C-156/01

2. Mr Van der Duin, who was born in 1944 in the Netherlands, moved to France in 1989 and registered with the sickness The questions referred seek to clarify insurance fund there (Caisse primaire d'as- whether a pensioner, or a member of his surance maladie). Since August 1990, he family, who is entitled to draw a pension has been entitled to benefits under the Law under the legislation of one Member State on incapacity for work (Algemene Arbeid- but who resides in another Member State songeschiktheidswet) and the Law on where, pursuant to Article 28 of Regulation invalidity assurance (Wet op de arbeid- No 1408/71, he receives sickness insurance songeschiktheidsverzekering), calculated benefits in kind as though he were a on the basis of a degree of invalidity of pensioner from that Member State, such between 80 and 100%. Since 1990, regis- benefits being chargeable to the social tration with the French fund has been based security institution of the State responsible on Article 28 of Regulation No 1408/71 for paying the pension, is entitled to travel and on Article 29 of Regulation to the territory of the latter in order to No 574/72, 3 following production of an receive medical treatment. E 121 form, which certifies the entitlement to benefits under the legislation of the

1 — Original language: Spanish. 2 — Regulation (EEC) No 1408/71 of the Council of 14 June 3 — Regulation (EEC) No 574/72 of the Council of 21 March 1971 on the application of social security schemes to 1972 fixing the procedure for implementing Regulation employed persons and their families moving within the (EEC) No 1408/71 (OJ, English Special Edition 1972 (I), Community (OJ, English Special Edition 1971 (II), p. 416), p. 159), as updated by Council Regulation (EC) No 3095/95 as amended by Council Regulation (EEC) No 2001/83 of of 22 December 1995 amending Regulation (EEC) 2 June 1983 amending and updating Regulation (EEC) No 1408/71, Regulation (EEC) No 574/72, Regulation No 1408/71 and also amending and updating Regulation (EEC) No 1247/92 and Regulation (EEC) No 1945/93 (EEC) No 574/72 (OJ 1983 L 230, p. 6). (OJ 1995 L 335, p. 1).

4. The hospitals which had treated Mr Van der Duin contacted Onderlinge Waarborg- maatschappij ANOZ Zorgverzekeringen U.A. 5 ('ANOZ Zorgverzekeringen'), a mutual guarantee society, requesting that it reimburse the costs. The society, having established that when he received the benefits Mr Van der Duin was resident in Accordingly, on 24 November 1995, France, was of the opinion that the require- ANOZ Zorgverzekeringen took the ment laid down in Article 22(1 )(a) of decision to refuse to reimburse the cost of hospitalisation and rehabilitation in the Netherlands, as a result of which the 4 — Pursuant to Regulation No 1408/71 and Regulation hospitals sought payment directly from No 574/72. the Administrative Commission of the Euro- pean Communities on Social Security for Migrant Workers, Mr Van der Duin. 9 set up under Article 80 of Regulation No 1408/71, has been required to approve a number of standard forms, drafted in all the official languages, which are generally used as certificates. The forms referred to in this case were approved 6 — Covering the right to sickness benefits in kind during a stay by Decision No 1.10 of 17 October 1985. in another Member State. 5 — According to information supplied by the Netherlands 7 — Used to request certification of the right to benefits in kind. Government in its written observations, this is the sickness assurance fund with which recipients of a pension under 8 — Covering the continuation of ongoing treatment under Netherlands law who do not reside in the Netherlands, and sickness insurance. who are entitled to benefits paid under a sickness assurance 9 — The invoices came to NEG 60 896.80, which is equivalent fund pursuant to a Council regulation, must register. to EUR 27 6.13.76.

9. The hospital contacted ANOZ Zorgver- 7. In March 1995, Mrs Van Wegberg-van zekeringen requesting payment for the Brederode, who was born in 1948, left the operation, but its request was refused on Netherlands with her husband to live in 25 April 1997 on the grounds that the Spain. Since May 1995, when he reached requirement of Article 22(1)(a) of Regu- the age of 65, her husband has been in lation No 1408/71 had not been satisfied receipt of a Netherlands pension under the and that the competent institution had also Law on general old-age insurance (Alge- failed to produce an E 112 form, which is

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VAN DER DUIN AND ANOZ ZORGVERZEKERINGEN

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OPINION OF MR RUIZ-JARABO — CASE C-156/01

I I — The questions referred for a prelimi- (3) If the answer to Question 1 is negative, nary ruling do the provisions of Article 21 or those of Article 31 of Regulation No 1408/71 govern the entitlement to benefits of (a member of the family of) a pensioner who is entitled under Article 28 of Regulation No 1408/71 to receive 13. With a view to resolving the two benefits from the institution of the disputes, the Centrale Raad van Beroep place of residence (the French and referred three questions to the Court of Spanish sickness insurance funds Justice, which read as follows: respectively), those benefits being chargeable to the institution competent in accordance with Article 28(2)(a) of Regulation No 1408/71, that is to say the Netherlands sickness insurance fund, in a situation where the person concerned is staying in the competent State?' '(1) Does Article 22(1)(c) of Regulation No 1408/71 also apply to (a member of the family of) a pensioner who is entitled under Article 28 of Regulation No 1408/71 to receive benefits from the institution of the place of residence (in the present cases from the French or the Spanish sickness insurance funds I I I— The proceedings before the Court of respectively), those benefits being Justice chargeable to the institution competent in accordance with Article 28 (2) (a) of Regulation No 1408/71, that is to say 14. Mr Van der Duin, the German, Span- the Netherlands sickness insurance ish, French, Netherlands and United King- fund, in a situation in which the dom Governments, and the Commission pensioner (or a member of his family) submitted written observations in these travels to the Member State where the proceedings within the period prescribed competent institution is situated (in this in Article 20 of the EC Statute of the Court case the Netherlands) in order to of Justice. receive medical treatment?

IV — Analysis of the questions referred for have participated in these proceedings a preliminary ruling agree that Article 28(1 )(a) of Regulation No 1408/71 entitles pensioners who have sickness insurance cover in one Member State but who reside in another Member A — The first question State to receive benefits in kind chargeable to the latter, in the same way as if they were pensioners under the legislation of that Member State and were entitled to the benefits in question. A transfer of compet- 15. In the first question, the national court ence relating to health care is thereby enquires whether Article 22(1 )(c) of Regu- effected, since the pensioner becomes a full lation No 1408/71 also applies to a pen- member of the scheme operating in his new sioner, or to a member of his family, who, State of residence and is treated in the same in accordance with Article 28 of Regulation way as pensioners who are nationals ofthat No 1408/71, receives sickness insurance State. ANOZ Zorgverzekeringen and the benefits in kind from the institution of his abovementioned governments also consider country of residence, those benefits being that Article 22(1 )(c) applies to pensioners, chargeable to the institution of the Member with the result that they may receive sick- State competent in respect of pensions, ness insurance benefits in kind in any where the pensioner travels to the territory Member State, provided that they have of the latter Member State in order to obtained the authorisation of the compet- receive medical treatment. ent institution, that is to say the institution of the Member State in which they reside.

persons were entitled to return to the observations unanimously agree that the Member States responsible for paying their reply to the first question should be in the pensions in order to receive medical treat- affirmative, a view which is shared by the ment which was chargeable to the Member Commission. However, there does not State of residence. 11 appear to be the same consensus of opinion among the Netherlands courts in which the two main disputes have been heard thus far. The Centrale Raad van Beroep explains in its order for reference that, in the light of the facts of the two cases, which are very 18. The Commission explains that, under similar, the Arrondissementsrechtbank the scheme governed by Article 28 of te 's-Hertogenbosch found that ANOZ Regulation No 1408/71, from the moment Zorgverzekeringen was not obliged to when the pensioner and the members of his reimburse the cost of Mr Van der Duin's family register with the social security hospital stay and treatment, since no auth- institution in the new Member State of orisation had been granted by the French residence, that State becomes the compet- sickness insurance fund, whereas the ent Member State. The situation in which a Arrondissementsrechtbank te Utrecht held pensioner who is covered by that provision that the Spanish sickness insurance fund receives sickness benefits in kind in a was not the institution competent to grant Member State other than the one in which the a u t h o r i s a t i o n referred to in he resides is governed by Article 31 of Article 22(1 )(c) of Regulation No 1408/71 Regulation No 1408/71, if he needs treat- and that the operation carried out on Mrs ment during a stay in another State, and by Van Wegberg-van Brederode was charge- Article 22(1)(c) of Regulation No 1408/71 able to ANOZ Zorgverzekeringen. The if he travels to another State in order to order for reference states that, since receive specific medical treatment. The fact Article 22 governs the provision of medical that the Member State in which he receives care outside the competent State, it does the medical treatment is the one which is not apply to the two disputes, in view of the responsible for paying his pension is imma- fact that, pursuant to Article l(o), (p) and terial. (q) of Regulation No 1408/71, the Nether- lands had not ceased to be the competent State vis-à-vis the two insured persons concerned, despite the fact they had taken up residence in another country. Accord- ingly, the national court takes the view that 19. I would observe that in this case the Article 31 of Regulation 1408/71 applies to 12 Member States which have submitted both cases.

20. In that connection, I should like to 22. Only the third situation, which is point out that, in accordance with referred to in Article 22(l)(c)(i) and in the Article 249 EC, Regulation No 1408/71, second subparagraph of Article 22(2), is and Regulation No 574/72, implementing relevant for the purposes of these proceed- it, both of which were adopted to give ings. Under that provision, a worker who effect to Article 42 EC, are directly appli- meets the conditions for the receipt of cable in the Member States. Their provi- treatment laid down in the legislation of sions must, therefore, also be subject to one Member State, and who has been uniform application by national auth- authorised by the relevant institution to orities, which include national courts. travel to the territory of another Member State to receive the appropriate treatment, is entitled to benefits in kind provided on behalf of the competent institution by the institution of the place of stay, as though he were insured with the latter. The auth- orisation may not be refused where the treatment concerned is of a kind which is provided for under the legislation of the 21. Article 22 of Regulation No 1408/71 Member State of residence and where, comes under Title III, Chapter 1, which having regard to the current state of health deals with sickness and maternity benefits. of the worker and to the probable evolution Section 2 of Chapter 1, which contains of the illness, the treatment cannot be Articles 19 to 24, deals with employed and provided within the normal period for self-employed persons and members of obtaining that treatment in the Member their families. 13 State of residence.

amount equivalent to that which that 24. The Court went on to note that institution would ordinarily have borne if Articles 27 to 33 come under Title III, authorisation had been granted in the first Chapter 1, Section 5, which covers pen- place. 14 sioners and their families, and that those provisions apply exclusively to the latter insured persons, the effect of which, in my view, is twofold. Firstly, Article 31 entitles pensioners to receive benefits in kind if they need such benefits during a stay in a Member State other than the one in which they reside. 23. In Pierik II, 15 the Court defined the scope of Article 22(1)(c) of Regulation No 1408/71 ratione personae. The Court was required to determine whether Article 22, under which a 'worker' is entitled to benefits in kind, also applies to a pensioner 'who is not, or is no longer, at work' and who asks the competent institu- tion for authorisation to go to a Member State other than the one where he resides to The second effect is that Article 22(1 )(c) of receive there the treatment appropriate to Chapter 1, Section 2 governs the entitle- his state of health. ment to receive sickness assurance benefits in kind of anyone who is resident in a Member State and who asks the competent institution for authorisation to travel to another Member State in order to receive the appropriate medical treatment, since Section 5 contains no specific provision for pensioners who find themselves in that The Court held that the definition of situation. 'worker', adopted 'for the purpose of this regulation', has a general scope and covers any person who is insured under the social security legislation of one or more Member States, whether or not he pursues a pro- fessional or trade activity. Accordingly, even if they do not pursue a professional or trade activity, pensioners come within the provisions of the regulation concerning 25. Responsibility for medical treatment 'workers' by virtue of their insurance under required by a pensioner who resides in a a social security scheme, unless they are Member State other than the one respon- subject to special provisions. 16 sible for paying his pension, where he enjoys no right to benefits, is governed by Article 28 of Regulation No 1408/71, 14 — Judgment in Case C-368/98 Vandbraekel and Others [2001] which provides that a pensioner who finds ECR I-5363, paragraph 34. himself in those circumstances is entitled to 15—Judgment in Case 182/78 Pierik [1979] ECR 1977, receive sickness benefits, for himself and paragraph 3. 16 — Ibid. paragraph 4. for his family, provided that he would be

Article 29 of Regulation No 574/72 pro- vides that, in order to receive benefits in Therefore, in addition to applying the kind in the territory of the Member State in principle of equality, by treating such which he resides, under Article 28(1) of pensioners in the same way as pensioners Regulation No 1408/71, a pensioner must governed by national legislation, Article 28 register with the institution of the place of of Regulation No 1408/71 serves to bring residence by submitting a certified state- about a change of the institution respon- ment testifying that he is entitled to the said sible for providing sickness benefits, with benefits under the legislation under which a the result that such institution ceases to be pension is payable. The certified statement the one with which the pensioner is regis- must be issued, at the request of the tered, in other words the institution of the pensioner, by the institution responsible Member State responsible for paying the for paying the pension. If the pensioner pension, and the responsibility is instead does not submit the certified statement, the assumed by the social security institution of institution of the place of residence may the Member State in which the pensioner obtain it directly from the institution resides. responsible for paying the pension. Whilst awaiting the receipt of this certified state- ment, the institution of the place of resi- dence may, in the light of the documentary evidence accepted by it, register the pen- sioner and the members of his family Article 28 of Regulation No 1408/71 is a provisionally. That registration does not specific provision which applies exclusively entail obligations for the institution respon- to pensioners and their families, and sible for the payment of benefits in kind through it the initial aim of the Community until the institution of the place of resi- legislature appears to have been to facilitate dence has issued the certified statement. the resettlement of migrant workers in their Member States of origin at the end of their working lives. However, in recent years, the provision has enabled numerous Euro- pean pensioners to take up residence in warm countries whose climate is beneficial to their health, by ensuring that they are 27. Once the registration has been effected, entitled to sickness benefits. the institution of the place of residence is

28. An additional argument in support of that interpretation is provided by Article 95 of Regulation No 574/72, which sets out in great detail the rules governing the refund, by one institution to another, of benefits in kind provided under sickness insurance to pensioners and their families who reside in a Member State other than the one respon- sible for paying the pension. 18 If, in accordance with Article 28, the institution of the place of residence becomes responsible for the provision of benefits, being reimbursed in return by the competent institution, that is the institution of the State responsible for paying the pension, the latter institution is discharged Under Article 95, the amount of the from the principal obligation of providing benefits in kind provided under the benefits for as long as the pensioner Article 28(1) of Regulation No 1408/71 is remains registered with the institution of the place of residence. 17 — At the hearing, the Agent of the Kingdom of Spain told the Court that there are currently 83 600 Community citizens registered with that country's social security institutions 19 — The cost varies greatly from State to State. See, by way of under this provision, of which almost 7 000 are pensioners, example, the average costs calculated in respect or benefits and their families, in receipt of a Netherlands pension. in kind provided per person per month in 1999. For Spain 18 — In order to bring the amount of the lump sum to be the amount was EUR 119.11, whereas for Austria it was refunded a little closer to the real costs incurred by the EUR 214.83 (OJ 2001 C 76, p. 5). The Agent of the institutions of the Member States, this provision was Kingdom of Spain submitted further significant data at the amended by Council Regulation (EC) No 3095/95 of hearing. In 1998 the average cost was EUR 111 in Spain, 22 December 1995 (OJ 1995 L 335, p. 1). A transitional EUR 243 in Germany, and EUR 322 in the Netherlands. In period was established for relations with the French 1999, the figures for those countries were, respectively, Republic, in view of the likely administrative difficulties EUR 119, EUR 253 and EUR 340, while for 2000 the which could arise in that Member State. figures were EUR 127, EUR 261 and EUR 358.

In order to avoid such situations, it seems reasonable to me that the section of the form which provides instructions to the B — The second question pensioner 20 should state clearly that, once a person has registered with the social security institution of the State of residence, that institution has sole responsibility for providing him with any medical care he might need for as long as he remains so registered, meaning that he must seek the 31. In the event of an affirmative answer to the first question, the Centrale Raad van 20 — It currently only provides two pieces of information: the name of the social security institution in the destination country to which the form must he submitted in order to 21 — My proposal is hardly revolutionary. Information of that effect registration, and the duty to notify that institution of nature appears, for example, on the E 111 form, which any change likely to affect the entitlement to receive clearly states that the form does not provide entitlement to benefits in kind, such as the suspension or withdrawal of benefits in kind if the insured person travels to another the pension, or a change of residence. country in order to receive medical treatment.

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VAN' DER DUIN AND NOZ ZORGVERZEKERINGEN

benefits as shown in the latter's accounts. responsible for paying the pension to be Given that the cost of medical treatment examined or, alternatively, that the latter provided to pensioners varies from country would, at the very least, have to send a to country, it is not hard to guess that the consultant to examine the pensioner in the social security institution of the Member Member State of residence. State of residence is not going to grant authorisation in response to every request it receives from sick persons, especially if the treatment required can be provided within an appropriate time under the arrange- ments that are already in place.

36. For the reasons set out, I believe that the institution of the Member State in which a pensioner (or a member of the family) resides, with which he is registered to receive sickness benefits in kind under Article 28 of Regulation No 1408/71 and Article 29 of Regulation No 574/72, is the institution competent to authorise that person to travel to one of the other Member States, including the Member State responsible for paying the pension, under Article 22(1 )(c) of Regulation No 1408/71.

(2) The institution of the Member State in which a pensioner (or a member of his family) resides, with which he is registered to receive sickness benefits in kind under Article 28 of Regulation No 1408/71 and Article 29 of Regulation No 574/72, is the institution competent to authorise that person to travel to one of the other Member States, including the Member State responsible for paying the pension, under Article 22(1 )(c) of Regulation No 1408/71.

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