C-326/00

1. The Dioikiti Protodikio Thessalonikis, 2 I — The facts in the main proceedings Greece, asks the Court of Justice, pursuant to Article 234 EC, to interpret Articles 31 and 36 of Regulation (EEC) No 1408/71, 3 Articles 31 and 93 of Regulation (EEC) No 574/72, 4Articles 46 EC, 49 EC and 50 EC, and Article 1 of the Protocol to the European Convention for the Protection of 2. Mr Ioannidis receives a retirement pen- Human Rights and Fundamental Free- sion from the Idryma Koinokinon Asfali- doms. seon (hereinafter 'IKA') and resides in Greece. During a stay in Germany he was admitted to a clinic for cardiovascular diseases where he remained from 26 November to 2 December 1996. On 6 December 1996, he asked the Sickness Fund of the undertaking Karstadt in Ger- The national court wishes to know, in many, the institution of his place of stay, to essence, whether it may be a condition of pay for his hospital treatment, intending the refund by the institution of the country that the IKA would refund the costs. in which a pensioner resides of the costs of sickness benefits in kind provided to him by the social security institution of the Member State in which he is temporarily staying, that the illness has manifested itself suddenly and for the treatment to have been needed urgently, or whether, on the contrary, it is enough that the person concerned should have required medical 3. By Form E 107, 5 which is used to seek care. confirmation of entitlement to benefits in kind, the Sickness Fund asked the IKA, as the competent institution, to forward Form 1 — Original language: Spanish. 2 — Administrative Court of First Instance, Thessaloniki. 3 — Regulation (EEC) N o 1408/71 of the Council of 14 June 5 — The application of Regulation N o 1408/71 and Regulation 1971 on the application of social security schemes to N o 574/72 has required the approval, by the Administrative employed persons and their families moving within the Committee of the European Communities on Social Security Community (OJ, English Special Edition 1971 II, p. 416), as for Migrant Workers, established by Article 80 of Regu- amended by Council Regulation (EC) No 3096/95 of lation No 1408/71, of various model forms, drawn up in all 22 December 1995 (OJ 1995 L 335, p. 10). the official languages, which are generally used as certifi- 4 — Regulation (EEC) of the Council of 21 March 1972 fixing cates. Those mentioned in this case were approved by the p r o c e d u r e for i m p l e m e n t i n g R e g u l a t i o n (EEC) Decision N o 153 (94/604/EC) of 7 October 1993 on the N o 1408/71 (OJ, English Special Edition 1972 I, p. 159) model forms necessary for the application of Council as amended by Council Regulation (EC) No 3096/95 of Regularion (EEC) N o 1408/71 and (EEC) N o 574/72 22 December 1995 (OJ 1995 L 335, p. 10). (E 0 0 1 , E 103 to E 127) (O J 1994 L 244, p. 22).

6. On 15 April the MCA issued an unfa- Form E 107 was returned to the Sickness vourable opinion on the ground that, since Fund. Paragraph 10.2 of the form stated the reasons why the IKA, as the competent institution, was unable to issue Form E 6 — This is the form used by the competent institution when authorising an insured, pursuant to Article 22(1)(c) of 112. Regulation No 1408/71, to go to another Member State to receive there the medical treatment appropriate to his condition. 7 — This is issued in the event of refund of the cost of benefits in 8 — The following hospitals are cited as examples: Geniko kind on the basis of actual costs, and gives the date of Kratiko, Ippokrateio, Evangelismos and Onaseio, in Athens, admission and discharge in the case of hospitalisation. or Achema and G. Papanicolaou, in Thessaloniki.

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to the immediate need for provision of Article 1 of the Protocol to the Euro- hospital treatment;. pean Convention for the Protection of Human Rights and Fundamental Free- doms, signed in Paris on 20 March 1952, the aforementioned provision of the IKA Regulations — even if it were considered that... it is not contrary to the aforementioned provisions of the... (2) whether, on the basis that services Regulations and of the EC Treaty, or, comprising the provision of care within that is to say..., that it is justified in hospitals constitute services within the accordance with the matters previously meaning of Article 60 of the EC Treaty set out — is consistent... with the first (now Article 50 EC), the aforemen- paragraph of Article 1 of the Protocol; tioned provision of the IKA Regu- and lations, even if it were considered, to the extent referred to above, not to be contrary to the above provisions of the Council Regulations, is consistent to that extent with Articles 59 (now, after amendment, Article 49 EC) and 60 of the EC Treaty; (5) if Question 4 is answered in the negative, whether the rule laid down by the aforementioned provision of the IKA Regulations is justified on grounds of public interest which are connected with preservation of the financial sta- bility of the social security system and (3) if Question 2 is answered in the therefore falls within the exceptions in negative, whether the rule laid down the second paragraph of Article 1 of by that provision of the IKA Regu- that Protocol.' lations is justified on grounds of public health which are related to the provi- sion of a balanced hospital service accessible to everybody resident within Greece and therefore falls within the exceptions in Article 56 of the EC Treaty (now, after amendment, Article 46 EC); III— National legislation

As a general rule, hospital treatment abroad requires prior authorisation. Never- theless, an exception is recognised by Article 3a(4)(g) 12 which provides that, in very exceptional cases, the director of the competent regional branch may authorise hospital treatment which has already taken IV — The proceedings before the Court of place abroad either because the illness Justice manifested itself suddenly while the patient was staying in another country or because he had to be transferred there urgently in order to avert a real risk to his life. That 13. Written observations have been sub- provision became applicable on 23 August mitted in these proceedings, within the 1984. period laid down by Article 20 of the EC Statute of the Court of Justice, by the IKA, the Belgian, Greek, Spanish, Irish, Austrian and United Kingdom Governments and the Commission.

12. Decision F. 7/oik.15 of the State Sec- 13 — FEK B' 22/20.1.1997. retary for Labour and Social Security of 14 — FEK A' 3. The definitive version resulting from t h e replacement of this article by Article 3 9 of L a w 1759/1988, FEK A ' 5 0 . 15 — Under the provisions of Article 31(2) of Law 1846/1951. 16 — According to the information supplied by the Commission 10 — F E K A' 179. in its written observations, the new legislation has n o t 11 —Decision 33651/E. 1089/ 2.6.1956 of the Minister for made any substantial amendments to that which applied Labour, FEK B' 126/3.7.1956. previously. This was confirmed during the hearing by the 12 — Correction of errata published in FEK B' 669/20.9.1984. IKA's representative.

V — Consideration of the questions referred for a preliminary ruling 16. The Greek Government maintains, as does the IKA, that the facts are not governed by Articles 31 and 36 of Regu- lation No 1408/71, but are covered by Article 22(1)(c) and (2). The German A — The first question institution asked the IKA for Form E 112, even though the insured had Form E 111, because it did not accept that the treatment given was either necessary or urgent, which confirms, in its opinion, that the pensioner 14. By the first question it raises, the went to Germany for medical reasons. The national court wishes to know whether Spanish Government takes the same view. Articles 31 and 36 of Regulation No 1408/71, and Articles 31 and 93 of Regulation No 574/72, preclude national legislation which requires, as an additional requirement, before the social security institution refunds the costs of treatment which has already taken place in hospital abroad, a special authorisation which is 17. The Irish Government proposes that granted only in very exceptional cases, the question be reworded, because it con- namely, if the illness of the insured, who siders that the facts fall within the scope of is a pensioner, has manifested itself Articles 22, 22a and 31 of Regulation suddenly during a stay abroad and medical No 1408/71. In that case, there is entitle- care had been required immediately, or ment to receive medical treatment without when he has been transferred there urgently any authorisation, and it is the national in order to avert a real risk to his life. court which has to assess whether it was essential for the insured to receive the treatment described. If the question is not reworded, the Irish Government suggests that a reply be given to the national court to the effect that the Community legislation 15. The Belgian Government considers that referred to does not preclude the contested the scope of Articles 22 and 31 of Regu- Greek provision.

21. The United Kingdom Government points out that Articles 31 and 22(1)(c) of Regulation No 1408/71 govern different situations. If the national court decides that Mr Ioannidis's condition worsened while he was in Germany and that he needed to 19. The Austrian Government considers be admitted to hospital, it should apply that, for the purposes of Regulation Article 31, and the IKA should bear the No 1408/71, pensioners are treated in the costs. If, on the other hand, it is persuaded same way as workers and, if they are that there was no such sudden deterio- staying temporarily in a Member State in ration, it should settle the dispute in which they are not resident, Article 22(1)(a) accordance with Article 22(1)(c), in which is applicable to them by analogy, with the case the IKA is free from that obligation. result that they will be entitled only to The United Kingdom Government main- those benefits which are needed immedi- tains that the contested Greek provision is ately. It considers that Article 22(1)(a) is compatible with Articles 31 and 36 of contrary to a provision such as that con- Regulation N o 1408/71 and with tained in Article 3a(4)(g) of the IKA's Articles 31 and 93 of Regulation Hospital Care Regulations, which imposes No 574/72, but not with Article 22(1)(c) the obligation to obtain an authorisation and (2) of Regulation No 1408/71. always, and not only in the situations laid down in Paragraph 1(c).

22. The Commission draws a distinction 20. The Finnish Government considers that between treatment required abroad the application of Article 31 of Regulation i m m e d i a t e l y , p r o v i d e d f o r in No 1408/71 does not justify the require- Article 22(1)(a) of Regulation No 1408/71, ment of an authorisation, even ex post given to those in possession of Form E 111; facto. In order to obtain any medical planned hospital treatment, governed by treatment he needs while in a Member Article 22(1)(c) and (2), second subpara- State other than that in which he is resi- graph, which is provided if there is prior dent, a pensioner is only required to submit authorisation by means of Form E 112; and

23. It is curious to note the profound differences between those who have sub- mitted observations in these proceedings, not only with regard to the reply they propose but also — and this is what is surprising — in respect of the scope they accord to the same provisions of Regu- lation No 1408/71, which should be uni- 24. In the present case, the preliminary formly applicable throughout the Commu- discussion focuses on determining whether nity. These disparities do not fail to emerge the provision whose interpretation is rel- every time the social security institutions of evant to the settlement of the dispute is the various Member States are confronted Article 31 of Regulation No 1408/71, to with financing health care provided in which the national court refers, or another Member State, as has been pointed Article 22, as suggested by the IKA and out in a few cases decided by the Court of most of the Member States appearing. Justice in recent years: either because in some States the health insurance grants benefits in kind and in others it refunds part of the cost borne by the insured, or because the specific experience of social security organisations require them to adopt a well-defined approach. 17

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25. From the time of the judgments in the The article governs three situations: stay Pierik cases, 20 both the application ratione outside the competent State, return to or personae and the scope of Articles 22 and transfer of residence to another Member 31 of Regulation No 1408/71 should have State during sickness or maternity, and the been clear. However, to judge by the need to go to another Member State in differences revealed by the social security order to receive appropriate treatment. For institutions of the Member States, that the purpose of deciding the present case, assessment is over-optimistic. only the first and third are relevant.

I therefore agree with the Commission that 27. The first situation is provided for in it is necessary to study the disparity Article 22(1)(a), according to which a between the rules applicable to active worker who satisfies the conditions of the workers and pensioners, when both need legislation of the competent State for medical care during a stay in a Member entitlement to benefits, and who requires State in which they do not reside, and also immediate treatment during a stay in the the concordance of those rules when they territory of another Member State, is to be go to another Member State in order to entitled to benefits in kind provided on obtain planned health benefits. behalf of the competent institution by the institution of the place of stay or residence, as though he were insured with it. As we can see, the rule requires the need for benefits to be immediate.

The Court considered that the definition of 'worker', adopted 'for the purpose of this Regulation', has general scope and covers any person who is insured under the social Here the emphasis is placed on the person security legislation of one or more Member concerned obtaining the authorisation of States, whether or not he pursues a pro- the competent institution before he leaves, fessional or trade activity. It follows that, although the Court has acknowledged that, even if they do not pursue a professional or where a request made by an insured person trade activity, pensioners entitled to draw on the basis of Article 22(1)(c) has been pensions under the legislation of one or refused by the competent institution and it more Member States come within the is subsequently established, either by the provisions of the regulations concerning competent institution itself or by a court 'workers' by virtue of their insurance under decision, that that refusal was unfounded, a social security scheme, unless they are that person is entitled to be reimbursed subject to special provisions laid down directly by the competent institution by an regarding them. 24 amount equivalent to that which it would have borne if authorisation had been properly granted in the first place. 22

30. In the judgment it is then observed that Articles 27 to 33 are in Title II, Chapter 1, Section 5, concerning pensioners and members of their families, and that they apply exclusively to those categories of 29. In Pierik II, 23 the Court defined the insured, from which two consequences are personal scope of Article 22(1)(c) of Regu- drawn: first, that Article 31 confers on lation No 1408/71. It was a matter of pensioners entitlement to benefits in kind ascertaining whether that provision, which where those benefits become necessary confers entitlement to benefits in kind on a during a stay in a Member State other that the one in which they reside; second, that

32. I have wondered why these two situ- ations differ in the regulations. However, the disparity is there and Article 22(1)(a) 31. It is clear from the actual wording of should not be applied to pensioners by Article 22(1)(a) and Article 31 of Regu- analogy. By treating pensioners — who lation No 1408/71, from the context in make up a sector of the population which which they occur and from the interpre- frequently seeks medical attention, because tation given to them by the Court in Pierik of chronic illness or because of the havoc II, that the rales applicable to pensioners wreaked on their health by age — more and to all the other categories of insured generously than other insured persons, the persons, when they need sickness benefits legislature seeks to encourage retired per- in kind during a stay in a Member State sons to travel around the territory of the other than the one in which they reside, are Union, and to prevent them from abandon- different and have a different content: ing travelling because they are afraid that whereas Article 31 confers on pensioners they might not have cover if their state of entitlement to obtain the benefits subject to health deteriorates. no condition other than that they need them, Article 22(1)(a) provides that the state of health of the other categories of insured persons should necessitate immedi- ate benefits.

The requirement that their state of health should need immediate medical attention while they are temporarily outside their country of residence or, as provided in Article 3a(4)(g) of the IKA Hospital Care

35. In the light of the description of the facts given in the order for reference, and bearing in mind the provisions of Regu- lation No 1408/71 in respect of pensioners, 33. I should add that, if the Community on the one hand, and all other insured legislature had wished pensioners to be persons, on the other, the national court treated in the same way as other insured has correctly identified the problem when it persons, when receiving medical care dur- asks the Court of Justice to interpret ing a stay in a Member State other than the Article 31. one in which they reside, it would not have laid down provisions such as Article 31 of Regulation No 1408/71 and Article 31 of Regulation No 574/72, which apply only to pensioners, and would have acted as it did in respect of planned transfers, which are It is therefore not appropriate to reword the governed, for all insured persons, by first question referred for a preliminary Article 22(1)(c) of Regulation No 1408/71. ruling in order to give it the meaning that what the national court needs, in fact, to resolve the main dispute, is the interpre- tation of Article 22(1)(c), as the IKA and a good number of the Member States claim.

37. The order for reference does not state the reasons which have led the German institution to reject the Form E 111 issued by the Greek institution and request that it forward Form E 112 instead. 28 This con- duct surprises me for several reasons: first, because Article 31 of Regulation No 574/72 39. During recent years the Court of Justice only requires the insured to present a has been faced for the first time with certificate to the institution of the place of questions referred for a preliminary ruling stay confirming his entitlement to the in which it was asked about the con- benefits; second, because the specific func- sequences in a Member State of the forms tion of Form E 111 is to confirm entitle- issued by the social security institutions of ment to sickness benefits in kind; and third, other Member States, in implementation of because, according to the provisions of Regulations No 1408/71 and No 574/72. It Article 93(1) of Regulation No 574/72, the has construed Form E 101, which confirms actual amount of benefits in kind provided the legislation applicable in the event of the under Articles 22 and 31 of Regulation temporary posting of workers, issued by No 1408/71 is to be refunded by the the competent authority of a Member competent institution to the institution State, as being binding on the social which provided them, as shown in the security institutions of other Member States accounts of that institution. So the German in so far as it certifies that workers posted institution would have received the same by an undertaking providing temporary amount from the Greek institution, irre- personnel are covered by the social security spective of whether the hospital care was system of the Member State in which that provided under Form E 111, as the insured undertaking is established. 30 must have claimed, or E 112, as the German institution wished. 29 — C-335/95 Picard [19961 ECR I-5625, paragraph 18. 30 — Case C-202/97 FTS [2000] ECR I-883, paragraph 59. In Case C-178/97 Banks and Others [2000] ECR I-2005, the 28 — The German institution is not a party in the main Court construed Form E 101, in so far as it establishes a proceedings and therefore could not appear in the presumption that the self-employed person concerned is proceedings for a preliminary ruling. The German Govern- properly affiliated to the social security scheme of the ment, which might have been able to inform the Court of Member State in which he is established, as being binding Justice on this point, has not submitted observations in on the competent institution of the Member State to which these proceedings. that person goes to carry out a work assignment.

It added that the competent institution Form E 111 for the period during which the which issued the Form E 101 must recon- planned benefits were received. sider the grounds for its issue and, if necessary, withdraw the certificate if the competent institution of the State to which the workers are posted expresses doubts as to the correctness of the facts on which the certificate is based and, consequently, of the information it contains. 31 41. If the institution of the place of stay were able to refuse at will the validity of Certificate E 111 issued by the institution of the State of residence, as the German institution seems to have done, that would leave without medical cover a person who, in good faith, has believed that, because he 40. In my view, since Form E 111 confirms was carrying it, he was entitled to sickness entitlement to sickness benefits in kind benefits in kind while he was in another during a stay in a Member State in which Member State, and the free movement of the insured does not reside, it should be persons within the Community would be accorded the same binding nature and seriously obstructed. 33 evidential value, with respect to the social security institutions of the other Member States, as the Court has accorded to Form E 101, which confirms the affiliation of a transferred worker to the social security scheme of the Member State in which the company is established. 42. It seems clear to me that, behind the observations of the IKA and the various governments appearing in this case, lies a concern to prevent a request for benefits in kind made by a pensioner staying in a Member State, under cover of Form E 111, If the institution of the place of stay finds from concealing a movement to another that, in fact, the insured has gone there country with the aim of receiving medical with the intention of receiving medical treatment, by circumventing the procedure attention, 32 in application of the principle established, for all insured persons, in of cooperation in good faith, laid down in Article 22(1)(c), which includes the auth- Article 10 EC and Article 84 of Regulation orisation by the competent institution by No 1408/71, it must pass on that infor- means of Form E 112. mation to the institution of the State of residence, which may cancel the validity of 33 — At the hearing the Agent of the Spanish Government informed the Court that the Commission had brought an action for failure to fulfil to fulfil obligations against the Kingdom of Spain, because it required Form E 112 from 31 — Judgments in FTS and Banks, cited above, paragraphs 56 pensioners from other Member States whose state of health and 4 3 respectively. necessitated hospital treatment during a stay in its 32 — It is expressly stated in Form E 111 that the certificate does territory, in particular Belgians and Italians. The proceed- not confer entitlement to sickness benefits in kind if the ings were discontinued when Spain proceeded to accept person concerned has gone to another country with the Form E 111. He said, however, that other Member States aim of receiving medical treatment. still pursued that negative course of action.

Nor may the institution of the country of residence impose the requirement of auth- orisation ex post facto, as allowed under Article 3a(4)(g) of the IKA Hospital Care Regulations.

43. It is established in the main proceedings that the patient, a pensioner, has a heart condition and needed to be admitted to hospital while he was on a visit to Ger- 45. That provision seems to be designed to many. The file also contains a certificate enable the Greek social security institution issued by the Director of the Centre and the to control the way in which Article 22(1) (a) report of the doctor who attended the has been applied abroad, on the one hand, patient, according to which he was and to assess, on the other, whether it is admitted to hospital as a matter of urgency, appropriate, when the movement has been owing to repeated chest pains caused by made urgently, to grant the authorisation angina. It is also established that he had a provided for in Article 22(1 )(c), once the valid Certificate E 111. medical care has been given.

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50. The condition for application of Article 34 of Regulation No 574/72 is that it has not been possible to complete the formalities laid down, in so far as is of 47. It is not recorded in the file whether the concern here, by Article 31 of that regu- German sickness fund paid the cost of the lation. That formality consists in presenting hospital treatment or if the party concerned a certificate confirming entitlement to the paid them directly, since the national court benefits, stating the maximum period for only states in its order that the Greek which these are granted in the State of institution was asked to forward Form E residence. Failure to comply with that 112. 34 obligation may be due to the fact that the insured did not have Form E 111, that the institution of the place of stay has not 34 — In reply to my questions at the hearing, the Agent of the requested it from the country of residence, Greek Government stated that he did not have that or that it has not been forwarded to it in information and the IKA's representative said that he believed that Mr Ioannidis had paid the costs in Germany. time.

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51. There is no record of an agreement provided for rates of reimbursement, the between the German institution and the competent institution may effect the reim- Greek institution waiving any reimburse- bursement without the agreement of the ment or a fixed reimbursement of the person concerned being necessary. benefits provided under Article 31 of Regulation No 1408/71. If there were, the former institution would have to transfer to the latter the sum which has to be refunded to the person concerned who has paid the cost of the benefit. 53. The refusal by the institution of the place of stay to accept the Form E 111 submitted by a pensioner who resides in another Member State is not considered by Article 34 of Regulation No 574/72 to be a circumstance giving rise to reimbursement by the institution of the State of residence to the insured of the costs he has borne.

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B — The other questions referred for a provision at issue, which is the subject- preliminary ruling matter of the first question.

55. The national court raised the remaining questions in case the Court of Justice were to hold that the rules of Regulation Since the reply I propose is in the affirm- No 1408/71 and Regulation No 574/72 ative, there is no need to go on to examine are not incompatible with the national the other questions.

VI — Conclusion

56. In the light of the foregoing arguments, I suggest that the Court reply to the questions referred to it for a preliminary ruling by the Dioikitiko Protodikeio Thessalonikis by declaring that: