Coming into line: the EU's Court softens on cross-border health care

The revolution started without anybody realising it. The finding, by the Court of Justice of the European Union (the Court), that two Italian nationals, Mrs Luisi and Mr Carbone, were entitled to travel to another member state to receive health services -unrestrained by capital movement or other restrictions -hardly alarmed people in the health sector: Luisi and Carbone were over-the-border service recipients paying, in private, for the services received. The drama unfolded over a decade later, when another over-the-border service recipient, Luxemburger this time, took things a step further: Mr Kohll sought to obtain a refund from his social insurance fund for treatment received abroad -and was found by the Court to be entitled to it. The great dismay of the health care sector did not stop the Court from going even further, holding that a system of prior authorisation (the standard practice to manage cross-border health care movements) could only exceptionally be tolerated, in relation to hospital treatments. The Court also held that, under some circumstances, patients could 'force' the delivery of an authorisation to go abroad. Over-the-border patients could even 'make money' from their social fund, if they could get an equivalent treatment more cheaply abroad. Subsequent judgments made clear that the right of patient mobility and the indispensable refund system should be made available by all health care systems, even where they are designed to offer primarily benefits-in-kind through taxation (Beveridge systems), rather than mere refund through social insurance (Bismarck systems). What is more, Beveridge systems have seen waiting lists, their core instrument for canalising health care expenses, brought under a case-by-case proportionality review.