Exceptions from the pre-approval requirement for treatments in other European countries may not be categorically excluded.

On 23rd September 2020, the European Court of Justice in Luxembourg (ECJ) ruled on an essential question in the practical implementation of European law, which is highly relevant in connection with the question of whether medical treatment in a Member State other than the state of residence is subject to authorisation. With its decision, the ECJ for the first time commented on the authorisation practice in inter-governmental law. It also made clear statements on administrative practice, namely with regard to the deadlines for decisions.

The Fourth Chamber of the Court of Justice ruled in the case of a Hungarian claimant who, after previously unsuccessful treatment at home, had urgent surgery performed following an examination at an eye centre in Germany in 2016. Otherwise, there was risk of blindness. The application for reimbursement was rejected by the Hungarian statutory health insurance. The appeal was also rejected in the second instance by the competent governmental authority in Budapest, pointing out a lack of prior authorisation. This was challenged by the concerned party and therefore, the case was referred to the ECJ for review.

In a petition for a preliminary ruling dated 11th December 2018, the facts of the case were examined under European law with regard to the interpretation of Article 56 of the Treaty on the Functioning of the European Union (TFEU), Article 20(1) of (EC) Regulation 883/2004 and Article 26(1) and (3) of (EC) Regulation 987/2009 ("Coordination Regulations") as well as Articles 8(1) and 9(3) of Directive 2011/24/EU ("Patient Mobility Directive").

The Court of Justice has now ruled that the European law provisions must be interpreted as meaning that

• it was a 'planned treatment', which basically required the approval of the party responsible for paying
   
• but the applicant is entitled to reimbursement of costs if he was unable to apply for authorisation or await the decision on an application.
   

Exceptions must be possible

It is for the referring Hungarian court to make the necessary findings in that regard. However, the TFEU and the Patient Mobility Directive preclude national rules which, in the absence of prior authorisation, exclude reimbursement in any case.

However, the time limits for granting (31 days) and refusing (23 days) prior authorisation, laid down in Hungarian law, are not objectionable. This is the first time that the ECJ has made a specific statement on administrative time limits. German legal and administrative practice is in line with the ruling.