# C_2011063EN.01001901.xml

| 26.2.2011 | EN | Official Journal of the European Union | C 63/19 |
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Action brought on 30 November 2010 — European Commission v Federal Republic of Germany

(Case C-562/10)

2011/C 63/37

Language of the case: German

Parties

Applicant: European Commission (represented by: F.W. Bulst and I. Rogalski)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should declare that:

| — | The Federal Republic of Germany has failed to fulfil its obligations under Article 56 TFEU by
1.
limiting entitlement to care allowance, pursuant to the wording of Paragraph 34(1)(1) of SGB XI (Social Security Code), to a maximum of six weeks where a person reliant on care temporarily stays in another Member State; 2.
not providing for, or by excluding through Paragraph 34(1)(1) SGB XI, reimbursement of care-related benefits in kind at the same rate as granted in Germany in respect of care services used by a person reliant on care staying temporarily in another Member State and supplied by a service provider established in another Member State; 3.
not reimbursing costs relating to the hire of care equipment where a person reliant on care stays temporarily in another Member State, or by excluding reimbursement through Paragraph 34(1)(1) SGB XI, even where those costs would be reimbursed in Germany or the care equipment would be provided and the reimbursement would not lead to a twofold increase or other increase in the costs of the services granted in Germany. | 1. | limiting entitlement to care allowance, pursuant to the wording of Paragraph 34(1)(1) of SGB XI (Social Security Code), to a maximum of six weeks where a person reliant on care temporarily stays in another Member State; | 2. | not providing for, or by excluding through Paragraph 34(1)(1) SGB XI, reimbursement of care-related benefits in kind at the same rate as granted in Germany in respect of care services used by a person reliant on care staying temporarily in another Member State and supplied by a service provider established in another Member State; | 3. | not reimbursing costs relating to the hire of care equipment where a person reliant on care stays temporarily in another Member State, or by excluding reimbursement through Paragraph 34(1)(1) SGB XI, even where those costs would be reimbursed in Germany or the care equipment would be provided and the reimbursement would not lead to a twofold increase or other increase in the costs of the services granted in Germany. |
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| 1. | limiting entitlement to care allowance, pursuant to the wording of Paragraph 34(1)(1) of SGB XI (Social Security Code), to a maximum of six weeks where a person reliant on care temporarily stays in another Member State; | | | | | | |
| 2. | not providing for, or by excluding through Paragraph 34(1)(1) SGB XI, reimbursement of care-related benefits in kind at the same rate as granted in Germany in respect of care services used by a person reliant on care staying temporarily in another Member State and supplied by a service provider established in another Member State; | | | | | | |
| 3. | not reimbursing costs relating to the hire of care equipment where a person reliant on care stays temporarily in another Member State, or by excluding reimbursement through Paragraph 34(1)(1) SGB XI, even where those costs would be reimbursed in Germany or the care equipment would be provided and the reimbursement would not lead to a twofold increase or other increase in the costs of the services granted in Germany. | | | | | | |

| — | The Federal Republic of Germany must pay the costs of the proceedings. |
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Pleas in law and main arguments

The subject-matter of this action is the German care insurance scheme, according to which persons reliant on care who receive benefits from the statutory (social) care insurance scheme are not able to avail themselves of those benefits to the same extent when they stay temporarily in another Member State and (wish to) avail themselves of care services or care allowances in that Member State. In the event of a temporary stay in another Member State, the provisions at issue relating to care benefits in kind, care allowances and care equipment provide for significantly lower benefits than in the case of care received in Germany.

The Commission is of the view that the rules at issue are not compatible with Article 56 TFEU, because they make it significantly harder for individuals to avail themselves of care services in another Member State and that this is not justified by overriding reasons of public interest or necessary. Care services, as well as the hire of care equipment, are services which are supplied for consideration, and constitute in this respect a service within the meaning of Article 56 TFEU. Such services therefore fall within the scope of the provisions on the freedom to provide services. In its case-law on the reimbursement of medical treatment costs incurred in another Member State, the Court of Justice has held that in the course of the exercise of their powers to organise their social security systems, Member States must have regard to Community law. The fact that a rule falls within the sphere of social security does not therefore preclude the application of Article 56 TFEU.

With regard to the rules on care allowances, a (discriminatory) restriction exists in so far as where an insured person is staying abroad, his entitlement to a care allowance is limited to a maximum of only six weeks. This makes it more difficult for a person reliant on care to avail himself of care services abroad after that period.

With regard to the rules on care-related benefits in kind, a (discriminatory) restriction exists in so far as reimbursement of the costs of such benefits, which are received by a person reliant on care staying temporarily in another Member State and are supplied by a service provider established in another Member State, is not provided for or is excluded. The fact that in Germany there is no reimbursement of the costs of care-related benefits in kind provided by institutions with which the care fund has not concluded a service agreement, as the Federal Government pleads, does not alter that assessment. In Germany large numbers of suppliers have concluded service agreements. By contrast, the Commission is not aware of any such suppliers whatsoever in other Member States. In this respect, insured persons (or those reliant on care) are in principle excluded from availing themselves of care-related benefits in kind in another Member State under the social insurance scheme, whereas such persons can so avail themselves in Germany, albeit not with every supplier.

Lastly, with regard to the rules on the provision of care equipment, a (discriminatory) exists in so far as the costs of hire (and use) of such care equipment are not reimbursed in other Member States even if they would be reimbursed in the event of care provided in Germany.

According to the settled case-law of the Court of Justice, the freedom to provide services guaranteed by Article 56 TFEU requires not only the elimination of all discrimination of service providers on the basis of their nationality, but also the removal of all restrictions — even if they apply without distinction to domestic service providers and to those from other Member States — if they are liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services.

The grounds of justification put forward by the German Government — protection of public health and of the financial balance of the care insurance system — are not capable of justifying the present restriction on the freedom to provide services.

First, the restrictive rules clearly go beyond what might be necessary to protect the quality of the services in question or public health. Thus, reimbursement of costs incurred in another Member State is excluded on a general basis and independently of any quality assessment. Consequently, there is also no reimbursement of costs even if a sufficient quality of care is ensured and a risk to the health of the person reliant on care has been ruled out.

Secondly, the German rules, which exclude reimbursement of costs incurred abroad and which are in any event much lower than what is financed in Germany, are not necessary to prevent a significant risk to the financial balance of the social security system. Lastly, in order to prevent a restriction on the freedom to provide services, the costs arising from recourse to care services abroad must be reimbursed only to the same extent that they would be reimbursed for such services in Germany.

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