The Belgian Professional Association of Urologists, et al. v. The Council of Ministers

Article 21 of the law dated December 21, 1994 (“article 21”) changed mandatory insurance payments so as to not grant fees (or, in certain cases, to grant lesser fees) to urologists or other non-radiologists specialists for diagnostic medical imagery services. However, fees remained payable to radiologists for those same services. The Belgian Professional Association of Urologists and the Group of Belgian Professional Unions of Specialty Physicians (“Petitioners”) petitioned to annul article 21 by claiming that article 21 adversely affected Petitioners’ interests by treating urologists and non-radiological specialists in a discriminatory manner.

Petitioners argued, first, that article 21 violated the principle of equality under article 10 and 11 of the Constitution because urologists, non-radiological specialty physicians, and radiologists were to be found in a “comparable or analogous situation,” and should therefore not be treated dissimilarly. Secondly, Petitioners argued that different treatment, if justified, should be “adequate and proportionate,” which was not true in the present case considering the discriminatory treatment of the specialists and potential inconvenience to patients. Thirdly, Petitioners argued that article 21 treatment would bring detrimental consequences to medical market, such as increasing the expense and inconvenience of diagnostic medical imagery services and interfering with the patient’s right to free choose his or her own doctor.

The Council of Ministers (“Council”) responded that there were distinctions between urologists and special physicians, such as their different training, which justified the disparate treatment under  article 21. They further contended that article 21 was devised in order to address “limiting expenses in the health treatment insurance sector” and that that this goal was reasonable and legitimate. Finally, the Council argued that Petitioners lacked evidence to support the claim that the lowered compensation would simply displace expenses towards radiologists (instead of reducing expenses) and that the law would indirectly limit the patient’s freedom to choose a doctor.

The Court rendered its decision in favor of Petitioners. The Court noted that although the legislator had power to “set the nomenclature of medical services, with account taken in particular of the requirements for optimal health treatment and the financial balance of the system,” to allow for discriminating treatment, it was required to support its adoption of such discriminating treatment with legitimate justification. In this case, the Court found that neither the different “training and qualification that exist between urologists and non-radiologist specialty physicians, on one hand, and the radiologists on the other hand,” nor the argument that radiologists, unlike non-radiologists, derived their professional revenues solely from medical imagery services, could support Council’s position,

The Court further noted that, even if the purpose of this legislation was to save money, such methods were inadequate and disproportionate in respect to this goal—nor was the Council’s affirmation that this measure would save 1.5 billion francs and that non-radiologists were the origin of the over-consumption of medical imagery services supported by the evidence.  The Court also rejected the Council’s argument of legal security (relating to the effect that annulling the legislation might have retroactively).

Thus, the Court annulled article 21.

“In governing mandatory healthcare and indemnity insurance, the legislator possesses a wide liberty of appreciation to set the nomenclature of medical services, with account taken in particular of the requirements for optimal health treatment and the financial balance of the system.  In light of this last requirement, it is up to the legislator to examine to what degree the increase in expense or the over-consumption of medical services should be attributed to a particular category of dispensers of treatments and envisage, as a consequence, the measures to be taken. On this occasion, the legislator can however not be aware of the reach of articles 10 and 11 of the Constitution in treating in a particular manner one specific category of treatment providers as opposed to another that would be comparable for the same type of medical services, without being able to reasonably justify this difference.” Paragraph B.7.1

“The Council of Ministers does not indicate – and the Court doesn’t perceive – in what way the differences in training and qualification that exist between urologists and non-radiologist specialty physicians, one the one hand, and the radiologists, on the other hand, can justify the distinction being used” Paragraph B.7.1

“With respect to the link that the provisions under litigation could have with the fact that the urologists and the non-radiologist specialty physicians could be at the origin of an over-consumption of medical imagery services or that these treatment dispensers would be contributing from this point of view, more than comparable categories, to an unjustified increase in expenditures for mandatory healthcare and indemnity insurance, the Court notes that neither the preparatory work on the provisions being contested, nor the report by the Council of Ministers, nor the documents submitted by the latter present the slightest element of fact upon which such a hypothesis can be based.” Paragraph B.7.1