• In the case of Case C-372/04 ex parte Watts [2006], the Court of Justice of the European Union held that Article 56 Treaty on the Functioning of the European Union (TFEU) applies when a patient receives medical services.
  • And that a requirement of prior authorisation to receive reimbursement for medical treatment can be compatible with Article 56 TFEU, so long as it is justified by imperative reasons, and it is also proportionate.

Facts of the case

  • In the European Union, reimbursements can sometimes be sought from one’s own Member State, if they received medical treatment in another member state.
  •  C, Watts, because of a long delay for a hip replacement procedure in the UK, went to France to have his hip replaced.
  • C returned to the UK, and sought to have the cost of the procedure reimbursed from the NHS, however, the NHS refused to reimburse C on the basis that C did not obtain prior authorisation for it from the NHS.
  • Subsequently, an issue arose regarding whether the NHS’s requirement for prior authorisation was compatible with Article 56 TFEU, and the Court of Appeal (England and Wales Civil Division) decided to refer a number of questions to the Court of Justice of the European Union (CJEU).

Issues in Case C-372/04 ex parte Watts [2006]

  1. Is Article 56 to be interpreted so that persons who are residents in the UK enjoy an entitlement in EU law to receive hospital treatment in other Member States at the expense of the NHS?
  • If Article 56 is to be interpreted in such a way, and thus apply to the NHS, may it or the Secretary of State rely on an objective justification for refusing prior authorisation for hospital treatment?

Held by the CJEU

  • Article 56 does apply to the provision of health services, and does indeed apply therefore to the NHS, however, it does not preclude the NHS from requiring patients to seek prior authorisation for having procedures in other Member States, as such a requirement is an objective justification.

The CJEU said:

  • “Article 56 TFEU applies where a person whose state of health necessitates hospital treatment goes to another Member State and there receives such treatment for consideration, there being no need to determine whether the provision of hospital treatment within the national health service with which that person is registered is in itself a service within the meaning of the treaty provisions to provide services… Article 56 TFEU must be interpreted as meaning that it does not preclude reimbursement of the cost of hospital treatment to be provided in another Member State from being made subject to the grant of prior authorisation by the competent institution” [I-4426].
  • “Nevertheless, the conditions attached to the grant of such authorisation must be justified in the light of the overriding considerations mentioned above and must satisfy the requirement of proportionality” [I-4414]
  • “A refusal to grant prior authorisation cannot be based merely on the existence of waiting lists intended to enable the supply of hospital care to be planned and managed on the basis of predetermined general clinical priorities… where the delay arising from such waiting lists appears to exceed an acceptable time… the competent institution may not refuse the authorisation sought on the grounds” [I-4417].

Editor’s notes

  • This case demonstrates that objective justification arguments being deployed against a prima facie breach of Article 56 TFEU must be grounded on a number of factors, all of which must be considered in light of concerns such as necessity and reasonableness- a common theme of EU objective justification law. For example, where the waiting list for treatment is unreasonable, a national health service, though it can require that it must give advance permission to patients for treatment in other Member States, may not be able to refuse the authorisation.

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