S.J. v. Försäkringskassan (‘Jelinek’)

The plaintiff was diagnosed with a severe inflammatory disease, and she was offered treatments at the hospital in Sweden using a common treatment method for her disease.  After ending two rounds of this treatment process (and learning that doctors recommended a further 6 to 12 treatment rounds), the plaintiff had commenced the new treatment method based on the renowned “synochronised protocol” at the hospital in Kiel, Germany. For the treatment in Germany, the plaintiff paid USD $70,000.

The plaintiff requested compensation from the Gothenburg Health Care Authority (the “GHCA”) for the treatment costs incurred from the treatment in Germany.. However, the GHCA rejected the request based upon the fact that the treatment did not occur in Sweden.

As a result, the plaintiff appealed the decision to the Swedish Social Insurance Agency (the “SSIA”). The SSIA rejected the appeal, arguing that the SSIA did not provide approval for the plaintiff to seek treatment in another EU Member States where the treatment was considered to be more effective than that provided in Sweden.

The plaintiff appealed the decision of the SSIA to the Municipal Court in Gothenburg, claiming that she had a right to receive compensation for her medical treatment costs from her national health insurance authority under the Articles 22.1.c and 22.2 of the Regulation Number 1408/71. In response to the appeal, the Municipal Court held that a citizen of an EU Member State can seek treatment in another EU Member State at the expense of his or her national social insurance agency.  The Municipal Court also stated that under Article 22.2 of the Regulation Number 1408/71, any necessary approval for treatment must be given where the treatment given in another EU member state was considered to be more efficient than comparable treatment in the person’s home country, or if such treatment was not available in the person’s home country. Therefore, the Municipal Court held that the SSIA wrongly rejected the plaintiff’s request for compensation because the treatment that the plaintiff received in Germany had not been available in Sweden.

The SSIA appealed the decision of the Municipal Court to the Gothenburg Administrative Court. However, the Gothenburg Administrative Court rejected the appeal of the SSIA and upheld the earlier decision of the Municipal Court.

The SSIA appealed the decision to the Supreme Administrative Court.

The Court noted the relevant articles of the EU treaty which established the fundamental principles of freedom movement, freedom of establishment and the freedom to provide services throughout EU Member State territory and further noted the principal right of an individual to receive health care in another EU Member State. However, the Court detailed the jurisprudence of the European Court of Justice regarding where such right can be restricted—namely the precedent that “the freedom to receive services cannot—without the requirement of a preliminary assessment—be deemed to displace the economic balance in the Member States’ health care system.”

In this case, the Court determined that neither the plaintiff’s claim for compensation nor her request submitted to the SSIA could be considered to be a preliminary assessment, as required under Article 22 of Regulation 1408/71 (which set forth the procedure for receiving compensation for health treatment received in another EU Member State after preliminary assessment had been made).  Therefore, the Court determined that the plaintiff’s request for compensation must be assessed in accordance with Articles 49 and 50 of EU Treaty (regarding the freedom of establishment and the freedom to provide services in EU Member States). The Court found that it had not been made clear that plaintiff would not have been eligible for compensation if she hadreceived such treatment in Sweden,—therefore the plaintiff had a right to be reimbursed for the costs of treatment she received in Germany.

“The EU Treaty establishes the fundamental principle on the free movement (see Article 39) in particular the free movement of employees (see Article 43) and the freedom of establishment in the territory of any of the EU Member States and the freedom to provide services (see Articles 49, 50). It must be noted in relation to the final two freedoms that the European Court of Justice has ruled that the freedom apply equally to providers as well as recipients (see C-286/82 and 26/83, Luisi and Carbone). The articles are intended to prevent the imposition of national regulations which would make it more difficult to provide services between the member states than within the territory of the same member state.” Page 2.

“From Articles 46 and 55 EU Treaty, there is an exception for measures which would otherwise represent a barrier to freedom to provider services, where the measures are taken on the grounds of public policy, public security or public health. Such measures may also be permitted if they are deemed necessary for what the ECJ has termed “the public interest”. However, such national measures may not go beyond what is necessary to achieve the stated objective and the same objective could not be achieved through other means which impact less upon the freedom to provide services (see C-385/99, Müller-Faure and van Riet).” Page 3.

“If an individual who has not received a preliminary assessment requests compensation for incurred treatment costs for  such non-hospital based services, he/she can only claim compensation for the level of costs which would be covered under their national health insurance scheme (see C-385/99, Müller-Faure and van Riet). As there is no right to compensation above and beyond the level provided in the home EU Member State, the freedom to receive services cannot –without the requirement of a preliminary assessment –be deemed to displace the economic balance in the Member States’ health care system (see C-158/96 Kohll, paragraph 40-42).” Page 4.

“As discussed above, when an individual relies upon fundamental EU principles to support his/her claim for compensation, the total compensation available cannot exceed the amount  available in his/her home Member State. S has not requested a large amount than he would have been entitled to under Swedish law. S is entitled to receive an amount which the Swedish Social Insurance Agency would have paid had the same treatment been carried out in Sweden.” Page 5