C-182/78

In Case 182/78,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep [court of last instance in social security matters] for a preliminary ruling in the action pending before that court between

Bestuur van het Algemeen Ziekenfonds [Managers of the General Sickness Fund] Drenthe-Platteland, Zwolle,

and

Mrs G. Pierik, Wapenveld,

ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

Facts and Issues

I — Facts and written procedure in the Netherlands, had claimed repayment of the costs relating to medical treatment received in Germany.

1. In Case 117/77 ([1978] ECR 825), The questions asked were in the the President of the Centrale Raad following terms: van Beroep, Utrecht, by a letter of 28 September 1977, referred to the Court of Justice certain questions "(a) Do the words 'who satisfies the concerning the interpretation of Regu­ conditions of the legislation of the lation No 1408/71 or the Council which competent State for entitlement to were raised in the course of a dispute benefits' at the beginning of Article between the Bestuur van het Algemeen 22 (1) solely contain a restriction to Ziekenfonds [Managers of the General those who in principle are eligible Sickness Fund] and Mrs G. Pierik, who, for benefits under the appropriate being in receipt of an invalidity pension national rules or do those words

JUDGMENT OF 31. 5. 1979 — CASE 182/78

ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

4. The dury laid down in the second Article 1 (a) of the regulation subparagraph of Article 22 (2) to inasmuch as Article 22 relates solely grant the authorization required to active workers, so that, with under Article 22 (1) (c) covers both regard to persons who are not, or cases where the treatment provided are no longer, at work and are in another Member State is more entitled to a benefit on the grounds effective than that which the person of invalidity, due by virtue of the concerned can receive in the legislation of a Member State, and Member State where he resides and who by virtue of the legislation of those in which the treatment in that Member State to which the question cannot be provided on the regulation is applicable in the territory of the latter State. matter of medical treatment and special sickness expenses are entitled to benefits in kind, only the 5. The costs relating to benefits in kind provisions of Article 31 are provided on behalf of the competent applicable? institution by the institution of the place of stay or residence are to be fully refunded. (b) Does the obligation referred to in the second subparagraph of Article 22 (2) of Regulation No 1408/71 6. The words 'institution of the place to grant the authorization required of stay or residence' in Article 22 (1) under Article 22 (1) (c) extend so (c) (i) of Regulation No 1408/71 far that the said authorization

mean the institution empowered to cannot be refused by the competent provide the benefits in the State of institution on the basis of the fact

relate directly to the case in which regards a person entitled to a pension as the institution of the Member State a worker for the application of that to which the person concerned chapter only when he has a right to wishes to go in order to undergo benefit as a result of the pursuit of a pro­ treatment is competent to provide fessional or trade activity: hence it may that treatment as a benefit in kind be concluded that it was the intention of but is normally not obliged to make the regulation to lay down different rules use of such competence, or must for pensioners not going so far as the the competent institution in such a rules for active workers (or unemployed situation, before providing the auth­ persons). orization requested, inquire whether the institution of the Member State to which the person (b) As to the second question, it is concerned wishes to go in order to intended essentially to ascertain whether undergo the treatment would the obligation on the competent social provide such treatment as a benefit security institution to grant the authori­ in kind for the person concerned if zation referred to in Article 22 (1) (c) he were insured in pursuance of the also covers cases in which the treatment legislation administered by that requested is excluded from the scheme of institution?" benefits in kind under the legislation of the competent State on medical, medical- ethical or financial grounds. Therefore the Centrale Raad decided in its order of 18 July 1978 that these questions should be referred to the Court (c) Finally, the third question seeks of Justice under Article 177 of the EEC definition of the situations in which the Treaty. applicable legislation gives no right to a particular benefit in kind but gives the competent institution a discretion to 2. The Acting President of the Centrale provide such benefit. Raad sent the said order to the Court of Justice with a covering letter of 8 September 1978 in which he gives the 3. The letter from the Acting President following explanation of the of the Centrale Raad van Beroep, considerations underlying the three Utrecht, was received at the Court questions raised: Registry on 11 September 1978.

Having heard the report of the Judge- Rapporteur and the views of the Finally, referring to Question (d) in the Advocate General, the Court decided to letter of 28 September 1977 from the open the oral procedure without any Centrale Raad van Beroep concerning a preparatory inquiry. problem related to the one raised in these proceedings, the Vereniging states that it has no need to comment on the third question.

II — Written observations sub­ mitted pursuant to Article 20 of the Protocol on the B — Dealing with the first question, the Statute of the Court of Nieuwe Algemene Bedrijfsvereniging Justice of the EEC points out that Article 1 (a) of Regu­ lation No 1408/71 gives a definition of the concept of "worker" from which it follows that the decisive factor in the A — The Vereniging van Nederlandse present case is that the person concerned Ziekenfondsen states that as regards the should be "insured", and it is immaterial scope of the concept of "worker" within whether or not he actually pursues an the meaning of Article 22 of Regulation activity. No 1408/71, it has nothing to add to the observations submitted both before the Court of Justice in Case 117/77 ([1978] ECR 825) and at the hearing before the Title III, Chapter 1, Section 2, Centrale Raad van Beroep on 13 June concerning workers' rights to sickness 1978. It persists in its argument that and maternity benefits does not indicate Article 22 of the regulation could be that any concept of "worker" other than applied to the present case. that defined in Article 1 (a) is applicable for the purposes of the provisions laid down in it. That section applies to any person who is to be regarded as a As to the scope of the obligation to grant "worker" within the meaning of the the authorization (second subparagraph aforesaid article, regardless of whether of Article 22 (2) of Regulation No 1408/ he is an active worker or a passive 71), the Vereniging considers that the worker. question asked by the national court is justified by the need to remove any doubt on this point. For this purpose it mentions the examples given at the Section 2 contains inter alia provisions aforesaid hearing in order to describe the similar to those in Sections 3, 4 and 5 of

the same chapter; it differs from them in margin of discretion, since it remains for that Article 22, which it contains, creates that institution to decide whether or not exceptional rights in a certain number of the treatment in question is appropriate specific situations — which include the and therefore capable of justifying the situation of a person going to another grant of the authorization. Any medical Member State to receive treatment there objections to the treatment claimed may which are not mentioned in the other be taken into account when this decision

State. As to the second question, it states first that, for the purposes of Article 22 (1) Moreover, the fact that, according to the (c) of Regulation No 1408/71, the aforementioned judgment, "the criteria governing the grant of the auth treatment in question" mentioned in the orization required are medical, second subparagraph of Article 22 (2) of administrative and legislative ones. the regulation refers to "any appropriate treatment of the sickness or disease from which the person concerned suffers" First of all it is for the doctor to decide leaves the competent institution a certain upon the grant of the authorization

Secondly, after the doctor has found that the medical treatment provided in As to the third question, the Belgian another Member State is appropriate to Government takes the view that Regu­ the state of health of the person lation No 1408/71 does not impose a concerned, it is for the competent duty on the competent institution to institution to decide whether to grant the inquire whether or not the cost of the authorization by examining whether on treatment provided in the Member State administrative and legislative grounds it of stay is refunded in that State. can give the person concerned a right to However, it is always open to the repayment or the cost of the benefits in competent institution, with the aim of kind which will be provided for him in informing workers clearly, to make the Member State to which he has inquiries of the institution of the country chosen to go to receive treatment. For of stay in order to ascertain the this purpose the competent institution conditions governing the repayment of will have to check inter alia whether the cost of treatment provided in that treatment in that State has not country. "patently" been chosen with the aim of evading the provisions of the legislation of the competent Member State. It would be improper to authorize a Moreover, where a form E 112 is worker to go to another Member State, submitted and the worker has complied there to receive treatment the cost of with all the provisions of the legislation which, for reasons of insurance of the country of stay, the competent administration or political expediency, is institution of that country is obliged to not repaid within the framework of the grant the treatment as a benefit in kind social insurance provisions in the and cannot refuse to repay the cost competent country. thereof.

his family, his moving will affect his (paragraph 14 of the Decision, [1978] entitlement to medical treatment as little ECR at p. 836) must be read as implicitly as possible. A provision of this kind, referring to the case of such workers as favouring migration, was patently not reside or stay in that other Member considered necessary for "pensioners" State. within the framework of the objectives of the Treaty, having regard also to the provisions of Article 31 of the Regu­ lation. In the absence of such a restriction, the result would be that in principle a worker who was a national of one of the Member States would be entitled not For this reason, in the opinion of the only to the benefits in kind under the Netherlands Government, Regulation legislation of the Member State in which No 1408/71 does not contain a scheme he resides or stays, but also to the for such pensioners corresponding to benefits in kind under the legislation of that which Article 22 (1) (c) lays down any other Member State within whose for active workers. territory he neither resides nor stays. This would doubtless result in unification of the various Member States' schemes of benefits in kind, but such unification Likewise, in order to answer the second is in no way included among the question, it is necessary to start from the objectives of Regulation No 1408/71. premise that freedom of movement for workers is one of the primary objectives of the Treaty. In order to achieve it, Regulation No 1408/71 lays down inter In the light of these considerations, alia a prohibition on any discrimination Article 22 (2) together with Article 22 (1) based on a worker's nationality. (c) should be interpreted as follows:

medical treatment if that treatment is unacceptable situation inasmuch as an not included in the scheme of institution of one Member State (in this benefits in kind of the competent case, the competent institution) would in State. In view of the wide extent of fact exercise the discretion as to the such a condition, the competent grant of the benefit in question which institution can clearly not be denied belongs to an institution of another discretion in the matter. The Member State (in the event, the competent institution can refuse the institution called upon to provide the authorization where equivalent benefit in kind). medical treatment can be provided in the country of residence or stay or if the treatment in question is not included in that country's scheme of E — On the first question the benefits in kind, for instance because Government of the United Kingdom medical practitioners in that country observes that the whole structure of still disagree about its effectiveness or Chapter 1 of Title III of Regulation No because its inclusion in the aforesaid 1408/71 is based upon the assumption scheme is contrary to the rules of that "workers" and "pensioners" are two positive law. separate categories of persons, even if some pensioners have formerly been, and in some cases may again become, "workers" in the narrower sense. This Finally, as regards the third question, the emerges from the very wording of Netherlands Government is of the Article 31 as well as of Article 34, read opinion that where the competent in particular with Article 2 (1) of the institution has granted a worker the auth­ Regulation, according to which the Regu­ orization to go to another Member lation "shall apply to workers … as also State, there to receive medical treatment to the members of their families and which in that State is granted at the their survivors". discretion of the competent authorities, the authorization granted gives the person concerned a contingent right to receive the said treatment in the Member It is therefore submitted that those State in question. pensioners to whom Articles 27 to 33 do apply are to be considered for the purposes of Chapter 1 as pensioners and not as workers. The vesting of this right is obviously subject to the decision of the institution called upon to provide the treatment in question. Thus the authorization granted The Government of the United Kingdom by the competent institution gives the submits moreover that during a period of person concerned the right to submit his stay in a Member State a pensioner's claim to the discretion of the institution rights to benefits in kind can derive only called upon to provide that treatment. from Article 31 and not at all from Article 22. Those articles provide in different ways for circumstances which If the authorization of the competent are essentially different, so that cumu­ institution were to have the effect of lative application of both of them in the compelling the institution called upon to same case would result in an inextricable provide the benefit in kind actually to confusion. Article 22 is concerned with a provide it, this would result in a legally period of stay outside the territory of the

Finally, going onto the third question, the Government of the United Kingdom submits that the first part of that Next, stating its views on the second question should be answered in the affir­ question, the Government of the United mative. It observes, however, that the Kingdom submits that where a treatment institution in question will have the is not included in the scheme of benefits discretion to grant or withhold the under the legislation administered by the treatment in question, so long as it acts competent institution, so that that on the same basis as it would in deciding treatment is one which that institution is whether or not to grant such treatment not empowered to provide, the to a national of its own Member State obligation to authorize it cannot apply. It insured with that institution. is not one of the "benefits which the competent institution is empowered to provide" within the meaning of paragraph 21 of the Decision in Case 117/77 ([1978] ECR at p. 837). The As to the second part of the question purpose of the regulation is to co­ raised, the Government of the United ordinate, not to harmonize, the several Kingdom submits that there is nothing in national legislations. Regulation No 1408/71 or the implementing Regulation No 574/72 which requires the competent institution, before providing the authorization requested, to make the inquiry If, however, the legislation gives the mentioned by the national court. competent institution the power to However, it is a proper and desirable provide the treatment in question, but practice. Only the competent institution does not require it to do so, the has access to the full medical record of obligation to grant authorization applies the person concerned, which will in principle. In such a case it must be normally be required for the decision

Sections 3, 4 and 5 of the afore­ It follows that, with regard to treatment mentioned chapter concern persons who which is deliberately not included in the no longer participate in active life (or said scheme on the grounds stated by the will no longer participate in it) and the national court, if the grounds for this are members of their families: on the other medical and if the competent institution hand, Section 2 concerns workers still is right, the authorization can be refused participating in active life and the because the view can be taken that the members of their families. This analysis criterion in Article 22 (1) (c), according is not contrary to the wording of Article to which the treatment must be appro­ 34 in Section 5. priate to the state of health of the person concerned, is not fulfilled. In the second case, the authorization may possibly be refused on the ground that the criterion Thus Regulation No 1408/71 uses two definitions of "worker": in the second subparagraph of Article 22 (2) is not fulfilled because the treatment in question can be provided for the — a broader definition, appearing in person concerned within the territory of Article 1 (a) (i) of the regulation, and the Member State in which he resides.

— a more restricted definition, deriving from Title III, Chapter 1, which is confined to persons "participating in Finally, in the third case, by virtue of the active life". general principles of the Treaty, the

JUDGMENT OF 31. 5. 1979 — CASE 182/78

Finally, as to the third question, the Commission is of the opinion that the "1. Article 22 of Regulation No 1408/71 competent institution must also grant the applies to active workers and the authorization in the case of "optional" members of their families. The benefits in kind. Although under Article situation of unemployed persons, 22 (1) (c) (i) the benefits in kind must be claimants to a pension and provided by the institution of the place pensioners, as also of the members of stay or residence in accordance with of their families, is governed by the the legislation which it administers, as provisions of Sections 3, 4 and 5 of though the worker were insured with it, Title HI. the view can equally well be taken that the question of obtaining authorization where "optional" benefits in kind are 2. The authorization, mentioned in concerned is already settled, possibly in Article 22 (1) (c), to go to the derogation of that rule, by the first territory of another Member State to subparagraph of Article 22 (1) (c), receive treatment there can be according to which the authorization refused only if it is established that must be granted by the competent that treatment is not appropriate to institution. the state of health of the person concerned, that the treatment can be provided within the territory of the Member State in which he resides, A double authorization would be or that the treatment is seriously meaningless, because the treatment contrary to the moral concepts provided by the institution of the place prevailing in the Member State in of stay or residence is provided on behalf which he resides.

"(a) Is the concept of worker in Article 22 of Regulation No 1408/71 more restricted than the concept of worker within the meaning of Article 1

JUDGMENT OF 31. 5. 1979 — CASE 182/78

(a) of the regulation inasmuch as Article 22 relates solely to active workers, so that, with regard to persons who are not, or are no longer, at work and are entitled to a benefit on the grounds of invalidity, due by virtue of the legislation of a Member State, and who by virtue of the legislation of that Member State to which the regulation is applicable in the matter of medical treatment and special sickness expenses are entitled to benefits in kind, only the provisions of Article 31 are applicable?

(b) Does the obligation referred to in the second subparagraph of Article 22 (2) of Regulation No 1408/71 to grant the authorization required under Article 22 (1) (c) extend so far that the said authorization cannot be refused by the competent institution on the basis of the fact that the treatment in question is deliberately not included in the scheme of benefits in kind under the sickness and maternity legislation administered by that institution, for example on medical, medical- ethical or financial grounds or because the value of the treatment in question in the Member State in which the competent institution has its seat is in general not regarded as positive or because the treatment is not regarded as falling within the field of health treatment and fur­ thermore is deliberately not provided by virtue of any other legislation of that Member State to which the regulation is applicable?

5 Articles 27 to 33 in Title III, Chapter 1, Section 5 of Regulation No 1408/71 lay down special provisions concerning "pensioners and members of their families". By virtue of Article 34, these provisions apply exclusively to pensioners who are entided to benefits in kind otherwise than as a result of pursuing a professional or trade activity, thus covering inactive pensioners.

6 However, Article 31 of these provisions governs the entitlement of such insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the one in which they reside. On the other hand, the entitlement to benefits in kind of an insured person who resides in one Member State and asks the competent institution for authori­ zation to go to the territory of another Member State to receive there the treatment appropriate to his condition is governed by Article 22 (1) (c) in the same chapter.

7 By the reference to a "worker" in the latter provision, Regulation No 1408/71 does not purport to restrict the scope of that provision to active workers as opposed to inactive workers, the same reference being contained

JUDGMENT OF 31. 5. 1979 — CASE 182/78

in Articles 25 and 26 in the same chapter, which respectively concern "unemployed persons" and "pension claimants".

8 For these reasons the answer to the first question should therefore be that, in the case of a pensioner who is entitled to benefits in kind under the legislation of a Member State and who does not pursue a professional or trade activity, the right to be authorized by the competent institution to go to another Member State to receive there the treatment appropriate to his condition is governed by the provisions of Article 22 (1) (c) and (2) of Regu­ lation No 1408/71.

10 In paragraph 15 of the decision in that case it was also held that benefits in kind for which the worker is authorized to go to another Member State "cover all treatment calculated to be effective for the sickness or disease from which the person concerned suffers", and in paragraph 16 it was held to follow that, "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)". In setting a limit to the competent institution's power of decision in this area, paragraph 17 of the said decision implicitly acknowledges that it is for that institution objectively to assess the medical grounds for granting or refusing the authori­ zation required under Article 22 (1) (c), having regard inter alia to the state of health of the person concerned, the seriousness of his sickness or disease and the effectiveness of the treatment in question.

ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

11 When the competent institution, having made use of such power, acknowledges that the treatment in question constitutes an effective treatment of the sickness or disease from which the person concerned suffers, its power of decision is thus bound by the obligation clearly and un­ equivocally imposed upon it by the second subparagraph of Article 22 (2) of the regulation not to refuse in that case the authorization required under Article 22 (1) (c).

15 It follows that, since the costs relating to the treatment in question are chargeable to the competent institution which granted the authorization, the

JUDGMENT OF 31. 5. 1979 — CASE 182/78

institution of the Member State to which the person concerned goes to receive the treatment is required to provide it upon presentation of such an authorization even if, under the legislation which it administers, it does not have a duty but only has a power to grant it.

16 For these reasons the answer to the third question should be that the expression "benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence" in Article 22 (1) (c) (i) of Regulation No 1408/71 refers to any benefit which the institution of the Member State to which the person concerned goes after obtaining the auth­ orization referred to in Article 22 (1) (c) has the power to grant, even if it is not required to provide them under the legislation which it administers.

Costs

17 The costs incurred by the Governments of the Kingdom of Belgium, the Kingdom of the Netherlands and the United Kingdom, as well as by the Commission of the European Communities, which have submitted obser­ vations to the Court, are not recoverable. 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.

2. When the institution acknowledges that the treatment in question constitutes a necessary and effective treatment of the sickness or disease from which the person concerned suffers the conditions for the application of the second subparagraph of Article 22 (2) of Regu­ lation No 1408/71 are fulfilled and the competent institution may not in that case refuse the authorization referred to by that provision and required under Article 22 (1) (c).

3. The expression "benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence" in Article 22 (1) (c) (i) of Regulation No 1408/71 refers to any benefit which the institution of the Member State to which the person concerned goes after obtaining the authorization referred to in Article 22 (1) (c) has the power to grant, even if it is not required to provide them under legislation which it administers.

Mertens de Wilmars Mackenzie Stuart Pescatore

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 31 May 1979.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber Acting as President