ESA takes further steps requiring Norway to end restrictions on patients’ rights to hospital treatment abroad

The EFTA Surveillance Authority (ESA) has today sent a supplementary letter of formal notice to Norway over national rules that restrict people's rights to seek hospital treatment in other EEA States.

ESA in 2019 decided to refer Norway to the EFTA Court over Norwegian rules that restrict people's rights to seek hospital treatment in other EEA States. Such treatment is a right guaranteed by EEA rules. The decision to refer Norway to the EFTA Court followed an infringement procedure launched in 2014 after ESA had received numerous complaints about the Norwegian restrictions.

The supplementary letter of formal notice is being sent following new information received by ESA while preparing its application to the EFTA Court. This is in addition to further information received from the Norwegian authorities in June 2021, as well as changes to Norwegian law after ESA decided to refer Norway to the EFTA Court.

During its case work, ESA reviewed more than 200 administrative decisions, which revealed that EEA rules had in practice not been applied correctly or considered.

In ESA's view, the Norwegian Patients' Rights Act does not meet the requirements of EEA rules in a number of areas, for example:

• The EEA Social Security Regulation has not been implemented correctly in Norway when it comes to patients' rights to receive treatment abroad, as EEA law is not given precedence over the Norwegian Patients' Rights Act.
• The conditions under the Patients' Rights Act for the right to treatment abroad are too strict. These include a requirement that the patient provide documentation that the treatment abroad is more effective than the public treatment offered in Norway.
• Where a patient is denied authorisation to receive treatment abroad by Norway, the Patients' Rights Act system for handling complaints limits the possibility for relevant appeal bodies to apply EEA law the correct way. In addition, EEA law is in practice rarely used or applied correctly by the relevant appeal bodies.
• The Norwegian rules lack the clarity, precision and degree of legal certainty required by EEA rules. This is, for example, because the Patients' Rights Act includes rules that are in conflict with EEA law, making it difficult for patients to understand and exercise their rights.

ESA takes note of a legislative proposal of 1 April 2022, which may alleviate some of the above problems. In the spirit of open communication with the Norwegian government, ESA addresses the proposal and indicates that a number of concerns would remain if it were adopted.

Following the issuance of today's letter of formal notice, Norway now has two months to express its views, before ESA decides how to take the case forward.

Read the supplementary letter of formal notice here.

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