K.B.F v. Försäkringskassan

RÅ 2004 ref. 41
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The plaintiff regularly stayed in Germany during part of the year and needed dental treatment. The first treatment was deemed acute and thus paid for by the German version of the Swedish Social Security Insurance Agency (SSIA). Subsequent treatments were deemed not acute and thus were not paid for.

The plaintiff sought compensation by the SSIA for the subsequent treatments, which the SSIA refused to provide. The plaintiff appealed to the local administrative court, which rejected him. The plaintiff appealed to the Swedish Administrative Court, which also rejected him on the holding that compensation required a preliminary assessment of the proposed treatment by the SSIA.

The Court held that the plaintiff is entitled to compensation from the SSIA. The claim was returned to the SSIA to determine the amount of compensation.

The Court held that the EU treaty included a right for an individual to seek dental or health care in an EU member state other than their own. The EU treaty allowed each nation to regulate the provision of health care within the treaty’s guidelines.

The Court held that a preliminary assessment cannot be required for services outside of a hospital. The amended Swedish provisions did not allow practitioners operating abroad to register, meaning that compensation for dental treatment done abroad was up to municipal governments. The relevant municipal government required the preliminary assessment before providing compensation. As the right to compensation for foreign treatment is only to the level that would be provided for domestic treatment, receiving services without requiring a preliminary assessment does not affect the economic balance of States’ health care systems. Thus, a municipality can’t impose a requirement of a preliminary assessment in those settings.

“In relation to the requirement for a preliminary assessment in the Member States’ legislation, the ECJ has ruled recently that this requirement can be justified provided that it is necessary and proportionate to the objective of health care planning which ensures there is satisfactory access to balanced range of good quality health care options and to reduce waste levels of economic, technical and time resources (see C-157/99, Smits and Peerbooms at paragraph 76-80).

The requirement of a preliminary assessment cannot be justified for services which are not provided in a hospital (see C-385/99, Müller-Faure and van Riet). If an individual who has not received a preliminary assessment requests compensation for incurred treatment costs for such non-hospital based services, he/she can only claim compensation for the level of costs which would be covered under their national health insurance scheme (see C-385/99, Müller Faure and van Riet). As there is no right to compensation above and beyond the level provided in the home EU Member State, the freedom to receive services cannot – without the requirement of a preliminary assessment –be deemed to displace the economic balance in the Member States’ health care system (see C-158/96 Kohll, paragraph 40-42).” (pp. 3-4)