Preliminary
If an athlete sustains an injury or needs to recuperate, he or she wants the best and most specialized care, which means that medical care, such as surgery or rehabilitation, is sometimes required abroad.
In the single market of the European Union, this is possible in many cases, but not self-evident.
Experience shows that many health insurance companies are very reluctant to do this and do not always have an accurate view of the legislation.
Various health insurance companies do not allow foreign medical care in another member state of the European Union or require that you can demonstrate that there are more favorable medical conditions abroad.
Below we discuss a number of important rights that you can rely on.
This article also shows that sports law (or “law applicable to athletes”) is a very broad concept that covers various legal domains.
Directive 2011/24/EU of March 9, 2011 and its transposition into Belgian law
There is of course other European legislation such as Regulations 883/2004 and 987/2009, but in our opinion the directive 2011/24/EU most benefits and guarantees (link).
A “directive” is a legal act that sets a specific goal that all EU countries must achieve. But they are allowed to establish the legislation themselves to achieve that goal.
A directive is therefore not without obligation and can be reviewed by the European Court of Justice.
The directive was, among other things, transposed into Article 294, and more specifically into §1, 13° and 14°, of the Royal Decree of 3 July 1996 implementing the law on compulsory insurance for medical care and benefits.
The basis for the relevant article can be found in Article 136 of the Act of 14 July 1994 regarding compulsory insurance for medical care and benefits.
The directive itself can be regarded as the codification of the “Kohll-Decker procedure” created by the case law based on the Kohhl judgment (ECJ C-158/96, Kohl, Jur. 1998, 1-01931.
It came after health services were condemned a number of times by the European Court of Justice for infringements of the free movement of services within healthcare.
After all, European case law has long established that health services are economic services to which the free movement of services and the freedom of establishment apply.
(For more information: PEETERS, M., “Directive 2011/24 on the application of patients’ rights in cross-border healthcare: impact on (Belgian Healthcare), T.Healthcare, 2011, 11/12, p. 94 ff.)
What does the directive determine?
Article 7 of the directive (translated into art. 294, §1, 13°) sets out the general principle that no prior authorization is required for the reimbursement of cross-border healthcare:
“Article 7
General principles for reimbursement of costs
7.8 Without prejudice to the cases referred to in Article 8 the Member State of affiliation shall not make the reimbursement of cross-border healthcare costs subject to prior authorisation.”
Only in a very limited number of defined cases, on the basis of Articles 8 and 9 of the Directive (translated into Article 294, §1, 13° of the Royal Decree of 3 July 1996), prior consent may be required:
“Article 8
Healthcare that may be subject to prior authorization
The Member State of affiliation may provide for a prior authorization system for the reimbursement of cross-border healthcare costs in accordance with this Article and Article 9.
The prior authorization system, including criteria and their application as well as individual decisions refusing prior authorization, is limited to what is necessary and proportionate to achieve the objective and shall not constitute a means of arbitrary discrimination or an unjustified obstacle to the free movement of patients.”
This is, among other things, the case when the health of the patient / athlete is at risk, as can be the case with experimental treatments.
In art. 8.2 van de Richtlijn wordt dit verder uiteengezet.
It is important that these cases are in accordance with Art. 8.7 of the Directive must be made public:
“8.7: The Member State of affiliation publicly announces for which healthcare for the purposes of this directive prior consent required and all useful information about the prior authorization scheme.”
If all these conditions are met, prior permission may be required.
But even in this case, if prior consent is required, refusal can only be made in a limited number of cases.
Advice
In principle, you are entitled to reimbursement of medical care in another member state of the European Union.
Only in a limited number of cases can consent be required and then consent can only be refused under certain circumstances.
It is nevertheless advisable to send an official request to the health insurance company asking whether the planned treatment falls under the mandatory prior consent.
In most cases you will have to inform you that this is not the case.
In other cases, you have the right to ask on the basis of which criteria this consent is required in accordance with the directive and where this was publicly announced.
Moreover, you will then have the option to formally request permission.
If you are not told anything, you have an additional element to argue later that the mandatory prior consent was not made known to you and that a refund must therefore still follow.
Further questions? Do not hesitate to contact us on 09/334.94.70, via contact form or via sport@everest-law.be.