A patient’s access to health care is highly influenced by the availability of reimbursement options. The choice for a specific therapeutic treatment therefore depends partly on the financial consequences for the patient. The reimbursement of costs associated with therapeutic interventions is not an issue that is harmonised within the European Union. It is up to the individual Member States to set the rules for reimbursement of health care. According to Article 152, 5^th paragraph of the EC Treaty, the European Communities may not adopt harmonising measures which interfere with the sovereignty of the Member States in the field of health services and medical care:

 ‘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.’

However, this does not mean that the EU has no influence at all on the rules on the provision of medical care and health services. First of all, Article 152(1) EC provides that ‘a high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.’ In addition, Article 95 EC – the most frequently used legal basis for harmonising measures – provides in the 3^rd paragraph:

‘The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.’

It clearly follows from the rules however, that the European Institutions cannot go beyond the competences vested in them by the EC Treaty.

Cross-border health care
More instructive is the case law of the European Court of Justice (‘ECJ’ or ‘Court’) in the field of cross-border health care, which makes use of the four freedoms in order to facilitate the cross-border provision of health care and medical services. Especially the free movement of persons in order to receive services (now often referred to as the free movement of patients) has shaped reimbursement and provision of medical care in cross-border settings. For example, a patient is in principle entitled to medical care and reimbursement in a Member State which is not the state of residence. Such reimbursement may generally not exceed the amounts to be reimbursed in the Member State of residence. There are exceptions to this rule though for hospital care. The exact scope of these rules has been the subject of a considerable number of cases before the Court.

New Directive on patients' rights in cross-border health care
In July 2008 the Commission initiated a proposal for a Directive on the application of patients' rights in cross-border health care.¹ The proposal went through the European Parliament in first reading and now lies on the desk of the Council for examination, which is expected to take place before the end of this year. In addition to the aim to clearly lay down the case law of the ECJ in the national laws of the Member States, the proposed Directive should, according to the European Parliament amongst others, also introduce:

• strict conditions on the option for Member States to require patients to receive prior authorisation for hospital treatments in other Member States;
• an easier and in certain cases a more extended reimbursement of costs up to at least the level reimbursed in the Member State of residence;
• more possibilities to receive treatment abroad for patients with rare diseases or disabilities;
• the establishment of a European Patients Ombudsman to advance the confidence of patients in cross-border health care.

CAM and social security in the EU
So to what extent do European rules influence the reimbursement of therapeutic interventions under the complementary medicine (CAM) umbrella? Generally speaking, the influence of these rules is rather limited with respect to medical interventions, including CAM. In cases of cross-border health care, the reimbursement of CAM will depend on the scope of the health care insurance contracted by the patient in the Member State of residence. 

If the insurance scheme reimburses certain CAM interventions, it should in principle be possible for a European citizen to receive such CAM care outside the Member State of residence. However, the ‘European influence’ on national legal rules does not generally go so far that patients can claim reimbursement for medical care received abroad to which they would not have been entitled in their Member State of residence. As a general rule, this also applies to the reimbursement of CAM interventions. As a consequence, social security matters relating to CAM therapies largely remain within the national boundaries of the Member States.

Johan Hulshof
Attorney at Law
Van Benthem & Keulen, Attorneys at Law