# C_2008197EN.01001201.xml

| 2.8.2008 | EN | Official Journal of the European Union | C 197/12 |
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2.8.2008

EN

Official Journal of the European Union

C 197/12

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Action brought on 20 May 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-211/08)

(2008/C 197/19)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and R. Vidal Puig, acting as Agents)

Applicant:

Defendant: Kingdom of Spain

Defendant:

Form of order sought

| — | declare that, by refusing persons entitled under the Spanish Sistema Nacional de Salud (National health system) reimbursement of medical costs incurred by them in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) (‘Regulation 1408/71’), in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for in Spanish legislation, the Kingdom of Spain has failed to fulfil its obligations under Article 49 of the Treaty; |
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declare that, by refusing persons entitled under the Spanish Sistema Nacional de Salud (National health system) reimbursement of medical costs incurred by them in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) (‘Regulation 1408/71’), in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for in Spanish legislation, the Kingdom of Spain has failed to fulfil its obligations under Article 49 of the Treaty;

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| — | order the Kingdom of Spain to pay the costs. |
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order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

| 1. | Spanish legislation on social security matters provides that hospital benefits covered by the Sistema Nacional de Salud must be provided by its own system, except in very exceptional cases of ‘urgent, immediate health assistance which is essential’. As a result, when a person entitled under the Spanish Sistema Nacional de Salud moves temporarily to another Member State and, during that stay, receives assistance in hospital which is necessary from the medical point of view in accordance with Article 22(1)(a)(i) of Regulation 1408/71, the costs incurred by him are not reimbursed by the Spanish authorities. |
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1.

Spanish legislation on social security matters provides that hospital benefits covered by the Sistema Nacional de Salud must be provided by its own system, except in very exceptional cases of ‘urgent, immediate health assistance which is essential’. As a result, when a person entitled under the Spanish Sistema Nacional de Salud moves temporarily to another Member State and, during that stay, receives assistance in hospital which is necessary from the medical point of view in accordance with Article 22(1)(a)(i) of Regulation 1408/71, the costs incurred by him are not reimbursed by the Spanish authorities.

| 2. | When the level of cover of hospital costs applicable under the rules of another Member State is less favourable than that provided under Spanish legislation, the refusal of the Spanish authorities to reimburse the difference may dissuade persons entitled under the Sistema Nacional de Salud to move to that Member State in order to receive non-medical services (for example, educational or tourist services) or, in the case of persons entitled who have already moved, induce them to return sooner in order to receive free hospital treatment in Spain. The Spanish provision at issue may therefore restrict both the provision of those various medical services which initially motivate the temporary move of a person entitled to another Member State, and the subsequent provision of medical services in that Member State in accordance with Article 22(1)(a)(i) of Regulation 1408/71. |
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2.

When the level of cover of hospital costs applicable under the rules of another Member State is less favourable than that provided under Spanish legislation, the refusal of the Spanish authorities to reimburse the difference may dissuade persons entitled under the Sistema Nacional de Salud to move to that Member State in order to receive non-medical services (for example, educational or tourist services) or, in the case of persons entitled who have already moved, induce them to return sooner in order to receive free hospital treatment in Spain. The Spanish provision at issue may therefore restrict both the provision of those various medical services which initially motivate the temporary move of a person entitled to another Member State, and the subsequent provision of medical services in that Member State in accordance with Article 22(1)(a)(i) of Regulation 1408/71.

| 3. | Those restrictions on the freedom to provide services are not justified under the Treaty. In particular, the Spanish authorities have not proved that those restrictions are necessary to avoid seriously undermining the financial balance of the Spanish Sistema Nacional de Salud. Accordingly, the provision at issue infringes Article 49 EC. |
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3.

Those restrictions on the freedom to provide services are not justified under the Treaty. In particular, the Spanish authorities have not proved that those restrictions are necessary to avoid seriously undermining the financial balance of the Spanish Sistema Nacional de Salud. Accordingly, the provision at issue infringes Article 49 EC.

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(1)  OJ L 149, 5.7.1971, p. 2.

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