C-120/95

2. The questions referred by the two bodies Reimbursement of medical expenses incurred require the Court to rule essentially on the in another Member State — whether to pur- compatibility with Community law of chase medicinal products or to obtain medi- national rules, of Luxembourg in this case, cal treatment — is conditional on prior which make the reimbursement of medical authorisation, the granting of which by the expenses incurred outside the national terri- competent social security institution is more- tory subject to the condition that the medical over subject to particularly restrictive condi- treatment or the purchase of the medical tions. This state of affairs cannot but dis- products and/or accessories in question were courage the free movement of patients, or of duly authorised by the competent social the less affluent among them at least, which security institution. Those rules are attacked of itself is a disadvantage for the patients on two different grounds: that they limit the concerned of course. It is this very state of free movement of medical products and affairs which lies at the root of the disputes accessories, namely a pair of spectacles, and pending before the Conseil Arbitral des thus contravene Articles 30 and 36 of the Treaty (Case C-120/95); and that they may fetter the freedom to provide medical ser- * Original language: Italian. vices, namely orthodontic treatment, by

I - 1834

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

reason of the restrictions they impose on the Relevant legislation recipients of such services, and are thus con- trary to Articles 59 and 60 of the Treaty (Case C-158/96).

I - 1835

OPINION OF MR TESAURO — CASES C-120/95 AND C-158/96

rial to Case C-120/95, that the relevant pro- The relevant parts of that article provide: visions of the former code were — so far as is relevant here — essentially identical. In particular, the question of treatment abroad and prior authorisation thereof was governed by Article 60(3), which is essentially the same as Article 20(1) of the Code currently ' 1 . An employed or self-employed person in force. Furthermore, the rules governing who satisfies the conditions of the legislation reimbursement of the cost of spectacles were of the competent State for entitlement to at the material time contained in Article 78 benefits, taking account where appropriate of of the U C M statutes, which referred to the the provisions of Article 18, and: relevant collective agreement. For present purposes it is sufficient to note that then, as now, reimbursement was on a flat-rate basis with a ceiling of LFR 1 600 for frames. 1

(a) ...

(b) ...

(c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his con- dition, 5. As regards the relevant Community legis- lation, apart from the provisions on the movement of goods and provision of ser- vices, Article 22 of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to shall be entitled: employed persons, to self-employed persons and to members of their families moving within the Community 2 (hereinafter 'the Regulation') is of particular significance, as we shall see below.

2. ... — Case C-120/95

6. The dispute in Case C-120/95 is between Mr Decker, a Luxembourg national, and the The authorisation required under paragraph 1(c) may not be refused where the treatment in question is among the benefits provided 3 — Article 22a, inserted by Regulation (EC) N o 3095/95 (OJ 1995 L 335, p. 1), provides as follows: 'Notwithstanding for by the legislation of the Member State on Article 2 of the Regulation, Article 22(1)(a) and (c) shall also whose territory the person concerned apply to persons who are nationals of a Member State and are insured under the legislation of a Member State and t o resided and where he cannot be given such the members of their families residing with them.' Following that amendment, therefore, it is no longer necessary to be a treatment within the time normally neces- worker or a member of a worker's family in order to rely o n sary for obtaining the treatment in question Article 22; it is enough to be insured, irrespective of the basis on which one is insured. in the Member State of residence taking 4 — Article 36(1) of the Regulation provides that 'benefits in kind account of his current state of health and the provided in accordance with the provisions of this chapter by the institution of one Member State on behalf of the insti- probable course of the disease. tution of another Member State shall be fully refunded'.

I-1837

O P I N I O N O F MR TESAURO — CASES C-120/95 A N D C-158/96

8. The plaintiff in Case C-158/96 is another Luxembourg national, a Mr Kohll, who, unlike Mr Decker, did request prior authori- 7. For the purpose of resolving the dispute sation from the Union des Caisses de Mala- before it, the latter body decided to refer the die (hereinafter 'the UCM'), with which he is following question to the Court for a pre- insured, to enable his daughter Aline, who is liminary ruling: a minor, to receive orthodontic treatment in Trier (Germany). His request was rejected, however, by decision of 7 February 1994, on the grounds, first, that the treatment sought was not urgent and, secondly, that suitable treatment of that kind could be obtained in Luxembourg. 'Is Article 60 of the Luxembourg Code des Assurances Sociales, under which a social security institution of Member State A refuses to reimburse to an insured person, w h o is a national of Member State A, the cost of spectacles with corrective lenses, pre- The Conseil Arbitral des Assurances scribed by a doctor established in Member Sociales, before which Mr Kohll challenged State A but purchased from an optician the refusal, since confirmed by the U C M established in Member State B, on the Management Board, dismissed his appeal by ground that all medical treatment abroad decision of 6 October 1994. Mr Kohll appealed against that decision to the Conseil Supérieur des Assurances Sociales which, by 5 — The Conseil Arbitral des Assurances Sociales dismissed the decision of 17 July 1995, upheld the con- appeal by order of 24 August 1993. It likewise dismissed tested decision on the ground that Article 20 M r Decker's appeal against that order by decision of 20 October 1993. It was after the setting aside of that decision of the Code and Articles 25 and 27 of the by the Cour de Cassation that the case was remitted to the Conseil Arbitral des Assurances Sociales. U C M statutes, on which the refusal was

'(1) Are Articles 59 and 60 of the Treaty establishing the EEC to be interpreted as precluding rules under which reim- In the course of the procedure, however, bursement of the cost of benefits is sub- there was some discussion, in depth, of the ject to authorisation by the insured per- applicability to the case of the Community son's social security institution if the rules on social security, and specifically benefits are provided in a Member State Article 22(1)(c)(i) of the Regulation. In par- other than the State in which that per- ticular, it was argued that it is this provision son resides? which regulates the issue of prior authori- sation and reimbursement and that, since the disputed rules are fully in accordance with it, the possibility of conflict with Articles 30 and 59 does not arise. This is closely linked to another argument put forward during the course of the procedure, according to which the fact that the disputed measure falls (2) Is the answer to Question 1 any differ- within the sphere of social security means ent if the aim of the rules is to maintain that, even if the Regulation were inapplicable a balanced medical and hospital service to the case at hand, the measure still could accessible to everyone in a given not be examined from the point of view of region?' the Community rules providing for the free

I-1839

OPINION OF MR TESAURO — CASES C-120/95 AND C-158/96

I - 1840

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

sary to establish whether the disputed rule is I — The applicability of Articles 30 and 59 discriminatory or indistinctly applicable, since the justifications which come into play in the two cases are different: express dero- gations (under Articles 36 and 56) in the former, and overriding requirements or, if one prefers, reasons relating to the general interest, in the latter. It is only in the latter 15. Although the points in dispute in the case that account may be taken of special two cases are many, perhaps too many, there requirements, including economic require- is fortunately no dispute about some funda- ments where appropriate, inherent in the mental matters which are essential to a cor- existence, operation and maintenance of a rect definition of the issues involved. It is national health service which is accessible to common ground that medical products con- everyone. stitute goods within the meaning of Article 30 of the Treaty, from which it follows that any unjustified limitation on the importation of this category of products, including importation by an individual for personal use, is contrary to that article. 6 Likewise, it is not disputed that medical activities consti- tute services, as is expressly provided for by Article 60, 7 nor, as was made clear by the Let me add that the analysis of the justifica- Court, that 'the freedom to provide services tions relied upon and its outcome will inevi- includes the freedom, for the recipients of tably imply a view on the validity or other- services, to go to another Member State in wise of Article 22 of the Regulation. If the order to receive a service there ... and that disputed rules are found to be incompatible tourists, persons receiving medical treatment with Articles 30 and 59, this may result ipso and persons travelling for the purpose of facto in the relevant Community provision education or business are to be regarded as being declared invalid — to the extent that recipients of services'. 8 both measures (national and Community) lay down the same rules, follow the same logic and pursue the same aim.

services upon -which they were incurred hav- — The fact that the contested measure con- ing been 'purchased' within the national ter- cerns social security ritory are quite capable, at least in theory, of having an adverse effect on trade in goods and services. Suffice it for now to point out that such rules — for the very reason that they deny insured persons reimbursement of medical expenses incurred abroad, unless prior authorisation has been obtained — may discourage those concerned from pur- chasing such products or from seeking treat- ment in a Member State other than the one 17. Let me begin by remarking that the fact in which they reside, which may, in certain that the national rules in question concern cases, act as a restriction on imports of the social security by no means has the effect of relevant products or on the freedom to pro- removing them, at least not automatically, vide the services in question. from the scope of the Community rules on the movement of goods and provision of ser- vices. And I would add straight away that the Court's consistent view that 'Commu- nity law does not detract from the powers of the Member States to organise their social security systems' 9 by no means implies that the social security sector constitutes an island beyond the reach of Community law and that, as a consequence, all national rules relating to social security fall outside its scope. 10

In other words, while it is true that the organisation of the social security system remains a matter for the Member States and that the relationship between the social secu- rity institutions and their members is gov- erned by national law, this does not mean that Member States may contravene with However, the scope of that case-law is much impunity a fundamental principle established narrower and more confined than is claimed by the Treaty to secure the free movement of by the Member States in arguing that Com- persons, namely the prohibition of discrimi- munity law does not apply to social security. nation on grounds of nationality. 15 It is therefore necessary to place those deci- sions in their proper context and to assess their implications correctly.

amount of the contributions'. 16 In other therefore only such institutions as operate words, it is clear that the determining factor social security schemes of this nature that are in the outcome — although the Court also exempted from the application of the Com- referred, in the same judgment, to the exclus- munity rules on competition. ively social function performed by those institutions, whose activity is entirely non- profit-making — was precisely the fact that the system in question was based on the principle of solidarity. 17 This was confirmed in a later judgment in which the Court held that where those (or similar) institutions operate instead a supplementary insurance scheme, based on the funding principle and with the level of benefits directly linked to the level of contributions (the solidarity principle thus not applying), they are to be regarded as undertakings within the meaning of the Treaty rules on competition. 18

I-1844

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

In view of the fact that that case concerned a however, Member States are bound to com- challenge to the requirement of compulsory ply with Community law even when exercis- affiliation to a statutory social security ing the powers reserved to them in the field scheme in reliance on the liberalisation intro- of social security. duced by a directive coordinating national rules on direct insurance other than life assurance, it need only be pointed out that the exclusion from liberalisation of the activities of bodies operating statutory social security schemes, which is, moreover, an express provision of that directive, was a There is no basis for any other conclusion. necessary corollary to the exemption, already The fact remains, therefore, that no discrimi- established, of such activities from the com- nation based on nationality is permitted o n petition rules. Otherwise the obligation to the territory of a Member State, 22 and that, join such schemes would inevitably have with the exception of the case where national been removed, whereas the Court empha- rules are closely bound up with the opera- sised that the obligation was necessary 'in tion and survival of the relevant social secu- order to ensure that the principle of solidar- rity scheme, social security is not exempt ity is applied and that their financial equilib- from the application of Community law. I n rium is maintained', pointing out that, if the particular, for the purposes of the present obligation was removed, 'the schemes in case, we may note that unjustified restric- question would thus be unable to survive'. 21 tions on the free movement of persons (establishment and services) and of goods are not permitted merely because the benefit conferred on individuals by the relevant Community rules conflicts with a national measure which in some way relates to social security.

24. The Court has also had occasion to state, in relation to the rules on the free movement of goods, that even measures adopted in the field of social security and which do not relate directly to importation, 'depending on The Court has taken an entirely different the manner of their application and the use approach, however, in cases where the made of them, ... may affect the possibilities national measures, albeit falling within the of marketing the preparations and, to that sphere of social security, were not of such a extent, ... may indirectly influence the possi- kind, on the face of it, as to be capable of bilities of importation', 27 thus, potentially, having an adverse effect on the survival of falling foul of Article 30. This would be the social security schemes based on the prin- case, for instance, of national rules which ciple of solidarity. For example, in upholding had the effect of making only domestic prod- as compatible with Article 52 a Belgian ucts eligible for reimbursement. measure which denied laboratories operated by legal persons, whose members were also legal persons, reimbursement of the cost of clinical biology services performed by them, the Court not only pointed out that the leg- islation in question applied without distinc- tion to Belgian nationals and those of other Member States, but also stated that there was no evidence that it had been adopted for Lastly, in Sodemare, where a possible breach 'discriminatory purposes' or that it produced of the rules on the freedom to provide 'discriminatory effects'. 25 Still on the subject

services was also in issue, the Court took their compatibility with Articles 30 and 59 of pains to explain that in the case in question the Treaty. there was no provision of services within the meaning of the Treaty. It accordingly ruled that 'Article 59 of the Treaty does not cover the situation of a company which, having established itself in a Member State in order to run old people's homes there, provides — Article 22 of the Regulation services to residents who, for that purpose, reside in those homes permanently or for an indefinite period.' 28 That statement demon- strates, however, lest there be any remaining doubt, that social security does not per se fall outside the scope of the Community rules. 26. It now falls to be considered whether the above conclusion may be called into ques- tion by reason of the existence of a provision of Community law, namely Article 22 of the Regulation, governing the very matter which concerns us. Let me say straight away that the answer to that question can only be in the negative, although the possibility of the said provision itself being invalid cannot be excluded.

I-1847

O P I N I O N OF MR TESAURO — CASES C-120/95 A N D C-158/96

possible for individuals — albeit subject to 28. That being so, it would appear, at least authorisation by the competent institution on the face of it, that cases such as this do — to receive the medical services they indeed come within the scope of Article 22 require in another Member State, 'constitutes of the Regulation and are accordingly gov- one of the measures intended to permit a erned by it. That conclusion, which is not in worker who is a national of one of the Mem- dispute in respect of cases where the benefits ber States of the Community, without regard sought by the insured person consist, for to the national institution to which he is example, in specialist consultations or treat- ment (as in the Kohll case), is however dis- affiliated or the place of his residence, to puted in respect of cases where the benefits receive benefits in kind provided in any sought consist instead of the purchase of other Member State', 30 and to do so, of medical products and accessories (as in the course, without having to forgo reimburse- Decker case). ment of the expenses incurred. Clearly, Mr Kohll and Mr Decker are seeking to be allowed to avail themselves of this possibil- ity.

I - 1848

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

But this 29. There is no doubt that 'sickness and fact is not conclusive, as it means simply that maternity' benefits, within the meaning of authorisation will virtually never be granted Chapter I in Title III of the Regulation, of for the purchase of medical products and which Article 22 forms part, include 'benefits accessories, 35 save in the case of products under legislation concerning invalidity which (for example, a particular kind of prosthesis are in the nature of medical or surgical ben- or appliance) which cannot be found in the efits'. 34 Furthermore, I am not convinced by Member State in question. the Commission's argument that Article 19 of Regulation N o 574/72 has no application

I therefore conclude the legislation administered by the competent institution or an agreement concluded between the Member Sutes con- cerned or the competent authorities of those Member Sutes is more favourable.' 34 — Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 9. 35 — Of course, prior authorisation granted for medical treat- The particular case involved the refusal by the competent ment in another Member Sute cannot but also cover social security institution, that of the Netherlands, to reim- expenses incurred in that S u t e on the purchase of medical burse to a Belgian national expenses which she had incurred products and accessories; this fact is, I believe, indisputable in Belgium on pharmaceutical products and medicines. and, indeed, has not been disputed.

36 — It would be otherwise only if the interpretation given by the Court to the phrase 'treatment appropriate to his con- dition', in Article 22(1)(c), were still valid today. The Court had held that the phrase in question meant that 'benefitsin kind for which the worker is authorised to go to another Member State cover all treatment calculated to be effective for the sickness or disease from which the person con- cerned suffers' (Pierik I, cited in footnote 30, paragraph 15, and Pierik II, cited in footnote 31, paragraph 10; emphasis added). Unfortunately, that interpretation must now be regarded as having been superseded, because Article 22(2) was amended, in fact as a consequence of the Pierik judge- ments, and made more restrictive so that, in particular, it Accordingly, there can be no doubt that the now sets out expressly and without ambiguity the one case in which authorisation may not be refused. contested rules are consistent with Article 22

I-1850

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

This appears also to be the view taken by the Court in its decisions in point. I refer, in par- ticular, to a judgment in which the Court interpreted the provisions of the Regulation relied upon in the case in question as mean- 33. Furthermore, the Regulation 'does not ing that entitlement to family benefits pro- set up a common scheme of social security but allows different national schemes to exist vided in respect of children resident in and its sole objective is to coordinate those another Member State may not also be con- national schemes', 39 whence it follows that ferred on self-employed persons affiliated to the 'substantive and procedural differences a voluntary social insurance scheme where, as in that case, the competent national insti- tution for the payment of such benefits is German. 41 That conclusion, however, did 37 — On this point see, for example, Case C-21/88 Du Pont de Nemours [1990] ECR I-889, paragraphs 20 and 21, in which not prevent the Court from inquiring into the Court ruled that the possible classification of a national whether the national rules under which the measure as aid within the meaning of Article 92 did not exempt it from the prohibition in Article 30. self-employed are eligible for the allowances 38 — I would also recall that the Court has made it clear that the discretionary power vested in the Community legislature in question only if they are affiliated to a by Article 51 must be exercised by means which are objec- statutory social security scheme were com- tively justified (Case 19/76 Triches [1976] ECR 1243, para- graph 18). This statement can only be interpreted as mean- ing that measures adopted pursuant to Article 51 may not unjustifiably restrict the scope of the rights conferred by the Treaty on the citizens of the Community. 39 — Case 807/79 Gravina [1980] ECR 2205, paragraph 7; Case 40 — Case 41/84 Pinna [1986] ECR 1, paragraph 20. 21/87 Borowitz [1988] ECR 3715, paragraph 23; and Case 41 — Stöber and Piosa Pereira (cited in footnote 13), paragraphs C-227/89 Rönfeldt [1991] ECR I-323, paragraph 12. 32 to 34.

45 — In that respect, it is puzzling that the Court did not find it necessary to question the validity of the provision of the Regulation which permitted workers not affiliated to the 42 — This approach confirms, moreover, that the Court's state- statutory social security scheme to be excluded from eligi- ment quoted above to the effect that observance of a bility for family allowances — particularly if it is borne in directly effective provision, such as Article 52 of the Treaty, mind that, in support of its conclusion that the national is binding on Member States 'even though, in the absence of rules were incompatible with Article 52, the Court pointed Community legislation on social security for self-employed out that such exclusion had the effect of placing at a disad- persons, they retained legislative jurisdiction in this field' vantage nationals who had exercised their right to free (Stanton and Wolf, cited in footnote 26, paragraph 10 in movement. But if that is the case, it must follow that the each case), has not lost any of its significance merely provision of the Regulation which permits such exclusion is because of the fact that the Regulation has since been invalid. I need hardly recall that the Court has consistently extended to cover self-employed workers. held that 'the aim of Articles 48 to 51 would not be attained 43 — Stöber and Piosa Pereira (cited in footnote 13), paragraphs if, as a consequence of the exercise of their right to freedom 38 and 39. of movement, workers were to lose the advantages in the field of social security guaranteed to them by the law of a 44 — In this connection, the Court noted in that judgment that single Member State' (see, inter alia. Case 284/84 Spruyt 'there is nothing to prevent Member States from restricting [1986] ECR 685, paragraph 19, and Joined Cases C-45/92 entidemcnt to family benefits to persons belonging t o a and C-46/92 Lepore and Scamuffa [1993] E C R I-6497, solidarity system constituted by an old-age insurance paragraph 21). Clearly, the same must apply to self- scheme. The Member States are at liberty to determine the employed persons who exercise their right to freedom of conditions for entitlement to social security benefits, since movement, since the Regulation is now also applicable to Regulation N o 1408/71 merely plays a coordinating role' them. (paragraph 36).

36. The disputed rules, it will be recalled, makes the reimbursement of medical expenses incurred by an insured person in a Member State other than his or her State of residence — whether on the purchase of medical products and accessories or on medical and hospital services — subject to the condition that the insured person in 37. I have already recalled that, according to question has obtained prior authorisation the Court's case-law in this area, any rules from the competent social security institu- which unjustifiably restrict an individual's tion. It therefore needs to be determined ability to import medicinal products for per- whether, as claimed by the plaintiffs in both sonal use is contrary to Article 30. 46 I need the main proceedings, the requirement of hardly add that this must also apply to a pair prior authorisation is in conflict, at least in of spectacles and, in general, to all medical or principle, with Article 30 and/or Article 59 surgical accessories. of the Treaty.

Moreover, the authorisation in question, in view of the particularly restrictive conditions to which its grant is subject, is very unlikely to be accorded in a case where the benefit 38. In the first place, it is quite clear that the sought by the insured person is simply the rules in question, by requiring prior authori- purchase of a pair of spectacles and/or, in sation only for purchases made outside the general, any products prescribed in the national territory, involve unequal treatment Member State in which he or she is resi- based on the place of purchase of the prod- dent. 49 In those circumstances, clearly, the ucts concerned. 48 Even assuming, for the rules in question regulate the reimbursement sake of argument, that such differentiated process in such a way that only products treatment is in itself of no relevance for the purchased in the national territory are eli- purposes of the application of the Commu- gible. 50 In view of the point made above nity rules on goods, it is nevertheless the case regarding the deterrent effect of reimburse- that the rules in question, by denying ment not being available, it is therefore indis- insured persons not having obtained prior putable that such rules inhibit, albeit indi- authorisation reimbursement of medical expenses incurred outside the national terri- tory, have the effect of deterring those con- 49 — In circumstances such as these, it is obvious that the com- cerned from buying medicinal products, or petent social security institution will refuse to grant prior authorisation, since it must be assumed, first, that a pair of even a pair of spectacles, in another Member spectacles (even of a particular kind), or a medicinal prod-

for example. Case 124/81 Commission v United Kingdom 22). The fact that in the case which concerns us it is only [1983] ECR 203, paragraph 18). This is essentially because products purchased in the national territory which are eli- in the case which concerns us importation as such is not gible for reimbursement should not, to my mind, produce a subject to authorisation. different outcome.

39. To my mind, this is sufficient to 'warrant the conclusion that the national rules in question meet the criteria for a measure hav- ing equivalent effect to a quantitative restric- tion inasmuch as they are capable, in accord- ance with the well-known Dassonville formula, 'of directly or indirectly, actually or potentially, hindering intra-Community trade'. 51 It follows that, without prejudice to any possible justification which may be available, they must be regarded as contrary Let me say straight away that those rules to Article 30 of the Treaty. This conclusion must also be regarded as being in conflict also holds, it goes without saying, in relation with Articles 59 and 60, for reasons broadly to Article 22 of the Regulation. similar to those adduced in considering their compatibility with Article 30. Before exam- ining more closely the restrictions they place on freedom to provide services, however, I believe it worthwhile to clear up some of the misunderstandings which have emerged dur- — The provision of services ing the course of the proceedings.

I-1855

O P I N I O N O F MR TESAURO — CASES C-120/95 A N D C-158/96

41. It has been argued that the rules in ques- irrelevant. 53 N o r does the mere fact that the tion merely lay down the terms and condi- State is involved in financing the benefit in tions for reimbursement of medical expenses question mean that there is no provision of and that, accordingly, they are concerned services: the fact remains that the medical only with the relationship between the treatment is supplied for consideration 54 and insured person and the social security insti- that the insured person bears a significant tution to which he or she is affiliated, with portion of the cost through his health insur- the result that a dispute over reimbursement ance contributions. 55 of the expenses in question is purely an internal matter. The relevant service in such circumstances, according to this argument, is the benefit provided by the social security institution to the insured person, and not a provision of services within the meaning of Articles 59 and 60 of the Treaty. In any event, it should be acknowledged that an activity financed by the State using public funds does not involve any provision of ser- vices within the meaning of those articles.

42. That said, it is clear that the rules in question do not prohibit insured persons (who are recipients of services in this case) from using a provider of services established in another Member State and, in general, do not, at least not directly, make their access to medical care in other Member States subject to conditions. Moreover, since the require- ment of prior authorisation applies to all

I-1856

DECKER v CAISSE DE MALADIE DES EMPLOYÉS PRIVÉS

persons resident in the Member State in of the service in question who are not estab- question wishing to travel to another Mem- lished in the State concerned. 56 Save for the ber State in order to obtain the health-care limited number of instances in which autho- they require, it is equally clear that those risation is granted, they can supply only ben- rules do not discriminate on grounds of efits which are not eligible for reimburse- nationality among the recipients of the ser- ment. vices in question.

Clearly, such this constitutes a difference in the treatment restrictions are manifestly contrary, at least of insured persons according to whether in principle, to Article 59 of the Treaty. 58 they choose to avail themselves of services supplied by providers established in the national territory or in another Member State. 56 — It may be recalled that Article 59 requires 'the abolition of any restriction (. . .), when it is liable to prohibit or other- wise impede the activities of a provider of services estab- lished in another Member State where he lawfully provides similar services' (Case C-76/90 Säger [1991] ECR I-4221, paragraph 12).

services. Furthermore, it cannot be denied ticular p. 31 et seq.; and Comelissen, The Principle of Ter- that a situation of that kind is bound inevi- ritoriality and the Community Regulations on Social Secu- rity, in Common Market Law Review, 1996, p. 439 et seq., tably to have an adverse effect on providers in particular pp. 463 to 466.

44. Given that it is the same measure which 45. That said, in order to determine what creates barriers of the same kind to both the type of justification is permissible it first free movement of goods and the freedom to needs to be decided whether the contested provide services, it is hardly surprising that measure is to be categorised as formally dis- the reasons advanced to justify it are essen- criminatory or as indistinctly applicable. In tially the same in the case of both freedoms. the former case it can be justified, and hence To be precise, the Luxembourg Government upheld as compatible with Community law, and most of the governments which have only if it comes within the scope of Article submitted observations in the two cases con- 36 (goods) and Article 56, referred to by tend that the restrictions entailed by the con- Article 66 (services), in other words, if it tested rules are necessary on public health comes within one of the derogations grounds and, in particular, to ensure the maintenance of a balanced medical and hos- pital service accessible to everyone. 59 — For the sake of completeness, I would point out that the European Commission on Human Rights has given an opinion on the relevant Luxembourg rules and on Article 22 of the Regulation, in a case in which the plaintiff — a Luxembourg national who had been refused by the health insurance fund reimbursement of medical expenses incurred in another Member Sute (Belgium) and for which she had not obtained prior authorisation — alleged a violation of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms on account of the excessive length of the procedure and the fact that the dismissal of her appeal on the ground of inadmissibility by the Cour de Cassation, a court Dound by the obligation to make a refer- ence for a preliminary ruling under Article 177 of the Treaty, had deprived her of the possibility of a ruling by the Court of Justice on the interpretation of Article 59 of the Treaty, with which, she contended, the national rules were manifestly in conflict.

Essentially, the by imposing the requirement of prior autho- Commission on Human Rights, having interpreted Article 22 of the Regulation as not conferring entitlement to reim- risation, produces the same restrictive effects bursement, drew the conclusion that the plaintiff did not as the national measure in issue, we must hold a right under Article 6(1) of the Convention and accordingly held the action to be inadmissible (Decision of perforce ascertain whether or not, like the 16 April 1996, Marie-Anne München v Luxembourg, N o . 28895/95).

I-1858

DECKER v CAISSE DE MALADIE DES EMPLOYES PRIVES

expressly provided for by the Treaty, with applicable without distinction may be the further consequence that no consider­ incompatible with Community law if they ation may be given to economic aims pur­ are restrictive and not justified by overriding 61 sued by means of the restrictive measure requirements or reasons relating to the gen­ 63 but only, in the present instance, to the pro­ eral interest; and, secondly, as we shall see tection of public health. below, that in this latter case consideration may abo be given to economic aims pursued by means of the restrictive measure, such as the safeguarding of the financial stability of the health-care system.

The Commis beyond what is necessary in order to attain sion, for its part, submits that the measure is it'. 6 2 This means, first, that even measures discriminatory as regards goods, since prior authorisation is not required to purchase the relevant products in the national territory, but indistinctly applicable as regards services, 60 — In relation to goods, sec Case 113/80 Commission v Ireland [1981] ECR 1625, paragraphs 8 and 11, and, more recently, since the authorisation requirement, Joined Cases C-321/94 and C-324/94 Pistre [1997] ECR I-2343, paragraph 52.

As far as services are con cerned, that approach was expressly adopted, in particular, 61 — As regards goods, see Duphar (cited in footnote 9), para in Case C-288/89 Gouda [1991] ECR I-4007, paragraphs 11 graph 23, and Case 7/61 Commission v Italy [1961] ECR to 15, Commission v Netherlands (cited in footnote 56), 317, at p. 329. As to services, see, inter alia. Bond van paragraphs 15 to 19, and Säger (cited in footnote 56), para Adverteerders (cited in footnote 54), paragraph 34, and, graph 15. Given, however, that since its verv first decisions more recently, Case C-17/92 Feditine [1993] ECR I-2239, on the subject the Court has upheld as justified in the gen paragraphs 16 and 21. eral interest measures restricting freedom to provide ser 62 — Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37, vices (see, for example, Case 33/74 Van Binsbergen [1974] in which, significandy, the Court referred without distinc ECR 1299), it is clear that the Gouda, Commission v Neth tion to all the fundamental freedoms enshrined in the erlands and Säger judgments, far from constituting a new Treaty, thus highlighting the unitary nature, for the pur departure, merely clarified the existing approach and pro poses which concern us nere, of the relevant rules. vided it with a fuller theoretical analysis.

although it applies only where medical ser- 47. So far as concerns the rules on goods, let vices are sought abroad, applies in the same me begin by pointing out that this is the first manner to nationals and non-nationals alike. time that the Court has been called upon to It would seem, therefore, that under the determine whether a measure which imposes rules laid down for goods even measures an additional burden (prior authorisation) which, while not prescribing any particular only on those intending to purchase the formalities for the purposes of importation products in question outside the national ter- as such, are likely to discourage imports, are ritory is discriminatory for the purposes and discriminatory, whereas under the rules gov- within the meaning of Article 30 of the erning services only measures which involve Treaty. Given that authorisation is required different treatment based on nationality are solely for the purpose of conferring a benefit discriminatory. 64 (total or partial reimbursement of the cost of a particular product) and not for the purpose of importation, 65 it must be recognised, however, that the measure in question does not lay down different rules for imported products, but rather entails a difference in the treatment of persons (the insured), all resident in the same Member State, according to whether they have chosen to purchase a particular product in their State of residence or in some other Member State. Let me add that the fact that the difference in the treat- ment of insured persons depends, albeit indi- rectly, on the place where the optician or I cannot subscribe to this analysis. The meas- pharmacist who supplies the products is ure in question does not directly hinder established, is of no significance for the pur- trade either in goods or in services. It may, poses of the rules on goods, even if it may be however, have the effect of limiting such considered to constitute formal discrimi- trade by reason of the obvious disadvantage nation based on the place of establishment. 66 (no reimbursement) in purchasing products or medical services abroad, without authori- sation. What needs to be determined, there- fore, is whether restrictions on the free movement of goods and on the freedom to provide services based, albeit indirectly, on where the seller of the goods or provider of the service is established, fall to be classified as discriminatory or as indistinctly appli- cable. Any restriction on imports stems from the deterrent effect, on insured persons' deci- sions, of the fact that the cost of products

purchased in another Member State is not service providers established in another reimbursed. It is my view, therefore, that the Member State to carry on the activity in measure in question, even though it favours question. 71 the purchase of products sold in the national territory, is not formally discriminatory. Leaving aside all other considerations, it requires no specific formality to be complied with at the time of and for the purpose of importation, nor does it favour domestic The measure under consideration, it is worth products over imported products. noting, does not entail any discrimination based on nationality nor does it prescribe, at least not directly, separate rules for service providers established in another Member State. The difference in treatment concerns, at least formally, all those insured under the social security scheme in question. Bearing in mind, however, that different treatment depends on the choice of doctor or of hospi- tal, it is quite clear that the difference in the way insured persons are treated depends on the place where the provider of the service is established. Is this sufficient to warrant a finding that the measure in question, in so far as it results in different rules applying in 48. Turning to the scope of the contested respect of the provision of services originat- national measure in relation to the provisions ing in another Member State, is in any event on services, I would first recall that the to be categorised as discriminatory? Court has consistently held that measures are formally discriminatory only where they prescribe different rules for non-nationals 67 and/or for the provision of services 'originat- ing' in other Member States. 68 It regards as indistinctly applicable, on the other hand, measures capable of applying to all those 49. A negative answer to this question could who carry on a particular activity in the ter- be deduced from the fact, referred to above, ritory of a particular Member State, even if that, under the Court's case-law on services, such measures expressly impose a require- rules requiring a person to be established in ment of residence 69 or establishment 70 the Member State in question in order t o which effectively makes it impossible for carry on a given activity are justifiable o n

grounds relating to the general interest, by for the grant of a housing benefit that the reason of the fact, however unsatisfactory loan should be obtained from a lending insti- this result may seem, that the requirement is tution established in the national territory imposed on all those who carry on a particu- was discriminatory on the ground of the lar activity in the territory of a particular place of establishment, and thus justifiable Member State and is thus, formally at least, only on the basis of the derogations not in any way discriminatory. From the expressly provided for in the Treaty. 73 N o r same perspective, a measure which does not did it help to clarify matters that the Court prescribe, at least not formally and directly, then considered it necessary, in the same different rules for providers of services estab- judgment, to rebut the proposition that the lished in another Member State, should like- measure in question was necessary in order wise be regarded as non-discriminatory. to preserve the cohesion of the tax system: 74 in so doing, the Court was also verifying whether that measure could be justified on the basis of requirements likely to be taken into account only in the case of measures applicable without distinction.

73 — Svensson (cited in footnote 53), paragraph 15. More pre- 72 — Case C-204/90 Bachmann [1992] ECR I-249. To this end, it cisely, the Court stated that 'the rule in question entails dis- is worth pointing out, the Court confined itself to noting crimination based on the place of establishment' and that that 'the requirement of an establishment is compatible accordingly it 'can only be justified on the general interest with Article 59 of the Treaty where it constitutes a con- grounds referred to in Article 56(1) of the Treaty, to which dition which is indispensable to the achievement of the Article 66 refers, and which do not include economic aims'. public-interest objective pursued' (paragraph 32). It would appear from that statement that since the general interest 74 — Idem, paragraphs 16 to 18. can justify even a prohibition, imposed by means of a 75 — On this point, it should be emphasised that Svensson is not requirement of establishment, on exercising particular the only case, nor the first, in which the Court took into activities in the territory of the State concerned, there is all consideration, for the purpose of determining whether a the more reason to regard as justified rules which entail national measure restricting freedom to provide services some disadvantages, or at any rate do not confer certain was compatible with Article 59, both the requirements set advantages, for those who choose to avail themselves of out in Article 56 and those relating to the general interest providers of services not established in the State in ques- (see, for example, Commission v Italy, cited in footnote 70, tion. paragraphs 31 and 32).

In short, it is my view that, for the purposes of this case and in order to dispel the afore- mentioned ambiguities in the case-law, the Court should either follow Svensson and rule that discriminatory measures include those which indirectly give rise to unequal treat- ment as Between providers of services estab- lished in a given Member State and those not so established or, alternatively, confirm the approach which appears to have been adopted in Bachmann, namely that measures which do not formally lay down different rules for providers of services not established in the Member State are still deemed to be indistinctly applicable. I would merely add that the latter approach would appear at present to be more in keeping with the case- One further aspect, I believe, needs to be law in this area considered as a whole. This made clear. The points raised and the result does not of course alter the fact that a reap- arrived at in examining whether the con- praisal would be timely. tested measure is justifiable on public health grounds would be equally valid, given that it is a requirement expressly provided for in Articles 36 and 56 of the Treaty, if the con- tested measure were assumed to be discrimi- natory. 76 But the same cannot be said for the requirement of maintaining a balanced medi- cal and hospital system accessible to every- one in a given region. Even granting that this 51. Assuming that the national measure aim comes within the concept of public under consideration is to be regarded as indistinctly applicable, with respect to the Community rules on both goods and ser- 76 — See, in particular, Joined Cases C-1/90 and C-176/90 Ara- vices, I now turn to the requirements relied gonesa de Publicidad [1991] ECR I-4151, paragraph 13.

77 — But the Court has so far given a narrow interpretation to the concept of 'public health' and has allowed it to be used to justify only measures aimed at preventing risks to the health of humans and animals. 78 — See the judgments cited in footnote 61. I would merely note that in Duphar the Court made clear that because Article 36 relates to measures of a non-economic nature, it cannot In those circumstances, I do not believe it is therefore justify a national measure intended 'to reduce the reasonable to argue that the health of insured operating costs of a sickness insurance scheme' (judgment cited in footnote 9, paragraph 23). persons is not adequately protected when 79 — I refer, in particular, to Council Directive 93/16/EEC of 5 they obtain health-care in another Member April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and State. 81 It follows, of course, that the meas- other evidence of formal qualifications (OJ 1993 L 165, p. 1), and, among the specific directives, to Council Direc- ure in question cannot be regarded as neces- tives 78/686/EEC and 78/687/EEC of 25 July 1978 con- sary for the protection of health. cerning the mutual recognition of diplomas and the coordi- nation of national provisions on dentists (OJ 1978 L 233, p. 1 and p. 10). I would also refer to Council Directives 85/432/EEC and 85/433/EEC of 16 September 1985 on the coordination of national provisions and the mutual recogni- tion of diplomas in relation to certain activities in the phar- 80 — Sec Schumacher (cited in footnote 6), paragraph 20, and maceutical sector (OJ 1985 L 253, p. 34 and p. 37). Finally, Commission v Germany (cited in footnote 6), paragraph 18. I would recall that the free movement of pharmaceutical 81 — Since the Luxembourg Government itself stated that products is ensured at Community level, with due account insured persons are free to obtain health-care in another taken of the protection of public health, by Council Direc- Member State, the question has to be asked why the afore- tive 65/65/EEC of 26 January 1965 (OJ, English Special said public health concerns no longer arise when reimburse- Edition 1965-1966, p. 20). ment is not sought.

From that point of view, I believe it is beyond dispute that the preservation of the 54. I now turn to consider whether the con­ financial stability of the social security tested measure is necessary for and suited to preserving the financial stability, and thereby the continued operation, of a medical and hospital service accessible to everyone. All 82 — See Gouda (cited in footnote 63), paragraph 11. See also, more recently, Case C-398/95, Syndesmos ton en Elladi the governments which submitted observa­ Touristikon kai Taxidiotikon Grafiton [1997] ECR I-3091, paragraph 23, in which the Court stated that 'maintaining tions have argued, on this issue, that prior industrial peace as a means of bringing a collective labour authorisation is essential in order to avoid dispute to an end and thereby preventing any adverse effects on an economic sector, and consequently on the the social security institutions having to economy of the State, must be regarded as an economic aim which cannot constitute a reason relating to the genera! reimburse the cost of the benefits in question interest that justifies a restriction of a fundamental freedom in accordance with the legislation of the guaranteed by the Treaty'. 83 — I recall, for example, that in Case C-275/92 Schindler [1994] Member State in which each individual ECR I-1039, the Court stated that a ground which is 'not insured person chooses to avail himself or without relevance, although it cannot in itself be regarded as an objective justification, is that lotteries may make a sig­ herself of medical care and/or to purchase nificant contribution to the financing of benevolent or pub­ lic interest activities such as social works, charitable works, medical products. They add that the Member sport or culture' (paragraph 60, emphasis added). I would State chosen will normally be the one in further refer to Case C-415/93 Bosman [1995] ECR I-4921, p aragraphs 106 and 107, in which the Court upheld as egiūmate the aim of maintaining a financial and competi­ tive balance between football clubs as its purpose was to preserve a degree of equality and uncertainty as to results. 84 — This is one possible interpretation of the Court's acceptance 85 — See Case C-137/94 Richardson [1995] ECR I-3407, para­ of the cohesion of the tax system, which is undoubtedly an graphs 18 to 29. economic aim, as a ground related to the general interest 86 — See, most recendy, Case T-41/90 Barassi v Commission {Bachmann, cited in footnote 72, paragraphs 21 to 28). [1992] ECR II-159, paragraphs 32 to 35.

N o w it must of course be acknowledged that an obligation to reimburse, in accordance with the legislation of the different Member States, the cost of benefits which insured per- sons have chosen to avail themselves of out- side the national territory, could indeed upset the financial stability and adversely affect the continued operation of a balanced medical and hospital system accessible to everyone. In that regard, suffice it to note that, at present, the costs of health-care and The Commission, however, arguing that the rules governing the financing of health Article 22 of the Regulation imposes an obli- insurance systems differ appreciably from gation not to refuse authorisation in a par- one Member State to another. 87 Unrestricted ticular case but is silent as to other situations freedom of movement for patients could •which might arise, maintains that each case therefore lead to imbalances which would be has to be looked at individually to determine highly detrimental to those Member States in whether the grant of authorisation for a par- which the cost of benefits is significantly ticular benefit, and the attendant financial lower than the cost which their social secu- burden, would entail upsetting the financial rity institutions would have to reimburse to balance. 88 As attractive as this approach may insured persons who chose to avail them- appear, it is lacking in rigour. It is clearly the selves of such benefits in other Member case, and rightly so, that Member States States. could (and indeed can) be more generous than is required of them by Article 22 of the Regulation; I wonder, however, on the basis of what criteria national rules which autho- 87 — For an overview of current differences, see Le Grand, 'La rise insured persons to travel to other Mem- asistencia sanitaria y la construcción del mercado único: perspectiva y problemática', in Los sistemas de seguridad social y el mercado único europeo, op. cit, p. 321 et seq. See also, in relation to the more general issue of the funding of social protection, Euzeby, 'Le financement de la protection sociale dans les pays de la CEE: problèmes et perspectives', 88 — This point, it should be noted, would apply only to ser- in Quel avenir pour l'Europe sociale: 1992 et après?. Brus- vices. Having maintained that the contested measure was sels 1990, p. 133 et seq., and, by the same author, 'Finance- discriminatory in relation to the rules on goods, the Com- ment de la protection sociale, efficacité économique et jus- mission was consistent and submitted that the measure in tice sociale', in Revue du Marché commun et de l'Union question was not justifiable on the ground of protection of européenne, 1997, p. 253 et seq. public health set out in Article 36 of the Treaty.

57. But if this is true it follows, first, that the restrictions imposed by the relevant provi- sions of Article 22, precisely because they are aimed at ensuring that insured persons may avail themselves of medical benefits in another Member State on the terms laid down by the legislation of that State, are objectively justified and hence compatible 56. Rather, it is quite true that Article 22 of with Articles 30 and 59 of the Treaty and, the Regulation in no way requires, or secondly, that the preservation of financial implies, that in cases in 'which authorisation stability, the aim pursued by the national is not granted on the ground that the condi- measure, is relevant only if and to the extent tions it lays down are not satisfied, insured that it is assumed that reimbursement by the persons must bear the full cost of the ben- competent social security institution of ben- efits concerned or are not entitled to any efits which insured persons choose to obtain form of reimbursement. The purpose of the in another Member State must be based on provision in question is to ensure that the the rules and criteria applied by the Member right of the insured to certain benefits may, State in which the benefits are provided. by derogation from the principle that a per- son is subject to a single body of legislation, which is the basis for the coordination brought about by the Regulation, also be exercised in another Member State (at least) in cases where a transfer is necessary because of the state of health of the person con- cerned. In other words, the provision in question is intended to guarantee to insured That being so, it must therefore be consid- persons the right to receive appropriate care ered whether the risk of upsetting the finan- in another Member State without suffering cial balance, and hence the need for prior financially as a result and without endanger- authorisation, still subsists if the competent social security institution is obliged to make full reimbursement in accordance not with the legislation of the Member State in which 89 — While I do not share the author's view (see paragraph 31 and footnote 36, above), I find more convincing the view the insured person received the care in ques- put forward by da Mavridis in 'Le citoyen européen peut-il se faire soigner dans l'Eut de son choix?' in Droit social, tion, but with the legislation and the tariffs 1996, p. 1086 et seq., according to which it is Article 22 in force in the Member State in which the itself, as interpreted Dy the Court in Pierik I and Pierik II (cited in footnotes 30 and 31 respectively), which requires recipient of the medical care is insured. In authorisation to be granted for all care liable to ensure other words, the question is whether reim- effective treatment of the disease from which the person concerned is suffering. bursing Mr Decker, as he claims, on the same

58. Viewed in those terms, it is clear that dif- ferences in financing methods and in health- care costs between the various systems are immaterial for as long as the competent social security institution does not have t o reimburse benefits received by insured per- sons in another Member State in accordance with the legislation applicable in that State. It is self-evident that reimbursement to Mr Decker of the sum of LFR 1 600, t o which he would have been entitled had he purchased the spectacles from an optician established in Luxembourg, would have n o effect on the financial balance of the system, 59. I believe, however, that the position in any more than would be the case in the event relation to hospital infrastructure is quite dif- of reimbursement of orthodontic treatment ferent and requires a different answer. Unlike provided in Germany to a person insured b y the benefits provided by individual practitio- the Luxembourg health insurance fund in ners, the reality in the case of hospitals is, accordance with the 'Luxembourg' cost of first, that their location and number is deter- such treatment. 90 mined by forward-planning and, secondly, that the cost of one person's stay in a hospi- tal cannot be separated from that of the hos- 90 — The only effect I can conceive of is that one optician estab- pital as a whole. Clearly, if a large number of lished in Luxembourg will have sold one less pair of spec- insured persons chose to avail themselves of tacles and the only orthodontist established i n the same State will have lost one patient. It is therefore the individual hospital facilities located in another Member practitioners who are adversely affected and not the system itself. State, their domestic hospitals would be

under-utilised but would have the same staff which must be provided to insured persons and equipment overheads as if they were in hospitals and, in general, to all benefits being used to full capacity. 91 which the insured person wishes to have paid or reimbursed in full by the competent social security institution. O n the other hand, the measure is not justifiable in rela- tion to the purchase of products or medical services provided by private practitioners, consisting of consultations and visits to spe- cialists, in respect of which a flat-rate reim- In other words, reimbursement, by the com- petent social security institution, of medical bursement is requested at the tariff in force benefits received by insured persons in hos- in the Member State in which the person pitals of other Member States, even on the concerned is insured. basis of a flat-rate equivalent to the 'Luxem- bourg' cost of the benefits in question, would none the less result in an additional financial burden for the system concerned. In the hospital sector, therefore, it remains essential, in order not to disrupt the financial balance of the system and to ensure the maintenance of a service which is accessible, both financially and logistically, to everyone, including therefore those who do not intend to travel but wish to receive the health-care they require in the place nearest to them, to seek and obtain prior authorisation. 92 Action by the Community legislature aimed at harmonising the area in question so as to allow genuine and effective freedom of movement for patients, which would be a significant factor in the creation of a single integrated market, would be welcome. Con- scious of the fact that this is an ambitious 60. In short, it is my view that the contested goal which is difficult to achieve at present, I measure is justified in relation to all benefits believe that the Community legislature should at least act, and do so promptly, to broaden the range of circumstances in which 91 — Of course, this does not mean I wish to associate myself authorisation may not be refused. There is with the view advanced by some Member States that, if freedom to choose one's doctor and hospital were given, no doubt that it would be advantageous in there would be an uncontrolled and uncontrollable flow of many respects for authorisation to be patients from one Member Sute to another. The fact remains that travelling to a Sute other than the Sute of granted in all cases in which the insured per- residence entails significant inconvenience, often including language difficulties, and additional costs, if only for those son could receive more effective treatment in persons accompanying the patient. another Member State or where, as was 92 — On this point, however, the question arises whether, and to what extent, the situation is otherwise, in relation to the explained in the course of the hearing in the aim of maintaining a hospital system accessible to everyone, Kohll case, there is just one specialist in the in those Member Sutes where the competent social security institution provides reimbursement, albeit on a partial and Member State of residence capable of pro- fiat-rate basis, of the cost of benefits which insured persons choose to obtain in private clinics. viding the service required.

(b) in Case C-158/96

Articles 59 and 60 of the Treaty are to be interpreted as precluding national rules under which reimbursement of the cost of benefits is subject to authorisation by the insured person's social security institution if the benefits are provided in a Member State other than the State in which that person resides, on condition that and in so far as such benefits are provided outside the hospital infrastructure and the cost is reimbursed in accordance with the rules not of the State in which they are provided but of the State of insurance; on the other hand, Articles 59 and 60 of the Treaty are to be interpreted as not precluding such rules where their purpose is the preserva- tion of the financial balance along with the maintenance of a hospital service acces- sible to everyone in a given region, where the benefits in question must be provided in hospitals and, in general, in respect of all benefits the cost of which is to be reim- bursed in accordance with the rules of the Member State in which they are pro- vided, rather than the Member State in which the insured person resides.

I-1870