JUDGMENT OF THE COURT (Fourth Chamber)

16 December 2020 (*)

(Civil service – Officials – Reimbursement of medical expenses – Reimbursement ceiling for sleep apnoea devices – Action for annulment – Measure not merely confirmatory – Sufficient interest to institute proceedings – Admissibility – Joint rules on sickness insurance for officials – General implementing provisions)

In Case T‐736/19,

**HA,** represented by S. Kreicher, lawyer,

applicant,

v

**European Commission,** represented by T. Bohr, A.-C. Simon and M. Brauhoff, acting as Agents,

defendant,

APPLICATION under Article 270 TFEU seeking the annulment of the decision of the Commission setting a reimbursement ceiling of EUR 3 100 on the hire of a medical device for the period from 1 March 2019 to 29 February 2024,

THE COURT (Fourth Chamber),

composed of S. Gervasoni (Rapporteur), President, L. Madise and P. Nihoul, Judges,

Registrar: E. Coulon,

gives the following

**Judgment**

**Legal context**

1        Article 72 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), provides:

‘1.      An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the appointing authorities of the institutions of the Union after consulting the Staff Regulations Committee. ...

2.      An official who has remained in the service of the Union until pensionable age or who is in receipt of an invalidity allowance shall be entitled to the benefits provided for in paragraph 1 after he has left the service. ...’

2        Under Article 20 of the Joint Rules on sickness insurance for Officials of the European Communities (‘the Joint Rules’), entitled ‘General reimbursement rules’:

‘1.      For the purpose of protecting the financial equilibrium of the Joint Sickness Insurance Scheme and respecting the principle of social security cover forming the basis for Article 72 of the Staff Regulations, reimbursement ceilings for certain benefits may be set in the general implementing provisions.

...

2.      In the case of benefits for which no reimbursement ceiling has been set, the proportion of the costs deemed excessive by comparison with normal costs in the country where the costs have been incurred shall not be reimbursed. The portion of the costs deemed excessive shall be determined on a case-by-case basis by the [s]ettlements [o]ffice after consulting the [m]edical [o]fficer.

...’

3        Article 35(2) of the Joint Rules provides:

‘Before taking a decision on a complaint introduced on the basis of Article 90(2) of the Staff Regulations the appointing authority or, as the case may be, the [a]dministrative [b]oard shall request the opinion of the [m]anagement [c]ommittee.

...’

4        Article 52 of the Joint Rules, entitled ‘Determining and updating the rules governing the reimbursement of costs’, provides:

‘1.      Under the third subparagraph of Article 72(1) of the Staff Regulations, the institutions shall empower the [European] Commission to lay down, by general implementing provisions, the rules governing the reimbursement of costs with a view to protecting the financial balance of the [s]cheme and respecting the principle of social security cover forming the basis for the first subparagraph of Article 72(1) of the Staff Regulations.

2.      The general implementing provisions shall be drawn up after consultation of the Staff Regulations [c]ommittee and on the opinion of the [m]anagement [c]ommittee.’

5        The ‘General Definitions’ section of the decision of the European Commission of 2 July 2007 laying down general implementing provisions for the reimbursement of medical expenses (‘the general implementing provisions’) states as follows:

‘...

Certain medical services specified in these general implementing provisions require prior authorisation in order to qualify for reimbursement, i.e. this is a pre-requisite for reimbursement. In all but emergency cases, members must submit their requests for prior authorisation to the [s]ettlements [o]ffice before starting treatment, using the special form and enclosing a detailed medical prescription or a full medical report, depending on the treatment involved. A decision will be taken on the request after consulting the [m]edical [o]fficer, who will assess the medical case for the treatment.

...

If the costs significantly exceed the amounts normally charged in the country where the treatment was provided, the portion of costs deemed excessive may be excluded from the reimbursement, pursuant to Article 20 of the [J]oint [R]ules, even if no ceiling for reimbursement has been set and even in the case of a serious illness.

The portion of the costs deemed excessive will be determined on a case-by-case basis by the [s]ettlements [o]ffice after consulting the [m]edical [o]fficer. The [m]edical [o]fficer will determine the exact nature of the medical treatment in order to enable the [s]ettlements o]ffice to compare the rates being charged.

...’

6        Title II of the general implementing provisions, entitled ‘Rules on reimbursement’, includes a Chapter 11, entitled ‘Prostheses, orthopaedic appliances, and other medical equipment’, which itself includes a point 3, entitled ‘Orthopaedic appliances, bandages and other medical equipment’. That point 3 provides as follows:

‘3.1.      The cost of purchasing, hiring or repairing to the articles or equipment listed in the table in Annex II is reimbursed at the rate of 85%, or 100% in the case of serious illness.

...

3.4.      Prior authorisation is required for the hire of orthopaedic appliances or equipment for periods of three consecutive months or more.

...’

7        Annex II to the general implementing provisions is entitled ‘Cost of orthopaedic appliances, bandages and other medical equipment reimbursed at the rate of 85%, or 100% in the case of serious illness’. It consists of a table, which is reproduced below:

| Products | MP: medical prescription | PA: prior authorisation (requiring detailed medical report and estimate) | Duration/deadline | Normal rate of reimbursement | Maximum amount reimbursable at 85% (EUR) | Maximum amount reimbursable at 100% (EUR) | Comments | Equipment related to level of dependence | |
| -------- | ------------------------------------------------------------------------------------------------------------------- | ------------------------------------------------------------------------ | ----------------- | ------------------------------------------------------- | ---------------------------------------- | ----------------------------------------- | -------- | ------------------------------------------------- | |
| 1 | Compresses – elastic bandages ... | MP | None | | 85% | | | | |
| | Elastic stockings for varicose veins | MP | None | | 85% | | | 3 pairs a year | |
| 2 | Purchase or alteration of orthopaedic soles (per sole) | MP | None | | 85% | 65 | 65 | 4 times a year | |
| | Repair of orthopaedic sole | Not reimbursed | | 0% | | | | | |
| 3 | Crutches and walking sticks | | | | | | | | |
| | purchase | MP | None | | 85% | | | | |
| | hire | MP | None | | 85% | | | | |
| | repair | Not reimbursed | | | | | | | |
| 4 | External breast prostheses | MP | None | | 85% | | | 2 per side per year | |
| | Prosthesis bras or swimming costumes | Not reimbursed | | 0% | | | | | |
| 5 | Simple manual wheelchair | | | | | | | | |
| | purchase | MP | PA | 5 years | 85% | 650 | | | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | 5 years | 85% | 650 | | | |
| | repair | PA | | 85% | | | | | |
| | maintenance (tyres, etc.) | Not reimbursed | | 0% | | | | | |
| 6 | Walking frame with 2 wheels and seat | | | | | | | | |
| | purchase | MP | PA | | 85% | 140 | 140 | 1 non-renewable agreement | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| | repair | Not reimbursed | | 0% | | | | | |
| 7 | Commode, shower/bath seat (home use) | | | | | | | | |
| | purchase | MP | PA | | 85% | 100 | 100 | 1 non-renewable agreement | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| | repair | Not reimbursed | | 0% | | | | | |
| 8 | Hospital-type bed (for home use) | | | | | | | | |
| | purchase | MP | PA | | 85% | 1000 | 1000 | 1 non-renewable agreement | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| | repair or use in a nursing home, etc. | Not reimbursed | | 0% | | | | | |
| 9 | Pressure relief mattress, including compressor | | | | | | | | |
| | purchase | MP | PA | 3 years | 85% | 500 | 500 | | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| 10 | Sleep apnoeia equipment (CPAP), including humidifier | | | | | | | | |
| | purchase | MP | PA | 5 years | 85% | 1700 | 1700 | | |
| | hire < 3 months | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| | CPAP accessories and maintenance excluding year of purchase | MP | PA | 1 year | 85% | 350 | | | |
| 11 | Blood pressure gauge | MP | PA | 5 years | 85% | 125 | 125 | | |
| | repair | Not reimbursed | | 0% | | | | | |
| 12 | Aerosols, sprays and inhalers | | | | | | | | |
| | purchase | MP | PA | 5 years | 85% | 125 | 125 | | |
| | hire | MP | None | | 85% | | | | |
| | hire > = 3 months | MP | PA | | 85% | | | | |
| | repair | Not reimbursed | | 0% | | | | | |
| 13 | Equipment for monitoring and treating diabetes treated with insulin | | | | | | | | |
| | glucometer | MP | PA | 3 years | 100% | | 75 | | |
| | test-strips, insulin syringes, lancets | MP | PA | | 100% | | | MP for first purchase only | |
| 14 | Equipment for monitoring and treating type-2 diabetes ... | | | | | | | | |
| | glucometer | MP | PA | 3 years | 85% | 75 | | | |
| | test strips | MP | PA | | 85% | 500 | | Maximum amount reimbursed per year | |
| 15 | Incontinence supplies | MP | PA | 1 year | 85% | 600 | 600 | | |
| 16 | Ostomy supplies | MP | None | | 85% | | | | |
| 17 | Hair replacement – wig | MP | PA | 1 year | 85% | 750 | 750 | | |
| 18 | Pair of corrective orthopaedic shoes made to measure | | | | | | | | |
| | purchase in the case of a disorder of the foot not qualifying for 100% reimbursement | MP | PA | | 85% | 720 | NA | 2 pairs a year | |
| | purchase in the case of a disorder of the foot qualifying for 100% reimbursement | MP | PA | | 100% | NA | 1440 | 2 pairs a year | |
| | purchase in the case of serious disease of the foot | MP | PA | | 100% | NA | | 2 pairs a year | |
| | repair, on presentation of the invoice | None | None | | 85% | | | | |
| 19 | Artificial limbs and segments of limbs, articulated orthoses | | | | | | | | |
| | purchase | MP | PA | to be decided on an individual basis, estimate required | | | | | |
| | repair, on presentation of the invoice | MP | PA | to be decided on an individual basis | | | | | |
| 20 | Other appliances with an estimated cost of more than €2000 | MP | PA | to be decided on an individual basis, estimate required | | | | | |
| | specific, electric, electronic equipment and/or equipment made-to-measure in the case of serious illness (purchase) | MP | PA | to be decided on an individual basis, estimate required | | | | | |
| 21 | Enemas and thermometers | Not reimbursed | | 0% | | | | | |
| 22 | Vacuum treatment for impotence | MP | PA | | | 200 | 200 | | |
| 23 | Apparatus for measuring blood clotting time | MP | PA | | | | | criteria: in the case of anticoagulation for life | |
| 24 | Syringes | MP | PA | | | | | criteria: in the case of diabetes (cf. 13) ... | |
| 25 | Fixed costs of converting a residence or vehicle, of home automation equipment, ... | Not reimbursed | | 0% | | | | | |

**Background to the dispute**

8        The applicant, a former official of the Commission, is covered under the Joint Sickness Insurance Scheme of the European Communities (JSIS).

9        Since 2012, she has used a continuous positive airway pressure device designed to alleviate sleep apnoea (‘a CPAP device’).

10      The applicant obtained prior authorisation from the settlements office in Ispra (Italy) for the hire of a CPAP device for the period from 1 March 2012 to 28 February 2014.

11      On 10 February 2014 the applicant made a new request for prior authorisation for the hire of a CPAP device.

12      In response to that request, on 24 February 2014, the settlements office issued prior authorisation for the purchase of a CPAP device for the period from 1 March 2014 to 28 February 2019. The authorisation stated the following:

‘In view of the length and effectiveness of the treatment, only the purchase of a CPAP [device], rather than the continued hire of one, can be medically justified. Equipment renewable every 5 years as provided for in the general implementing provisions with maintenance from the second year onwards.’

13      On 8 November 2014, the applicant made a claim for the reimbursement of the costs she had incurred in hiring her CPAP device since 1 March 2014.

14      By decision of 22 December 2014, the settlements office issued authorisation to the applicant for the hire of a CPAP device for the period from 1 March 2014 to 28 February 2019 (‘the decision of 22 December 2014’). That decision set a reimbursement ceiling of EUR 1 700, corresponding to that provided in the general implementing provisions for the purchase of a CPAP device (see line 10 of the table set out in paragraph 7 above).

15      By letter of 22 February 2015, the applicant lodged a complaint against the decision of 22 December 2014.

16      By decision of 25 June 2015, the appointing authority decided that the ceiling of EUR 1 700 should be increased by EUR 1 400, bringing the total reimbursement figure to EUR 3 100. That increase corresponded to the reimbursement over a period of four years of the costs of maintenance and purchase of accessories incurred after the first year following the purchase of the CPAP device (see line 10 of the table set out in paragraph 7 above).

17      The settlements office then adopted a new decision, dated 5 October 2015, ****in which it issued authorisation to the applicant to hire a CPAP device for the period from 1 March 2014 to 28 February 2019 (‘the decision of 5 October 2015’). That decision set a reimbursement ceiling of EUR 3 100.

18      By letter of 20 December 2018, the applicant requested an extension to the prior authorisation for the hire of a CPAP device.

19      In response to that request, the settlements office, by decision of 17 January 2019, authorised the hire of a CPAP device for the period from 1 March 2019 to 29 February 2024 and set a reimbursement ceiling of EUR 3 100 (‘the decision of 17 January 2019’).

20      The applicant challenged the decision of 17 January 2019 by a letter of 1 February 2019 addressed to the settlements office.

21      The decision of 17 January 2019 was upheld by the settlements office on 12 April 2019.

22      By letter of 14 April 2019, the applicant lodged a complaint against the decision of 17 January 2019. In her complaint, she claimed that that decision had been adopted in breach of the applicable rules. She also claimed that in France, the country where she lived, it was more advantageous to hire a CPAP device rather than to purchase one.

23      By a notification dated 12 July 2019, the management committee stated that the decision of 17 January 2019 should be upheld.

24      The appointing authority rejected the applicant’s complaint by decision of 13 August 2019 (‘the decision of 13 August 2019’). It based that decision, inter alia, on the fact that, in its view, matters relating to the French sickness insurance system had no bearing on the legality of the decision of 17 January 2019.

**Procedure and forms of order sought**

25      By application lodged at the Court Registry on 4 November 2019, the applicant brought the present action.

26      On a proposal of the Judge-Rapporteur, the Court (Fourth Chamber), by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure of the General Court, put written questions to the parties. The parties answered those questions within the prescribed period.

27      As neither party requested that a hearing be held, the Court, considering that it had sufficient information available to it from the case file, decided to give judgment in the case without an oral part of the procedure.

28      The applicant claims that the Court should:

–        annul the decision of 13 August 2019;

–        order the Commission to pay the costs.

29      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

**Law**

30      As a preliminary matter, the subject matter of the dispute must be clarified.

*The subject matter of the dispute*

31      The Commission observes that the present action is directed against the decision of 13 August 2019 dismissing the complaint made about the decision of 17 January 2019 and not against the latter decision. However, according to the Commission, the action seeks the annulment of the decision of 17 January 2019, as was confirmed by the applicant in her reply.

32      According to settled case-law, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the courts. Consequently, the action, even if formally directed against the decision rejecting a complaint, has the effect of bringing before the Court the act against which the complaint was submitted (judgments of 17 January 1989, *Vainker* v *Parliament*, 293/87, EU:C:1989:8, paragraph 8, and of 13 December 2018, *CH* v *Parliament*, T‐83/18, EU:T:2018:935, paragraph 56), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (judgments of 25 October 2006, *Staboli* v *Commission*, T‐281/04, EU:T:2006:334, paragraph 26, and of 28 May 2020, *Cerafogli* v *ECB*, T‐483/16 RENV, not published, EU:T:2020:225, paragraph 70).

33      In the present case, while the decision of 13 August 2019 dismissing the applicant’s complaint contains a statement of reasons in law and fact which is more detailed than the information in the letter containing the decision of 17 January 2019, it has nonetheless the same scope as the latter (see, to that effect, judgment of 25 October 2006, *Staboli* v *Commission*, T‐281/04, EU:T:2006:334, paragraph 27).

34      Accordingly, the present action must be regarded as being directed against the initial decision complained of, namely the decision of 17 January 2019.

35      In addition, given that, under the system laid down under the Staff Regulations, an official must submit a complaint against the decision which he or she is contesting, and must bring an action against the decision rejecting that complaint, the Court has held the action to be admissible whether it is directed against the decision against which the complaint has been made alone, the decision rejecting the complaint, or both, provided that the complaint was lodged and the action brought within the periods prescribed by the applicable provisions (see, to that effect, judgment of 26 January 1989, *Koutchoumoff* v *Commission*, 224/87, EU:C:1989:38, paragraph 7). However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see judgment of 21 February 2018, *LL* v *Parliament*, C‐326/16 P, EU:C:2018:83, paragraph 38 and the case-law cited; judgment of 28 May 2020, *Cerafogli* v *ECB*, T‐483/16 RENV, not published, EU:T:2020:225, paragraph 72).

36      In the present case, it is not appropriate to rule specifically on the legality of the decision of 13 August 2019 rejecting the complaint, given that the claims made about it have no independent content and are, in reality, the same as those directed against the decision against which the complaint was lodged (see paragraph 33 above).

*The admissibility of the action*

37      The Commission raises a first plea of inadmissibility in its defence, alleging that the decision of 17 January 2019 was confirmatory in nature. It also raises a second plea of inadmissibility in its rejoinder, alleging that the applicant had insufficient legal interest to institute proceedings. Even though a plea of inadmissibility involves a question of public policy and may be examined by the EU courts at any stage of the proceedings, it must be noted, in that regard, that the Commission has not explained why it waited until the time of the rejoinder to raise the second plea of inadmissibility despite being in possession of sufficient information to do so in its defence.

*The first plea of inadmissibility, alleging that the decision of 17 January 2019 was confirmatory in nature*

38      The Commission submits that the decision of 17 January 2019 was merely confirmatory of the decision of 5 October 2015, which, as it was not challenged by the applicant within the relevant time limits, became final.

39      The Commission adds that only the existence of new and substantial facts can justify the review of an earlier decision which has become final. It states that a fact is substantial when it changes the conditions governing the earlier measure. It claims that, in the present case, the applicant cannot rely on any new substantial fact, since the two decisions referred to in paragraph 38 above have the same subject matter, apply the same rules, concern the same person and set the same reimbursement ceiling. The only difference between those two decisions is in relation to the period when the authorisation is to apply. However, that difference has no bearing on the confirmatory nature of the decision of 17 January 2019.

40      The Commission also states that the applicant merely requested an extension of the prior authorisation previously granted.

41      The applicant submits that her action is admissible and that the Commission’s assertion that the decision of 17 January 2019 was merely confirmatory of the decision of 5 October 2015 is incorrect. More particularly, according to the applicant, as the decision of 5 October 2015 was only valid until 28 February 2019, its expiry made the adoption of a new decision necessary to cover the following period.

42      The applicant adds that the decision of 17 January 2019 is not simply an extension of an authorisation previously granted, but constitutes an actual decision, given that the grant of a prior authorisation is not determined by previous authorisation decisions.

43      In that regard, it is clear from the settled case-law that a measure is regarded as merely confirmatory of a previous measure if the measure at issue contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (judgment of 13 November 2014, *Spain* v *Commission*, T‐481/11, EU:T:2014:945, paragraph 28; see, also, judgment of 15 September 2016, *Italy* v *Commission*, T‐353/14 and T‐17/15, EU:T:2016:495, paragraph 63 and the case-law cited).

44      Clearly, the issue of whether a measure is confirmatory does not even arise in cases where the content of the subsequent measure is different from that of the earlier measure (judgment of 13 November 2014, *Spain* v *Commission*, T‐481/11, EU:T:2014:945, paragraph 30).

45      That is the situation in the present case. The subject matter of the decision of 17 January 2019 is not the same as that of 5 October 2015: while the latter authorised the applicant to proceed with the hire of a CPAP device for the period from 1 March 2014 to 28 February 2019 (see paragraph 17 above), the decision of 17 January 2019 authorised the hire of such a device for the period from 1 March 2019 to 29 February 2024 (see paragraph 19 above).

46      As the effects of the decision of 5 October 2015 were time limited, then, without the adoption of a new decision, the applicant could not have obtained reimbursement of the costs she incurred in hiring a CPAP device from 1 March 2019 onwards. The effect of the decision of 17 January 2019, which authorised the applicant to proceed with that hire, was precisely to allow her to obtain reimbursement of those costs.

47      The decision of 17 January 2019 is therefore a new decision which cannot be regarded as merely confirmatory of the decision of 5 October 2015.

48      It must be added that the fact that the decision of 17 January 2019 applies the same reimbursement ceiling as the decision of 5 October 2015 does not render it merely confirmatory of the latter decision. The temporal scope of the decision of 5 October 2015, which was limited in terms of the authorisation granted (see paragraph 46 above), was also necessarily limited in terms of the reimbursement ceiling set therein, since that ceiling is ancillary in relation to the hire authorisation to which it applies.

49      The fact that the prior authorisation form distinguishes between requests for ‘authorisation’ and requests for ‘extensions to authorisation’ and that the applicant considered her request to fall into the latter category is also irrelevant, as it is the substance of a disputed act which determines whether it is an act adversely affecting an official and not the name given to it by the administration (see, to that effect, order of 15 January 2009, *Braun-Neumann* v *Parliament*, T‐306/08 P, EU:T:2009:6, paragraph 32) or the addressee.

50      The first plea of inadmissibility raised by the Commission must therefore be dismissed.

*The second plea of inadmissibility, alleging that the applicant has insufficient legal interest to institute proceedings*

51      The Commission states that the applicant has not provided any figures relating to the cost of the hire of the CPAP device for which she is claiming reimbursement. It therefore considers that it is not in a position to assess the applicant’s interest to institute proceedings.

52      According to settled case-law, an action for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest presupposes that the annulment of the measure must of itself be capable of having legal consequences and that the action must be liable to procure an advantage for the party who has brought it (judgments of 17 September 2015, *Mory and Others* v *Commission*, C‐33/14 P, EU:C:2015:609, paragraph 55, and of 24 September 2019, *VF* v *ECB*, T‐39/18, not published, EU:T:2019:683, paragraph 139).

53      In addition, where a decision does not give full satisfaction to the applicant, it must be recognised that he or she has an interest in bringing proceedings to have the legality of that decision verified by the EU judicature (see, to that effect, judgment of 11 March 2009, *TF1* v *Commission*, T‐354/05, EU:T:2009:66, paragraphs 85 and 86).

54      In the present case, by the decision of 17 January 2019, which was adopted in response to the request dated 20 December 2018 for prior authorisation (see paragraph 18 above), the settlements office imposed on the applicant a reimbursement ceiling on the costs she incurred in hiring the CPAP device.

55      It is clear that the potential removal of such a ceiling as a result of an annulment of the decision of 17 January 2019 and the decision of 13 August 2019 would procure an advantage for the applicant.

56      Furthermore, despite the Commission’s assertion to the contrary, it is not for the applicant to provide figures allowing that advantage to be quantified, since such an assessment, where applicable, goes to the substance and not the admissibility of the action (see, to that effect, judgment of 11 March 2009, *TF1* v *Commission*, T‐354/05, EU:T:2009:66, paragraph 86).

57      The second plea of inadmissibility raised by the Commission must therefore be dismissed.

*Substance*

58      In support of her claim for annulment, the applicant relies on a single plea, alleging that a reimbursement ceiling on the hire of a CPAP device is not provided for in any of the applicable provisions. She claims that, by applying such a ceiling, the decision of 17 January 2019 infringes those provisions and is therefore unlawful.

59      Furthermore, the applicant states that the Commission has not provided any objective evidence to show that the cost of hiring CPAP devices in France is excessive.

60      The applicant also states that the Commission has not shown that the purchase of a CPAP device is necessary for long-term use.

61      The applicant sets out, in addition, the advantages of hiring a CPAP device over purchasing one.

62      Lastly, the applicant objects to the discrimination that exists between scheme members who hire a CPAP device and those who purchase one.

63      The Commission disputes the applicant’s arguments.

64      First of all, it must be borne in mind that, in the present case, when it adopted the decision of 17 January 2019, the settlements office applied a reimbursement ceiling (see paragraph 19 above). That was also confirmed by the Commission, in its answer to the measure of organisation of procedure made by the Court (see paragraph 26 above), in which it specified that the limit of EUR 3 100 on the reimbursement requested by the applicant was not based on Article 20(2) of the Joint Rules, which, according to the Commission, did not apply in the present case.

65      Next, it must be observed that Article 20 of the Joint Rules, which refers to the purpose of protecting the financial equilibrium of the JSIS, provides, in its paragraph 1, that reimbursement ceilings for certain benefits may be set in the general implementing provisions. It also, in its paragraph 2, allows the settlements office, where no ceiling has been set, not to reimburse the proportion of the costs deemed excessive by comparison with normal costs in the country where the costs have been incurred (see paragraph 2 above).

66      The possibility of the general implementing provisions not setting reimbursement ceilings is therefore expressly envisaged in the Joint Rules. There is even a specific procedure provided for in order to protect the financial equilibrium of the JSIS in such a situation.

67      The general implementing provisions specify the procedure that applies when no reimbursement ceiling has been set. The ‘General Definitions’ section of the general implementing provisions states that the portion of costs deemed excessive is to be determined on a case-by-case basis by the settlements office after consulting the medical officer, who is to determine the exact nature of the medical treatment in order to enable the settlements office to compare the rates being charged (see paragraph 5 above).

68      It therefore follows from the broad logic of the relevant provisions of the Joint Rules and the general implementing provisions, as can be seen from paragraphs 65 to 67 above, that, since the Commission is the competent authority for the purposes of adopting the general implementing provisions, if the Commission intends to set a reimbursement ceiling on a particular treatment, it is down to the Commission to ensure that there is express mention of that ceiling in those provisions.

69      Consequently, in a situation where there is no ceiling expressly mentioned in the general implementing provisions for a particular treatment, then, despite the Commission’s assertion to the contrary, the general implementing provisions cannot be interpreted as impliedly setting such a ceiling. It is the specific procedure referred to in paragraph 66 above which aims to ensure the financial equilibrium of the JSIS.

70      It must be observed, as can be seen from the table reproduced in paragraph 7 above, that the general implementing provisions do not provide for a reimbursement ceiling on the hire of a CPAP device.

71      One column of that table is specifically devoted to the maximum amount reimbursable at the relevant rate and no figure appears for the lines relating to the hire of CPAP devices either for less than three months or for more than three months.

72      Therefore, an examination of the wording of the applicable provisions, which is totally unambiguous, leads to the conclusion that there is no reimbursement ceiling on the hire of a CPAP device.

73      Moreover, in its notification of 12 July 2018 (see paragraph 23 above), the management committee stated that the general implementing provisions provide for such a ceiling only on the purchase of a CPAP device.

74      In addition, in the table reproduced in paragraph 7 above, there is a ceiling on the reimbursement of the costs of hiring wheelchairs, which applies to a certain period of hire also stated in the table. The fact that the same table lists a reimbursement ceiling in relation to the hire of one piece of medical equipment but not in relation to another confirms that no ceiling has been set on the hire of the latter, even impliedly.

75      The conclusion in paragraph 72 above cannot be called into question by the Commission’s other arguments.

76      In the first place, according to the Commission, the general implementing provisions are based on the premiss that, in a case of long-term use of a CPAP device, the purchase of a device is necessary for medical reasons as well as budgetary reasons. That explains why it was not considered appropriate in the general implementing provisions to set a ceiling on the reimbursement of a hire lasting several years, as that situation would not arise.

77      However, the interpretation of the general implementing provisions proposed by the Commission does not follow from the wording of those provisions. The provisions merely distinguish between the hire of CPAP devices for less than three months, for which prior authorisation is not needed, and hire for a longer period, which requires prior authorisation, but without any time limit being put on the latter.

78      Furthermore, in the ‘Comments’ column, which is used to include any details that may be needed to interpret the table reproduced in paragraph 7 above, there is nothing to indicate that the purchase of a CPAP device is necessary in the case of long-term use. Additionally, it would have been an option for the table to make no reference to the possibility of hiring a CPAP device for a period of more than three months.

79      Finally, the fact, even if established as such, that it may be necessary on medical grounds to purchase a CPAP device, rather than to hire one, in a case of long-term use does not, however, justify the failure to make any mention of that in the general implementing provisions which are designed to be read and understood by scheme members. What is more, the Commission has not explained the medical reasons which supposedly lead to the purchase of a CPAP device being favoured over the hire of one.

80      In the second place, the fact that the hire of a CPAP device for more than three months is conditional, as is the purchase of such a device, on prior authorisation does not, despite the Commission’s assertion to the contrary, mean that the reimbursement ceiling provided for in the general implementing provisions on the purchase of such a device also applies to a long-term hire of the device.

81      Prior authorisation does not necessarily lead to the application of a reimbursement ceiling, as can be seen from those lines of the table reproduced in paragraph 7 above relating to the hire for more than three months of walking frames, commodes, hospital-type beds, pressure relief mattresses and aerosols, sprays and inhalers.

82      Moreover, the Commission does not cite any provision that links the need to obtain prior authorisation to the existence of a reimbursement ceiling.

83      In the third place, with regard to the Commission’s argument that, in order to comply with the principle of equal treatment of scheme members, the general implementing provisions must be interpreted as setting a ceiling on the long-term hire of CPAP devices, it must be noted that, even on the assumption that there is an unjustified difference of treatment between scheme members purchasing a CPAP device and those hiring the same device over a long period, that cannot lead, for the sake of conformity with the principle of equal treatment, to an interpretation of the general implementing provisions that would be contrary to their wording or to the broad logic of the relevant provisions of the Joint Rules and the general implementing provisions (see, to that effect, order of 17 July 2015, *EEB* v *Commission*, T‐685/14, not published, EU:T:2015:560, paragraph 31 and the case-law cited). The same must be said in relation to the risk of the ceiling on the purchase of a CPAP device being circumvented or the financial equilibrium of the JSIS being disrupted. What is more, the Joint Rules contain mechanisms, as can be seen, in particular, in Article 20(2) thereof, to avoid certain excessive costs being covered under the JSIS.

84      In any event, there is no evidence of any difference between the costs involved in hiring CPAP devices and the costs involved in purchasing such devices that would be sufficiently systematic and substantial as to constitute discrimination. Similarly, there is no evidence of a practice of circumventing the ceiling applicable to the purchase of a CPAP device. Lastly, there is no evidence of any risk of the financial equilibrium of the JSIS risks being disrupted as a result of the lack of a reimbursement ceiling on the hire of CPAP devices.

85      Thus, even supposing that a constructive interpretation of the general implementing provisions were possible, despite the fact that, as the Commission rightly states, it is settled case-law that EU law provisions conferring entitlement to financial benefits must be strictly interpreted (see judgment of 18 September 2003, *Lebedef and Others* v *Commission*, T‐221/02, EU:T:2003:239, paragraph 38 and the case-law cited), none of the grounds that it puts forward is capable of justifying such an interpretation (see paragraph 84 above).

86      In the fourth place, the Commission disputes various arguments that it says were raised by the applicant. It states that it has not refused to cover the hire of a CPAP device. It submits that the applicant’s complaint alleging an insufficient statement of reasons is inadmissible. It recalls that the JSIS is an autonomous system and that the settlements office is obliged to apply the Joint Rules and the general implementing provisions. It states that the applicant has not provided any figures relating to the cost of the hire of a CPAP device. It denies that scheme members are discriminated against depending on their place of residence. It states that the settlements office, which had invited the applicant to provide a medical certificate confirming that it was impossible to purchase a CPAP device, had indicated a willingness to receive additional information but that the applicant did not supply any. Lastly, it comments that the applicant did not put forward any arguments in her application to the effect that the system under which CPAP devices are charged for in France favours their hire, and adds that such an allegation is not, in any event, established.

87      It is sufficient to note that the applicant’s arguments criticised by the Commission in this way are unrelated to the question of the existence of a reimbursement ceiling in the general implementing provisions. Consequently, even if well founded, those arguments have no bearing on the conclusion referred to in paragraph 72 above.

88      In the light of the considerations set out in paragraphs 64 to 87 above, it must be concluded that the settlements office, in setting a reimbursement ceiling in its reply to the applicant’s request for prior authorisation, failed to comply with the general implementing provisions.

89      Being at the service of a union based on the rule of law, the institutions, whichever they may be, cannot avoid the rules that apply to them (judgment of 10 April 2019, *Gamaa Islamya Égypte* v *Council*, T‐643/16, EU:T:2019:238, paragraph 228).

90      It follows from all of the foregoing that the plea relied on by the applicant must be upheld and consequently the decision of 17 January 2019 and the decision of 13 August 2019 must be annulled.

**Costs**

91      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE COURT (Fourth Chamber)

hereby:

1.      **Annuls the decision of the European Commission of 17 January 2019 setting a reimbursement ceiling of EUR 3 100 on the hire of a medical device for the period from 1 March 2019 to 29 February 2024 and the decision of the Commission of 13 August 2019 rejecting the complaint lodged against that decision;**

2.      **Orders the Commission to pay the costs.**

| Gervasoni | Madise | Nihoul |
| --------- | ------ | ------ |

Delivered in open court in Luxembourg on 16 December 2020.

[Signatures]

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*      Language of the case: French.