, devoid of substance.”

“[22] … the Luxembourg Government submit[s] that Article 22 of Regulation No 1408/71 lays down the principle that prior authorisation is required for any treatment in another Member State. To challenge the national provisions relating to reimbursement of the cost of services obtained abroad amounts to calling into question the validity of the corresponding provision in Regulation No 1408/71. … [25] It must be stated that the fact that a national measure may be consistent with a provision of secondary legislation, in this case Article 22 of Regulation No 1408/71, does not have the effect of removing that measure from the scope of the provisions of the Treaty.”

“[36] It should be noted that Article 22 of Regulation No 1408/71 is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State (see Case C-158/96 Kohll [1998] ECR I-1931, paragraph 27) where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the tariffs applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided. [37] Although Article 22 of Regulation No 1408/71 does not have the effect of preventing extra reimbursement, additional to that resulting from the application of the system of the Member State where the treatment was provided, when the system applied in the Member State in which the person concerned is insured is more beneficial, that provision does not have the further effect of requiring such additional reimbursement. Consequently, it is necessary to consider whether such an obligation might arise under Article 59 of the Treaty.”

“[28] La situation des patients est différente selon qu'ils font usage de la procédure prévue à l'article 22 du règlement n° 1408/71 ou invoquent directement l'article 49 CE. [29] L'article 22 du règlement n° 1408/71 régit exclusivement les relations entre les institutions de sécurité sociale des États membres. … [30] Au contraire, l'article 49 CE permet à tous les ressortissants des États membres établis dans la Communauté de solliciter le remboursement, selon le barème de l'État d'affiliation, des frais médicaux exposés dans un autre État membre sans qu'ils aient à disposer d'une autorisation. … [31] Ces deux dispositions visant des hypothèses différentes et leur application conduisant à des résultats distincts, il est difficile d'admettre qu'elles sont incompatibles. Les citoyens dont le risque de maladie n'est pas couvert par l'un des régimes légaux nationaux de sécurité sociale ou qui ont souscrit une assurance privée ne se voient pas empêchés de se rendre dans les autres États membres pour y bénéficier de prestations médicales. Ceux qui sont assurés par l'un de ces régimes peuvent choisir de faire usage de la procédure prévue à l'article 22, paragraphe 1, point c), du règlement n° 1408/71 ou, dans les limites établies par la jurisprudence, d'invoquer l'article 49 CE.”

“The only mechanism by which an NHS patient as such may be entitled to seek treatment in another member state is pursuant to Council Regulation 1408/71”

“Both the ZFW and the AWBZ establish a system of benefits in kind under which an insured person is entitled not to reimbursement of costs incurred for medical treatment but to free treatment. Both Laws are based on a system of agreements made between sickness funds and providers of health care. The WTZ, on the other hand, establishes a system under which insured persons are reimbursed costs and is not based on a system of agreements.”

“[40] … the Netherlands has organised a compulsory sickness insurance scheme which covers all persons whose income does not exceed a certain amount and which is managed by sickness funds with separate legal personality. It is financed from the contributions paid by insured persons and employers, and an annual payment made by the state, from the public purse, to the general sickness insurance fund. The sickness insurance funds are responsible for concluding with medical practitioners and specialist institutions agreements for the provision of health care to the persons registered with them. [41] Unlike the situation in Kohll with respect to the social security scheme in Luxembourg … health care under the Netherlands compulsory sickness scheme is free for insured persons. (It would be true to say that it is free in virtually all cases, even though certain benefits may be subject to the payment of a contribution by the person concerned. The legislation does provide, however, that the persons receiving the benefits do not all have to make the same contribution.) In order to obtain the health-care benefits they require, however, insured persons must use one of the medical practitioners or health-care institutions with whom or which their fund has concluded an agreement because, if they decide to use non-contracted providers, they are required to pay any costs they incur, without entitlement to reimbursement.”

“Under that system of compulsory sickness insurance, the funds operate by concluding with health-care institutions and independent 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 practitioners, consists in the payment of a fixed flat-rate amount, and, for each hospital, in the payment of an attendance charge, which is intended to finance the institution rather than to cover the real cost of hospital accommodation. Viewed from that angle, it is very much like the systems operated in certain member states where the social security institutions have their own resources and staff which they engage directly – such staff have the status of civil servants or quasi civil servants whose relationship with the social security institutions is governed in certain member states by public law – for a preset number of hours and a given salary. To my mind, it is clearly different from other systems, such as that in Luxembourg, the subject matter of Kohll v Union des Caisses de Maladie (Case C-158/96) [1998] ECR I-1931, which I have already described (and the French and Belgian systems operate according to the same principles as that in Luxembourg). Under the Luxembourg system, as indeed the court confirmed, the relationship between the insured person and the practitioner is characterised by a provision of “services” within the meaning of article 60 of the Treaty (that also applies to health care provided in hospital, since, although treatment is paid for by the sickness fund rather than the insured person, there is a charge for each medical procedure based on the cost of the benefits involved), but I am convinced that there is no such provision of “services” under the system I am considering here, since the element of remuneration required by article 60 of the Treaty is lacking.”

“[20] The Court has held that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10). [21] Consequently, the fact that the national rules at issue in the main proceedings fall within the sphere of social security cannot exclude the application of Articles 59 and 60 of the Treaty.”

“[41] It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 18, and Kohll, paragraphs 29 and 51). [42] It is also settled case-law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10, and Kohll paragraph 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of Articles 59 and 60 of the Treaty (Kohll, paragraph 21). [43] … the hospital services at issue in the main proceedings fall within the scope of freedom to provide services … ”

“ … the member states appear to fall into two major groups in terms of their views. Those in the first group, namely Belgium, France and Austria, consider that the health care provided under a public social security scheme is a service within the meaning of article 60 of the Treaty. Those in the second group, however, which comprises Germany, Ireland, the Netherlands, the United Kingdom, Denmark, Sweden, Finland and Iceland, take the view that health care under a social security system organised in the form of benefits in kind does not constitute a service within the meaning of article 60. Portugal and Norway have expressed no views on this point. The division of opinion among the member states ends there, since they all agree that the requirement of prior authorisation from the institution of the state of insurance in order to receive care in another member state, although constituting a barrier to freedom to provide services, is justified.”

“[48] A number of the governments which have submitted written observations to the court have argued that hospital services cannot constitute an economic activity within the meaning of article 60 of the Treaty, particularly when they are provided in kind and free of charge under the relevant sickness insurance scheme. [49] Relying in particular on Belgian State v Humbel (Case 263/86) [1988] ECR 5365, 5388, paras 17-19, and Society for the Protection of Unborn Children Ireland Ltd v Grogan (Case C-159/90) [1991] ECR I-4685, 4739, para 18, they argue, in particular, that there is no remuneration within the meaning of article 60 of the Treaty where the patient receives care in a hospital infrastructure without having to pay for it himself or where all or part of the amount he pays is reimbursed to him. [50] Some of those governments also maintain that it follows from Gravier v City of Liège (Case 293/83) [1985] ECR 593 and Wirth v Landeshauptstadt Hannover (Case C-109/92) [1993] ECR I-6447, 6469, para 17, that a further condition to be satisfied before a service can constitute an economic activity within the meaning of article 60 of the Treaty is that the person providing the service must do so with a view to making a profit. [51] The German Government considers that the structural principles governing the provision of medical care are inherent in the organisation of the social security systems and do not come within the sphere of the fundamental economic freedoms guaranteed by the EC Treaty, since the persons concerned are unable to decide for themselves the content, type and extent of a service and the price they will pay.”

“That fundamental difference causes me to question whether the treatment provided by medical practitioners and health-care institutions in such circumstances may be regarded as a service within the meaning of article 60 of the Treaty, in view of the fact that the person for whom the service is provided does not receive it in return for remuneration.”

“Under the Luxembourg system, as indeed the court confirmed, the relationship between the insured person and the practitioner is characterised by a provision of “services” within the meaning of article 60 of the Treaty (that also applies to health care provided in hospital, since, although treatment is paid for by the sickness fund rather than the insured person, there is a charge for each medical procedure based on the cost of the benefits involved), but I am convinced that there is no such provision of “services” under the system I am considering here, since the element of remuneration required by article 60 of the Treaty is lacking.”

“In the light of the characteristics of the Netherlands compulsory sickness insurance scheme which I have described, I take the view that the health-care benefits in kind which it provides to insured persons lack the element of remuneration and are not therefore services within the meaning of article 60 of the EC Treaty.”

“[52] None of those arguments can be upheld. [53] It is settled case law that medical activities fall within the scope of article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment: see Luisi v Ministero del Tesoro (Joined Cases 286/82 and 26/83) [1984] ECR 377, 403, para 16; Society for the Protection of Unborn Children v Grogan [1991] ECR I-4685, 4739, para 18, concerning advertising for clinics involved in the deliberate termination of pregnancies, and Kohll [1998] ECR I-1931, 1945, 1950, paras 29 and 51. [54] It is also settled case law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Criminal proceedings against Webb (Case 279/80) [1981] ECR 3305, 3323, para 10, and Kohll, para 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of articles 59 and 60 of the Treaty (Kohll, para 21). [55] With regard more particularly to the argument that hospital services provided in the context of a sickness insurance scheme providing benefits in kind, such as that governed by the ZFW, should not be classified as services within the meaning of article 60 of the Treaty, it should be noted that, far from falling under such a scheme, the medical treatment at issue in the main proceedings, which was provided in member states other than those in which the persons concerned were insured, did lead to the establishments providing the treatment being paid directly by the patients. It must be accepted that a medical service provided in one member state and paid for by the patient should not cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another member state’s sickness insurance legislation which is essentially of the type which provides for benefits in kind. [56] Furthermore, the fact that hospital medical treatment is financed directly by the sickness insurance funds on the basis of agreements and preset scales of fees is not in any event such as to remove such treatment from the sphere of services within the meaning of article 60 of the Treaty. [57] First, it should be borne in mind that article 60 of the Treaty does not require that the service be paid for by those for whom it is performed: Bond van Adverteerders v Netherlands State (Case 352/85) [1988] ECR 2085, 2131, para 16, and Deliège v Ligue francophone de judo et disciplines associées ASBL (Joined Cases C-51/96 and 191/97) [2000] ECR I-2549, 2616, para 56. [58] Secondly, article 60 of the Treaty states that it applies to services normally provided for remuneration and it has been held that, for the purposes of that provision, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question: Belgian State v Humbel (Case 263/86) [1988] ECR 5365, 5388, para 17. In the present cases, the payments made by the sickness insurance funds under the contractual arrangements provided for by the ZFW, albeit set at a flat rate, are indeed the consideration for the hospital services and unquestionably represent remuneration for the hospital which receives them and which is engaged in an activity of an economic character. [59] … the provisions of services at issue in the main proceedings do fall within the scope of the freedom to provide services within the meaning of articles 59 and 60 of the Treaty … ”

“It must be accepted that a medical service provided in one member state and paid for by the patient should not cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another member state’s sickness insurance legislation which is essentially of the type which provides for benefits in kind.”

“the referring court draws attention to the characteristics of the Netherlands sickness insurance scheme. In essence, unlike ‘reimbursement’ schemes, the scheme guarantees that benefits in kind will be provided. In the submission of the defendants in the main actions, the financial balance of the scheme could be jeopardised if it were possible for insured persons to obtain reimbursement, without prior authorisation, of the costs of care provided in another Member State. The national court refers in that regard to national measures taken to control the costs of hospital care, in particular the rules laid down … concerning the planning and geographical distribution of care, and those … limiting reimbursement to care provided by authorised hospitals.”

“[55] … if insured persons were entitled to go to a Member State other than that in which they are insured in order to receive treatment there, there would be adverse consequences for the setting of priorities for medical treatment and the management of waiting lists, which are significant aspects of the organisation of sickness insurance. In that regard, the United Kingdom Government points out that the finite financial resources allocated to the National Health Service (‘the NHS’)” – the French text of the judgment here uses the words “allouées au National Health Service (service national de santé, ci–après le ‘NHS’)” – “are managed by local health authorities which establish timetables based on clinical judgments and medically determined priorities for different treatments. Patients do not have the right to demand a certain timetable for their hospital treatment. It follows that if patients could shorten their waiting time by obtaining, without prior authorisation, medical treatment in other Member States for which the competent fund was none the less obliged to assume the cost, the financial balance of the system would be threatened and the resources available for more urgent treatment would be severely depleted, thereby placing at risk its ability to provide adequate levels of health care. [56] The United Kingdom Government adds that if hospital services were to be liberalised, its own hospitals would be unable to predict either the loss of demand that would follow from recourse being had to hospital treatment in other Member States or the increase in demand that would follow from persons insured in those other States being able to seek hospital treatment in the United Kingdom. Those effects of liberalisation would not necessarily offset each other and the impact would be different for every hospital in the United Kingdom.”

“points to the specific characteristics of the NHS” – in the French text, “particularités du NHS” – “and asks the Court to uphold the principle that health care provided under such a national sickness insurance scheme does not fall within the scope of Article 60 of the Treaty and that the NHS,” – in French, “le NHS” – “which is a non-profit-making body, is not a service provider for the purposes of the Treaty.”

“[38] It should be borne in mind, as a preliminary point, that it is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see, most recently, Smits and Peerbooms, paragraph 53). [39] The Court also found, in paragraphs 54 and 55 of Smits and Peerbooms, that the fact that the applicable rules are social security rules and, more specifically, provide, as regards sickness insurance, for benefits in kind rather than reimbursement does not mean that the medical treatment in question falls outside the scope of the freedom to provide services guaranteed by the EC Treaty. Indeed, in the disputes before the national court, the treatment provided in a Member State other than that in which the persons concerned were insured resulted in direct payment by the patient to the doctor providing the service or the establishment in which the care was provided. … [103] … as has already been made clear in paragraph 39 above, a medical service does not cease to be a provision of services because it is paid for by a national health service” – in the French text, “par un service national de santé” – “or by a system providing benefits in kind. The Court has, in particular, held that a medical service provided in one Member State and paid for by the patient cannot cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another Member State’s sickness insurance legislation which is essentially of the type which provides for benefits in kind (Smits and Peerbooms, paragraph 55). The requirement for prior authorisation where a person is subsequently to be reimbursed for the costs of that treatment is precisely what constitutes, as has already been stated in paragraph 44 above, the barrier to freedom to provide services, that is to say, to a patient’s ability to go to the medical service provider of his choice in a Member State other than that of affiliation. There is thus no need, from the perspective of freedom to provide services, to draw a distinction by reference to whether the patient pays the costs incurred and subsequently applies for reimbursement thereof or whether the sickness fund or the national budget pays the provider directly.”

“ … Articles 59 and 60 of the Treaty … preclude … legislation in so far as it makes the assumption of the costs of non-hospital care provided in another Member State by a person or establishment with whom or which the insured person’s sickness fund has not concluded an agreement conditional upon prior authorisation by the fund, even when the national legislation concerned sets up a system of benefits in kind under which insured persons are entitled not to reimbursement of costs incurred for medical treatment, but to the treatment itself which is provided free of charge.”

“[31] Mr Kohll and the Commission submit that the fact that reimbursement of the cost of medical services, in accordance with the legislation of the State of insurance, is subject to prior authorisation by the institution of that State where the services are provided in another Member State constitutes a restriction on freedom to provide services within the meaning of Articles 59 and 60 of the Treaty. [32] The Member States which have submitted observations consider, on the contrary, that the rules at issue do not have as their purpose or effect to restrict freedom to provide services, but merely lay down the conditions for the reimbursement of medical expenses. [33] It should be noted that, according to the Court’s case-law, Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17). [34] While the national rules at issue in the main proceedings do not deprive insured persons of the possibility of approaching a provider of services established in another Member State, they do nevertheless make reimbursement of the costs incurred in that Member State subject to prior authorisation, and deny such reimbursement to insured persons who have not obtained that authorisation. Costs incurred in the State of insurance are not, however, subject to that authorisation. [35] Consequently, such rules deter insured persons from approaching providers of medical services established in another Member State and constitute, for them and their patients, a barrier to freedom to provide services (see Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 16, and Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31). [36] The Court must therefore examine whether a measure of the kind at issue in this case may be objectively justified.”

“[43] Since the hospital services at issue in the main proceedings fall within the scope of freedom to provide services, it is necessary to go on to consider whether the fact that national legislation does not guarantee a person covered by its social insurance scheme who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71 a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the Member State in which he was insured entails a restriction of freedom to provide services within the meaning of Article 59 of the Treaty. [44] In that regard, it is settled case-law that Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33). [45] In the present case, there is no doubt that the fact that a person has a lower level of cover when he receives hospital treatment in another Member State than when he undergoes the same treatment in the Member State in which he is insured may deter, or even prevent, that person from applying to providers of medical services established in other Member States and constitutes, both for insured persons and for service providers, a barrier to freedom to provide services (see, by analogy, Luisi and Carbone, paragraph 16, Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31, and Kohll, paragraph 35). [46] Consequently, it is necessary to examine whether the fact that the national legislation of a Member State does not guarantee a person insured in that State at least an equally advantageous level of cover when hospital services are provided in another Member State could be objectively justified.”

“[37] … Governments of the Member States which have submitted observations submit that freedom to provide services is not absolute and that reasons connected with the control of health expenditure must be taken into consideration. The requirement of prior authorisation constitutes the only effective and least restrictive means of controlling expenditure on health and balancing the budget of the social security system. [38] According to … the Luxembourg Government and the Commission, the risk of upsetting the financial balance of the social security scheme, which aims to ensure a balanced medical and hospital service available to all its insured, constitutes an overriding reason in the general interest capable of justifying restrictions on freedom to provide services. … [43] The Luxembourg Government also relies on grounds based on the protection of public health, arguing, first, that the rules at issue are necessary to guarantee the quality of medical services, which in the case of persons going to another Member State can be ascertained only at the time of the request for authorisation, and, second, that the Luxembourg sickness insurance system aims to provide a balanced medical and hospital service open to all insured persons.”

“[52] However, neither [the Luxembourg authority] nor the Governments of the Member States which have submitted observations have shown that the rules at issue were necessary to provide a balanced medical and hospital service accessible to all. None of those who have submitted observations has argued that the rules were indispensable for the maintenance of an essential treatment facility or medical service on national territory. [53] The conclusion must therefore be drawn that the rules at issue in the main proceedings are not justified on grounds of public health.”

“It is necessary to determine whether there is a restriction on freedom to provide services within the meaning of article 59 of the Treaty where the costs of treatment provided in a hospital in another member state is assumed under the sickness insurance scheme only on condition that the person receiving the treatment obtains prior authorisation, which is granted only if the treatment concerned is covered by the sickness insurance scheme of the member state in which the patient is insured, which requires that the treatment be “normal within the professional circles concerned”, and where the insured person's sickness fund has decided that his medical treatment requires that he be treated in the hospital establishment concerned, presupposing that adequate timely treatment cannot be provided by a contracted care provider in the member state in which the patient is insured.”

“[70] Consequently, it is necessary to examine whether, in so far as they concern medical services provided within a hospital infrastructure, such as those at issue in the main proceedings, such rules can be objectively justified. [71] In that regard, it is first necessary to determine whether there are overriding reasons which can be accepted as justifying barriers to freedom to provide medical services supplied in the context of a hospital infrastructure, then to determine whether the prior authorisation principle is justifiable in the light of such overriding needs and last to consider whether the conditions governing the grant of prior authorisation can themselves be justified.”

“[75] It is therefore necessary to determine whether the national rules at issue in the main proceedings can actually be justified in the light of such overriding reasons and, in such a case, in accordance with settled case law, to make sure that they do not exceed what is objectively necessary for that purpose and that the same result cannot be achieved by less restrictive rules: Commission of the European Communities v Federal Republic of Germany (Case 205/84) [1986] ECR 3755, 3802-3803, paras 27 and 29; Commission of the European Communities v Italian Republic (Case C-180/89) [1991] ECR I-709, 722-723, paras 17 and 18, and Ramrath v Ministre de la Justice (Case C-106/91) [1992] ECR I-3351, 3384-3385, paras 30 and 31.”

“the fact that there is interference with the freedom to provide services does not mean that article 59 is infringed. It means no more than the second stage has been reached and the interference has to be justified in accordance with the well established principles if it is not to contravene article 59. Those principles are correctly summarised … in the case of an administrative decision as being that the decision must be non-discriminatory, it must be justified by some imperative requirement in the general interest, it must be suitable for securing the attainments of the objects which it pursues and it must not go beyond what it is necessary to attain that objective.”

“[76] As regards the prior authorisation requirement to which the ZFW subjects the assumption of the costs of treatment provided in another member state by a non-contracted care provider, the court accepts, as all the governments which have submitted observations have argued, that, by comparison with medical services provided by practitioners in their surgeries or at the patient's home, medical services provided in a hospital take place within an infrastructure with, undoubtedly, certain very distinct characteristics. It is thus well known that the number of hospitals, their geographical distribution, the mode of their organisation and the equipment with which they are provided, and even the nature of the medical services which they are able to offer, are all matters for which planning must be possible. [77] As may be seen, in particular, from the contracting system involved in the main proceedings, this kind of planning therefore broadly meets a variety of concerns. [78] For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the state concerned. [79] For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage is all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for health care are not unlimited, whatever the mode of funding applied. [80] From both those perspectives, a requirement that the assumption of costs, under a national social security system, of hospital treatment provided in another member state must be subject to prior authorisation appears to be a measure which is both necessary and reasonable. [81] Looking at the system set up by the ZFW, it is clear that, if insured persons were at liberty, regardless of the circumstances, to use the services of hospitals with which their sickness insurance fund had no contractual arrangements, whether they were situated in the Netherlands or in another member state, all the planning which goes into the contractual system in an effort to guarantee a rationalised, stable, balanced and accessible supply of hospital services would be jeopardised at a stroke. [82] Although, for the considerations set out above, Community law does not in principle preclude a system of prior authorisation, the conditions attached to the grant of such authorisation must none the less be justified with regard to the overriding considerations examined and must satisfy the requirement of proportionality referred to in paragraph 75 above.”

“[99] Under the rules at issue in the main proceedings, the grant of authorisation allowing assumption of the costs of a medical service provided abroad is subject to a second condition, namely that it be proved that the insured person's medical treatment requires that service. … [101] As regards the provision of hospital treatment outside the Netherlands, the national court states, however, that in practice that condition often appears to be interpreted as meaning that the provision of such treatment is not to be authorised unless it appears that appropriate treatment cannot be provided without undue delay in the Netherlands. No distinction is therefore drawn in this respect between whether the treatment could be provided by a contracted establishment or by a non-contracted establishment.”

“[103] In view of what is stated in paragraph 90 above, it can be concluded that the condition concerning the necessity of the treatment, laid down by the rules at issue in the main proceedings, can be justified under article 59 of the Treaty, provided that the condition is construed to the effect that authorisation to receive treatment in another member state may be refused on that ground only if the same or equally effective treatment can be obtained without undue delay from an establishment with which the insured person's sickness insurance fund has contractual arrangements. [104] Furthermore, in order to determine whether equally effective treatment can be obtained without undue delay from an establishment having contractual arrangements with the insured person's fund, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation is sought but also of his past record. [105] Such a condition can allow an adequate, balanced and permanent supply of high-quality hospital treatment to be maintained on the national territory and the financial stability of the sickness insurance system to be assured. [106] Were large numbers of insured persons to decide to be treated in other member states even when the hospitals having contractual arrangements with their sickness insurance funds offered adequate identical or equivalent treatment, the consequent outflow of patients would be liable to put at risk the very principle of having contractual arrangements with hospitals and, consequently, undermine all the planning and rationalisation carried out in this vital sector in an effort to avoid the phenomena of hospital overcapacity, imbalance in the supply of hospital medical care and logistical and financial wastage. [107] However, once it is clear that treatment covered by the national insurance system cannot be provided by a contracted establishment, it is not acceptable that national hospitals not having any contractual arrangements with the insured person's sickness insurance fund be given priority over hospitals in other member states. Once such treatment was ex hypothesi provided outside the planning framework established by the ZFW, such priority would exceed what was necessary for meeting the overriding requirements referred to in paragraph 105 above. [108] In view of all the foregoing considerations, the answer to be given to the national court must be that articles 59 and 60 of the Treaty do not preclude legislation of a member state, such as that at issue in the main proceedings, which makes the assumption of the costs of treatment provided in a hospital located in another member state subject to prior authorisation from the insured person's sickness insurance fund and the grant of such authorisation subject to the condition that (i) the treatment must be regarded as “normal in the professional circles concerned”, a criterion also applied in determining whether hospital treatment provided on national territory is covered, and (ii) the insured person’s medical treatment must require that treatment. However, that applies only in so far as (a) the requirement that the treatment must be regarded as “normal” is construed to the effect that authorisation cannot be refused on that ground where it appears that the treatment concerned is sufficiently tried and tested by international medical science, and (b) authorisation can be refused on the ground of lack of medical necessity only if the same or equally effective treatment can be obtained without undue delay at an establishment having a contractual arrangement with the insured person’s sickness insurance fund.”

“the mere fact of a person being on a waiting list does not mean that such treatment is not available. If it were to adopt a different interpretation, the Court would significantly extend the conditions in which benefits are awarded, which are a matter of national competence. Moreover, it would cast uncertainty over all attempted planning and rationalisation in the health-care sector aimed at avoiding over-capacity, supply-side imbalance, wastage and loss.”

“Selon moi, il convient de préciser à la juridiction nationale que la condition «en temps opportun» («tijdig») doit être appréciée d'un point de vue strictement médical, indépendamment de la durée de la période d'attente nécessaire pour obtenir le traitement souhaité.”

“In this instance the arguments put forward to justify the requirement for prior authorisation seek to establish that, if it were open to patients to get treatment in a Member State other than that in which they are insured, without prior authorisation to that effect, the competent State could no longer guarantee that in its territory there would be a high-quality, balanced medical and hospital service open to all and hence a high level of public health protection.”

“It is self-evident that assuming the cost of one isolated case of treatment, carried out in a Member State other than that in which a particular person is insured with a sickness fund, can never make any significant impact on the financing of the social security system. Thus an overall approach must necessarily be adopted in relation to the consequences of freedom to provide health-related services.”

“[89] The condition concerning the necessity of the treatment, laid down by the legislation at issue in the main proceedings, can be justified under Article 59 of the Treaty, provided that the condition is construed to the effect that authorisation to receive treatment in another Member State may be refused on that ground only if treatment which is the same or equally effective for the patient can be obtained without undue delay from an establishment with which the insured person’s sickness insurance fund has an agreement (Smits and Peerbooms, paragraph 103). [90] In order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in an establishment having an agreement with the insured person's fund, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history (see, to that effect, Smits and Peerbooms, paragraph 104).”

“ … a refusal to grant prior authorisation which is based not on fear of wastage resulting from hospital overcapacity but solely on the ground that there are waiting lists on national territory for the hospital treatment concerned, without account being taken of the specific circumstances attaching to the patient's medical condition, cannot amount to a properly justified restriction on freedom to provide services. It is not clear from the arguments submitted to the Court that such waiting times are necessary, apart from considerations of a purely economic nature which cannot as such justify a restriction on the fundamental principle of freedom to provide services, for the purpose of safeguarding the protection of public health. On the contrary, a waiting time which is too long or abnormal would be more likely to restrict access to balanced, high-quality hospital care.”

“Articles 59 and 60 of the Treaty must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which (i) makes the assumption of the costs of hospital care provided in a Member State other than that in which the insured person’s sickness fund is established, by a provider with which that fund has not concluded an agreement, conditional upon prior authorisation by the fund and (ii) makes the grant of that authorisation subject to the condition that such action is necessary for the insured person’s health care. However, authorisation may be refused on that ground only if treatment which is the same or equally effective for the patient can be obtained without undue delay in an establishment which has concluded an agreement with the fund.”

“a refusal to grant prior authorisation which is based … on fear of wastage resulting from hospital overcapacity … [can] amount to a properly justified restriction on freedom to provide services.” ii) The second is contained in the passage where it is said that “a refusal to grant prior authorisation which is based … solely on the ground that there are waiting lists on national territory for the hospital treatment concerned, without account being taken of the specific circumstances attaching to the patient’s medical condition, cannot amount to a properly justified restriction on freedom to provide services”. iii) The third is contained in the passage where it is said that: “considerations of a purely economic nature” – in contrast to “a refusal to grant prior authorisation which is based … on fear of wastage resulting from hospital overcapacity” – “cannot as such justify a restriction on the fundamental principle of freedom to provide services”. iv) The fourth, which seems to me to capture the scepticism with which the ECJ viewed the arguments addressed to it by the Netherlands and the United Kingdom, is contained in the passage where it is said that: “It is not clear from the arguments submitted to the Court that such waiting times are necessary … for the purpose of safeguarding the protection of public health. On the contrary, a waiting time which is too long or abnormal would be more likely to restrict access to balanced, high-quality hospital care.”

“It likewise follows from settled case law that a scheme of prior authorisation cannot legitimise discretionary decisions taken by the national authorities which are liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings: see, to that effect, Criminal proceedings against Bordessa (Joined Cases C-358 and 416/93) [1995] ECR I-361, 385, para 25; Criminal proceedings against Sanz de Lera (Joined Cases C-163, 165 and 250/94) [1995] ECR I-4821, 4837-4838, paras 23-28, and Asociación Profesional de Empresas Navieras de Líneas Regulares (Analir) v Administración General del Estado (Case C-205/99) [2001] ECR I-1271, 1313, para 37. Therefore, in order for a prior administrative authorisation scheme to be justified even though it derogates from such a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily: Analir, para 38. Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings.”

“Mr Edge’s letter dated 1st October 2002 does not indicate that your mother requires treatment outside of the draft NHS guidelines for overseas treatment which states that overseas treatment can only be supported “if treatment cannot be provided within the time normally necessary for obtaining the treatment in question taking account of the patient’s current state of health and the probable course of disease”

“without support for overseas treatment from Mr Edge, Mrs Watts’s Consultant Orthopaedic Surgeon, or from Bedford PCT, (Bedford PCT reiterate previous reasoning for not supporting this application), Bedford PCT is unable to support the overseas treatment application under form E112.”

“the pain has now become significantly worse. … She is now no longer able to mobilise on one stick … she did battle to walk with a very shuffling gait using 2 walking sticks. She had difficulty in getting on and off the couch and had to lift up her legs using her arms to get onto the couch. … Under the circumstances I feel that this lady probably had deteriorated since last seen. Of course all the patients on my waiting list would have deteriorated in this time but she has perhaps got a little worse than the average patient. I am therefore prepared to re-categorise her as a “soon” case.”

“Mr Edge has clarified this with the PCT to mean a wait for surgery of between three and four months. This will mean that Mrs Watts will be listed for surgery in either April or May 2003. … Having reassessed the new clinical assessment by Mr Edge, the PCT acknowledge that Mrs Watt’s clinical condition has deteriorated enough for Mr Edge to reprioritise Mrs Watts as requiring treatment more quickly than previously thought, within three to four months. … Mrs Watts will be listed for surgery at Bedford hospital for hip replacement surgery between three to four months.”

“authorisation … may not be refused where … the person concerned … cannot be given … treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.”

“ … Article 22(1)(c) and (i) of Regulation No 1408/71 is to be interpreted as meaning that, when an insured person has been authorised by the competent institution to go to another Member State for treatment, the institution of the place where the treatment is provided is required to provide him with benefits in kind in accordance with the rules on assumption of the costs of health care which the latter administers, as if the person concerned were registered with it. Where the request of an insured person for authorisation on the basis of Article 22(1)(c) of that regulation has been refused by the competent institution and it is subsequently established that such refusal was unfounded, the person concerned is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which would have been borne by the institution of the place of treatment under the rules laid down by the legislation applied by the latter institution if authorisation had been properly granted in the first place. As Article 22 of that regulation is not intended to regulate any reimbursement at the tariffs in force in the Member State of registration, it does not have the effect of preventing or prescribing payment by that State of additional reimbursement covering the difference between the system of cover laid down by the legislation of that State and the system applied by the Member State of treatment, where the former is more advantageous than the latter and such reimbursement is provided for by the legislation of the Member State of registration. Article 59 of the EC Treaty is to be interpreted as meaning that, if the reimbursement of costs incurred on hospital services provided in a Member State of stay, calculated under the rules in force in that State, is less than the amount which application of the legislation in force in the Member State of registration would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by the competent institution.”