• In the case of Case C-120/95 Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831, the European Court of Justice ruled that national authorites should not force citizens to request for reimbursement for medical products abroad because it violates Article 34 of the Treaty on the Functioning of the European Union.
  • This EU case was about free movement of goods, social security and European Economic Community law.

Facts of the Case

  • C was given a prescription for glasses in Luxembourg but he used it at a Belgium optician.
  • C could not get a refund payment from the social security in Luxembourg based on a policy that he did not request for it and the fact that he brought the glasses in anoher country.
  • In this appeal, C contended that this policy went against Article 34 of the Treaty on the Functioning of the European Union.

Issues

  • Can the social security system in Luxembourg refuse reimbursement?
  • Would prohibiting reimbursement be allowed on the basis of consumer health?

Held by European Court of Justice

  • C’s claim allowed – this policy restricts the free movement of goods and services and cannot be justified for the reasons stated by D.

Judge Ragnemalm

Member States

  • The judge referred to Case 8/74 Dassonville [1974] ECR 837 to question whether it was a measure that restricted intra-community trade and confirmed this policy was a measure having equivalent effect to a quantitative restriction.
  • “In the absence of harmonisation at Community level, it is therefore for the legislation of each Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme… and, second, the conditions for entitlement to benefits”.
  • “Measures adopted by Member States in social security matters which may affect the marketing of medical products and indirectly influence the possibilities of importing those products are subject to the Treaty rules on the free movement of goods.”

Advocate General Mr Giuseppe Tesauro

Heading

  • The court heavily relied on other social security cases such as Case 238/82 Duphar BV v The Netherlands [1984] ECR 523. European Economic Community law does not generally intervene with the way in which social security systems operate in other Member States.
  • “While it is true that the organisation of the social security system remains a matter for the Member States and that the relationship between the social security institutions and their members is governed by national law, this does not mean that Member States may contravene with impunity a fundamental principle established by the Treaty to secure the free movement of persons, namely the prohibition of discrimination on grounds of nationality.”
  • “Community legislature should at least act, and do so promptly, to broaden the range of circumstances in which authorisation may not be refused. There is no doubt that it would be advantageous in many respects for authorisation to be granted in all cases in which the insured person could receive more effective treatment in another Member State.”

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