C-56/01
ECLI:EU:C:2003:43
- Súd
- Súdny dvor Európskej únie
- IČS
- 62001CC0056
- Zdroj
- eur-lex.europa.eu ↗
OPINION O F M R RUIZ-JARABO — CASE C-56/01
OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 21 January 2003 1
1. The Tribunal des affaires de sécurité medicine unit, 3from the Caisse primaire sociale (Social Security Court), Nanterre, d'assurance maladie des Hauts-de-Seine, France, has applied to the Court of Justice, the sickness fund with which she is regis- under Article 234 EC, for a ruling on the tered, so that the fund would reimburse the validity of Article 22 of Regulation (EEC) costs of the treatment. No 1408/71, 2in the light of Articles 49 EC and 50 EC, with a view to determining whether it is lawful for a sickness fund to refuse to reimburse the costs of hospital The patient, who is 37 years old, suffers treatment provided to an insured person in from acute pain from which she can only another Member State. obtain partial, temporary relief. She has attended specialist centres in Paris on several occasions but there has been no improvement in her condition. In 1986, she also began to undergo psychological treat- ment but that did not alleviate her con- dition either.
I — The facts of the main proceedings 3. Ms Inizan's request was refused on 6 July 1999, on the ground that the requirements of the second subparagraph of Article 22(2) of Regulation No 1408/71 had not been fulfilled.
2. Ms Inizan, the applicant in the main proceedings, requested prior authorisation 4. The applicant appealed against that to undergo pain relief treatment at a decision to the Commission de Recours hospital in Germany, which is equipped Amiable (Arbitration Committee) of the with a natural therapy and integrative Caisse primaire d'assurance maladie des Hauts-de-Seine, which upheld the decision
1 — Original language: Spanish. 2 — Regulation (EEC) N o 1408/71 of the Council of 14 June 3 — According to information relating to the programme at the 1971 on the application of social security schemes to University of Arizona, 'Integrative medicine is a healing- employed persons, to self-employed persons and to their oriented medicine that draws upon all therapeutic systems families moving within the Community, as amended and to form a comprehensive approach to the art and science of updated by Council Regulation (EC) N o 118/97 of medicine'. (http://integrativemedicine.arizona.edu/ 2 December 1996 (OJ 1997 L 28, p. 1). about.html)
I - 12406
INIZAN
in October 1999 on the ground that the 8. Ms Inizan has adduced evidence that, report of the National Medical Officer where treatment at the natural therapy and (Médecin Conseil National) had found that integrative medicine unit is prescribed by a the patient's state of health was not such doctor, it is paid for in Germany by the that it was necessary for her to travel public sickness insurance scheme and by abroad. private insurance companies.
5. In December 1999, Ms Inizan brought an action before the Tribunal des affaires de sécurité sociale, Nanterre. By interlocu- II — The French legislation tory judgment of 6 July 2000, that court requested Ms Inizan to send her medical file to the National Medical Officer, and ordered that officer to issue a reasoned 9. In France, reimbursement of the cost of opinion on whether the French fund should treatment provided in another Member reimburse the costs of treatment in Ger- State is governed by three articles of the many, having regard to the fact that no Social Security Code, which provide: cure had been found in France for the patient's physical and psychological dis- orders.
L.332-3
6. The National Medical Officer gave an unfavourable opinion, stating that, in his view, a wide range of treatments in the field was available in France, without undue Without prejudice to agreements and inter- delay. The National Medical Officer national rules, or to Article L.766-1, where pointed out that the treatment sought was medical treatment is given outside France long-term, lasting several months or even to insured persons and their dependants, years, and necessitated a continuity and the corresponding benefits under the sick- regularity which could not be provided by a ness and maternity insurance scheme shall centre situated several hundred kilometres not be provided. from the patient's home.
The circumstances in which exceptions 7. Ms Inizan countered that, in his report, may be applied to the principle set out in the National Medical Officer had merely the previous paragraph shall be laid down proposed the repetition of treatment which by decree on the advice of the Council of she had already undergone in the past State, for cases where insured persons or without success, because it was not appro- their dependants are taken ill unexpectedly priate to her condition. during a stay abroad or where the medical
I - 12407
OPINION OF MR RUIZ-JARABO — CASE C-56/01
treatment appropriate to their condition Where it is not possible for an insured cannot be provided in France. person or his dependants to receive in France the treatment appropriate to their condition, the agreements between the French competent bodies and certain hos- pitals abroad may, with the joint auth- orisation of the Minister for Social Security L.766-1 and the Minister for Health, lay down the conditions on which patients may stay in those hospitals, and the methods of reim- bursing the costs of the treatment received.
People who receive treatment under this title shall be entitled to the benefits under the sickness and m a t e r n i t y insurance schemes which are provided for herein. Notwithstanding the cases referred to in the previous paragraph, in exceptional circum- stances and subject to a favourable opinion from the medical supervisory body, sick- ness insurance funds may reimburse, at a flat rate, the cost of treatment provided Without prejudice to agreements and inter- outside France to an insured person or his national rules applicable to the workers dependants, where the person concerned referred to in Article L.761-1, the benefits establishes that he could not receive in concerned shall be paid in the country in French territory the treatment appropriate which a person eligible under this title to his condition. carries on his activity. Such benefits shall be based on actual expenditure, but shall be within the limits of the liability scales prescribed by ministerial order...
I I I— The questions referred for a prelimi- nary ruling
R.332-2 10. Before ruling on the substance of the case, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a Sickness insurance funds may reimburse, at preliminary ruling: a flat rate, the costs of treatment given outside France to insured persons, and members of their families, who are taken ill unexpectedly, provided that the amount does not exceed the total sum which would '(1) Is Article 22 of Regulation (EEC) have been paid to them had they been No 1408/71 compatible with treated in France. Articles 59 (now, after amendment,
I - 12408
INIZAN
Article 49 EC) and 60 (now, after Article 50 EC amendment, Article 50 EC) of the Treaty of Rome?
'Services shall be considered to be "ser- vices" within the meaning of this Treaty (2) Consequently, is the Caisse primaire where they are normally provided for d'assurance maladie des Hauts-de- remuneration, insofar as they are not Seine entitled to refuse Ms Inizan governed by the provisions relating to reimbursement of the costs of psycho- freedom of movement for goods, capital somatic pain treatment in Essen, Ger- and persons. many, following an adverse opinion from the National Medical Officer?'
"Services" shall in particular include:
IV — The Community legislation
11. In order to reply to the questions referred, it is necessary to analyse the following provisions of Community law: (d) activities of the professions.
Article 49 EC
'Within the framework of the provisions set Article 22 of Regulation No 1408/71 out below, restrictions on freedom to pro- vide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of '1. An employed or self-employed person the person for whom the services are who satisfies the conditions of the legis- intended. lation of the competent State for entitle- ment to benefits
...'
I - 12409
OPINION OF MR RUIZ-JARABO — CASE C-56/01
(c) who is authorised by the competent V — The procedure before the Court institution to go to the territory of another Member State to receive there the treatment appropriate to his con- dition, 12. In the preliminary phase of these pro- ceedings, written observations were sub- mitted, within the period prescribed by shall be entitled: Article 20 of the EC Statute of the Court of Justice, by Ms Inizan, the Caisse primaire d'assurance maladie des Hauts-de-Seine, (i) to benefits in kind provided on the Spanish, French, Irish, Luxembourg, behalf of the competent institution Swedish and United Kingdom Govern- by the institution of the place of ments, the Council and the Commission. stay or residence in accordance with the provisions of the legis- lation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall 13. The Court declared the conclusion of be governed, however, by the legis- the written phase of these proceedings in lation of the competent State; May 2001. However, in March 2002, the Court decided to request the parties to the main proceedings, the Governments of the Member States, the Council, the Commis- sion, and any other interested parties to comment in writing on the conclusions to be drawn from the judgments in Vanbrae- 2. ... kel and Others 4 and Smits and Peer- booms, 5and their bearing on the replies to the questions referred for a preliminary ruling by the Tribunal des affaires de The a u t h o r i s a t i o n required under sécurité sociale, Nanterre. paragraph 1(c) may not be refused where the treatment in question is among the benefits provided for by the 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 The applicant and the defendant in the treatment in question in the Member State main proceedings, the Belgian, Spanish, of residence taking account of his current French and United Kingdom Governments, state of health and the probable course of the Council and the Commission responded the disease. to that request.
4 — Case C-368/98 [2001] ECR I-5363. ...' 5 — Case C-157/99 [2001] ECR I-5473.
I - 12410
INIZAN
14. At the hearing, which was held on provide services, contrary to Article 49 EC. 28 November 2002, oral observations were The applicant contends that the fact that a presented by the representatives of Ms particular treatment is not available under Inizan and the Caisse primaire d'assurance the social security scheme of the Member maladie des Hauts-de-Seine, and the agents State of insurance does not preclude the of the Spanish, French, Swedish and United treatment from being provided in another Kingdom Governments, the Council and State and the cost being recovered from the the Commission. patient's insurance fund, since that patient is entitled to benefit from scientific and medical advances achieved in other Euro- pean Union countries.
VI — Analysis of the first question
17. The Caisse primaire d'assurance mal- adie des Hauts-de-Seine is of the view that 15. By the first question, the national court the purpose of Article 22(1 )(c) and the asks the Court of Justice to rule on the second subparagraph of Article 22(2) of validity of Article 22 of Regulation Regulation No 1408/71 is to impose mini- No 1408/71 in the light of Articles 49 EC mum rules on the Member States in order and 50 EC. to facilitate the free movement of medical services. The treatment of pain by means of natural therapy and integrative medicine is not scientifically recognised. Accordingly, such treatment is not available under the French social security system and the costs thereof are not reimbursed. The defendant A — The views set out in the observations notes that there are six hospitals in Paris providing multidisciplinary consultations aimed at treating the condition concerned, in addition to hospitals in the surrounding 16. The applicant in the main proceedings area and in the other regions of France. 6At maintains that, in accordance with the the hearing, the defendant's representative principle of freedom to provide services, informed the Court that the patient can she is entitled to move freely from one receive in France virtually all the therapies Member State to another in order to receive that are available under the German treat- medical treatment. However, Article 22 of ment programme and that the costs are Regulation No 1408/71 provides that she recoverable from her sickness fund. The must obtain the prior authorisation of the only therapy which is not chargeable to the national social security institution. That sickness fund is the one involving a healthy rule creates a difference in treatment diet. depending upon the source of the benefit, dissuades people from obtaining medical treatment in other Member States, and 6 — The French Government has supplied a list of centres which treat persistent chronic pain, detailing a total of 95 hospitals constitutes a restriction on the freedom to in metropolitan France and one on the island of Réunion.
I-12411
OPINION OF MR RUIZ-JARABO — CASE C-56/01
18. The views of the Member States which France for determining which medicinal submitted observations in these proceed- products and treatments should be paid for ings are divided on a fundamental question. under the sickness insurance scheme. In the Belgium and France are of the opinion that case of medicinal products, they must be both the treatment provided by practi- included in a list which has been approved tioners in their surgeries and the treatment by joint order of the Minister for Health provided to patients who have been and the Minister for Social Security follow- admitted to hospital are services within ing a report from the Commission de the meaning of the Treaty. Luxembourg, Transparence, a commission made up of which, like the aforementioned countries, medical and scientific experts. Those administers a sickness insurance scheme experts give their opinion on the usefulness under which a proportion of the costs of of the product concerned, taking into treatment given to patients is reimbursed, account its effectiveness, side effects, the does not apply that rule to hospital treat- position it occupies in the treatment strat- ment. Finally, Spain, Ireland, Sweden and egy in relation to other remedies available, the United Kingdom argue that national the seriousness of the complaint for which health systems where treatment is regarded it is intended, whether it is preventive, as a benefit in kind do not provide services, curative or used for symptomatic treat- since there is no requirement of remuner- ment, and its benefits to public health. The ation in the relationship between medical file is then passed to the Comité Écon- staff and patients. omique des Produits de Santé which sets the price of the product concerned. The entry in the list, the percentage of the price that may be reimbursed, and the price itself, are published in the Journal Officiel.
However, all the Member States agree that in the event that it is appropriate to regard all forms of medical treatment as services, irrespective of whether they are paid for, the prior authorisation referred to in Article 22 of Regulation No 1408/71 would be justified on the overriding public interest grounds cited by the Court in recent case-law, in which it held that Article 22 is compatible with Articles 49 The decision concerning which treatments EC and 50 EC and should not be declared should be paid for under the sickness invalid. insurance scheme is taken by the Minister for Health, the Minister for Social Security and the Minister for Agriculture. Before approving the list, the ministers may con- sult the Commission Permanente de la Nomenclature Générale des Actes Profes- sionnels, which was created in 1986 and 19. In reply to the written questions whose duties include making proposals for addressed to it by the Court, the French provisional financial evaluations and enter- Government outlined the procedure in ing into the catalogue any activities which I - 12412
INIZAN
are capable of improving medical services B — Reply to the first question or reducing the costs of treatment.
22. Although, in recent years, the Court has had occasion to interpret the require- ment of prior authorisation laid down in The French Government adds that the Article 22(1 )(c) and the second subpara- treatment of pain by means of natural graph of Article 22(2) of Regulation therapy and integrative medicine is not No 1408/71 in cases where the principle practised in France under the same name or of freedom to provide services was at issue, in the same form, but states that it is the Advocates General have not proposed possible to keep the condition effectively in their Opinions that the measure be under control using the treatments avail- declared invalid, and successive judgments able, even though they are not the same as have upheld its peaceful coexistence with the treatments provided in Germany. The Article 49 EC. 7 fundamental difference in the therapies used to treat the condition from which Ms Inizan suffers is that, whereas in Ger- many the whole range of therapies is provided at the same centre, patients in 23. In the 1971 version of Regulation France must go to different hospitals. No 1408/71, the second subparagraph of Article 22(2) provided that: 'The authori- sation required under paragraph 1(c) may not be refused where the treatment in question cannot be provided for the person concerned within the territory of the 20. The Council argues that, far from Member State in which he resides.' impeding the freedom to provide services, Article 22 of Regulation No 1408/71 pro- motes that freedom; accordingly, its com- patibility with Articles 49 EC and 50 EC is not open to question. 24. However, in Pierik I, 8the Court held that the duty to grant the authorisation covers both cases where the treatment provided in another Member State is more effective than that which is provided in the 21. The Commission is of the view that the country of residence and cases where the disputed provision, under which patients treatment in question cannot be provided in may be reimbursed for the costs of treat- the territory of the latter State. In Pierik ment in another Member State, does not II, 9the Court found that where the social impede the freedom to provide services and security institution acknowledges that the is not, therefore, incompatible with Articles 49 EC and 50 EC. At the hearing, 7 — Sec Case C-158/96 Kobll 11998| ECR I-1931, paragraphs 26 the Commission stated that the uncer- and 27; Case C-120/95 Decker | 1 9 9 8 | ECR I-1831, tainties raised by the French court have paragraphs 28 and 29, on the issue of free movement of goods; and Vanbraekel, cited above, paragraphs 31 and 32. been resolved by the Court of Justice in 8 — Case 117/77 [1978] ECR 825, paragraph 22. recent case-law. 9 — Case 182/78 | 1 9 7 9 | ECU 1977, paragraph 13.
I - 12413
OPINION OF MR RUIZ-JARABO — CASE C-56/01
treatment in question constitutes a necess- cerned resides and where he cannot be ary and effective treatment of the sickness given such treatment within the time or disease from which the person concerned normally necessary for obtaining it. The suffers, the conditions for the application of Council adopted that proposal. 11 the second subparagraph of Article 22(2) are fulfilled and, as a result, the auth- orisation required under Article 22(1 )(c) may not be refused. In the light of those
judgments, the Council, in response to a 2 6 . In the scheme of R e g u l a t i o n proposal from the Commission, inserted a No 1408/71, Article 22 is situated in Title radical amendment into the provision, 10 III, Chapter 1 (which deals with sickness the new version of which remains in force. and maternity benefits), Section 2 (which deals with employed or self-employed per- sons and members of their families).
Des- pite the fact that the aim of the regulation, 25. The Commission's proposal stated that which was adopted on the basis of practical experience had demonstrated that Article 42 EC, is to ensure social security the application of the provision was open cover for migrant workers, it has ensured to a certain amount of abuse, since a strong that all workers who are insured in one of likelihood existed that the social security the Member States, and their families, institution of a Member State could be regardless of whether or not they have required to grant authorisation to a worker exercised their right to freedom of move- even where that worker had never left his ment, can obtain the medical treatment or her country of origin, each time that the they need while abroad, whether during a worker concerned wished to travel to temporary stay or because the treatment another Member State for the sole purpose cannot be provided to them in their place of of undergoing medical treatment which residence. 12 was not available in the Member State of
insurance. In addition, the financial dif- ficulties affecting national sickness insur- 11—When the Council adopted Regulation No 2793/81, it asked the Commission to report to it, two years after the ance schemes justified the extension of the regulation entered into force, on the experience gained degree of latitude, relating to the grant of from implementing the new measure, in order to assess the effects and repercussions of the regulation vis-à-vis the authorisation, available to the competent protection previously available and determine whether the regulation required amendment. In the report delivered to bodies from whom costs incurred in the Council in 1986, the Commission stated that, out of another Member State were recoverable. ten Member States, only France and Luxembourg were in favour of returning to the old system, and added that it The Commission therefore recommended was not necessary to amend the new measure since it had been found that the competent institutions were exercising t h a t the second s u b p a r a g r a p h of their power to authorise travel for medical purposes as Article 22(2) be amended to provide that widely as before, by dealing with the real needs of the people concerned, with the advantage that, following the authorisation may not be refused where the amendment, they were better able to supervise the exercise of the power so that it could be tailored to the objectives of treatment in question is among the benefits their health policies and of their sickness insurance scheme. provided for by the legislation of the 12 — In order to facilitate temporary residence and access to treatment with the authorisation of the competent institu- Member State in which the person con- tion in European Union territory, the Council inserted Article 22a into Regulation No 1408/71.
That new provision extends the benefit of Article 22(1)(a) and (c) to all Community nationals who are insured under the legislation of a Member State and to the members of their 10 — Council Regulation (EEC) No 2793/81 of 17 September families residing with them, even if they are neither 1981 amending Regulation (EEC) No 1408/71 on the employed nor self-employed. The amendment was intro- application of social security schemes to employed persons duced by Council Regulation (EC) No 3095/95 of and their families moving within the Community and 22 December 1995 amending Regulation (EEC) Regulation (EEC) No 574/72 fixing the procedure for No 1408/71, Regulation (EEC) No 574/72, Regulation implementing Regulation (EEC) No 1408/71 (01 1981 (EEC) No 1247/92 and Regulation (EEC) No 1945/93 L 275, p. 1). (OJ 1995 L 335, p. 1).
I - 12414
INIZAN
27. The personal scope of Article 49 EC which is the subject of an agreement with differs from that of Article 22 of Regu- the institution. Patients are also guaranteed lation No 1408/71, the latter provision that the social security institution with being narrower in scope than the former. which they are registered will assume the Article 49 EC applies to all nationals of costs of the treatment and that they will not Member States who are established in the be responsible for any additional payments Community, while Article 22 of Regulation since, under Article 36 of Regulation No 1408/71 benefits only citizens of the No 1408/71, the institution concerned European Union and their families who are must fully refund the cost of the benefits insured under one of the statutory social to the institution which provided them. 13 security schemes of the Member States. The provision imposes the same require- ments on all the social security institutions of the Member States, lays down uniform criteria for the conditions on which auth- orisation may not be refused, and helps to promote the free movement of people insured under statutory social security 28. Important distinctions apply to patients schemes. depending upon whether they follow the procedure outlined in Article 22 of Regu- lation No 1408/71 or whether they rely directly on Article 49 EC.
30. By contrast, under Article 49 EC, all nationals of Member States who are estab- 29. Article 22 of Regulation No 1408/71 lished in the Community are entitled to governs exclusively the relationship seek reimbursement of medical expenses between the social security institutions of incurred in another Member State without the Member States. As a general rule, prior authorisation, in accordance with the authorisation is granted for hospital treat- scale of the Member State of insurance. 14 ment and the institution granting the auth- In principle, that rule applies to both orisation coordinates its work with the outpatient and inpatient treatment, institution of the Member State where the although the Court held in Smits and treatment is to be provided. Since both Peerbooms that the requirement of prior institutions are responsible for ensuring that patients receive treatment as soon as possible, they decide in advance in which 13 — That was confirmed by the Court in paragraph 24 of Pierik hospital the treatment will be provided, I, cited above. 14 — That was the interpretation given by the Court in meaning that patients may not choose a paragraph 54 of the Kohll judgment. The case dealt with the issue of dental treatment provided in Germany to a hospital for themselves. Patients are, how- person insured under the Luxembourg social security ever, guaranteed medical treatment on the scheme, which refunds part of the cost after the patient has paid the invoice. It remains to be determined whether the same conditions as the nationals of the same arrangement is available to people insured under schemes which provide only benefits in kind. The issue Member State to which they travel, either should be resolved when judgment is delivered in Case in a hospital managed by the social security C-385/99 Müller-Fauré. The hearing in the latter case was held on 10 September 2002 and I delivered my Opinion on institution of that Member State, or in one 22 October 2002.
I - 12415
OPINION OF MR RUIZ-JARABO — CASE C-56/01
authorisation for the latter form of treat- treatment. People who are insured under ment was justified.15 Patients are free to one of the schemes in question are entitled choose the Member State and the hospital to choose between using the procedure set where they wish to be treated, and the out in Article 22(l)(c) of Regulation practitioner who they wish to treat them. No 1408/71 or, within the limits prescribed The hospital and practitioner may operate by case-law, relying on Article 49 EC. in the private sector or be under the authority of a local sickness fund. The people concerned are not entitled to be treated the same as people who are regis- tered with a national social security scheme. 16 They must pay for the treatment 32. The Court has acknowledged that and the maximum amount which they are Community law does not detract from the entitled to seek from their insurance fund power of the Member States to organise by way of reimbursement is the sum that their social security systems, 18 from which they would have received had the treatment it follows that, in the absence of harmon- been carried out in the Member State of isation at Community level, it is for insurance, provided that reimbursement is national legislation to determine the con- permitted under the legislation of that ditions for entitlement to social security State. 17 benefits. 19 Nevertheless, in all cases, Member States must comply with Commu- nity law when exercising that power. 20
31. In view of the fact that the two measures govern different cases and that the application of each measure leads to a Therefore, when legislating on the issue of different result, it is difficult to accept that prior authorisation and when applying they are incompatible. People who do not national rules governing the conditions have sickness cover under any of the under which it may be granted, national national statutory social security schemes, authorities, including national courts, have or who have arranged private insurance, a duty to ensure the primacy of, and are not precluded from travelling to the compliance with, the principles of the other Member States to receive medical Treaty, as interpreted in case-law. The incompatibility alleged between Article 22 of Regulation No 1408/71 and Article 49 EC does not exist because, in each case, it is 15 — Cited above. In the Opinion I delivered in Müller-Fauré, I proposed that the Court should find that it is not contrary necessary to examine whether the con- to Articles 49 EC and 50 EC to require that social security ditions laid down in national social security schemes which provide benefits in kind must give prior authorisation for insured persons to travel to another Member State to receive outpatient treatment, since it is a legislation, attaching to the grant of auth- justified restriction. 16 — See Case C-411/98 Feritili [20001 ECR 1-8081, in which it was established that, in Luxembourg, people who need medical treatment and who are not affiliated to the 18 — Case 238/82 Duphar [1984] ECR 523, paragraph 16; Case national social security scheme must pay significantly C-70/95 Sodemare and Others [1997] ECR 1-3395, more than those who are affiliated to the scheme. In 1989, paragraph 27; Kohll, cited above, paragraph 17; and the year in which the facts that gave rise to those Smits and Peerbooms, cited above, paragraph 44. proceedings took place, the latter paid LUF 36 859 (EUR 19 — Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira 913.71) for a birth, whereas the former were required to [1997] ECR 1-511, paragraph 36; Kohll, paragraph 18; pay LUF 59 306 (EUR 1 470.15), in other words, 71.43% and Smits and Peerbooms, paragraph 45. more for the same treatment at the same hospital. 20 — Kohll, paragraph 19, and Smits and Peerbooms, 17 — Vanbraekel, paragraph 36. paragraph 46.
I - 12416
INZAN
orisation, are objective and non-discrimi- is not for the Court to respond to it, while natory where the providers of the treatment others state that it is nevertheless appropri- are established;21 whether the conditions ate for the Court to give some guidance so exceed the boundaries of Article 22; and that the national court may reach the whether the conditions are contrary to conclusions needed to settle the dispute. I Article 49 EC in that they constitute agree with the latter view. restrictions on the freedom to provide services which are not justified on overrid- ing public interest grounds.
36. It is well-known that, in the context of proceedings brought under Article 234 EC, 33. It follows from the above that the the Court may not give a ruling on the procedure set out in Article 22(1)(c)(i), in compatibility of a national legislative conjunction with the second subparagraph provision with Community law, 22 or on a of Article 22(2), of Regulation No 1408/71 specific implementing measure adopted by encourages freedom of movement for the national authorities. The Court may, patients who are insured under national however, provide the national court with statutory social security schemes, and, an interpretation of all relevant points of accordingly, is not contrary to Article 49 Community law so as to enable that court EC. to decide the matter itself. 23
37. It appears from the file submitted by V I I— Analysis of the second question the referring court that Ms Inizan was not granted the permission she sought because, in her case, the conditions laid down in the second subparagraph of Article 22(2) of 34. By its second question, the national Regulation No 1408/71 had not been met. court asks the Court of Justice whether the sickness fund is entitled to refuse to reim- burse the costs of the treatment that Ms Inizan wishes to undergo in Germany.
3 8 . The second s u b p a r a g r a p h of Article 22(2) establishes the degree of latitude available to social security institu- 35. Some who have expressed an opinion on this enquiry from the French court state that the question is inadmissible because it 22 —Case C-188/91 Deutsche Shell [1993] ECR I-363, paragraph 27, and Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 13. 23 — Case 30/70 Scheer [1970] ECR 1197, and Case 188/86 21 — Smits and Peerbooms, paragraph 95. Lefèvre [1987] ECR 2963, paragraph 6.
I - 12417
OPINION O F M R RUIZ-JARABO — CASE C-56/01
tions, and precludes them from refusing freedom to provide services in the Com- authorisation where the treatment is among munity. 25 the benefits covered by its sickness insur- ance scheme and where the patient cannot be given such treatment within the time normally necessary for obtaining it in the Member State of residence, taking account of his current state of health and the probable course of the disease. 40. In the case of treatment provided in hospitals, whose number, geographical dis- tribution, mode of organisation, and equip- ment are all matters for which planning must be possible in order to ensure that a balanced range of quality treatment can be That system does not, however, mean that provided with limited financial resources, permission may only be given in the the requirement of prior authorisation in circumstances described. It is open to the order to guarantee the assumption of costs, Member States to be more generous, having under a national social security system, of regard to the requirements and resources of hospital treatment provided in another their own sickness insurance arrangements, Member State is a measure which is necess- by setting criteria attaching to the grant of ary and reasonable, provided that the con- authorisation which promote the move- ditions attached to the grant of such auth- ment of people for medical treatment. 24 orisation are justified in the light of over- However, the French legislation provides riding public interest considerations and for the cost of treatment abroad to be that they satisfy the requirement of pro- reimbursed on the same conditions as those portionality. 26 laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71.
41. When considering a measure imple- menting the first of the conditions which 39. In 2001, the Court looked in detail at must be satisfied so that authorisation may the requirement that sickness funds must not be refused, and which are set out in the grant prior authorisation for people to second subparagraph of Article 22(2) of travel to another Member State for medical Regulation No 1408/71, it must be borne in treatment in hospital, and also at the mind that the Court has accepted that it is conditions attached to the grant of such not incompatible with Community law for authorisation in relation to the principle of the Member State concerned, with a view to achieving its aim of limiting costs, to prepare exhaustive lists excluding certain 24 — The Luxembourg legislation provides for another case in which the sickness fund may not refuse authorisation for products from the social security reim- treatment abroad; namely, where the treatment required bursement scheme, provided that the lists cannot be provided in the Grand Duchy. See Point 1.3 of Annex VI to Regulation N o 1408/71, in the version set out in Council Regulation (EC) N o 118/97 of 2 December 1 9 9 6 a m e n d i n g a n d u p d a t i n g R e g u l a t i o n (EEC) N o 1408/71 and Regulation (EEC) N o 574/72 (OJ 1997 25 — Smits and Peerbooms, cited above. L 2 8 , p. 1). 26 — Smits and Peerbooms, paragraphs 76 to 82.
I - 12418
INIZAN
are drawn up in accordance with objective ment which is as effective as the treatment criteria, without reference to the origin of available in another Member State can be the products. 27 The same principle applies obtained in the Member State of residence to the decision regarding which medical without undue delay, the national auth- and hospital treatments are paid for by orities are required to have regard to all the national sickness insurance schemes, from circumstances of each specific case and to which it follows that Community law take due account not only of the patient's cannot require a Member State to extend medical condition at the time when auth- the list of medical services paid for by its orisation is sought but also of his past social insurance system and that the fact record. that a particular type of medical treatment is covered by the sickness insurance schemes of other Member States is irrel- evant. 28
43. In the case before the Court, the The differences in the cover provided under decision of the Caisse primaire d'assurance the sickness insurance schemes of the maladie des Hauts-de-Seine of 6 July 1999, Member States stem from the freedom refusing the request to bear the costs of which the Member States have to organise hospitalisation in Germany, merely sets out their social security systems. According to the conditions laid down in the second case-law, Article 42 EC provides for the subparagraph of Article 22(2) of Regu- coordination, not the harmonisation, of the lation No 1408/71 and declares that they legislation of the Member States, and have not been fulfilled. The decision of the therefore leaves in being differences Commission de Recours Amiable of between the Member States' social security 19 October 1999, upholding the previous systems and, consequently, in the rights of decision, merely states that, in the opinion persons working in the Member States. 29 of the National Medical Officer, the patient does not fulfil the conditions in question and, accordingly, there is no need for her to travel to another Member State. Finally, the reasoned opinion delivered by the National Medical Officer on 17 August 42. As concerns the second condition, I 2000, at the request of the Tribunal des should like to point out that on examin- affaires de sécurité sociale, Nanterre, ation of a very similar condition provided merely states that the patient can be treated for under Netherlands compulsory sickness in France and that it would be counter- insurance legislation, 30 the Court indicated productive for her to travel to another that, in order to determine whether treat- Member State, since the treatment requires continuity and regularity. In the light of those factors, it is appropriate to wonder 27 — Duphar, cited above, paragraphs 17 and 2 1 . whether the competent authorities did 28 — Snuts and Peerbooms, paragraph 87. actually take into account the patient's 29 — Case 41/84 Pinna|1986| ECR 1, paragraph 20, and Case condition and, in particular, her past rec- 313/86 Lenoir | 1 9 8 8 | ECR 5391, paragraph 13. 30 — Stmts and Peerbooms, paragraph 104. ord.
I - 12419
OPINION OF MR RUIZ-JARABO — CASE C-56/01
44. Finally, a prior administrative auth- which are more favourable to the orisation scheme can never render legit- people concerned; imate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relat- ing to a fundamental freedom. 31 Therefore, in order for such a scheme to be justified, regard must be had to objective, non-dis- — In the case of treatment provided in criminatory criteria which are known in hospital, the grant of authorisation advance, in such a way as to circumscribe may be subject to certain conditions, the exercise of the national authorities' provided that they are objective, non- discretion, to avoid any possibility of its discriminatory and known in advance; being used arbitrarily. 32 At the same time, there must be a procedural system in place which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impar- tially within a reasonable time, and which — Community law cannot require a safeguards the right to challenge refusals to Member State to extend the list of grant authorisation in judicial or quasi- services paid for by one of its sickness judicial proceedings. 33 insurance schemes;
45. Consequently, it is appropriate to pro- vide the national court with some guidance — In order to determine whether a par- to assist it in settling the dispute before it: ticular treatment can be provided within the time normally necessary to obtain such treatment in the place of residence, account must be taken of all the circumstances of the case, the patient's medical condition, and the — The conditions laid down in the second patient's past record; and subparagraph of Article 22(2) of Regu- lation No 1408/71 are the only con- ditions which, if fulfilled, preclude the refusal of authorisation, but the Member States may set conditions attaching to the grant of authorisation — The procedure for obtaining authori- sation must ensure that requests for 31 — Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Joined Cases C-163/94, authorisation are dealt with objectively C-165/94 and C-250/94 Sanz de Lera and Others [1995] and impartially within a reasonable ECR I-4821, paragraphs 23 to 28; and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37. time, and must safeguard the right to 32 — Analir and Others, paragraph 38. challenge refusals in judicial or quasi- 33 — Smits and Peerbooms, paragraph 90. judicial proceedings. I - 12420
INIZAN
VIII — Conclusion
46. In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions referred for a preliminary ruling by the Tribunal des affaires de sécurité sociale, Nanterre:
(1) During the course of these proceedings no matter has been brought to light which would call into question the validity of Article 22(1)(c)(i), or the second subparagraph of Article 22(2), of Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community.
(2) In order to determine whether the Caisse primaire d'assurance maladie des Hauts-de-Seine is entitled to refuse to reimburse the costs of hospital treatment in another Member State, the following points should be considered:
— The conditions laid down in the second subparagraph of Article 22(2) of Regulation N o 1408/71 are the only conditions which, if fulfilled, preclude the refusal of authorisation, but the Member States may set conditions attaching to the grant of authorisation which are more favourable to the people concerned;
— In the case of treatment provided in hospital, the grant of authorisation may be subject to certain conditions, provided that they are objective, non-discriminatory and known in advance;
I - 12421
OPINION OF MR RUIZ-JARABO — CASE C-56/01
— Community law cannot require a Member State to extend the list of services paid for by one of its sickness insurance schemes;
— In order to determine whether a particular treatment can be provided within the time normally necessary to obtain such treatment in the place of residence, account must be taken of all the circumstances of the case, the patient's medical condition, and the patient's past record; and
— The procedure for obtaining authorisation must ensure that requests for authorisation are dealt with objectively and impartially within a reason- able time, and must safeguard the right to challenge refusals in judicial or quasi-judicial proceedings.
I - 12422