C-157/99

OPINION OF MR RUIZ-JARABO — CASE C-157/99

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 18 May 2000 1

1. The Arrondissementsrechtbank (District fondswet (Law on sickness funds) ('ZFW), Court), Roermond (Netherlands), has on which covers ordinary health care. 3 this occasion referred two questions to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) in order to resolve two disputes pending before it. It asks, essen- tially, whether Articles 59 (now, after amendment, Article 49 EC) and 60 (now 3. Under Article 5(1) of the ZFW, persons Article 50 EC) of the EC Treaty preclude falling within its scope must register with a legislation enacted by a Member State in sickness insurance fund active in the muni- the area of compulsory sickness insurance cipality in which they are resident; 4the which requires persons insured under it to fund is required to register such persons as obtain authorisation from their insurance insured persons. It is a system which fund in order to claim entitlement to provides only for health-care benefits in benefits from a medical practitioner or kind. Insured persons are therefore entitled health-care institution, situated in the same not to the reimbursement of whatever Member State or abroad, with whom or sickness costs they may incur, but to the which the fund has not entered into an provision of free health care. agreement, or, otherwise, to pay the costs incurred without entitlement to reimburse- ment.

within professional circles'. The decisive [...] factor for present purposes is what the medical profession in the Netherlands regards as normal. In general, treatment is not recognised as normal where it is not provided or recommended because it has not been sufficiently endorsed by interna- tional or national scientific research. What 4. A sickness insurance fund may, by way matters is the extent to which a particular of derogation from paragraphs 1 and 2 treatment is regarded as the appropriate hereof, authorise an insured person, in professional procedure; if it has a valid order to claim entitlement to a benefit, scientific basis, it is recognised as a benefit to apply to another person or establish- within the meaning of the ZFW. ment in the Netherlands where it is necessary to do so in order to ensure proper care. The Minister may deter- mine the cases and circumstances in which an insured person may be granted authorisation to claim entitle- ment to a benefit from a person or 5. Article 9 of the ZFW governs claims for establishment outside Netherlands ter- entitlement to care and provides, so far as is ritory.' relevant:

'1. An insured person who wishes to claim 6. The requirement of obtaining such entitlement to a benefit shall [...] apply authorisation is contained in Article 1 of to a person or establishment with the Regeling hulp in het buitenland zieken- whom or which the sickness insurance fondsverzekering (Regulation on health fund with which he is registered has for care abroad under the sickness insurance that purpose entered into an agreement rules) of 30 June 1988, 5which provides:

determine that such action is necessary for Sickness funds have extensive freedom in the health care of the insured person'. 6 concluding agreements with both medical practitioners and health-care institutions. They are, nonetheless, subject to two restrictions: a fund must, if so requested by a health-care institution situated in the region in which the fund is active or regularly used by the local population, enter into an agreement with that institu- 7. In order to be able to offer benefits in tion; and funds must conclude agreements kind to insured persons, sickness funds only with medical practitioners qualified to must, under Article 44(1) of the ZFW, enter administer the treatment in question and into agreements with persons and establish- with authorised health-care institutions. ments offering one or more forms of care. Article 44(3) thereof goes some way towards defining the content of such agree- ments, which are to include the nature and extent of the obligations and rights of the parties, the category of care to be provided, the quality and effectiveness of the care, its cost, and supervision of compliance with the terms of the agreement. The insurance fund may terminate the agreement if the person or establishment concerned fails to comply with its terms.

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Provided that the normality criterion is 10. By decision of 30 September 1996, satisfied, it must then be considered whe- reaffirmed by decision of 28 October ther the authorisation can be granted 1996, the defendant institution informed pursuant to Article 9(4) of the ZFW in the plaintiff that she could not be reim- conjunction with Article 1 of the regulation bursed under the ZFW. The reason for the on medical care abroad under the compul- refusal was that adequate and appropriate sory sickness insurance scheme. The criter- treatment for her illness was available in ion in that respect is whether the medical the Netherlands and it was not therefore treatment is 'necessary for the health care necessary to seek specific clinical treatment of the person concerned', regard being had at the Elena Clinic. to whether, in view of the treatment methods available in the Netherlands, the treatment provided abroad is necessary from a medical point of view.

11. The plaintiff did not agree with that decision and sought the opinion of the Ziekenfondsraad (Sickness Funds Council). The Council's appeals committee delivered its opinion on 7 April 1997. It found that both the defendant's decision and the II. The facts of the dispute between Mrs reasoning underlying it were correct. The Geraets-Smits and Stichting Ziekenfonds plaintiff appealed against that decision to the Arrondissementsrechtbank, claiming that the specific clinical treatment in Ger- many was indeed more effective than the fragmented approach in the Netherlands.

III. The facts of the dispute between Mr Peerbooms and Stichting CZ Groep Zorg- verzekeringen 14. By decision of 26 February 1997, the neurologist's request was refused — on the advice of the medical adviser — on the ground that the appropriate treatment for the patient could be obtained from a health-care institution having an agreement with the patient's sickness fund or, failing 13. Mr Peerbooms (the plaintiff in the that, from a non-contracted institution in second case), who was born on 8 April the Netherlands. The neurologist submitted 1961, fell into a coma following a road- a further, more detailed, request which was traffic accident on 10 December 1996. On again refused on 5 March 1997. A com- 24 February 1997, his neurologist plaint was lodged but was dismissed as requested Stichting CZ Groep Zorgverze- being unfounded. In line with the opinion keringen, the defendant institution, to bear of the appeals committee, and after hearing the costs of the plaintiff's treatment at the the views of the medical adviser once again, University Clinic in Innsbruck (Austria). the sickness fund remained of the view that, on current medical thinking, the treatment of comatose patients in Innsbruck was not more effective than the facilities available in the Netherlands and that it was not therefore necessary to go to Austria to receive care. That clinic offers a special intensive neuro- stimulation therapy which, in the Nether- lands, is used only experimentally at one rehabilitation centre in Tilburg and at another in Utrecht. The plaintiff was not admitted to either clinic because, for the purposes of that experiment, the two 15. The plaintiff appealed against that centres do not accept patients over decision. The Arrondissementsrechtbank twenty-five years of age. He was therefore appointed an expert witness in this case due to be transferred to the rehabilitation centre in Hoensbroeck, where the therapy in question is not used. He was in fact 8 — That is to say, two days before his neurologist sought authorisation from the sickness fund for him to receive care admitted to the clinic in Innsbruck on at that centre.

'1. (a) Must Articles 59 and 60 of the EC Treaty be interpreted as meaning (c) What is the answer to Question that a provision such as Arti- 1(a) where the treatment abroad is cle 9(4) of the ZFW in conjunction deemed to be normal and therefore with Article 1 of the rules on to constitute a benefit but the health care abroad under the sick- requisite authorisation is refused ness insurance scheme is inconsis- on the ground that timely and tent with those Treaty provisions adequate care can be obtained where the national rules cited pro- from a contracted Netherlands

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care provider and treatment vices" within the meaning of this Treaty abroad is therefore not necessary where they are normally provided for for the health care of the person remuneration, in so far as they are not concerned? governed by the provisions relating to freedom of movement for goods, capital and persons.

2. If the requirement to obtain authorisa- tion constitutes a barrier to the free- dom to provide services enshrined in Articles 59 and 60 of the EC Treaty, "Services" shall in particular include: are the overriding reasons in the gen- eral interest relied on by the defendants (inter alia, in the letter cited above of 14 July 1998) sufficient in order for the barrier to be regarded as justified?'

[...]

The authorisation required under para- '1. An employed or self-employed person graph 1(c) may not be refused where the who satisfies the conditions of the legisla- treatment in question is among the benefits tion of the competent State for entitlement provided for by the legislation of the to benefits, taking account where appro- Member State on whose territory the priate of the provisions of Article 18, and: person concerned resided 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 of his current state of health and the probable course of [...] the disease.

(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 condi- tion,

VI. The recent case-law of the Court of Justice on freedom to provide services in the context of reimbursement of medical shall be entitled: costs incurred in another Member State

20. On 28 April 1998, the Court of Justice (i) to benefits in kind provided on behalf gave judgment in the Decker 10 and Kohll 11 of the competent institution by the cases. Both judgments have been the sub- institution of the place of stay or ject of abundant academic legal commen- residence in accordance with the provi- tary 12 and gave rise to fears, when deliv- sions of the legislation which it admin- ered, that they would cause incalculable isters, as though he were insured with it; the length of the period during which benefits are provided shall be 10 — C-120/95 [1998] ECR I-1831. 11 — C-158/96 [1998] ECR I-1931. governed, however, by the legislation 12 — The number of commentators who have written about of the competent State; those two judgments, to date, is in excess of 40.

21. The judgment in Kohll, on the other hand, concerned the provision of cross- border services. The questions had been referred by the Cour de Cassation (Court of Cassation), Luxembourg, in the course of 23. As to restrictive effects, the Court held proceedings brought by Mr Kohll against that, while the Luxembourg rules did not the decision of his sickness fund refusing to deprive insured persons of the possibility of give authorisation for his daughter to be approaching a provider of services estab- treated by an orthodontist in Germany, on lished in another Member State, they did the ground that the treatment was not make reimbursement of the costs incurred urgent and could be provided in Luxem- in that State subject to prior authorisation, bourg. while reimbursement of those incurred in the State of insurance was not subject to authorisation. It therefore decided that such rules deterred insured persons from approaching providers of medical services established in another Member State and 22. With regard to the application of the therefore constituted for them and their freedom to provide services to treatment patients a barrier to freedom to provide services. 15

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As it had not been shown that the rules judgments have left many questions unan- were necessary in order to attain those two swered, since they did not determine whe- objectives, the Court held that they were ther or not that case-law is also applicable not justified on grounds of public health. to health care provided in hospitals, 20 or whether its scope is confined to social security systems, like that in Luxembourg, under which the cost of hospital and medical care received by a patient is either paid on his behalf or reimbursed to him in full or in part, 21 or, on the other hand, extends to systems which, like that in the VII. The proceedings before the Court of Netherlands, are organised in such a way as Justice to provide insured persons with health care in kind. 22 That is the very question which the Court must answer when it gives judgment in the present case. 23

institutions. 19 — P. Mavridis, in 'Libéralisation des soins de santé: un premier diagnostic' [Liberalisation of health care: an initial 22 — These doubts are expressed by A. P. van der Mei in 'Cross- diagnosis], published in Revue du Marché Unique Eur- border access to medical care within the European opéen, 1998, No 3, pp. 145 to 196, in particular p. 195, Union — Some reflections on the judgments in Decker states '[.

disaster. They had long been in the pipeline'. J. Ph. entitled to be reimbursed? In which cases can Member Lhernould, in 'Une caisse de sécurité est-elle tenue de States refuse to pay the "medical bill"? Do Member States rembourser les frais médicaux engagés par un assuré dans have the right to protect themselves against a possible large un autre Etat membre?' [Is a social-security fund required influx of patients coming from abroad?' Some commenta- to reimburse the medical costs incurred by an insured tors, such as A. Bonomo, in Giustizia Civile, 1998, I, person ín another Member State?], published in Revue de pp. 2391 to 2401, in particular p. 2401, take the view that droit sanitaire et social, 1998, pp. 616 to 623, in particular implementation of the single market is incompatible with p. 622, regards it as a positive development that those two such restrictive State rules which require prior authorisa- judgments have triggered a movement of resistance to the tion to be obtained for the reimbursement of medical costs practice whereby Member States almost automatically incurred in another Member State and unjustifiably hinder refuse to give authorisation for insured persons to receive the free movement of patients within the Community. health care in another Member State at the expense of their 23 — As anticipated by M Thill in 'Decker et Kohll ou la libre

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28. In addition to Stichting CZ Groep United Kingdom, and Iceland respectively, Zorgverzekeringen, the sickness fund and the agent for the Commission pre- against which Mr Peerbooms brought pro- sented oral argument. ceedings before the Arrondissementsrecht- bank, Roermond, and the Commission, 10 of the 15 Member States have submitted written observations in these proceed- ings, 24 within the time-limit laid down for that purpose in Article 20 of the EC 30. Stichting Ziekenfonds VGZ, the fund Statute of the Court of Justice: Belgium, against which Mrs Geraets-Smits brought Denmark, Germany, France, Ireland, Neth- proceedings, considers that Member States erlands, Portugal, Finland, Sweden and the are free to organise their social security United Kingdom. To these must be added systems and that the provisions of the two States belonging to the European Treaty cannot prevent such a system from Economic Area: Iceland and Norway. This operating on the basis of agreements con- is clear proof of the expectations which cluded by sickness funds with medical have been raised by this case and the practitioners and health-care institutions interest with which the Court's decision is entitling them alone to provide health care awaited. to insured persons. On that premiss, the restrictions inherent in a system such as the Netherlands compulsory sickness insurance scheme, which provides only benefits in kind, are likewise incapable of being incompatible with the Treaty.

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and based on treatments of proven scien- 32. I am not going to set out the views tific benefit, and that it is irrelevant for expressed by each Member State in its present purposes whether or not a benefit observations separately; I shall merely not considered normal in the Netherlands is summarise them, since they are largely the covered by sickness insurance in another same. Member State. The agreements which sick- ness funds conclude with medical practi- tioners and health-care institutions govern the cost and quality of the care and ensure that the financial balance of the system is maintained by fixing a budgetary frame- work, limiting facilities and providing financing, which is governed by law. It states that the decisive factor in authorising an insured person to go abroad to receive treatment is no longer whether that treat- Judging from their observations, the Mem- ment can be provided in good time in the ber States appear to fall into two major Netherlands, but whether it can be provi- groups in terms of their views. Those in the ded by a medical practitioner or health-care first group, namely Belgium, France and institution with whom or which the fund Austria, consider that the health care has entered into an agreement, irrespective provided under a public social security of the State in which they are established. scheme is a service within the meaning of Health care from a provider not having an Article 60 of the Treaty. Those in the agreement with the sickness fund, on the second group, however, which comprises other hand, is still subject to prior author- Germany, Ireland, the Netherlands, the isation. United Kingdom, Denmark, Sweden, Fin- land and Iceland, take the view that health care under a social security system orga- nised in the form of benefits in kind does not constitute a service within the meaning of Article 60. Portugal and Norway have expressed no views on this point.

33. At the end of the written procedure, the Netherlands legislation, are both consistent Court asked the Netherlands Government with Article 22 of Regulation No 1408/71, whether it had amended its national legis- and that, when applying the first, a Mem- lation in order to bring it into line with the ber State has a broad discretion in deciding case-law established in the aforementioned which benefits are covered by a particular judgments in Decker and Kohll. It states in social security scheme. In practice, how- its reply that that case-law does not require ever, those two criteria must be applied in a any reform of the ZFW as regards the manner compatible with Community law. conclusion of agreements between funds, on the one hand, and medical practitioners and health-care institutions on the other. It adds that several projects had been intro- duced to develop the provision of cross- border health-care before the events mate- In its view, there is some evidence in the rial to Geraets-Smits and Peerbooms took Netherlands legislation that the conditions place, although the judgments cited have for granting authorisation to receive health been instrumental in increasing the number care abroad differ from those laid down for of agreements concluded with health-care treatment in the Netherlands, and that the institutions established in other Member requirement of authorisation could there- States. fore constitute a specific barrier to the freedom to provide services.

At the hearing, Stichting Ziekenfonds VGZ informed the Court that it had begun negotiations with medical practitioners VIII. Analysis of the questions referred to and health-care institutions in other Mem- the Court ber States with a view to concluding agreements on the provision of health care for those insured with it. Stichting CZ Groep Zorgverzekeringen stated, for its part, that it had already concluded similar agreements with both medical practitioners and health-care institutions situated in A. The health care provided for under the Belgium and Germany. compulsory sickness insurance scheme in the Netherlands and the concept of services within the meaning of Article 60 of the Treaty

36. In order to answer the question thus recast, it is appropriate, first of all, to determine whether the medical and hospi- tal care available under the Netherlands 37. I should like to make it clear that the sickness insurance scheme falls within the analysis that follows relates specifically to scope of the freedom to provide services. health care provided solely in the form of Put simply, the issue is whether the benefits benefits in kind by a social security scheme to which insured persons are entitled under such as that at issue, under which insured the ZFW are services for the purposes of persons have no entitlement to reimburse- Article 60. ment of the costs incurred in obtaining care. I consider it necessary to make this preliminary clarification in order to avoid any confusion, since the Court of Justice has on several occasions firmly held that certain medical benefits are to be regarded as services for the purposes of Article 60 of the Treaty, and that persons who move to In paragraph II.3 of its order for reference, the Arrondissementsrechtbank says that it is proceeding from the premiss that the 26 — It has emerged from the proceedings pending before the treatments which the plaintiffs in the main Court of Justice in Case C-411/98 Ferlini v Centre Hospitalier de Luxembourg (OJ 1999 C 20, p. 18) that, proceedings received in Germany and Aus- in Luxembourg, persons requiring treatment who are not tria are services within the meaning of insured under the national social security scheme have to pay considerably more than those who are insured. The Article 60 of the Treaty. I do not have Report for the Hearing in that case states that, at the material time (1989), persons insured under the Luxem- sufficient information to form an opinion bourg social security scheme were charged LUF 36 859 for on this point. However, I do not consider childbirth, while those not insured had to pay LUF 59 306 (that is to say 71.43% more) for the same benefit in the this to be a decisive factor in answering the same hospital. Advocate General Cosmas, in the Opinion he delivered in that case on 21 September 1999, consid- questions raised. If those treatments are ered that difference in treatment to be contrary to services within the meaning of Article 60, Article 7(2) of Council Regulation No 1612/68 on free- dom of movement for workers within the Community (OJ, the freedom of both patients to go to English Special Edition 1968 (II), p. 475).

Examples of that rule can be found, more- over, in paragraph 29 of the judgment in 38. Under Article 60 of the Treaty, services Kohll, which concerned treatment provided are to be regarded as 'services' where they by an orthodontist, in the judgment in are normally provided for remuneration, in Society for the Protection of Unborn Chil- so far as they are not governed by the dren Ireland, 27 where it was held that provisions relating to freedom of move- medical termination of pregnancy, per- ment for goods, capital and persons. Such formed in accordance with the law of the 'services' are to include, in particular, the State in which it is carried out, constitutes a activities of independent professionals, and, service within the meaning of Article 60 of as the Court has held, the special nature of the Treaty, and in the judgment in Luisi and certain of those services is not capable of Carbone, 28where it was held that freedom removing them from the ambit of the rules to provide services includes the freedom, on freedom of movement 29 for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments, and that persons receiving medical treat- ment are to be regarded as recipients of There is no doubt that medicine has services. traditionally been practised by independent professionals, although nowadays this is not always the case since, in some Member States, many doctors are employed by the national social security system, while others combine such employment with In all those examples, the Court was at private medical practice. pains to point out either that the benefit had been provided for remuneration, as in the first case cited, or, as in the second, that termination of pregnancy is a medical activity which is normally provided for remuneration and may be carried out as 39. The Court has consistently held that part of a professional activity. In the third Community law does not detract from the case, an Italian national had been fined for powers of the Member States to organise having exported currency in excess of the their social security systems. 30 amount authorised by the national foreign-

40. In exercising those powers, the Nether- incur, without entitlement to reimburse- lands has organised a compulsory sickness ment. insurance scheme which covers all persons whose income does not exceed a certain amount and which is managed by sickness funds with separate legal personality. It is 42. That fundamental difference causes me financed from the contributions paid by to question whether the treatment provided insured persons and employers, and an by medical practitioners and health-care annual payment made by the State, from institutions in such circumstances may be the public purse, to the general sickness regarded as a service within the meaning of insurance fund. The sickness insurance Article 60 of the Treaty, in view of the fact funds are responsible for concluding with that the person for whom the service is medical practitioners and specialist institu- provided does not receive it in return for tions agreements for the provision of health remuneration. care to the persons registered with them.

43. The Court of Justice has of course made it clear, in its judgment in Bond van Adverteerders, 32 that Article 60 of the Treaty does not require the service to be paid for by those for whom it is performed.

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bute to hospitals, it is necessary first of all means of an arithmetical formula whereby to determine the budget for each hospital in amount A, representing average income, 37 order to establish the permissible costs, 34 is added to amount B, representing the and then to ascertain the supplementary average cost of running a practice, 38 the charges 3 5and the attendance charge, 36 sum of which is divided by a factor that is to say the charge for each day a representing the workload (on the basis, patient is accommodated in hospital, for example, of 2 350 patients a year, in the although that charge does not reflect the case of a general practitioner, and however real cost of accommodation. The charges many deliveries a year, in the case of a are intended to finance the budget of each midwife). That calculation means that, for health-care institution; the budget is the year 2000, a general practitioner will adjusted year on year, so that, if income receive from the sickness insurance fund exceeds expenditure, the attendance charge with which he has concluded a health-care for the following year will be reduced and, agreement the amount — known as a if expenditure has exceeded income, it will subscription charge 39 — of NLG 133 for be increased. every insured person who has chosen to be treated at his surgery, irrespective of the number of patients he actually sees, and regardless of the fact that some may need to be seen more often than others and some may not need to be seen at all at any time during the year. 40

46. Under that system of compulsory sick- 34 — The budget is calculated on the basis of four elements: infrastructure costs; operating costs, which remain fixed ness insurance, the funds operate by con- irrespective of the level of occupation of the facilities; semi- fixed costs, which are based on capacity, beds and specialist units, and variable costs, which depend on the volume of activity in each hospital. 37 — This includes salary, holiday pay, insurance, bonuses, 35 — These are nation-wide charges for certain activities per- premiums and pension plans. The salary is determined formed by the hospital. There are approximately 1,600 on the basis of the pay scales applicable to public servants such charges for every type of treatment: operations, and is adjusted annually. diagnoses, tests etc. 38 — There are general guidelines for calculating the cost of 36 — This is different for each hospital and varies considerably running the facilities necessary for each profession. from one to the other. It is obtained from the hospital's Account is taken of the cost of accommodation, transport, budget as follows: receipts from supplementary charges are support staff, telephones, catchment area, instruments etc. deducted from the budget and the figure arrived at is Costs are adjusted as and when the need arises, for divided by the estimated number of days of hospital example to provide for the computerisation of practices. accommodation, that is to say the period for which a patient occupies a bed. It does not reflect the real cost of a 39 — That charge rises to NLG 157 for each insured person over day's hospital accommodation, but is used to balance the the age of 64. financing of each hospital. In the example given in the 40 — The system of remuneration for contracted practitioners aforementioned leaflet, the estimated number of days of providing health care under the compulsory sickness hospital accommodation for hospital x was 115 000, insurance scheme is clearly different from the system which, applied to a budget of NLG 104 940 000, and applicable to private patients, where consultations are paid estimated receipts by way of supplementary charges of for individually rather than on the basis of a subscription NLG 36 355 000, gives an attendance charge of NLG 596. charge.

cluding with health-care institutions and neration required by Article 60 of the independent medical practitioners agree- Treaty is lacking. 44 ments in which they determine in advance the extent and quality of the benefits to be provided, and the financial contribution the fund will make, which, for practitioners, consists in the payment of a fixed flat-rate amount, and, for each hospital, in the 47. The position is similar in the case of payment of an attendance charge, which national education systems, in connection is intended to finance the institution rather with which the Court has had occasion to than to cover the real cost of hospital express its views on the principle of free- accommodation. dom to provide services.

described. Under the Luxembourg system, establishing and maintaining such a system, as indeed the Court confirmed, the relation- is not seeking to engage in gainful activity ship between the insured person and the but is fulfilling its duties towards its own practitioner is characterised by a provision population in the social, cultural and of 'services' within the meaning of Arti- cle 60 of the Treaty, 43 but I am also convinced that there is no such provision 44 — For a detailed examination of the statutory social security of 'services' under the system I am con- systems in force in the Member States, see R. Langer:

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educational fields, and, secondly, the sys- entity and the way in which it is tem in question is, as a general rule, funded financed,48 it held that sickness insurance from the public purse and not by pupils or funds and the organisations involved in the their parents. management of the public social security system fulfil an exclusively social function, since that activity is based on the principle of national solidarity and is entirely non- profit-making, and the benefits paid are statutory benefits bearing no relation to the amount of the contributions.

In Wirth, 46 it held those findings to be equally applicable to courses provided in establishments of higher education financed largely from public funds. It emphasised, however, that, whilst most higher education establishments are 49. In the light of the characteristics of the financed in this way, some are nevertheless Netherlands compulsory sickness insurance financed essentially out of private funds, in scheme which I have described, I take the particular by students or their parents, and view that the health-care benefits in kind seek to be commercially profitable. When which it provides to insured persons lack courses are given in such establishments, the element of remuneration and are not they become services within the meaning of therefore services within the meaning of Article 60 of the Treaty since they offer a Article 60 of the EC Treaty. service in return for remuneration.

B. The restrictive effects of the provisions 52. It is my view that, worded thus, the of the compulsory sickness insurance question must be answered in the affirma- scheme on freedom to provide services tive. After all, in practice, the obligation to request and obtain such authorisation con- stitutes a restriction on the freedom to provide services, since it makes it more difficult and less attractive for insured persons to go to another Member State to 51. Does the fact that Article 9(4) of the receive health care. ZFW, in conjunction with Article 1 of the regulation on health care abroad, makes the possibility of approaching a non-con- tracted medical practitioner or health-care institution situated abroad subject to prior authorisation from the insurer constitute a restriction on the freedom to provide services? 53. The Court has held in that respect that, with a view to the achievement of a single market and in order to permit the attain- ment of its objectives, Article 59 of the Treaty precludes the application of any I shall take account in my reasoning of the national legislation which has the effect of doubts raised by the Arrondissementsrecht- making the provision of services between bank in Question 1(b) and (c), that is to say Member States more difficult than the whether the criterion of what is regarded as provision of services purely within one 'normal in professional circles' has any Member State. 49 Although the Netherlands bearing in deciding whether a particular legislation at issue does not deprive insured health-care benefit is covered by the insur- ance scheme in question, whether it makes any difference that the same benefit is 49 — Case C-381/93 Commission v France [1994] ECR 1-5145, paragraph 17, and Kohll, cited in footnote 11 above, covered by a social security scheme in paragraph 33.

56. The Court of Justice has held in this regard that national rules which are not applicable to services without distinction as regards their origin and which are therefore discriminatory are compatible with Com- munity law only if they can be brought within the scope of an express deroga- C. Whether the requirement of prior tion. 53 Article 66 of the EC Treaty (now authorisation in order to claim entitlement Article 55 EC) provides that Articles 55 to to benefits in another Member State is 58, which appear in the chapter on the justified right of establishment, are to apply to freedom to provide services. Article 56 lays down as exceptions to both those freedoms measures contained in provisions of national law prescribing special treatment for foreign nationals on grounds of public policy, public security and public health. 55. The obligation to abolish restrictions Economic aims cannot constitute grounds on freedom to provide services was inter- preted by the Court of Justice as prohibit- ing all discrimination against the person 51 — Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsver- providing the service by reason of his eniging voor de Metaalnijverheid [1974] ECR 1299, paragraph 25. See also the judgments in Joined Cases nationality or the fact that he is established 110/78 and 111/78 Ministère Public v Van Wesemael and Others [1979] ECR 35, paragraph 27, and Webb, cited in in a Member State other than that in which footnote 29 above, paragraph 14. 52 — C a s e C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8, and Case C-360/89 Commission v Italy [1992] LCR I-3401, paragraph 11. 50 — Luist and Carbone and Bachmann, cited in footnote 15 53 — Bond van Adverteerders and Others v Netherlands, cited in above, paragraphs 16 and 31 respectively, and Kohll, cited footnote 32 above, paragraph 32, and Case C-260/89 ERT in footnote 11 above, paragraph 35. v Dimotiki [1991] ECR I-2925, paragraph 24.

58. The Commission, for its part, submits 59. I do not agree with that assessment. that the first criterion favours medical The criterion of what is 'normal in profes- practitioners and health-care institutions sional circles', which is determined on established in the Netherlands in that it objective medical grounds and without takes into account only national medical regard to the place where the treatment is opinion. It is a neutral criterion which is provided, is used to decide which benefits applied to national and foreign providers of are covered by the compulsory sickness services without distinction but which, in insurance scheme. Although that decision is practice, is prejudicial to those in other taken with reference only to national Member States. The second criterion, it medical opinion, the impact of foreign contends, is applied differently depending expertise, as imparted through the contri- on whether the non-contracted health-care butions to medical science made by specia- provider to be consulted is situated in the lists from other States at international Netherlands or abroad, since, under the conferences and in specialist literature, national legislation, before a non-con- must not be underestimated. tracted institution abroad is used, a check must be made to see whether any non- contracted institution in the Netherlands can offer the care in question. For that

54 — Bond van Adverteerders and Others v Netherlands, cited in Furthermore, in deciding which benefits are footnote 32 above, paragraph 34. to be covered by the sickness insurance

55 — As an example of such differences, I can cite tile Spanish 58 — Dupbar and Others and Sodemare and Others, cited in genera! social security scheme, under which health care in footnote 30 above, paragraphs 16 and 27 respectively. the fields of stomatology and odontology does not include 59 — C a s e 110/79 Coonan v Insurance Officer [1980] ECR the cost of or procedure for fillings (except for persons 1445, paragraph 12, Case C-349/98 Parasela [1991] ECR under the age of fourteen), endodontics, dental prostheses, I-4501, paragraph 15, and Kohll, cited in footnote 11 osteo-integrated implants and orthodontics. above, paragraph 17. 56 — In Spain, for example, it appears that the Servicio Andaluz 60 — Joined Cases C-4/95 and C-5/95 Stöher and Plosa Pereira v de Salud (Andalítóan Health Service] was the first public- Bundesanstalt fur Arbeit [1997] ECR I-511, paragraph 36, health institution to include sex changes among its and Kohll, cited in footnote 11 above, paragraph 18. benefits. 61 — Coonan, cited m footnote 59 above, paragraph 12, Case 57 — To give an example of such differences in cover, Miss Kohll 368/87 Hartman Troiani v Landesversicberitngsanslalt could have obtained her orthodontic treatment from a Rheinprovinz [1989] ECR 1333, paragraph 2 1 , Case private specialist m Spain and claimed reimbursement in C-245/88 Daalmeijer [1991] ECR I-555, paragraph 15, Luxembourg, but a person insured under the Spanish Case C-297/92 INPS v Bagheri [1993] ECR I-5211, social security scheme cannot obtain such treatment paragraph 13, and Case C-340/94 De Jaeck v Staatssecre- anywhere without bearing the full cost himself. taris van Fmanciëit [1997] ECR I-46I, paragraph 36.

61. As regards the criterion of 'the necessity of the treatment' for the insured person, I do not infer from Article 9(4) of the ZFW, 62. As I see it, in requiring that an insured read in conjunction with Article 1 of the person obtain authorisation from his fund, regulation on medical care abroad under the Netherlands legislation on compulsory the compulsory sickness insurance scheme, sickness insurance does not discriminate as the Commission does, that it is applied between recipients of services on grounds differently depending on whether a course of nationality, since it applies to all persons of treatment regarded as a benefit is to be wishing to go to another Member State; followed in a non-contracted establishment furthermore, in differentiating only in the Netherlands or abroad. In both cases, between contracted and non-contracted the sole condition is that such treatment be providers, regardless of whether they are authorised by the sickness fund. established in the Netherlands or abroad, it does not discriminate between insured persons by reason of the origin of the benefit either. 62

62 — This situation is clearly different from that in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, where the Court held that it was not necessary for all undertakings in a Member State to be placed at an advantage in comparison with foreign undertakings, it It should be emphasised, however, that the being sufficient that the preferential system set up should benefit a national provider of services. In that case, the national court's uncertainty concerns a Commission criticised the Netherlands for requiring different situation, namely that of an national broadcasters established in its territory to entrust the making of all or part of its programmes to a Nether- insured person who is not authorised to lands undertaking.

63. The national court seems unconvinced which the rules do not formally draw any that there is no discrimination inasmuch as distinction regarding medical practitioners it finds that the agreements in question are from other Member States, I should point largely concluded with institutions estab- out that, according to the Court, Article 59 lished in the Netherlands. requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other It should be added that, in the light of Member States, when it is liable to prohibit Council Directive 93/16/EEC of 5 April or otherwise impede the activities of a 1993 to facilitate the free movement of provider of services established in another doctors and the mutual recognition of their Member State where he lawfully provides diplomas, certificates and other evidence of similar services. 64 formal qualifications, 63 and of the fact that the Netherlands Government states in paragraph 56 of its written observations that a health-care institution authorised to operate in another Member State is auto- matically authorised to enter into an agree- ment with sickness funds in the Nether- lands, there appears to be no statutory bar precluding funds from concluding such 65. The Court thus considers that freedom agreements with medical practitioners and to provide services, as one of the funda- health-care institutions in other Member mental principles of the Treaty, may be States. The fact that, for reasons of com- restricted only by provisions which: mon sense and in order to make it easier for persons registered with them to receive care when they are ill, sickness funds seek to conclude such agreements with providers whose facilities are closest at hand is a separate issue. Indeed, the conclusion of agreements with medical practitioners and health-care institutions situated in regions of Belgium and Germany bordering on the Netherlands has been prompted by that (1) are justified by overriding reasons very concern, without causing any major relating to the general interest and are linguistic problems. applied to all persons or undertakings pursuing those activities in the territory of the State in question, in so far as that interest is not safeguarded by the provisions to which the Community national is subject in the Member State 64. To resume my examination of the where he is established; authorisation requirement, in relation to 64 —Case C-76/90 Säger v Deunemeyer [1991] ECR I-4221, paragraph 12, and Case C-398/95 SETTG v Ytmurgos 63 —OJ 1993 L 165, p. 1. Ergastas [1997] ECR I-3091, paragraph 16.

(2) are necessary to ensure that the objec- Member State; 67 the social protection of tive they pursue is attained; and workers; 68 consumer protection; 69 fair trading; 70 a cultural policy consisting in the maintenance of a national radio and television system which secures plural- ism; 71 safeguarding the sound administra- tion of justice; 72 safeguarding the cohesion of a tax system; 73 maintaining the good reputation of the national financial sec- (3) do not go beyond what is necessary to tor; 74 conservation of the national histor- attain that objective. 65 ical and artistic heritage; 75 proper appre- ciation of a country's archaeological, his- torical and artistic assets and the widest possible dissemination of knowledge of the artistic and cultural heritage of a coun- try; 76 and the risk of serious impairment of the financial equilibrium of the social

67. Over the years, the Court has devel- tombudsmannen De Agostini Forlog AB and TV-Shop v Banque H. Albert de Bary [1997] ECR I-3843, paragraph oped case-law relating specifically to over- 53. riding reasons in the general interest. I can 71 — Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraphs 23 and 25, Case state, by way of examples which are not C-353/89 Commission v Netherlands [1991] ECR intended to be exhaustive, that it has I-4069, paragraph 30, and Case C-148/91 Vereniging Veronica v Commissariaat voor de Media [1993] ECR recognised as such: the protection of intel- I-487, paragraph 15. lectual property; 66 the need to protect 72 — Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 36. recipients of services, which may justify 73 — Case C-300/90 Commission v Belgium [1992] ECR I-305, providers of services being subject to the paragraph 21, Bachmann, cited in footnote 15 above, paragraph 28, and Case C-484/93 Svensson and Gustavs- professional rules of conduct of the host son v Ministre du Logement et de L'Urbanisme [1995] ECR I-3955, paragraph 16. 74 —Case C-384/93 Alpine Investments [1995] ECR I-1141,

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68. The overriding reasons in the general The Member States which have intervened interest relied on by the defendant institu- in these proceedings cite, as overriding tions are, in summary, as follows: reasons in the general interest justifying maintenance of the authorisation require- ment, in addition to those already referred to, the need for insurance funds to be able to control costs; respect for the power of each State to establish health-care priorities on the basis of the resources available to it — maintaining the infrastructure and the and the needs of its population; and respect financial equilibrium of the system of for the principle of equality among insured agreements in such a way as to keep the persons, a breach of which would be costs, volume and quality of care under detrimental to more disadvantaged control; patients, for whom travel to another Mem- ber State would inevitably involve cost concerns.

71. What is in dispute is not, therefore, whether those three reasons are valid justifications for a barrier to freedom to provide services such as the authorisation requirement at issue, where, as in this case, it is applied without distinction to national providers and to providers established abroad, but whether that requirement is necessary in order to ensure that the objectives it pursues are attained and whether it complies with the principle of It is my view that, in those circumstances, proportionality. the requirement of authorisation constitu- tes not only a necessary and proportionate means of attaining the objective of main- taining the financial equilibrium of the system, but also the only means available to sickness funds for controlling payments to a non-contracted provider for health care which they have already paid the contracted providers to dispense, since this 72. I shall attempt to dispel those doubts. represents an additional financial burden. It Under schemes such as that in this case, seems clear to me that, under a social which provide insured persons with bene- security system where health-care fits in kind, the sickness funds manage their resources, practitioners and institutions budget by concluding with medical practi- are pre-established, sickness funds must be tioners and health-care institutions agree- able to expect that, barring rare exceptions ments which lay down the benefits con- subject to their consent, any health care tracted for, the services that will be avail- which insured persons require will actually able and the financial contribution which be provided by the practitioners and insti- tutions contracted, regardless of whether they are situated on national territory or 79 — Ibid., paragraphs 50 and 51. abroad.

74. I believe that both the objective of providing a balanced medical and hospital service open to everyone and the objective of maintaining essential treatment facilities and medical service on national territory, apart from being intrinsically linked to the D. The application of Article 22 of Regu- method of financing the system, can be lation No 1408/71 brought within the ambit of the public health grounds which, under Article 56, are capable of justifying a restriction on free- dom to provide services, as the Court held in paragraphs 50 and 51 of its judgment in Kohll. In contrast to Kohll, 82however, in the present case it has been demonstrated 76. Despite the fact that the national court that, because of the structure of the Nether- has not raised the matter of the interpreta- lands compulsory sickness insurance tion of Article 22(1)(c)(i) and the second scheme, which is based on prior compre- paragraph of Article 22(2) of Regulation hensive agreements with medical practi- No 1408/71, it nonetheless merits a few lines. As will be recalled, that provision confers on a worker insured in one Member State who is authorised by the competent 80 — Cited in footnote 10 above. 81 — Cited in footnote 11 above. institution to go to another Member State 82 — Ibidem to receive health care the right to enjoy the

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77. The provision regulates the specific case of an insured person who goes to another Member State to receive, in accor- dance with the legislation of that State, treatment paid for by the competent insti- tution. This situation is clearly different from that at issue in Kohll, where the 79. In my opinion, that provision is still insured person received treatment in valid and should be applied 8 5in parallel another Member State but was reimbursed by the competent institution only at the rate applied in the State of insurance. 83 — Proposal for a Council Regulation (EC) on coordination of social security systems — COM/98/0779 final (OJ 1999 C 38, p. 10). 84 — The proposed text is as follows: 'Authorisation to receive appropriate treatment outside the competent State. A person who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition shall receive the benefits in kind provided, on behalf of the competent institution, by the institution of the place of stay, in accordance with the provisions of the legislation it administers, as though ne were insured pursuant to the said legislation. The authorisation must be accorded where the treatment in question is among the benefits provided for by the legislation of the competent State in whose territory the person involved resides and if he cannot, taking account of his current state of health and the probable course of the illness, be given such treatment within the necessary time.' 78. The conditions which sickness funds in 85 — See, in the same connection, R. Cornelissen: 'The principle the Netherlands lay down for granting of territoriality and the Community regulations on social authorisation for treatment by a non-con- security (Regulations 1408/71 and 574/72)', Common Market Law Review. 1996, 33, pp. 439 to 471, in tracted medical practitioner or hospital, particular pp. 465 and 466.

with the rules laid down by the Court in its Mann and his wife, who was ill, booked judgments in Decker86 and Kohll 87 in themselves into a sanatorium in Davos, relation to a social security scheme such Switzerland. Contact with the patients who as that in Luxembourg, which cannot be had come from all over the world to find a transposed to all the other schemes oper­ cure in this remote mountain-top establish­ ated in the Member States because of their ment provided the inspiration for his mas­ inherent diversity. terpiece 'Der Zauberberg' (The Magic Mountain) (1924), which centres around the fraught search for ideal health care. 8 9 This 'clinico-social tourism' is a further reason why the competent institutions should be more flexible when authorising I should like to add in this respect that I persons insured with them to go to another find it regrettable that the competent Member State for treatment, in such a way institutions of the Member States apply that the principle of equal treatment for that provision so restrictively and grant so insured persons as regards access to the few authorisations each year, when it highest possible level of medical care can be could, under their control, provide an maintained without the financial equili­ invaluable means of reducing the long brium of the respective systems being waiting lists with which patients in some jeopardised. 90 Member States have to contend. Patients could thus obtain health care in another Member State by invoking Article 22 of Regulation No 1408/71, or by relying directly on Decker and Kohll, without 89 — Es waren da Liegehallendamen verschiedener Nationalität having to run the risk, on return to their untermischt mit (...) einem bebrillten jungen Hollander nut rosigem Gesicht und monomanischer Leidenschaft fiir den State of residence, of being denied reim­ Briefmarkentausch; verschiedenen Griechen, pomadisiert bursement. 8 8 (...) Der Bucklige Mexikaner, dem Nichtkcnntms der hier vertretenen Sprachen den Gcsichtsausdruck eines Tauben verlieh (...). T. Mann: Der Zauberberg, S. Fischer Verlag GmbH 1974, p. 324. ('New figures turned up on the terrace: ladies of various nationalities from the general rest-balls Į...1 monocled youths of seventeen, a spectacled, rosy-faced young Dutchman with a mania for collecting postage stamps; certain Greeks, with pomaded hair [...1 the hump-backed Mexican, whose ignorance of any language save nis own lent him the racial expression of a deaf person [...]' T. Mann: 'The Magic Mountain', Vintage (Random 80. The practice of 'clinico-social tourism', House), London 1999, p. 232, translated from the German whereby patients, usually of sound finan­ by H. T Lowe-Porter.)

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IX. Conclusion

81. In view of the foregoing, I propose that the Court's reply to the questions referred to it by the Arrondissementsrechtbank, Roermond (Netherlands), should be as follows:

(1) The health-care benefits in kind which a compulsory sickness insurance scheme such as that in the Netherlands grants to the persons insured with it do not incorporate any remunerative element and do not therefore constitute services within the meaning of Article 60 of the EC Treaty (now Article 50 EC). Accordingly, Articles 59 (now, after amendment, Article 49 EC) and 60 of the Treaty do not preclude sickness funds from requiring persons registered with them to seek authorisation in order to be able to receive benefits from a practitioner or an institution with whom or which they have not entered into a health-care agreement.

(2) If, on the other hand, the proposition is accepted that such benefits are services within the meaning of Article 60 of the Treaty, the requirement of authorisation would, in practice, constitute a barrier to freedom to provide services, but would have to be regarded as a necessary and proportionate means of maintaining the financial equilibrium of the system in order to provide a balanced medical and hospital service open to everyone, and to ensure the availability of the necessary treatment facilities and medical service within national territory.