Wistrand v. Riksförsakringsverket

In 1999, Mr. Wistrand, a Swedish man, obtained an alternative and promising form of rectal cancer treatment in France because this treatment was not yet available in Sweden.  Upon his return in 2000, his local Social Insurance Board denied his request for compensation for his medical costs because the treatment did not occur in Sweden.  Mr. Wistrand appealed this decision to the Swedish National Social Insurance Board (“NSIB”).  The NSIB rejected this appeal because it had not given him prior approval to travel to another European Union (“EU”) member state to obtain treatment.

Mr. Wistrand then appealed this decision to the Stockholm Municipal Court, relying primarily on Articles 22(1)(c) and 22(2) of EU Regulation 1408/71, under which he asserted a right to receive compensation for his medical costs from the Swedish NSIB.  The Municipal Court agreed, holding that approval for treatment must be given in cases where treatment in another EU member state is more efficient, or in cases where treatment exists in another EU member state and not in one’s home state.  The NSIB appealed this decision to the Administrative Court, arguing that there was no requirement  to approve treatment in such circumstances.  The Administrative Court rejected the appeal.  The NSIB appealed once again to the Supreme Administrative Court.

The Supreme Administrative Court held that Mr. Wistrand had a right to receive compensation for the medical treatment that occurred in France under the fundamental principles of the EU.  The Court relied in particular on several provisions of the EU Treaty, including the principles of free movement (Article 39), free movement of employees (Article 43), freedom of establishment in the territory of any of the EU member states (Article 49) and the freedom to provide services (Article 50).  The Court noted that the European Court of Justice had previously held that medical treatment falls under the ambit of Article 50.

With regard to secondary EU legislation, the Court noted the relevance of Article 22 of EU Regulation 1408/71, which aimed to ensure that EU citizens would receive the same level of medical care in other EU member states as in their home country.  However, this regulation required prior permission to be granted or a preliminary assessment to be given in advance of seeking treatment in another EU member state.  Mr. Wistrand had not satisfied this requirement.

Because Mr. Wistrand had not satisfied the procedural requirements of EU Regulation 1408/71, the Court instead chose to rely on Articles 49 and 50 of the EU Treaty.  Under these fundamental principles, Mr. Wistrand was entitled to compensation because the NSIB did not demonstrate that the treatment received, if completed in Sweden, would not have been compensated.  Finally, the Court noted that, because his successful legal argument relied on fundamental EU principles rather than secondary legislation, Mr. Wistrand’s compensation could not exceed that which would have been granted in his home state if the treatment had occurred there.

“In the case of a person who is domiciled in Sweden but receives medical treatment in another Member State of the European Union at the expense of the NSIB, the fundamental principles in the EU Treaty and secondary legislation have direct application.” (p. 2)

“[T]here is according to the fundamental freedoms under the EU Treaty a principal right for an individual to request and receive health care in another Member State of the EU than their own.” (p. 2)

“A person who is insured by the National Social Insurance Board who wishes to receive medical treatment in another Member State can make full use of his/her right to treatment under the EU Treaty and receive compensation for the costs incurred.” (p. 4)

“Wistrand’s request for compensation must therefore be assessed in accordance with Articles 49 and 50 EU Treaty. In the present case, it has not been made clear that the treatment received – if carried out in Sweden – would not have been eligible for compensation. For this reason, Wistrand has a right to receive treatment for the costs of treatment he received in France.” (p. 5)