C-368/98

The Community and the national legisla- 1. By this reference for a preliminary tion ruling, the Belgian court is asking this Court to establish the criteria for calculat- ing the level of reimbursement of medical expenses incurred in a Member State other than that where a person is entitled to 2. Council Regulation (EEC) No 1408/71 register with a national social security of 14 June 1971 on the application of scheme. The issue at the basis of the social security schemes to employed per- reference, on which the 10 Member States sons, to self-employed persons and to participating in these proceedings have members of their families moving within submitted observations, concerns recogni- the Community, 2contains specific provi- tion of the right to reimbursement for sions on the movement of EC workers, that medical treatment received abroad. The is to say those persons registered with a crux of the request by the referring court is social security institute in one Member therefore the general question regarding the State who receive medical treatment in reconciliation, on the one hand, of the another Member State. In particular, so protection of the right to choose where to far as concerns the present case, Article 22 receive a particular treatment or medical of that regulation provides that States may consultation and to be able to provide make the right to receive medical treatment medical services to foreigners on the same abroad or payments in cash linked to the terms as those offered to nationals affiliated progression of the illness subject to author- to the national scheme with, on the other hand, the need to safeguard national schemes by limiting the flow of patients in 2 — OJ, English Special Edition 1971 (II), p. 416; see in or out of the country, which might make it particular codified version resulting from Council Regula- tion (EC) No 118/97 of 2 December 1996 amending and impossible or extremely difficult for Mem- updating Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation 1 — Original language: Italian. (EEC) No 1408/71 (OJ 1997 L 28, p. 1).

I - 5367

OPINION OF MR SAGGIO — CASE C-368/98

national authorities are obliged to give ing Regulation (EEC) No 1408/71. 4 In authorisation for medical treatment accordance with Ministerial Circular O.A. abroad. It provides that 'the authorisation No 81/215-80/51 of 18 June 1971, reim- required under paragraph 1(c) may not be bursement may be made only if specific refused where the treatment in question is requirements are met. The circular is wor- among the benefits provided for by the ded as follows: legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account 'The application of Article 22 of Regula- of his current state of health and the tion No 1408/71 should be based on the probable course of the disease'. following principles:

I - 5368

VANBRAEKEL AND OTHERS

which are not reimbursable in Belgium 6. On her return to Belgium she brought an under the compulsory sickness-invalid- action before the Tribunal du Travail ity insurance scheme (absolute bar). (Labour Court of First Instance), Tournai, applying for reimbursement by the ANMC of all the expenses incurred in France. The Belgian court dismissed the action, holding that the decision by the ANMC not to grant authorisation to Mrs Descamps was legitimate as the application for authorisa- tion was not adequately supported. 5

I - 5369

OPINION OF MR SAGGIO — CASE C-368/98

equivalent to the sum that would be cle 22 of Regulation No 1408/71 was reimbursed by the French authorities for refused: the treatment. However, Mrs Descamps maintains that the percentage of reim- bursement is the level provided for by Belgian law which would entitle her to FRF 49 935.44. Must the costs of hospital treatment be reimbursed in accordance with the scheme of the State of the competent institution or in accordance with that organised by the State on whose territory the hospital treat- ment has taken place? 7. Mrs Descamps died on 10 August 1996. Her heirs, namely, her husband — Mr Vanbraekel — and her six children, con- tinued the case before the appellate court. Is a limitation of the amount reimbursed under the legislation of the State of the competent institution permitted, having regard to Article 36 of Regulation No 1408/71 which refers to reimbursement in full?' 8. In its judgment of 9 October 1998 — in which the question now before the Court for a preliminary ruling was submitted —• the Cour du travail states that, in designat- ing the expert to establish whether the applicant's operation was necessary, it 'implicitly accepted' that the medical Admissibility expenses incurred by Mrs Descamps should be paid for by the ANMC. On the matter of the determination of the amount to be reimbursed to Mrs Descamps, the Cour du 9. The Irish, Netherlands, Danish and Uni- travail puts the following question for ted Kingdom Governments have all argued preliminary ruling: that the reference for a preliminary ruling is not admissible as, in their submission, the order for reference does not contain suffi- cient information on the facts and the law to allow participation by Member States in the proceedings for a preliminary ruling.

national provisions applicable. The two the calculation of the reimbursement of the questions referred for a preliminary ruling expenses for medical treatment received in are equally clear in their content: they refer, a Member State other than the one where essentially, to the criteria to be applied in the person is registered. However, in the calculating the amount of reimbursement actual wording of the questions, the refer­ for medical expenses incurred abroad. ring court appears implicitly to raise the Some puzzlement might arise, on reading issue of the significance to be attached, in the order for reference, concerning the the circumstances, to the fact that the connection between an 'implicit statement' claimant in the main proceedings under­ of unlawfulness regarding the refusal of went surgery in France without receiving authorisation by the Belgian administrative prior authorisation from the Belgian autho­ authority, on the one hand, and the inter­ rities, that is to say, those of the State of pretation of the provisions of Community registration. Furthermore, in the grounds of law on the recognition of the right to the order for reference the national court reimbursement, on the other. I consider, asks whether, in the light of Decker and however, that such puzzlement is of relative Kohll, 6the general provisions on freedom importance since, if the questions are deal­ of movement impose particular constraints ing with the amount of reimbursement due on the national authority in a case, such as to the claimant in the main proceedings — that in point in the main proceedings, which is clear from their wording — it has concerning hospital treatment. to be assumed that the referring court has in fact, in this order for reference, acknowl­ edged the applicant's right to reimburse­ ment. In the light of that, I believe that the question referred for a preliminary ruling is undoubtedly admissible. The two questions for a preliminary ruling are therefore coupled with two other points on which all the participants in these proceedings have dwelt at length: the first is whether in this case authorisation within the meaning and for the purposes of Article 22 of Regulation 1408/71 was Substance properly guaranteed, the second, of a general nature, is whether at present, in the light of Decker and Kohll, Member States retain the option — under Arti­ cle 22, cited above — to make the right to reimbursement of the cost of medical treatment provided in a Member State Authorisation procedure under Article 22 of Regulation No 1408/71 other than that where the worker is regis­ tered with a health insurance scheme subject to a particular authorisation proce­ dure.

12. (a) In my opinion, the first point is of any event based on the principle of freedom limited importance for the purpose of of movement, the conditions to be met for answering the questions put by the refer- them to be incompatible with Regulation ring court. In its judgment of 9 October No 1408/71 do not exist. I would add that, 1998, in other words in its actual reference in my opinion, even authorisation granted to this Court, the Cour du travail recog- by the competent administrative authority nises that Mrs Descamps was entitled to after the medical treatment may produce reimbursement of the expenses incurred for the effect of prior authorisation, inasmuch the operation in France, and therefore that as its content is in no way incompatible the refusal by the Belgian authorities to with the provisions of Article 22 of the grant authorisation was unlawful. If the regulation. That article lays down the national court annuls the decision refusing 'minimum rules' to be observed by the authorisation on the basis of its national States in order to allow freedom of move- law which, as we shall see, is based on the ment of health services. Any further mea- Community legislation on the subject, and sure with a similar content, based on the recognises the claimant's right to reimburse- same aims, cannot therefore be considered ment, this Court can only take formal note as being contrary to the regulation. of that decision. Neither Article 22 of Regulation No 1408/71, nor any other provision of Community law, in providing for lapse of the right to reimbursement in the absence of prior authorisation, could have any impact on the effects implicit in the national judgment. It would be contra- dictory to consider that an individual who is entitled under the regulation to receive 13. (b) As regards the more general point treatment abroad loses that right if the concerning the lawfulness of the national competent authority refuses his application provisions which, for the purpose of reim- for authorisation in breach of its obliga- bursement of medical expenses incurred tions under the Community legislation. It abroad, require the person concerned to follows that there is no real problem in this apply for and receive authorisation from case relating to the exercise of the right to the competent authorities of the State of benefit from medical services provided registration, it clearly falls outside the abroad. subject-matter of the dispute in the main proceedings which gave rise to this refer- ence for a preliminary ruling. As I have already had occasion to point out, that dispute does not, as it stands, concern the existence or otherwise of Mrs Descamps's right to reimbursement, but merely the determination of the amount to be reim- bursed. 7

In the order for reference the Belgian court and the Community instrument of second- acknowledges that the claimant — and ary legislation. now her heirs — are entitled to reimburse- ment of the medical expenses incurred in France for the surgical treatment she received there. To that end the national court bases itself on the national provisions which are in some way more favourable to the insured person than the Community 14. In the order for reference the national provisions, in that, as it points out, they court also asks, however, what significance provide more scope for authorisation to be may be attached, for the purposes of this granted to persons who have received case, to the Decker and Kohll judgments of medical treatment abroad. While Arti- 1998 in which the Court declared as cle 22 of Regulation No 1408/71, as amen- incompatible with the general provisions ded by the 1981 regulation, requires on freedom of movement national legisla- authorisation to be granted only for treat- tion, such as that of Luxembourg, on ment which cannot physically be provided reimbursement of medical expenses in- on national territory within a period such curred abroad which more or less repro- as not to interrupt the course of the disease, duced the provisions of the regulation and, the national legislation requires such therefore, made reimbursement subject to authorisation to be given in all cases where authorisation by the national administra- 'the restoration of the patient's health tive authority. Such authorisation was to be requires hospital treatment which can be issued only following a medical examina- given under better medical conditions tion and on submission of a request by a abroad provided that the medical expert doctor established in Luxembourg, listing has first determined such treatment to be the criteria and circumstances which made it impossible to carry out that particular essential'. 8 It is clear that the regulation treatment in Luxembourg. 9 requires the States to grant authorisation only where it is materially and technically impossible to provide the same treatment on national territory. The Belgian legisla- tion, instead, requires a comparison to be made of the treatment provided nationally and abroad and, where the latter is more effective, to grant the claimant the right to 15. In both cases in the national proceed- reimbursement. In the present case, there- ings the refusal to reimburse expenses incurred respectively in purchasing a pair fore, the Belgian system provides for of spectacles with corrective lenses in hypotheses of reimbursement which differ Belgium — Decker — and in receiving in nature and time from those in which the treatment provided by an orthodontist obligation under Article 22 of the regula- established in Germany — Kohll — was tion exists. It follows that there is no disputed; in both cases authorisation had incompatibility between the Belgian law not been given. In both references for a preliminary ruling the Luxembourg courts

asked whether, on the basis respectively of able in cases such as the one now before the Articles 30 and 59 of the Treaty (now Court. Articles 28 EC and 49 EC) the procedure for authorisation under Luxembourg law constituted a restriction on the freedom to provide services or a measure having equivalent effect to a restriction on the importation of medicinal products. Clearly, therefore, the questions did not touch on the applicability in those cases of the 17. Even though those judgments estab- provisions of Regulation No 1408/71. The lished the principle that provisions of Court, following the Opinion of the Advo- national law on the provision of services, cate General, held that the provisions of and on the import and export of products primary law on freedom of movement, as related to the medical sector, do not as such fundamental principles of the Community escape the general principle of freedom of legal order, also apply to the provision of movement, that interpretation was not health services and the marketing of med- extended to services and products which icinal products, although the latter are form an integral part of the national health governed by provisions adopted by the scheme, services and products which in this Member States on the basis of national case may be part of the organisation and legislation on social security. On that basis, functioning of hospital systems. I have the Court concluded that the fact that the reached this conclusion, first, on the basis national legislation was in conformity with of the introductory passage of the grounds Community secondary legislation, Arti- of those judgments, which concerns the cle 22 of Regulation No 1408/71 in those scope of Regulation No 1408/71, and sec- cases, did not have 'the effect of removing ond, on the basis of the interpretation, in that measure from the scope of the provi- the same passage, of Articles 56 and 66 to sions of the Treaty' and was therefore an the effect that the requirements of main- unlawful restrictive measure. taining a medical/hospital service may, however, justify a derogation by Member States from the general provisions.

In Decker, with respect to the application of Article 30 of the Treaty to a measure relating to reimbursement of the sum paid for the purchase of a pair of spectacles with corrective lenses, the Court refers to the Duphar judgment of 1984, 10 in which, ruling on the Netherlands legislation on In Kohll, which concerns reimbursement of reduction of the amount to be reimbursed expenses for orthodontic treatment, the in respect of pharmaceutical products, it Court refers, again regarding the applica- upheld the principle that 'Community law tion of the provisions of the Treaty on does not detract from the powers of freedom of movement (Article 59 in this Member States to organise their social case), to the Webb judgment 13 of 1981. In security systems and to adopt, in particular, that case the Court was asked to rule on the provisions intended to govern the con- Netherlands legislation concerning a sys- sumption of pharmaceutical preparations tem of authorisation for the provision of in order to promote the financial stability labour which, according to national law, of their health-care insurance schemes'. 11 could be prohibited if it was 'in the interests In Duphar the Court also held that, of good relations on the labour market or although the national legislation led to a of the labour force affected'. The French reduction in imports, this could not 'in Government, participating in those pro- itself be regarded as constituting a restric- ceedings, had maintained that that legisla- tion on the freedom to import guaranteed tion, whilst restricting the ability of under- by Article 30 of the Treaty', 12 but would takings in the sector to provide services, amount to a restriction prohibited by the should be regarded as a social- policy Treaty only if there were arbitrary discri- measure and as therefore not being subject mination against foreign products, that is to the principles set out in Articles 48 to 51 to say where foreign products which were of the Treaty. The Court held that argu- cheaper than internal products were exclu- ment to be unfounded, stating that, even if ded from the lists of reimbursable products. the activities of employees from placement In Duphar the Court therefore affirmed, undertakings fell within the scope of the also in respect of intra-Community trade in provisions of primary and secondary law pharmaceutical products, that a State is on freedom of movement of employees, the undertakings engaging in such operations continue to be persons covered by the rules 10 — Case 238/82 Duphar v Netherlands [1984] ECR 523. 11 — See, in particular, paragraph 16. 12 — See in particular paragraph 20. 13 — Case 279/80 Webb [1981] ECR 3305.

on the provision of services. The Court given region', the Court held that, although stressed that the special nature of certain reasons of a purely economic nature con- services does not remove them from the cerning the need to safeguard the function- ambit of 'the rules on the freedom to supply ing of the system cannot justify restricting services'. 14 the freedom to provide services, 'a risk of seriously undermining the financial balance of the social security system' may, however, enable a State to escape the general prohi- bition on hindering the freedom to provide services. 15 Moreover, again in Kohll, the Luxembourg Government pleaded, in defence of its own system, the need to safeguard public health on its own terri- It is clear from the passages from the tory. In that connection, it stated, on the Decker and Kohll judgments cited above, one hand, that the national legislation was as well as from the grounds of the judg- needed to guarantee a check on the quality ments to which they refer that the Court of the medical service that the patient has never held that the application of the intends to receive abroad and, on the other general rules of primary law on freedom of hand, that its own system was intended to movement to the national health-care sec- guarantee 'a balanced medical and hospital tor is to be considered as unlimited and service available to all its insured'.

to provide services. The Court, however, accepted the argument on maintaining 'a balanced medical and hospital service 19. The second point for analysis, with reference to the grounds of the judgments in Decker and Kohll, concerns the applica- 15 — As regards the sacrosanct nature of the State's competence tion of the general rules to hospital infra- with respect to the organisation of social security systems, I structures. In that regard, I would recall would point out that the exclusive nature of that compe- tence is based on the need not to compromise the financial that, in Kohll, in answer to the second equilibrium of those systems (see, inter alia, Duphar, cited above, in particular paragraph 16. and Case C-238/94 question referred for a preliminary ruling, Garcia ana Others v Mutuelle ae prévoyance sociale as to whether any incompatibility inherent [1996] ECR I-1673, in particular paragraph 14).

Consequently, if considered on the basis of the national interests guaranteed by the national social security schemes, it may operate on a general criterion for justifying a derogation in favour of the 14 — In particular paragraph 10. national legislation.

available to all', holding that Article 56 of Court to establish whether courses provi- the Treaty allows Member States to restrict ded in a technical institute forming part of the freedom to provide services if the the national system of secondary education provisions designed to maintain the system came within the scope of Article 59. The are essential for the protection of public Court replied to the question on the basis of health or even the survival of the popula- the concept of 'services' within the meaning tion. of Article 60 of the Treaty, according to which services under Community law are to be understood as 'services normally provided for remuneration', including 'activities of an industrial or commercial character and the activities of craftsmen 20. I consider, therefore, in the light of and the professions'. Furthermore, the those passages from the grounds of the Court stated, for the purposes of defining judgments in Decker and Kohll, that the the scope of those provisions, that 'the Court did not wish in any way to under- essential characteristic' is that there should mine or compromise the competence of the be remuneration, understood as 'considera- Member States with respect to the organi- tion for the service in question,... normally sation of their own national systems of agreed upon between the provider and the public health-care. However, apart from recipient of the service'. As regards the the exclusion of measures on the organisa- instruction provided under national public tion of the medical/hospital service which systems, payment of a school fee was not the Court expressly removed from the considered to be 'remuneration' within the ambit of the general rules, it remains, meaning of Article 60 of the Treaty, for two nevertheless, necessary to define the criteria reasons: the first is that the State establish- to be used to trace the dividing line between ing the system 'is not seeking to engage in services falling under national health-care gainful activity but is fulfilling its duties schemes and those to be considered as towards its own population in the social, excluded and, therefore, as subject to the cultural and educational fields', the second rules on freedom of movement. In my is that the education system 'is, as a general opinion, the criteria in question cannot be rule, funded from the public purse and not identified on the basis of abstract princi- by pupils or their parents'. ples, given the diversity of the individual social security systems and the evolution which they constantly undergo.

23. On the basis of the considerations set out above, I am of the opinion that reimbursement of medical expenses in- curred, as in the present case, in a Member State other than the State of registration for 22. Those health-care services, which are treatment and an operation within the removed from the restrictions and prohibi- framework of a hospital infrastructure, is tions imposed by general rules on freedom governed by Regulation No 1408/71 or by of movement fall, instead, within the scope the national legislation, whichever is the of Regulation No 1408/71 which has as its more favourable, with the result that, in a legal basis Article 51 of the Treaty. That case such as this, the authorities of the State article provides for the Council to adopt of registration may make entitlement to measures for the purpose, not of harmonis- reimbursement subject to an appropriate ing national systems, but of coordinating authorisation procedure. them with regard only to benefits provided for migrant workers within the Commu- nity. This is precisely the object and the purpose of the relevant provisions of sec- ondary legislation in the present case. 17 In confirmation of that interpretation, I would point out that in its judgment in Jordens- Vosters of 1980 18 the Court interpreted Regulation No 1408/71 as being a measure The amount of the reimbursement which, adopted under Article 51 of the Treaty, has as its essential object 'to ensure that social security schemes governing workers in each Member State moving within the Community are applied in 24. As I have already pointed out, the two questions referred for a preliminary ruling 17 — See, to this effect, the fourth and fifth recitals of amending concern the criteria which should be used Regulation No 118/97. to determine the amount to be reimbursed 18 — Case 69/79 Jordens-Vosters v Bedrijfsvereniging [1980] ECR 75. See, to the same effect, Case 41/84 Pinna v Caisse d'allocations [1986] ECR 1, in particular paragraph 21, and Case 313/86 Lenoir v Caisse d'allocations [1988] ECR 5391. In Lenoir the Court States that 'Article 51 of the 19 — See also Case 24/75 Vetroni v ONPTS [1975] ECR 1149 in Treaty provides for the coordination, not the harmonisa- which the Court ruled that Article 46(3) of Council tion, of the legislation of the Member States. As a result, Regulation No 1408/71 was invalid as it was incompatible Article 51 leaves in being differences between the Member with Article 51, because it restricts the possibility of States' social security systems and, consequently, in the aggregating insurance periods expressly provided for by rights of persons working in the Member States. It follows primary legislation. In determining the scope of Article 51, that substantive and procedural differences between the the Court affirmed that this legislation 'requires the social security systems of the Member States, and hence in Council to adopt in the field of social security such the rights of the persons working in the Member States, are measures as are "necessary" to provide freedom of move- unaffected by Article 51 of the Treaty' (paragraph 13). ment for workers'.

It follows, on the one hand, that a person registered with the social security body of a Member State is entitled to full reimburse- 25. The regulation does not contain any ment of all the expenses incurred abroad 21 provision on the law applicable for the and, on the other, that the reimbursement purpose of the calculation of the amount of must be equivalent to that to which the the reimbursement. However, it follows person would be entitled in the case of an from the principles on which Article 51 of identical service provided on national ter- the Treaty is based that coordination of ritory. 22 If the basis for calculating the systems of social security must be such as to reimbursement is the total sum of the prevent any discrimination founded on the expenses incurred abroad — and all the place of residence of the worker. Under Member States participating in the pro- point (b) of Article 51, such coordination ceedings are agreed on this interpretation must be intended to secure for migrant —, the percentage of the reimbursement workers 'payment of benefits to persons will be that prescribed in the law of the resident in the territories of Member State of registration.

State'. It therefore expressly prohibits any discrimination based on nationality. 20 — Paragraph 28 of Decker and paragraph 26 of Kohll. Finally, in the light of the principles set 21 — In that regard, I would point out, for the purposes of Article 34(1) of Regulation No 574/72 (in the codified out in Decker and Kohll, it may also be said version under Regulation No 118/97 cited above), relating that a national measure providing for to reimbursement of expenses incurred during a stay in another Member State if it is not possible to complete the different social security treatment accord- authorisation formalities during an employed or self- employed person's stay, 'bis expenses shall, upon his ing to the place in which the health-care application, be refunded by the competent institution in service is provided constitutes unjustified accordance with the refund rates administered by the institution of the place of stay'. discrimination for the purposes of those 22 — In the national systems where there is no reimbursement provisions of primary and secondary law. but where the person is exempt from payment at the outset, or must pay only a very small part of the fee for the In other words, once the right to reimbur- services, it is this percentage of the fee which should he taken into account in calculating the amount of reimbur- sement is recognised, reimbursement must sement.

26. For its part, Article 36 of Regulation No 1408/71, the subject of the second In support of that interpretation, I would question referred to the Court, according point out that Article 13 of Regulation to which '[B]enefits in kind provided in No 1408/71 states that 'a person employed accordance with the provisions of this in the territory of one Member State shall chapter by the institution of one Member be subject to the legislation of that State', State.

defines the scope of such benefits. 25 Fur- vides only that the State of registration is thermore, Article 22, cited above, provides required to refund in full the State where the service is provided the costs of the health-care treatment, 27 provided that the 23 — In my opinion, there is, furthermore, justification for also cost has not already been recovered by applying these conclusions to health services not within the scope of Regulation No 1408/71, that is to say to the services covered by Article 59 of the Treaty.

In my trative and/or health authorities as well as a (frequently opinion, the proper observance of the procedure under prolonged) waiting period for the worker applying for Article 22, cited above, is of no relevance for the purpose medical treatment. Whilst under various national systems, of calculating the reimbursement, since it affects the actual the first category of treatment does not qualify for entitlement to recover medical expenses incurred abroad, reimbursement, even if the treatment is provided on so that, in a case such as this, in the absence of any national territory (which usually happens where the authorisation, the person concerned will not have the right treatment is not provided by particular doctors or in to claim full or partial reimbursement of the price of the specific institutions), the second category is normally the medical services received abroad unless the national responsibility of the national health-care scheme and, legislation grants this right. therefore, entitlement to reimbursement must as a rule be recognised if the relevant criteria are fulfilled. 27 — On this point, see also Article 93 of Regulation No 574/72, under which reimbursement of the benefits 24 — See Case 117/77 Pierik [1978] ECR 825, in particular provided in kind, inter alia, under Article 22 is to be made paragraph 19. 'by the competent institution to the institution which 25 — See Case 35/73 Kimz v Bundesversichenmgsamtalt [1973] provided the said benefits as shown in the accounts of that ECR 1025. institution'.

(2) Article 36 of Regulation (EEC) No 1408/71 must be interpreted as meaning that it does not concern reimbursement of individuals who have received medical treatment abroad, but reimbursement of the competent institutions which bear the health-care expenditure connected with the benefits in kind referred to in Article 22 of that regulation.

I-5381