Final judgment on Gestitursa

04 March 2015

Eric Grootmeijer-Network Manager ANWB Eric Grootmeijer-Network Manager ANWB

The latest judgment from the Spanish Appeal Court states clearly that the EHIC must prevail when it comes to Europeans being treated in Spanish public hospitals, in what can only be seen as a setback for cost collection agencies. María del Carmen González González, lawyer for Spanish firm Ramallo Pallast & Partner, gives ITIJ the lowdown on the most recent judgment

ITIJ has reported in past issues about the ongoing battle between cost collection agencies and private insurers concerning the EHIC – European Health Insurance Card. In a nutshell, for those unaware of the history: cost collection agencies (preeminently Gestitursa) tried to ignore the existence of the EHIC (or its replacement certificate) in Spain, and instead steered patients towards the use of their private health insurance. Avoidance of the EHIC was good business for cost collection agencies – who got paid for their services – and for the Spanish state, as it managed to make the private insurer foot the bill.

Things became acrimonious as private insurers resisted such abusive practices, and litigation ensued, whereby cost collection agencies claimed money for health services allegedly owed by private insurers. There were a couple of first instance judgments that were favourable to Gestitursa. Basically, first instance judges were not very aware of the message that EC law (in particular article 19 of Regulation 883/2004) was clearly displaying, namely: that EHICs have priority over private insurance.
One of these first instance judgments (concerning ANWB against Gestitursa) was appealed by Ramallo Pallast & Partner before the Audiencia Provincial de Barcelona (Barcelona’s Court of Appeals). On Friday, 6 February 2015, the appeal was adjudged. The judgment confirms:

• The EHIC has priority over ‘private’ treatments.
• The obligation of being ‘proactive’. Thus, neither Gestitursa, nor the hospital, can allege that no EHIC (or replacement certificate) was given to them. They must endeavour to get one.
• The infringement proceedings against Spain, and hence the need for strict application of EC-law.

More importantly, the judgment compels Gestitursa to pay any monies received from ANWB back, as it has now been proved that there was no legal basis to demand payments in the first place.

The appeal judgment is firm and final. In other words, there is no further appeal, no Supreme Court. Of course, appeal judgments have more ‘weight’ than first instance (circuit) judgments, as the court is made of three seasoned judges (instead of one in first instance court).
This is a clear turn of the tide in favour of patients and their insurers, and a clear setback against the abusive practices of cost collection agencies. This judgment should positively influence several ongoing cases in favour of private insurers awaiting first instance judgment.

Eric Grootmeijer, network manager for ANWB Assistance, commented on the ruling: “This has now put an end to a four-year legal dispute with Gestitursa, and it creates case law for other, similar situations. We hope that we have created clarity for our colleagues at assistance companies elsewhere in Europe, and that they will be able to profit from this information. I look back with pleasure on the ITIC in Barcelona in 2012, at which our resistance to Gestitursa became obvious during the panel discussion about the refusal of some national hospitals to accept the EHIC.”

Author/Source: ITIJ- www.itij.com

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