Kohtuasi

REQUEST FOR AN ADVISORY OPINION IN APPEAL CASE NO 21/3857

K V NASJONALT KLAGEORGAN FOR HELSETJENESTEN

1. INTRODUCTION AND BACKGROUND TO THE REQUEST

(1) Pursuant to Article 34 of the Agreement between the EFTA States on the

Establishment of a Surveillance Authority and a Court of Justice (SCA) and

Section 20(5) of the National Insurance Court Act (trygderettsloven), the National

Insurance Court (Trygderetten) hereby requests an Advisory Opinion from the

EFTA Court in Appeal Case No 21/3857, which are appeal proceedings involving

K and the National Office for Health Service Appeals (Nasjonalt klageorgan for

helsetjenesten (Helseklage)).

(2) The case concerns the issue of entitlement to reimbursement of costs in connection

with for dental treatment received in Poland.

(3) The appellant’s application for reimbursement of expenses incurred for dental

treatment received in Poland was refused on the ground that the treating dental

practitioner in Poland does not have the specialisation required to be able to claim

reimbursement for similar treatment in Norway, see the third paragraph of Section

3 of the Norwegian Regulation on benefits to cover expenses for sickness-related

examination and treatment by dental practitioners and dental hygienists (“the

Dental Regulation”) (forskrift om stønad til dekning av utgifter til undersøkelse og

behandling hos tannleger og tannpleier for sykdom (tannforskriften)).

(4) Inter alia, the case raises questions about the interpretation of Directive

2011/24/EU of the European Parliament and of the Council of 9 March 2011 on

the application of patients’ rights in cross-border healthcare (‘the Patients’ Rights

Directive’), Directive 2005/36/EC of the European Parliament and of the Council

of 7 September 2005 on the recognition of professional qualifications (‘the

Professional Qualifications Directive’), and the right to provide and receive

services under Article 36 of the EEA Agreement on.

(5) The appellant has argued that the requirement of specialisation is contrary to

Article 36 of the EEA Agreement and Article 7 of the Patients’ Rights Directive.

EFTA Court

1, rue du Fort Thüngen

L-1499 LUXEMBOURG

Luxembourg

Your ref.: [Skriv inn] Our ref.: Appeal case No 21/3857 Date: 01.12.2023

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(6) The respondent, for its part, has argued that the requirement of specialisation does

not place any restrictions on the freedom to provide services, but rather regulates

only reimbursement of costs for certain forms of dental treatment. It is submitted

that this type of regulation is possible under Article 7(7) of the Patients’ Rights

Directive. It is stated that, in the assessment of whether the relevant specialist

competence exists in the country in question, regard is had to the Professional

Qualifications Directive. The parties have also referred to Article 20 of Regulation

(EC) No 883/2004 of the European Parliament and of the Council of 29 April

2004 on the coordination of social security systems, but there is agreement that

that provision is not relevant in the present case.

(7) The Court has not found case-law from the European Court of Justice or the EFTA

Court ruling on the question whether it is permissible to have such national

requirements on specialisation for being able to claim reimbursement for treatment

received in other EEA countries. On that basis, the National Insurance Court has

found it necessary to obtain an Advisory Opinion from the EFTA Court on the

interpretation of the Patients’ Rights Directive, the Professional Qualifications

Directive and Article 36 of the EEA Agreement.

(8) The Court has also noted that the EFTA Surveillance Authority (ESA) has recently

brought two actions against Norway concerning the right to receive treatment in

other EEA countries, and the right to be reimbursed for such treatment.0F

1 Although

those cases concern different issues than the present case, this nevertheless

supports obtaining an Advisory Opinion from the EFTA Court, so as to avoid the

risk of contradictory interpretations of the relevant EEA law rules.

2. PARTIES TO THE CASE

(9) The parties to the case are:

Appellant: K

Counsel: Lasse Nikolai Simonsen

Respondent: National Office for Health Service

Appeals (Nasjonalt klageorgan for

helsetjenesten (Helseklage))

Counsel: Mari Emilie Haaland Axelsen

1 “ESA launches infringement proceedings against Norway reimbursing patients only 80% of health costs

abroad”:

https://www.eftasurv.int/newsroom/updates/esa-launches-infringement-proceedings-against-norway-

reimbursing-patients-only-80:nb

“Norway infringes EEA rules on patients’ rights for hospital treatment abroad”:

https://www.eftasurv.int/newsroom/updates/norway-breach-eea-rules-patients-rights-hospital-treatment-

abroad:nb

3

3. FACTS

(10) On 30 November 2017, K (or “the appellant”) applied for benefits to cover dental

treatment in Poland in the period 16 August to 24 October 2017. The application

related to stage two of treatment for severe marginal periodontitis that had been

commenced in 2016. K has previously applied for, and been refused,

reimbursement for the first stage of the treatment, also on the ground that the

treating dental practitioner lacked the necessary specialisation. The refusal of

reimbursement for the first stage of the treatment was upheld by the National

Insurance Court’s ruling in Appeal Case No 20/00406 delivered on 9 April 2021.

(11) By decision of 1 February 2018, the Norwegian Health Economics Administration

(Helseøkonomiforvaltningen (Helfo)) rejected K’s application for reimbursement

for that portion of the treatment relating to the present reference. The grounds

given for the rejection were the treating dental practitioner’s lack of specialisation.

(12) Following a complaint by the appellant, Helfo’s decision was upheld by decision

of 25 February 2021 of the National Office for Health Service Appeals.

(13) On 7 April 2021, the appellant appealed against the decision of the National Office

for Health Service Appeals to the National Insurance Court. As part of the

preparation of the appeals case, the National Office for Health Service Appeals re-

examined the decision under appeal in accordance with Section 13(1) of the

National Insurance Court Act. Following the re-examination, the National Office

for Health Service Appeals arrived at the same conclusion as in the appealed

decision. In the cover letter dated 10 September 2021, the following was stated

with regard to the requirement of specialisation:

“As mentioned, it follows form the third paragraph of Section 3 of the Dental

Regulation that expenses for implant-anchored dental prosthetics treatment

are covered only if the surgical placement of dental implants is performed by

a specialist in oral surgery and oral medicine, specialist in maxillofacial

surgery or a specialist in periodontics. In the present case, the surgical part of

the treatment was not performed by a specialist in oral surgery and oral

medicine, a specialist in maxillofacial surgery or a specialist in periodontics

(see ruling 20/00406 of the National Insurance Court). Nor, accordingly, can

the prosthetics part of the treatment be covered.

The appellant submits that the requirement of specialisation in order to be

able to claim reimbursement is contrary to the EU rules on non-

discrimination. In that respect, reference is made, inter alia to case 205/84

Commission v Germany and Case C-398/95 Symvoulio Epikrateias - Greece.

The National Office for Health Service Appeals wishes to point out that it is

not the right to place implants that is restricted under section 3 of the

Regulation, but rather the right to claim reimbursement for the placed

implants. There is nothing preventing a person from receiving treatment from

a dental practitioner not in possession of the necessary specialisation. The

regulations concern only the right to claim reimbursement for the treatment in

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question, and in no way regulate who has a right to perform dental treatment.

Since the judgments referred to concern the requirements for providing

services in another EEA country, and not which national requirements that

may be imposed for awarding reimbursement, those judgments are not

relevant in the present case.

In its ruling 20/00406, the National Insurance Court held that the regulation

on the requirement of specialisation in order to claim reimbursement was not

contrary to EEA law. The National Office for Health Service Appeals also

refers to Article 7 of the Patients’ Rights Directive, which regulates the right

to receive reimbursement for healthcare received in another EEA/EU country

than the state of affiliation.

Article 7(3) of the Directive provides that it is the Member State of affiliation

itself that to determine, whether at a local, regional or national level, the

healthcare for which an insured person is entitled to assumption of costs and

the level of assumption of those costs. […]

This means that it is the State itself that determines which healthcare services

can be covered and how much is to be covered. It further follows from Article

7(7) that the Member State of affiliation may impose on an insured person

seeking reimbursement of the costs of cross-border healthcare the same

conditions, criteria of eligibility and regulatory and administrative formalities,

whether set at a local, regional or national level, as it would impose if that

healthcare were provided in its territory.

This means that it is possible to impose the same conditions for

reimbursement in Norway as for treatment abroad. This is also in keeping

with the EU principle of non-discrimination, because if less stringent

requirements were to be imposed for reimbursement for dental treatment

received in another EEA country, that would amount to a discriminatory

scheme towards those who receive dental treatment in Norway.

The requirement that implant-anchored dental prosthetics treatment must be

performed by a dental practitioner with a given specialisation in order for

reimbursement to be granted applies irrespective of where you receive the

treatment. Accordingly, it makes no difference if you visit your dental

practitioner in Norway or if you travel to Poland. The requirement imposed

for reimbursement is the same.

In the light of the foregoing, the National Office for Health Service Appeals

finds that the conditions for benefits under Section 5-24 a of the National

Insurance Act (folketrygdloven), read in conjunction with Section 5-6, are not

fulfilled, both because the time of and background to the loss of teeth is not

sufficiently documented and the requirement of specialisation is not

satisfied.”

(14) The parties to the case before the National Insurance Court are in disagreement as

to whether a requirement may be imposed to the effect that the treating dental

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practitioner must have the same specialisation as what is required for

reimbursement under the third paragraph of Section 3 of the Dental Regulation.

(15) For a more detailed explanation of the substance of the disagreement between the

parties, the Court refers to the parties’ submissions in part 5 below.

4. LEGAL BACKGROUND

4.1 Relevant Norwegian legislation

4.1.1 Introduction and overview of the rules

(16) The relevant national rules are set out in Chapter 5 of the National Insurance Act,

the Dental Regulation and the administrative circular accompanying the

Regulation on benefits for healthcare received in another EEA country.

4.1.2 National Insurance Act rules on reimbursement for treatment abroad

(17) Chapter 5 of the National Insurance Act has the heading “Benefits for healthcare”

and is placed in Part IV “Sickness benefits, etc.”.

(18) Section 5-1 of the National Insurance Act, as it read at the time of the claim, states

the purpose of the benefits under Chapter 5:

“5-1. Purpose, etc.

The purpose of benefits under the present chapter is to provide total or partial

compensation for insured persons’ necessary expenses for healthcare in the

event of sickness, injury, impairment, family planning, pregnancy, birth or

termination of pregnancy.

No benefits shall be paid for interventions which are essentially carried out on

cosmetic grounds, or for treatment of foreseeable consequences of such

intervention.

In so far as public benefits are paid pursuant to other legislation, no benefits

shall be paid under this chapter.”

(19) Section 5-1a of the National Insurance Act was added on 25 November 2022 and

regulates the relationship with provisions on international coordination of national

social security. 2

“5-1 a. Relationship with provisions on international coordination of

national social security

Benefits for healthcare are sickness benefits paid under the social security

regulation. The provisions of this chapter shall be disapplied in so far as

2 For the sake of completeness, the Court notes that the provision was not in force at the time of the claim.

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necessary in favour of relevant provisions of the Main Part of the EEA

Agreement, the social security regulation, the implementation regulation and

bilateral and multilateral social security agreements: see sections 1-3 a and

1-3 b.”

(20) Section 5-6 of the National Insurance Act regulates benefits for coverage of

examination and treatment by a dental practitioner:

“5-6. Dental practitioner care

The social security scheme shall pay benefits for coverage of expenses for

sickness-related examination and treatment by a dental practitioner.

The benefits shall be paid according to pre-established rates.

The Ministry shall issue regulations on benefits pursuant to the present

paragraph, including on grants for common measures for dental

practitioners.”

(21) Section 5-24a of the National Insurance Act regulates benefits for healthcare in

another EEA country:

“5-24a. Benefits for healthcare in another EEA country

Benefits shall be paid for coverage of expenses for healthcare incurred by the

insured person in another EEA country under rules laid down by the Ministry

by regulation.

The Regulation may contain more detailed provisions on inter alia:

a. which healthcare services and goods for which benefits are to be paid;

b. who is entitled to benefits;

c. conditions for benefits, including prior approval and requirements in

respect of the service provider;

d. calculation of the benefits;

e. coverage of travel and subsistence expenses;

f. requirements in respect of documentation and translation of

documents;

g. relationship to other rules on benefits for healthcare received in other

countries.”

(22) Such rules are laid down in the Regulation on benefits for healthcare received in

another EEA country.

4.1.3 Regulation on benefits for healthcare received in another EEA

country

(23) Section 1 of the Regulation on benefits for healthcare in the EEA (Forskrift om

stønad til helsetjenester i EØS), as it read at the time of the claim, states the scope

of that regulation:

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“1. General scope

The Regulation shall apply to benefits for coverage of expenses for healthcare

received in another country in the European Economic Area (EEA),

hereinafter called EEA countries.

Where telemedicine is used, the healthcare shall be deemed to be received in

the country where the service provider is established.”

(24) Section 2 of the Regulation on benefits for healthcare in the EEA lays down the

main conditions for being able to receive benefits for healthcare received in

another EEA country:

“2. Main conditions

Benefits shall be paid only for healthcare for which the insured person would

have received benefits or a contribution under the National Insurance Act or

had covered by the public health and care service had the healthcare in

question been received in Norway.

Unless exceptions or adaptations are provided for in the present Regulation,

the same conditions shall apply as for equivalent healthcare at public expense

in Norway.”

(25) Section 3 of the Regulation on benefits for healthcare in the EEA lays down which

types of healthcare for which benefits are paid:

“3. Which types of healthcare for which benefits are paid

Benefits shall be paid to cover expenses for healthcare equivalent to

healthcare:

a. for which benefits are paid under for under sections 5-4 to 5-12, 5-14

and 5-25 of the National Insurance Act;

b. for which contributions are made under Section 5-22 of the National

Insurance Act, limited to the contribution-related purposes hormonal

contraceptives and medicinal products in connection with fertility

treatment;

c. is provided totally or partially free of charge under the first paragraph

of section 1-3 of the Dental Health Services Act

(tannhelsetjenesteloven), read in conjunction with Section 2-2 thereof;

d. is provided totally or partially free of charge under the Specialist

Healthcare Act (spesialisthelsetjenesteloven).

Benefits shall not be paid for substitution treatment for opioid dependency,

even if the insured person is undergoing medicinal product-assisted

rehabilitation in Norway.”

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(26) Section 6 of the Regulation on benefits for healthcare in the EEA, as it read at the

time of the claim, imposes certain requirements in respect of the treatment

provider (referred to in the Regulation as “the service provider”):

“6. Authorisation and other requirements for the service provider

The healthcare must be performed by a healthcare professional having official

authorisation in the profession in question which is valid in the country where

the healthcare is received.

When specialist approval is a condition for entitlement to benefits or

healthcare at public expense in Norway, the healthcare must be performed by

a healthcare professional having equivalent specialist approval that is valid in

the country where the healthcare is received. The same is true of other

particular competence requirements. Exceptions may be made to this

condition if the speciality in question or equivalent formal competence does

not exist in the country where the healthcare is received. It is a condition that,

instead, it must be documented that the service provider actually has

equivalent substantive competence or other doctor specialisation in medicine

which is clearly comparable to the speciality required in Norway.

The healthcare professional must have permission to practise lawfully in the

country where the healthcare is received.

It is not a condition that the healthcare must be performed by a healthcare

professional who is part of the public health service, although this is a

condition for equivalent healthcare at public expense in Norway.”

4.1.4 Regulation on benefits to cover expenses for sickness-related

examination and treatment by dental practitioners and dental

hygienists (“the Dental Regulation”)

(27) Section 1 of the Dental Regulation, as it read at the time of the claim, lays down

which examinations and treatments are eligible for benefits. Periodontitis is listed

in point 6:

“1. Benefits-eligible examination and treatment

Under Section 5-6 of the National Insurance Act, benefits shall be paid for

coverage of expenses for examination and treatment performed by a dental

practitioner in the event of the following conditions/cases:

1. Unusual medical condition;

2. Lip-jaw-cleft palate;

3. Tumours in the oral cavity, adjacent tissue or cephalic area in general;

4. Infection-preventing dental treatment for particular medical

conditions;

5. Sickness or anomalies in the mouth or jaw;

6. Periodontitis;

7. Dental development disorders;

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8. Bite anomalies;

9. Pathological loss of tooth substance through attrition/erosion;

10. Hyposalivation;

11. Allergic reactions to dental restoration materials;

12. Tooth damage, approved occupational injury;

13. Tooth damage, accident other than occupational injury;

14. Significantly reduced self-care ability in persons having a permanent

sickness or permanently reduced functional ability;

15. Total or partial loss of teeth, without own teeth in lower jaw.

Under section 5-6a of the National Insurance Act, benefits shall be paid for

coverage of expenses for examination and treatment of periodontitis

performed by a dental hygienist pursuant to Nos 1, 4, 6 and 14 of the first

paragraph.

The individual dental practitioner or dental hygienist shall be responsible for

determining whether an insured person is entitled to benefits pursuant to

section 5-6 or 5-6a of the National Insurance Act. The dental

practitioner/dental hygienist shall also determine whether the treatment is

within the parameters of necessary and appropriate dental treatment. The

dental practitioner/dental hygienist must be able to document their

determinations, and the patient log shall contain all relevant and necessary

information: see the Healthcare Professionals Act with accompanying

regulations.

The Directorate of Health (Helsedirektoratet) shall lay down comprehensive

provisions and detailed guidelines for which treatments and conditions are

covered by the scheme under section 1.

It is a condition for benefits under the present Regulation that the person in

question is an insured person under the social security scheme: see section 5-2

of the National Insurance Act.”

(28) Section 3 of the Dental Regulation lays down requirements for the dental

practitioner’s and the dental hygienist’s competence:

“3. The dental practitioner’s and the dental hygienist’s competence

Benefits shall be paid only if the examination or treatment is performed by a

dental practitioner or dental hygienist who is permitted to perform dental

treatment pursuant to Act No 64 of 2 July 1999 on healthcare professionals,

etc. (the Healthcare Professionals Act) (Lov 2. juli 1999 nr. 64 om

helsepersonell m.v.) lov 2. juli 1999 nr. 64 om helsepersonell m.v.

(helsepersonelloven), including dental practitioners or dental hygienists from

other EEA States providing temporary services in Norway: see Section 16 of

Regulation 8 October 2008 nr. 1130 on authorisation, licensing and specialist

approval for healthcare professionals having professional qualifications from

other EEA countries and Switzerland (forskrift 8. oktober 2008 nr. 1130 om

autorisasjon, lisens og spesialistgodkjenning for helsepersonell med

yrkeskvalifikasjoner fra andre EØS-land og Sveits).

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In the event of examination and possible start of orthodontics treatment, a

referral is required from another dental practitioner or dental hygienist before

treatment with the orthodontist may begin. A referral for insured persons

covered by Section 1(8), group (b) or (c) shall be valid for 24 months from

the date of the referral. The treatment must be performed by an orthodontist

or by a dental practitioner undergoing specialist education in orthodontics. If

the treatment is performed by a dental practitioner undergoing specialist

education in orthodontics, the treatment must be performed as part of the

training. If tasks are delegated to other professionals: see Sections 4 and 5 of

the Healthcare Professionals Act (helsepersonelloven), it is assumed that

delegated tasks are performed under the responsibility, presence and full

attention of the orthodontist.

Expenses for implant-anchored dental prosthetics treatment shall be covered

only if the surgical placement of dental implants is performed by a specialist

in oral surgery and oral medicine, specialist in maxillofacial surgery or

specialist in periodontics. In addition, the prosthetics-related part of the

treatment must be performed by a specialist in oral prosthetics or by a dental

practitioner having the necessary competence approved by the Directorate of

Health. Treatment tasks requiring specialist competence, or particular

competence approved by the Directorate of Health, may not be delegated to

another healthcare professional where reimbursement for treatment is claimed

pursuant to the present provision.

Expenses for maxillofacial radiology examinations done using CT/MR shall

be covered only if the examinations are performed by a specialist in

maxillofacial radiology.”

4.1.5 Administrative circular accompanying Section 5-24a of the National

Insurance Act – Benefits for healthcare received in another EEA

country (Rundskriv til folketrygdloven § 5-24a – Stønad til helsetjenester

mottatt i et annet EØS-land) (as it read at the time of the claim)

(29) In the part entitled “Introduction” of the administrative circular accompanying

Section 5-24a of the National Insurance Act, the following is stated which is of

interest for the present case:

“Section 5-24a confers entitlement to benefits for healthcare received in

another EEA country. Detailed provisions are laid down by regulation.

The reimbursement scheme provides an option to choose to receive treatment

to which a person is entitled in Norway also in other EEA countries. Thus,

Section 5-24a does not broaden which types of healthcare services a person is

entitled to receive but does entail greater freedom of choice in terms of place

of treatment.

In order to assess a claim for reimbursement under Section 5-24a, regard is

had to the national conditions applicable to the healthcare in question

(medicinal products, dental health, doctor care, etc.). The general rule is that

treatment should take place as if the healthcare was received in Norway. The

patient may, however, make use of private healthcare providers. Which

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conditions apply in respect of the healthcare in question will not be discussed

in the administrative circular, unless there are particular matters which should

be commented on.”

(30) In the part “Background to the scheme”, the following is stated which is of interest

for the present case:

“The ECJ has held that the EU Treaty’s principle of freedom to provide

services encompasses healthcare services. Thus, the principle of freedom to

provide services entails that patients have rights as recipients of services.

The Patients’ Rights Directive was implemented in the EU in October 2013,

and is a codification of the ECJ’s case-law. Section 5-24a implements the

Patients’ Rights Directive in Norwegian law.”

(31) Part 6 of the administrative circular, “Authorisation and other requirements for the

service provider”, lays down the requirements imposed in respect of the service

provider in order for the healthcare to qualify as eligible for reimbursement:

“6. Authorisation and other requirements for the service provider

In order for the healthcare to be eligible for reimbursement, the service

provider must, as a main rule, have authorisation and, as the case may be,

specialist approval, etc., in an equivalent manner as if the treatment had been

performed in Norway.”

(32) In part 6.1 of the administrative circular, “Requirement of official authorisation”, a

general requirement of official authorisation is laid down:

“6.1 Requirement of official authorisation

An authorisation is a confirmation that a person fulfils the formal and

professional requirements for the applicable professional title in question.

It follows from the first paragraph of Section 6 that the healthcare must be

provided by a healthcare professional having official authorisation. The

authorisation must be valid in the country where the healthcare is received.

Norwegian authorisation is not required.”

(33) In part 6.2 of the administrative circular, “Specialist approval and other particular

competence requirements”, the requirement of specialist approval is described:

“6.2 Specialist approval and other particular competence requirements

Where specialist approval is a requirement for receiving benefits for

healthcare in Norway, the treatment abroad must be performed by a

healthcare professional having equivalent specialist approval. The specialist

approval must be valid in the country where the healthcare is received.

Norwegian specialist approval is not required.

For specialist doctors in medicine, approved specialities are largely

harmonised through the Professional Qualifications Directive, 2005/36/EC.

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Thus, the requirement of doctor speciality in medicine will generally be

satisfied in most cases. For a more detailed description of qualification

requirements, see Annex V – approval of harmonised courses of education.

Where particular competence requirements are imposed with respect to the

service provider for entitlement to benefits under Norwegian rules, they shall

apply accordingly. Examples include additional courses/education for certain

rates for care by a doctor in medicine, manual therapy and psychomotor

physiotherapy, and psychological care.

The Regulation allows for exceptions to be made from the condition on

equivalent specialist approval or particular competence. Two conditions must

be satisfied in order for an exception to be made. First, the speciality in

question or equivalent formal competence must not exist in the country where

the healthcare is received. Second, it must be documented that the service

provider instead actually has equivalent substantive competence or other

doctor specialisation in medicine which is clearly comparable to the speciality

required in Norway.

Exceptions may not be made if the specialisation in question exists in the

country where the healthcare is received.

Specific remarks on specialist approval for implant-based prosthetics

In the regulation for benefits for dental treatment under Section 5-6 of the

National Insurance Act, for reimbursement for implant-based prosthetics and

implant surgery, particular competence requirements are set out for the dental

practitioner who performs the treatment. In order to receive benefits for

implant-based prosthetics in Norway, both the dental practitioner who places

the implants (the surgeon) and the dental practitioner who performs the

prosthetics-related work must have a specified specialist approval.

Dental/oral surgery is referred to in Annex V to the Professional

Qualifications Directive. Hence documentation may be required showing that

the dental practitioner who performed the surgical placement of implants in

another EEA country is in possession of the relevant specialities.

The speciality in oral prosthetics is not, however, referred to in the

Professional Qualifications Directive, and not all EEA countries have such

specialist approval. Nevertheless, allowance is made for reimbursement for

the prosthetics-related part of the treatment in countries where an oral

prosthetics speciality does not exist. In such cases, a specific assessment must

be made of whether the service provider’s competence can be deemed to be

almost the same as the specialist competence required in Norway.

Annex 2 accompanying the Regulation on authorisation, licensing and

specialist approval for healthcare professionals having professional

qualifications from other EEA countries can offer some guidance for the

assessment of confirmation of authorisation and the like from other EEA

countries. The Annex contains a list of names of diplomas, levels of

education, etc., for different groups of healthcare professionals.”

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(34) In part 6.4, it is stated that it is not a requirement that the treating healthcare

professional must be part of the public health service:

“6.4 No requirement that treatment provider must be part of the public health

service

It is not a requirement for benefits under this reimbursement scheme that the

treatment received is performed by a healthcare professional who is part of

the public health service.”

4.2 Main Part of the EEA Agreement

(35) Article 36 of the EEA Agreement provides for the fundamental freedom to provide

services throughout the European Economic Area:

“Article 36

1. Within the framework of the provisions of this Agreement, there shall be

no restrictions on freedom to provide services within the territory of the

Contracting Parties in respect of nationals of EC Member States and EFTA

States who are established in an EC Member State or an EFTA State other

than that of the person for whom the services are intended.

2. Annexes IX to XI contain specific provisions on the freedom to provide

services.”

(36) Article 36 also guarantees the right to receive services in other EEA countries: see

inter alia the EFTA Court’s judgment in Case E-8/20 Criminal proceedings

against N, paragraph 75 with further references.

(37) The EFTA Court has held that all measures which prohibit, impede or render less

attractive the exercise of the free movement of services must be regarded as

restrictions: see Case E-8/20 Criminal proceedings against N, paragraph 79.

(38) Article 36 also applies to any national rules that render the provision of services

between EEA States more difficult than the provision of services purely within an

EEA State: see Case E-8/20 Criminal proceedings against N, paragraph 80 with

further references.

4.3 Directive 2011/24/EU of the European Parliament and of the Council of

9 March 2011 on the application of patients’ rights in cross-border

healthcare

(39) The preamble to the Patients’ Rights Directive has a number of recitals relating to

reimbursement of costs for healthcare provided in another Member State than

where the recipient of the care is resident, which are presumed to have

implications for the present case. See, in particular, recitals 8, 11, 13, 27, 29, 31,

32, 33, 34, 35, 37, and 47.

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(40) Chapter III of the Patients’ Rights Directive has the heading “Reimbursement of

costs of cross-border healthcare”. Article 7 of the Patients’ Rights Directive sets

out general principles for reimbursement of costs:

“Article 7

General principles for reimbursement of costs

1. Without prejudice to Regulation (EC) No 883/2004 and subject to the

provisions of Articles 8 and 9, the Member State of affiliation shall ensure the

costs incurred by an insured person who receives cross-border healthcare are

reimbursed, if the healthcare in question is among the benefits to which the

insured person is entitled in the Member State of affiliation.

2. By way of derogation from paragraph 1:

(a) if a Member State is listed in Annex IV to Regulation (EC) No

883/2004 and in compliance with that Regulation has recognised the rights to

sickness benefits for pensioners and the members of their families, being

resident in a different Member State, it shall provide them healthcare under

this Directive at its own expense when they stay on its territory, in accordance

with its legislation, as though the persons concerned were residents in the

Member State listed in that Annex.

(b) if the healthcare provided in accordance with this Directive is not

subject to prior authorisation, is not provided in accordance with Chapter 1 of

Title III of the Regulation (EC) No 883/2004, and is provided in the territory

of the Member State that according to that Regulation and Regulation (EC)

No 987/2009 is, in the end, responsible for reimbursement of the costs, the

costs shall be assumed by that Member State. That Member State may assume

the costs of the healthcare in accordance with the terms, conditions, criteria

for eligibility and regulatory and administrative formalities that it has

established, provided that these are compatible with the TFEU.

3. It is for the Member State of affiliation to determine, whether at a local,

regional or national level, the healthcare for which an insured person is

entitled to assumption of costs and the level of assumption of those costs,

regardless of where the healthcare is provided.

4. The costs of cross-border healthcare shall be reimbursed or paid directly by

the Member State of affiliation up to the level of costs that would have been

assumed by the Member State of affiliation, had this healthcare been provided

in its territory without exceeding the actual costs of healthcare received.

Where the full cost of cross-border healthcare exceeds the level of costs that

would have been assumed had the healthcare been provided in its territory the

Member State of affiliation may nevertheless decide to reimburse the full

cost.

The Member State of affiliation may decide to reimburse other related costs,

such as accommodation and travel costs, or extra costs which persons with

disabilities might incur due to one or more disabilities when receiving cross-

15

border healthcare, in accordance with national legislation and on the condition

that there must be sufficient documentation setting out these costs.

5. Member States may adopt provisions in accordance with the TFEU aimed

at ensuring that patients enjoy the same rights when receiving cross-border

healthcare as they would have enjoyed if they had received healthcare in a

comparable situation in the Member State of affiliation.

6. For the purposes of paragraph 4, Member States shall have a transparent

mechanism for calculation of costs of cross-border healthcare that are to be

reimbursed to the insured person by the Member State of affiliation. This

mechanism shall be based on objective, non-discriminatory criteria known in

advance and applied at the relevant (local, regional or national) administrative

level.

7. The Member State of affiliation may impose on an insured person seeking

reimbursement of the costs of cross-border healthcare, including healthcare

received through means of telemedicine, the same conditions, criteria of

eligibility and regulatory and administrative formalities, whether set at a

local, regional or national level, as it would impose if this healthcare were

provided in its territory. This may include an assessment by a health

professional or healthcare administrator providing services for the statutory

social security system or national health system of the Member State of

affiliation, such as the general practitioner or primary care practitioner with

whom the patient is registered, if this is necessary for determining the

individual patient’s entitlement to healthcare. However, no conditions, criteria

of eligibility and regulatory and administrative formalities imposed according

to this paragraph may be discriminatory or constitute an obstacle to the free

movement of patients, services or goods, unless it is objectively justified by

planning requirements relating to the object of ensuring sufficient and

permanent access to a balanced range of high-quality treatment in the

Member State concerned or to the wish to control costs and avoid, as far as

possible, any waste of financial, technical and human resources.

8. The Member State of affiliation shall not make the reimbursement of costs

of cross-border healthcare subject to prior authorisation except in the cases set

out in Article 8.

9. The Member State of affiliation may limit the application of the rules on

reimbursement for cross-border healthcare based on overriding reasons of

general interest, such as planning requirements relating to the aim of ensuring

sufficient and permanent access to a balanced range of high-quality treatment

in the Member State concerned or to the wish to control costs and avoid, as

far as possible, any waste of financial, technical and human resources.

10. Notwithstanding paragraph 9, Member States shall ensure that the cross-

border healthcare for which a prior authorisation has been granted is

reimbursed in accordance with the authorisation.

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11. The decision to limit the application of this Article pursuant to paragraph

9 shall be restricted to what is necessary and proportionate, and may not

constitute a means of arbitrary discrimination or an unjustified obstacle to the

free movement of goods, persons or services. Member States shall notify the

Commission of any decisions to limit reimbursement on the grounds stated in

paragraph 9.”

4.4 Directive 2005/36/EC of the European Parliament and of the Council of 7

September 2005 on the recognition of professional qualifications

(41) Article 1 of the Professional Qualifications Directive states the purpose of the

directive:

“Article 1

Purpose

This Directive establishes rules according to which a Member State which

makes access to or pursuit of a regulated profession in its territory contingent

upon possession of specific professional qualifications (referred to hereinafter

as the host Member State) shall recognise professional qualifications obtained

in one or more other Member States (referred to hereinafter as the home

Member State) and which allow the holder of the said qualifications to pursue

the same profession there, for access to and pursuit of that profession.”

(42) Article 2 of the Professional Qualifications Directive states the scope:

“Article 2

Scope

1. This Directive shall apply to all nationals of a Member State wishing to

pursue a regulated profession in a Member State, including those belonging to

the liberal professions, other than that in which they obtained their

professional qualifications, on either a self-employed or employed basis.

[…]

2. Each Member State may permit Member State nationals in possession of

evidence of professional qualifications not obtained in a Member State to

pursue a regulated profession within the meaning of Article 3(1)(a) on its

territory in accordance with its rules. In the case of professions covered by

Title III, Chapter III, this initial recognition shall respect the minimum

training conditions laid down in that Chapter.

3. Where, for a given regulated profession, other specific arrangements

directly related to the recognition of professional qualifications are

established in a separate instrument of Community law, the corresponding

provisions of this Directive shall not apply.”

17

(43) Annex V.3 to the Professional Qualifications Directive has the heading “DENTAL

PRACTITIONER”. Under point 5.3.3. “Evidence of formal qualifications of

specialised dentists”, the following is stated under “Orthodontics” for Poland:

Polska Dyplom uzyskania tytułu

specjalisty w dziedzinie ortodoncji

Centrum Egzaminów

Medycznych

1 May 2004

(44) Under point 5.3.3. “Evidence of formal qualifications of specialised dentists”, the

following is stated under “Oral surgery” for Poland:

Polska Dyplom uzyskania tytułu

specjalisty w dziedzinie chirurgii

stomatologicznej

Centrum Egzaminów

Medycznych

1 May 2004

5. PARTIES’ SUBMISSIONS ON THE EEA LAW QUESTIONS

(45) The parties’ submissions are summarised below.

5.1 Appellant’s submissions

(46) Re question 1: Restrictions on reimbursement for treatment performed by

treatment providers in other Member States must be necessary and reasonable in

terms of their purpose and must not lead to arbitrary discrimination. In addition,

restrictions must not go beyond what is objectively necessary for specific purposes

and it is necessary that the same result cannot be achieved by less restrictive rules.

Reference is made to Article 7(11) of Council Directive 2011/24/EU and the

settled case-law of the ECJ following Smits and Peerbooms, C-157/99,

EU:C:2001:404, paragraph 75; Elchinov, C-173/09, EU:C:2010:581, paragraph

44; Watts, C-372/04, U:C:2006:325, paragraph 106; and Stamatelaki, C-444/05,

EU:C:2007:231, paragraph 23.

(47) The ECJ has rejected submissions to the effect that the service recipient’s home

country may not verify the quality of the treatment provided in other Member

States: see Stamatelaki, C-444/05, EU:C:2007:231, paragraphs 36-37.

(48) A refusal of reimbursement of costs for dental treatment in another EEA State on

the ground that the treating dental practitioner does not possess the specialisation

required for obtaining reimbursement for equivalent treatment in the treatment

recipient’s home State is not compatible with Article 36 of the EEA Agreement

and Article 7 of Directive 2011/24/EU, especially when the specialist has the

necessary competence.

(49) It entails a restriction on the possibility for such treatment providers to treat

patients if the home State does not give reimbursement for their treatment. The

fact that patients have the possibility of receiving treatment in other Member

States from specialists having the professional competence required to perform the

necessary dental treatment also contributes to the free movement of goods and

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services, and improved public health, through a better offer of health services to

patients with a broader selection of treatment providers.

(50) Such a specific requirement for reimbursement for such treatment as provided for

under Norwegian law is a restriction whose purpose can be achieved through less

restrictive means, such as an individual assessment of the treatment provider’s

competence. Nor is allowing reimbursement for dental treatment provided by

specialists having equivalent specialisation in other EEA countries a

discriminatory scheme in relation to persons receiving dental treatment in Norway.

See also submissions regarding question 3.

(51) Re question 2: The purpose of Directive 2005/36/EC is to allow persons with

certain professional qualifications to practise their profession in Member States

other than their own, as stated in recital 1 and 3 of the preamble thereto. The

Directive does not have the purpose of codifying which professional

specialisations are to be included in certain professional fields, but rather to ensure

workers the right to work in their field in other EEA countries.

(52) Most Member States have more dental specialisations than what is required under

the Directive. Other Member States, such as Denmark, approve only those that

Denmark is bound to approve under Directive 2005/36/EC. In certain other

countries, such as Poland, dental practitioners obtain dental specialisation through

continuing education and courses after their basic education. This has meant that

Poland has established more dental specialist branches than, for example, Norway.

(53) Even though the specialisation required in the service recipient’s home State is

included in Annex V to Directive 2005/36/EC, that does not regulate whether the

treatment provider’s home State can have treatment providers having other

specialisations who can perform the same treatment.

(54) Re question 3: In those cases where it is likely that the dental treatment provider

can perform the treatment in a safe and proper manner from a health perspective,

the dental treatment provider’s formal competence should be assessed so as to

safeguard the freedom to provide services.

(55) For implant-based prosthetics, Norwegian law allows for such an assessment in

cases where the prosthetics-related part of the treatment takes place in a country

where an oral prosthetics speciality does not exist: see Administrative circular for

section 5-24a of the National Insurance Act - Benefits for healthcare received in

another EEA country. This allows for an assessment of the dental treatment

provider’s competence in those cases where a Member State has a limited number

of dental specialisations, but does not allow for assessment in those cases where

the treatment provider’s home State has a broad range of specialisations, such as

both specialists in implantology and specialists in oral prosthetics.

(56) It is submitted that this is arbitrary discrimination, unreasonable and unnecessarily

restrictive.

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5.2 Respondent’s submissions

(57) The requirement that implant treatment must be done by a dental practitioner

having a specialisation under section 3 of the Dental regulation, read in

conjunction with section 6 of the Regulation on benefits for healthcare received in

another EEA country, is not contrary to Norway’s EEA law obligations under

Directive 2011/24/EU or Article 36 of the EEA Agreement.

(58) Under Article 7(3) of the Directive, the Member State of affiliation, in this case

Norway, can itself determine, whether at a local, regional or national level, the

healthcare for which an insured person is entitled to assumption of costs and the

level of assumption of those costs, irrespective of where the healthcare is

provided.

(59) Article 7(7) further provides that the Member State of affiliation may impose on

an insured person seeking reimbursement of the costs of cross-border healthcare:

“[...] the same conditions, criteria of eligibility and regulatory and

administrative formalities, whether set at a local, regional or national level, as

it would impose if this healthcare were provided in its territory. This may

include an assessment by a health professional or healthcare administrator

providing services for the statutory social security system or national health

system of the Member State of affiliation, such as the general practitioner or

primary care practitioner with whom the patient is registered, if this is

necessary for determining the individual patient’s entitlement to healthcare.

However, no conditions, criteria of eligibility and regulatory and

administrative formalities imposed according to this paragraph may be

discriminatory or constitute an obstacle to the free movement of patients,

services or goods, unless it is objectively justified by planning requirements

relating to the object of ensuring sufficient and permanent access to a

balanced range of high-quality treatment in the Member State concerned or to

the wish to control costs and avoid, as far as possible, any waste of financial,

technical and human resources.”

(60) The Norwegian rules requiring that implant treatment must be performed by a

dental practitioner having the necessary specialisation applies irrespective of

where the dental treatment is received, be that in Norway or another EEA country.

It also applies irrespective of the nationality of the treating dental practitioner.

(61) We submit, therefore, that the rules do not give rise to improper discrimination or

an obstacle contrary to Norway’s EEA law obligations.

(62) We furthermore do not agree that each and every potential obstacle to freedom to

provide services must be assessed in the light of Article 36 of the EEA Agreement,

and that this also holds true in those cases where the Norwegian requirement of

specialisation does not apply in respect of a specialisation that is included in

Annex V to Directive 2005/36/EC. We do submit, however, that that consideration

is safeguarded when we determine whether the treatment provider’s experience

and competence are comparable to what is inherent in the specialisation in

question in Norway. The condition on reimbursement is accordingly not linked

20

solely to the treatment provider’s title, but rather to the competence held by the

treatment provider.

(63) We would further observe that, should it be held that the requirement of

specialisation under section 3 of the Dental regulation, read in conjunction with

section 6 of the Regulation on benefits for healthcare received in another EEA

country, is contrary to Norway’s EEA law obligations, then the Norwegian

requirement of specialisation must also be removed, since it would lead to

improper discrimination if that requirement applied only to those receiving dental

treatment in Norway.

(64) This will in turn lead to a situation where the quality of healthcare worsens and

Norway will incur greater expenditure related to reimbursement of healthcare that

has not been performed sufficiently well because the treatment provider lacks

sufficient competence.

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6. QUESTIONS REFERRED TO THE EFTA COURT

1. Is it compatible with Article 36 of the EEA Agreement and Article 7 of Directive

2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the

application of patients’ rights in cross-border healthcare to refuse reimbursement of

costs for dental treatment in another EEA State on the ground that the treating dental

practitioner does not possess the required specialisation in order to have equivalent

treatment reimbursed in the service recipient’s home State?

2. Does it affect the answer to question 1 if the specialisation required in the service

recipient’s home State is included in Annex V to Directive 2005/36/EC of the

European Parliament and of the Council of 7 September 2005 on the recognition of

professional qualifications?

3. If the specialisation is not included in Annex V to Directive 2005/36/EC of the

European Parliament and of the Council of 7 September 2005 on the recognition of

professional qualifications, must the competent authorities in the service recipient’s

home State also conduct an assessment under Article 36 of the EEA Agreement in

order to determine whether the treating dental practitioner has equivalent competence

to that required under national law?

Oslo, 1 December 2023

Dag Sørlie Lund

Member of the Court

Dear Sir/Madam,

Please find attached a copy, together with the translation into English, of the application Trygderetten Kfrom the National Insurance Court ( ), dated 1 December 2023, in the case

Nasjonalt klageorgan forv the National Office for Health Service Appeals ( helsetjenesten (Helseklage)) requesting the EFTA Court to give an advisory opinion pursuant to Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. The request was lodged on 1 December 2023 and entered in the register of the EFTA Court (reg. No E 15/23-1) as Case No E-15/23.

In accordance with Article 20 of the Statute and Article 90(1) of the Rules of Procedure of the EFTA Court, the Governments of the EFTA States, the EFTA Surveillance Authority, the Union (which includes the Governments of the EU States), the European Commission and the parties to the dispute are entitled to submit to the Court written observations on the questions referred for an advisory opinion. Written observations must be lodged at the Court within two months from the date of this notification, i.e., at the latest by Monday, 19 February 2024.

Please be informed that the Court has decided that all written observations, lodged in Advisory Opinion cases registered at the court as from 1 January 2021, shall be published on the Court's website as soon as the judgment in the case has been delivered.

Should you believe that observations you intend to submit include confidential or sensitive information, the Court invites you to submit a non-confidential version alongside your observations. In those cases, only the non-confidential version will be published.

Thank you for confirming receipt of this email and attachments.

On behalf of the Registrar.

Yours faithfully,

Erica Worsley

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