Patients' mobility and obstacles to the freedom to provide. About the refund of medical not hospitable expenses realized in another member state. Comment to the Judgment of the Court of Justice of the European Union of October 27, 2011. Case C-255/09. Com

Abstract

The freedom to provide services includes two closely related events together: the prohibition of any restriction of the freedom and the principle of equal treatment irrespective of the nationality of the service provider. From this premise, the Court of Justice of the European Union has had to intervene to resolve various disputes arising from the provision of health services or the so-called “health tourism demand”. Specifically, with regard to the cost of health care in other Member States of the European Union and its subsequent reinstatement in the State of the insured in accordance with the rules of Social Security of the latter country. In the absence of a regulation on the issue until very recently (Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare) the interpretative work carried out by the Court of Justice has been crucial to understanding the scope of this subject: only in respect of those benefits which could actually be a justification based on the sustainability of the public system, as in the hospital health services, proceed the requirement of prior authorization. By contrast, when the use of heavy and expensive materials are not required, the requirement of prior authorization requirement is contrary to the current art. 56 TFEU (ex Art. 49 TEC), as determined by the Court, of October 27, 2011, Commission v Portugal, C-255/09 . The protection of the freedom to provide health services necessary to reflect, finally, on the state of health care in our country.