C-8/02

1. The Verwaltungsgericht Sigmaringen applied for recognition that expenditure (Administrative Court), Sigmaringen, Ger- incurred in respect of a thermal cure he many, an administrative court of first proposed to undergo in Ischia, Italy, instance, has referred two questions to the between 29 April and 13 May, was eligible Court of Justice for a preliminary ruling on for reimbursement. Mr Leichtle submitted a the interpretation of Articles 49 EC and 50 medical certificate from a specialist which EC. stated that he suffered from polyarthralgia and chronic back pain, that he had exhausted the treatment available in his place of residence, and that, from an orthopaedic and rheumatologicial point of In particular, the Verwaltungsgericht Sig- view, he needed to undergo inpatient maringen seeks to ascertain whether those rehabilitation, such as, in particular, fango provisions preclude a national provision on baths together with radon treatment, such reimbursement of the costs of medical as those provided, for example, in Ischia. treatment, under which the assumption of expenditure relating to a thermal cure undertaken in another Member State, is made subject to the additional condition that it must be established by a medical report that the cure provided in that Member State offers greater prospects of success 3. The employment office medical officer responsible for the plaintiff's administrative unit stated that, although the cure was necessary to restore the plaintiff's fitness for work, it did not appear to be essential that he be treated abroad. Subsequently, the I — The facts medical adviser of the Federal Employment Authority reached the same conclusion, stating that the documents attached did not establish whether the patient had at any 2. Mr Leichtle, the plaintiff in the main time undergone a thermal cure in Germany proceedings, is an official of the Bundesan- and that a large number of treatments for stalt für Arbeit (Federal Employment similar symptoms were successfully pro- Authority). In February 2000, Mr Leichtle vided at German health spas. On the basis of that opinion, the Federal Employment Authority rejected the application of 29 1 — Original language: Spanish. February 2000.

5. Mr Leichtle underwent the therapy in 7. The costs involved in taking a thermal Ischia on the dates envisaged. The cost of cure are of two types: doctors' fees, as the medical and thermal treatment came to referred to in Article 8(2)(1) of the rules on ITL 463 000 (EUR 239.12), 3the travelling reimbursement, and associated expenditure, costs to DEM 639 (EUR 326.72), and the such as board and lodging, visitors' tax, cost of accommodation to DEM 2 200 and the final medical report, recognised in (EUR 1 124.84). Mr Leichtle has not yet Article 8(2)(2) to (5). Medical fees are applied for reimbursement of last two reimbursed without the need for prior amounts because he is still awaiting recog- authorisation from the sickness fund, nition that they are reimbursable. regardless of whether the treatment was received in Germany or in another State. Related expenditure is also reimbursed, 2 — In the version published on 10 July 1995 (GMBl., p. 470) provided the person concerned first makes and last amended on 20 February 2001 (GMBl., p. 186). application for reimbursement, irrespective 3 — As the national court states in its order, the amount of EUR 154.41 was deemed to be reimbursable, following the of whether treatment is received in Ger- application of the corresponding scale to the actual amount. many or abroad. However, the conditions

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which must be met in order for assistance to 2. expenditure incurred on board and be granted vary according to the place in lodging for a maximum of 23 calendar which the service is provided and are set out days, including days of travel, up to an in Article 8(3)(1), if the patient proposes to amount of DEM 30 per day; ... attend a German health spa, or in Article 13 (3), if the patient chooses to attend a spa abroad.

(2) The following expenditure shall satisfy the conditions for the grant of assistance in respect of a health cure:

1. according to a report drawn up by a medical officer or a medical consult- ant, the health cure is necessary to restore or maintain fitness for work 1. the expenditure provided for in Arti- following serious illness or, in the case cle 6(1)(1) to (3), of considerable chronic pain, balneo-

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therapy or climotherapy treatment is '(1) Expenditure incurred outside the Fed- absolutely necessary and cannot be eral Republic of Germany shall be replaced by other forms of treatment eligible for assistance only where it offering the same prospects of success, constitutes expenditure provided for in in particular by treatment at the Article 6 and 9 to 12 and only in so far official's place of residence or posting as it would have been incurred in the within the meaning of the Bundesum- Federal Republic of Germany and zugskostengesetz (German Federal eligible for assistance up to the per- Law on Removal Costs); mitted amount had the treatment been taken at the place of residence of the person concerned.

2. the authority responsible for determin- ing the amount of the assistance has first recognised such eligibility. That (2) ... recognition shall be valid only where treatment is commenced within four months of notification of the decision;

(4) ...'

III— The questions referred to the Court

9. In view of the fact that, under the provisions of German law set out above, thermal cures taken in other Member States (2) Are Articles 49 EC and 50 EC to be are subject to special restrictions, by com- interpreted as precluding rules of parison with those taken in Germany, the national law (in this case, point 3 in Verwaltungsgericht Sigmaringen, which is the first sentence of Article 13(3) of the required to adjudicate on the substance of rules on reimbursement, read in con- the case, decided to stay proceedings and to junction with Article 8(3)(2) thereof) refer the following questions to the Court of under which advance recognition of a Justice for a preliminary ruling: health cure is precluded where the person concerned does not await the conclusion of the application proce- dure or of any subsequent court proceedings before commencing the cure and where the only matter in (1) Are Articles 49 EC and 50 EC to be dispute is whether those rules are interpreted as precluding a rule of correct not to recognise a health cure national law (in this case, Article 13 taken in another Member State of the (3) of the Allgemeine Verwaltungsvors- European Union as eligible for assis- chrift für Beihilfen in Krankheits-, tance?

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IV — Community legislation "Services" shall in particular include:

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VI — Analysis of the questions for expenditure incurred abroad to be reimbursed are justified on public-interest grounds.

A — The views of the parties who submitted observations 14. The Commission maintains that a patient such as Mr Leichtle, who fulfils only the condition laid down in Article 8(3) of the German rules on reimbursement, is entitled to payment of medical fees and 12. The Spanish Government maintains related expenses if he receives treatment in that balneotherapy is more in the nature Germany but not if he travels abroad. of inpatient treatment than in that of outpatient treatment. For that reason, Articles 49 EC and 50 EC do not preclude a national rule that the cost of a thermal cure in another Member State is covered by sickness insurance, provided that it is It contends that Articles 49 EC and 50 EC established in a medical report that that preclude national rules having those char- cure offers greater prospects of success. acteristics, under which reimbursement of expenses relating to a thermal cure abroad is ruled out in principle and expenditure may be reimbursed only by way of excep- tion, provided that it is established by a medical report that the treatment must be provided outside Germany because there 13. The United Kingdom submits that the are greater prospects of success. rules in issue render the provision of services in another Member State more difficult than in Germany, since the criteria set out in Article 8(3)(1) are more readily satisfied than those set out in Article 13(3). Accordingly, Article 13(3) constitutes a barrier to freedom to provide services. However, the United Kingdom maintains B — First question that the requirement of the conditions imposed by the rule for reimbursement of the expenditure relating to a thermal cure taken away from the place of residence is, in principle, necessary and reasonable. It 15. By the first question, the national court proposes that it is for the national court to seeks to ascertain whether Articles 49 EC determine in each case whether the more and 50 EC preclude a rule, such as stringent criteria which according to the Article 13(3) of the rules on reimbursement, rule in question must be satisfied in order under which reimbursement of expenditure

16. I proceed from the assumption that treatment which is provided at a health spa, upon the recommendation of a doctor and under medical supervision, must be assimi- lated to medical activities, which, according to the settled case-law of the Court, 4 fall within the scope of Article 50 EC. 5 The national court is therefore right to seek an 18. That constitutes a barrier to freedom to interpretation of Articles 49 EC and 50 EC. provide services which, to my mind, is justified by the need to control expenditure and to prevent wastage of financial resources. As the Commission states in its 4 — Judgments in Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Case C-158/96 written observations, the general principle Kohll [1998] ECR I-1931, paragraphs 29 and 51; Case behind the German insurance scheme is that C-157/99 Gemets-Smits and Peerbooms [2001] ECR I-5473, paragraph 53; and Case C-385/99 Miiller-Fauré patients are free to choose the centre at and Others [2003] ECR I-4509, paragraph 38. which they receive treatment, from which it 5 — I diverge from that view where the treatment is covered by follows that patients must bear the differ- sickness insurance which provides only benefits in kind, as I made clear in my Opinion in Geraets-Smiis and Peerbooms. ence in cost when they choose a more See, in particular, points 35 to 49 of that Opinion, where I examined in detail the characteristics of the compulsory expensive clinic to receive treatment which sickness insurance scheme in the Netherlands, pointing out that the healthcare benefits in kind provided to insured has the same therapeutic value. If, on the persons under that scheme lack the element of remuneration and, as such, cannot be regarded as a service within the other hand, the fees of the medical practi- meaning of the Treaty. tioners are lower than in Germany, the

6 — Regulation (EEC) No 1408/71 of the Council of 14 June It is appropriate to analyse the advance 1971 on the application of social security schemes to recognition of expenses separately from the employed persons, to self-employed persons and to members of their families moving within the Conimunity, as amended requirement that the treatment abroad be and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1981 L 230, p. 61. necessary, since they are the two conditions 7 —Judgments in Ciase C-120/95 Decker [1998] ECR I-18.51, which are liable to deter patients from paragraph 36, and Kohll, paragraph 35.

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9 — Chekhov set the moving love affair in his short story La Señora del perrito ('The Lady with the Dog') (Spanish translation by Juan López-Morrillas, Alianza Editorial, Madrid, 1984, p. 169 et seq.) in the Ukrainian health spa of Yalta on the Crimea peninsula, near the Black Sea. 24. The Court has held that treatment 10 — In the nineteenth century, every politician had his favourite provided in a hospital takes place within health spa. Bismarck went to Ens; Cavour frequented the spa at Plombières, where in 1858 he met Napoleon III to an infrastructure with, undoubtedly, certain agree aid to Sardinia in its fight against Austria and the conditions for the reorganisation of Italy into a federation; very distinct characteristics, since the geo- Napoleon IIIhimself used the spa at Villefranche, while his graphical distribution of hospitals, the wife, the Empress Eugénie de Montijo, took the waters at Vichy; Ferdinand VII and his third wife, María Amalia de mode of their organisation and the equip- Sajonia, had treatment at the thermal centre of Solán de Cabras in the Spanish province of Cuenca, convinced that the waters there would help to produce an heir to the throne; Cánovas del Castillo, a liberal-conservative who was prime-minister of Spain on a number of occasions with effect from 1874, would regularly relax at the Basque 8 — See the judgments in Decker, Kohll, Geraets-Smits and thermal centre of Santa Águeda, where he was assassinated Peerbooms, and Müller-Fauré and Others. by an Italian anarchist in 1897.

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27. The second condition deterring patients from attending health spas in other Member States is that they must provide a medical report establishing that, in view 26. The requirement that a patient must of the greater prospects of success, it is obtain prior authorisation in order to essential that the thermal treatment be provided abroad; in other words, where the therapeutic advantages offered by ther- mal cure centres in Germany are equivalent 11 — However, King Alfonso VII of Castille (1106-1157) ordered the destruction of many of the spas in his kingdom to those offered by the establishment of the because he regarded them as dens of iniquity. country which the patient proposes to visit, 12 — According to tradition, the spa of Solán de Cabras was discovered i n the sixteenth century when a shepherd reimbursement is refused. Given the close noticed his sheep, which were sick with mange, wallowing link between the medical services provided in water from which they later emerged cured; in the eighteenth century, Pedro López de Lerena, minister of as part of a thermal cure and the associated royal finances to Charles III, built the bathing centre and hotel. Legend has it that the Cahcian health spa of La Toja costs, a refusal to grant reimbursement of was opened after a dying donkey was abandoned on the costs, which significantly exceed the medi- then uninhabited island of that name, only to return a few days later completely cured. cal fees, has the effect, in most cases, that 13 — Haas, E.M., La salud y las estaciones, Spanish translation by Rafael Lassaletta, Editorial Etaf, Madrid, 1982, particularly pp. 24, 242 and 243. 14 — Judgment in Geraets-Smus and Peerbooms, paragraphs 76 and 78. 15 — Ibid., paragraphs 79 and 80.

31. Article 46 EC, to which Article 55 EC refers, does not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health. Throughout these proceed- 29. To my mind, that justification is not ings, however, no convincing argument has valid in the present case, where the disputed been advanced to justify the discriminatory measure treats situations differently accord- measure on public health grounds. In any ing to the place where the service is event, that aim would be assured by the provided. The reimbursable amount of the requirement that the health spa be listed in costs associated with a cure taken abroad the register of recognised thermal treatment has not been limited by the measure, centres. contrary to the position with regard to the medical fees, and it might therefore be concluded that patients who prove that they need to travel abroad have an advantage by comparison with those who remain in Germany and receive assistance calculated on a flat-rate basis. However, the fact is 32. It is well-known that, according to the that assistance in respect of such expendi- case-law of the Court, Article 49 EC precludes the application of any national legislation which has the effect of making the provision of services between Member 16 — Ibid., paragraphs 103 and 105. States more difficult than the provision of

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services purely within one Member State, 17 insurance, should have the authority to save where it is objectively justified. 18 verify the authenticity of the health spas whose treatments it funds by way of sums paid out to insured persons.

17 — Judgments in Case C-381/93 Commission v France [1994] ECU I-5145, paragraph 17, and Kohll, paragraph 33. 18 — Judgment in Kohll, paragraph 33. 36. In the event that the Court should 19 — Ibid., paragraph '12. answer the first question in the affirmative,

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the effect of which would be to disapply 39. The difficulty arises when, as in this Paragraph 13(3)(1), the Verwaltungsgericht case, recognition is refused in breach of Sigmaringen asks whether Articles 49 EC Community law on freedom to provide and 50 EC preclude a rule of national law services, and the patient must bring court under which reimbursement of expenditure proceedings in which it may be held that, associated with a health cure in another under national law, the lack of advance Member State is refused if the person recognition is a defect which is incapable of concerned does not wait until that expend- being remedied. iture has been recognised as eligible for assistance, in an administrative procedure or in court proceedings, before commencing treatment.

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In fact, the application of Article 13(3)(3), Regulation No 1408/71 to a dispute in in conjunction with Article 8(3)(2), of the which a patient had requested prior author- German Assistance Provisions would have isation for hospital treatment in another the effect that patients who have travelled Member State and the national court had to another Member State to take a health set aside the refusal to grant authorisation. cure, overcoming the barrier to freedom to provide services erected by Article 13(3)(1), were deprived of the right to be treated in the same way as people who, because they took the cure in Germany, experienced no difficulty in obtaining advance recognition of the eligibility for assistance of the expenditure associated with that cure and, consequently, in receiving reimbursement. The Court of Justice held that where the competent institution does not grant the request of a person insured under the social security system for authorisation on the basis of Article 22(1 )(c) of Regulation No 1408/71, and it is subsequently established, either by the competent institution itself or by a court decision, that that refusal was Moreover, the referring court proposed a unfounded, that person is entitled to be reply to that effect in section two, point reimbursed by an amount equivalent to that three of the order for reference. which he would have received if authorisa- tion had been granted in the first place.

40. There is also recent case-law on the interpretation of certain provisions of Regu- lation No 1408/71 which, by analogy, is 42. I therefore consider that Articles 49 EC capable of shedding light on this issue. and 50 EC preclude a rule of national law, such as Article 13(3)(3), in conjunction with Article 8(3)(2), of the German Assis- tance Provisions, under which reimburse- ment of expenditure associated with a health cure taken in another Member State is refused if the person concerned does not wait to obtain recognition of the eligibility 41. In Vanbraekel and Others, 20 the Court for assistance of that expenditure, in court clarified the applicability of Article 22 of proceedings, before commencing treatment.

(2) Articles 49 EC and 50 EC preclude a national provision such as point 3 of the first sentence of Article 13(3) of the same rules, read in conjunction with Article 8(3)(2) thereof under which reimbursement of expenditure associated with a health cure taken in another Member State is precluded if the person concerned does not wait to obtain recognition of the eligibility for assistance of that expenditure in court proceedings, before commencing treatment.

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