C-117/77

Mrs G. PIERIK, Wapenveld,

on the interpretation of certain provisions of Regulation No 1408/71 of the Council, concerning the right of employed persons to receive treatment appropriate to their condition on the territory of another Member State,

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

The facts, the procedure and the written The action now pending before the observations submitted pursuant to Centrale Raad van Beroep relates to the Article 20 of the Protocol on the Statute refund of the cost of a course of of the Court of Justice of the European treatment followed in April 1974 in Bad Economic Community may be Krozingen in the Federal Republic of summarized as follows: Germany for which Mrs Pierik lodged a claim on 12 January 1974 with the above-mentioned trade association. The I — Facts and written procedure trade association, on the basis of the 1. Mrs G. Pierik, a resident of the above-mentioned Article 60 (3) of the WAO stated that the benefit claimed Netherlands, worked as an assistant midwife and auxiliary nurse and since 1 formed part of the group of benefits in December 1962 has been in receipt of kind provided for by the Zieken­ invalidity benefit calculated on the basis fondswet (and the Algemene Wet of an 80 to 100% incapacity for work. Bijzondere Ziektekosten) so that in this Until 1970 she took a number of case it was necessary to refuse the claim. courses of treatment in the Federal Nevertheless the trade association, on Republic of Germany. Following court the basis of Article 61 of the WAO and proceedings she obtained a refund of Decree No 58062 of the Minister for the costs entailed in such treatment Health and Social Affairs of 29 August from the Nieuwe Algemene Bedrijfs­ 1967 adopted in pursuance of the said vereniging (the new general trade law, decided by derogation from the association) pursuant to Article 60 of said Article 60 (3) to refund the costs in the Wet op de Arbeidsongeschikt­ question provided that the person heidsverzekering (Law on insurance concerned claimed payment from the against incapacity for work, hereinafter sickness fund to which she was affiliated referred to as "the WAO") pursuant to and that she authorized the trade a decision of the Centrale Raad van association to institute proceedings Beroep of 25 April 1973. against the fund in the event of its The said Article 60 states that inter alios refusing the claim. persons in receipt of invalidity benefits Mrs Pierik accordingly claimed from provided by trade associations may be the subject of measures intended to the competent sickness fund, the Algemene Ziekenfonds Drenthe- maintain, re-establish or improve their Platteland, Zwolle (hereinafter referred capacity for work. The third paragraph of that provision however provides that to as "the Fund") the above-mentioned such measures shall be accorded only in refund. The Fund refused the claim by a so far as they are not included amongst letter of 16 May 1974 and the the benefits in kind governed by Article association appealed in the name and on 6 (2) of the Algemene Wet Bijzondere behalf of the person concerned before Ziektekosten (general law on special the Raad van Beroep (Court of Appeal) sickness expenses) or by Article 8 (2) of Zwolle, which, by a judgment of 3 the Ziekenfondswet (law on the sickneu November 1975, found in favour of the fund). appellant. In the course of those

proceedings the Fund relied upon corresponding to that of the Article 22 of Regulation No 1408/71 competent institution or do those arguing that in accordance therewith words include institutions which the refund may only be effected if the have another function in the said treatment in question is appropriate to Member Sute? the condition of the insured person and (d) Are the words "benefits in kind if the latter has obtained the authori provided on behalf of the competent zation of the competent institution. institution by the institution of the The Fund lodged an appeal with the place of stay or residence" in Article

In the following questions to the Court of latter case: is it sufficient that use is justice: occasionally made of the power or does the use of the word (a) Do the words "who satisfies the conditions of the legislation of the "provided" imply that the use of the competent State for entitlement to power constitutes the rule? benefits" at the beginning of Article (e) Do the words "the treatment in 22 (1) solely contain a restriction to question" in the second subpara those who in principle are eligible graph of Article 22 (2) refer to a for benefits under the appropriate specific treatment which is only national rules or do those words given in the territory of the Member contain a restriction on those Sute to which the worker has benefits included in the national moved or at least not in the scheme of benefits in kind, an inter territory of the Member Sute in pretation to which the last clause of which he lives or must the words Article 22 (1) (c) (i) may lend "the treatment in question" be

The letter of the President of the reservation? Centrale Raad van Beroep reached the (c) Are the words "the institution of Court on 30 September 1977. the place of stay or residence" in The Vereniging van Nederlandse Article 22 (1) (c) (i) solely to be Ziekenfondsen (the Association of understood as meaning the Netherlands Sickness Funds), institution which, in the Member represented by Mr H. de Jong, the Sute concerned, has a function Netherlands Government, represented

by the Minister for Foreign Affairs, the Regulation No 574/72 of the Council Government of the United Kingdom, are moreover based on the same represented by the Treasury Solicitor's principle. Office, and the Commission of the European Communities, represented by Question (c): H. Bronkhorst, a member of its Legal The reply should be that the words Department, acting as Agent, submitted "institution of the place of stay or written observations pursuant to Article residence" contained in the said Article 20 of the Protocol on the Statute of the 22 (1) (c) (i) are to be understood as Court of Justice of the EEC. referring only to the institution which in Having heard the report of the Judge- the Member Sute concerned carries out Rapporteur and the views of the corresponding duties as a competent Advocate General, the Court decided to institution (cf. Annex 3 to Regulation open the oral procedure without any No 574/72). preparatory inquiry. Question (d): Having regard in particular to the II — Written observations sub­ words "shall be entitled" in Article 22 mitted pursuant to Article (1) (c), the "benefits in kind" referred 20 of the Protocol on the to in subparagraph (c) (i) can only be Statute of the Court of benefits to which the persons concerned Justice of the EEC are entitled in the Member Sute where they reside. A — The Vereniging van Nederlandse Ziekenfondsen states as follows: Question (e): Question (a): The words "the treatment in question" The words at the beginning of Article in the second subparagraph of Article 22 of Regulation No 1408/71 of the 22 (2) can only refer to the attention Council imply a restriction in respect of entailed in treatment appropriate to the persons but not in respect of benefits. A sickness or disease. different interpretation of those words would entail certain absurdities and Question (f): could not be reconciled with a logical One may wonder what further purpose and systematic interpretation of Article there could be in requiring an authori­ 22. zation if the duty to grant it were extended to benefits which are not In those circumstances the reply to the included in the list of national benefits. first question should be to the effect that the words "who satisfies the The Vereniging concludes by asking conditions of the legislation of the whether Regulation No 1408/71 is in competent Sute for entitlement to fact intended to create in this sphere an benefits" at the beginning of Article 22 independent Community right or refer only to persons who in principle whether it is not rather intended to are entitled to benefits in pursuance of effect co-ordination. the relevant national legislation. B — The Netherlands Government Question (b): recalls the fundamental objectives of This question should be answered in the Regulation No 1408/71 and the general affirmative. Article 36 of Regulation No plan of Article 22 and states that the 1408/71 and Article 93 of implementing article must be interpreted in

conjunction with Articles 4 (1) (a) and C — The Government of the United 13 of the regulation. An interpretation Kingdom, concerning itself principally of Article 22 considered in isolation with Questions (e) and (f), makes the from the above-mentioned provisions following particular observations inter would lead to the creation of new rights alia: taking precedence over national legislation, which would risk creating a Question (e): distortion in the application of the No specific provision is made as to who

Further, in view of the refused. difficulties entailed by subjective If on the other hand under the judgment in this sphere, the reference to legislation of the Member Sute in "treatment appropriate" to the worker's ich the person concerned works the condition should be interpreted as treatment desired is not regarded as a referring to treatment accepted as appro benefit to which the person concerned is priate to that condition generally and entitled the question of granting or not only appropriate in the particular refusing the authorization no longer case of the person concerned.

ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

Article 22 and perhaps Article 31 of the regu considerations that the reply to this question should be to the effect that the lation do not amount to a system obligation to grant the authorization governing the way in which the institutions of the Member Sute in does not have the effect of creating for which the worker is insured must the worker an independent Community right to appropriate treatment in proceed amongst themselves in obtaining another Member Sute if such treatment a refund of costs which they have is available within the territory of the incurred or benefits in kind which they Member Sute in which the worker have supplied. Thus Article 22 of the resides or if the treatment concerned is regulation does not affect the main case. one for which it is not the policy of the Finally, the Commission maintains that, social security law of that Member Sute even on the supposition that the person to make provision. concerned could be considered as a worker within the meaning of Section 2 D — The Commission of the European Communities makes an initial statement of Chapter 1, Article 22 was not to the effen that it has grave doubts correctly applied either by the insured whether Article 22 of Regulation No person herself, who failed to obtain the 1408/71 is at all relevant to the main necessary authorization referred to in action. paragraph (1) (c) of the article, or by the insurance institutions.

JUDGMENT OF 16 J. 1978 — CASE 117/77

The purpose of Article 22, which is to enable the more or less frequently as to establish worker to obtain medical treatment whether it can provide the benefit. Since, in view of the refund which is which is not available on the territory of effected by the competent institution, the Member Sute where he resides, the institution of the place of stay or would be seriously jeopardized by an residence does not incur any pecuniary interpretation restricting the scope of loss, it is inconceivable that the that provision to benefits in kind competent institution should issue the provided by the institution to which the authorization and permit the person

If, as in If the competent institution has issued the present case, medical experts take the authorization the benefits in kind the view that the condition in question provided by the institution of the place could be treated by the administration of stay must be refunded. of medicaments rather than by hydro therapy (for which there are no appro Question (c): priate establishments in the Netherlands) the authorization could The reply to this question may be based accordingly be refused. On the other on the scope and purpose of Article 22 hand it is imperative that there should (1) (c) (i) of Regulation No 1408/71, be no power to refuse the authorization having regard in particular to Anide 1 in the case of an emergency operation (o) and (p) of the same regulation. The which, although it can be carried out in purpose of Article 22 (1) (c) (i) must be the insured person's country, cannot be in particular to enable the person performed at short notice. concerned to apply to an institution in his place of stay or residence in order to Question (f): obtain certain benefits in kind which, if Since the considerations set out he had remained in his own country, concerning Question (a) also apply to would have been refunded by the Question (f) the reply to the latter institution to which he is affiliated. It should be in the affirmative, subject to accordingly follows that the institution the reservation that it should be stated of the place of stay or residence is the that Regulation No 1408/71 has created institution competent to refund for the worker an independent corresponding benefits in kind. Community right to certain benefits.

The article does not make provision III — Oral procedure for any system of reimbursement between the institutions of a single The Vereniging van Nederlandse Member Sute. Ziekenfondsen, the Government of the United Kingdom, represented by H. 2. Article 22 (1) (c) (i) of Regulation No 1408/71 creates for the relevant Knorpel, and the Commission of the European Communities presented oral persons independent rights which argument at the hearing on 16 February may exceed the benefits to which 1978. such persons are entitled pursuant to the provisions of the legislation In the course of that hearing the applied by the competent institution Vereniging van Nederlandse to which they are affiliated, in Ziekenfondsen expressed the view inter particular because benefits in kind alia that the problem whether Article 22 to which such persons are entitled of Regulation No 1408/71 is applicable are provided in accordance with the is relevant in the present case. legislation administered by the The Government of the United institution of the place of stay or Kingdom observed in particular that the residence. question of the applicability to the 3. The above-mentioned provision present case of the said article is a must be interpreted to mean that if matter exclusively for the national the competent institution has issued court.

3 The above-mentioned social security institution based its refusal on the Wet op Arbeidsongeschiktheidsverzekering (Law on insurance against incapacity for work) in accordance with which measures intended to maintain, re­ establish or improve capacity for work shall be accorded to a person entitled to invalidity benefits only in so far as they are not included amongst the benefits in kind governed by certain provisions of Netherlands social security legislation.

4 The Commission in its observations expressed doubts regarding the relevance and utility in the present case of the questions submitted since it considered that Article 22 of Reguladon No 1408/71 does not relate to the matter before the national court.

5 It suggested that the Court of Justice should make a statement to this effect in its decision.

6 Article 177 of the Treaty, which is based on a clear separation of functions between national courts and the Court of Justice, does not permit the latter to pass judgment on the relevance of the questions submitted.

ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

7 Accordingly the question whether the provisions or concepts of Community law whose interpretation is. requested are in fact applicable to the case in question lies outside the jurisdiction of the Court or Justice and falls within the jurisdiction of the national court.

13 The reference in the first sentence of Article 22 (1) to Article 18 concerning the aggregation of insurance periods for the purposes of the acquisition of the right to benefits shows that that sentence is solely concerned to establish the class of persons to whom Article 22 applies by laying down a general condition for its application to which the following subparagraphs (a), (b) and (c) add specific conditions.

JUDGMENT OF 16. 3. 1978 — CASE 117/77

14 Within the context of the general objectives of the Treaty Article 22 of the regulation constitutes one of the measures intended to permit a worker who is a national of one of the Member States of the Community, without regard to the national institution to which he is affiliated or the place of his residence, to receive benefits in kind provided in any other Member Sute.

15 It is clear from the words "treatment appropriate to his condition" contained in Article 22 (1) (c) that the benefits in kind for which the worker is authorized in accordance with this provision to go to another Member State cover all treatment calculated to be effective for the sickness or disease from which the person concerned suffers.

16 In those circumstances it is of little importance whether the benefit in kind which the worker requires can be provided on the territory of the Member State where he resides since the mere fact that that benefit corresponds to treatment more appropriate to the state of health of the person concerned is decisive for the purpose of issuing the authorization referred to in the above-mentioned paragraph (1) (c).

21 The words "benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence" do not refer solely to benefits in kind provided in the Member State of residence but also to benefits which the competent institution is empowered to provide.

22 The duty laid down in the second subparagraph of Article 22 (2) to grant the authorization required under Article 22 (1) (c) covers both cases where the treatment provided in another Member Sute is more effective than that which the person concerned can receive in the Member Sute where he resides and those in which the treatment in question cannot be provided on the territory of the latter Sute.

23 The Court is further asked whether the words "on behalf of the competent institution" in Article 22 (1) (c) (i) must be interpreted as meaning that if the competent institution has given the authorization referred to in the first part of Article 22 (1) (c) the benefits provided by the institution of the place of stay must be refunded to it without further condition.

24 Article 36 of Regulation No 1408/71 which forms part of Chapter 1 of Tide III, as also does Article 22, provides that benefits in kind provided by the competent institution of a Member Sute on behalf of the institution of another Member Sute "shall be fully refunded" without prejudice to the provisions concerning former frontier workers.

25 Furthermore, Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 (Official Journal, English Special Edition 1972 (I) p. 159) states in Article 93 (1) that the amount of benefits provided under Article 22 of the regulation "shall be refunded by the competent institution to the institution which provided the said benefits as shown in the accounts of that institution".

30 The costs incurred by the Government of the Netherlands, the Government of the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

31 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

In answer to the questions submitted to it by the Centrale Raad van Beroep, by a letter of 28 September 1977, hereby rules:

1. The words "who satisfies the conditions of the legislation of the competent State for entitlement to benefits" at the beginning of Article 22 (1) determine the persons who in principle are entitled to benefits in pursuance of the relevant national legislation.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 16 March 1978.

A. Van Houtte H. Kutscher

Registrar President