Judgment — ECLI:EU:C:2011:34
Date: 2011-01-27
Language of the case: French
Court formation: Second Chamber
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Luxembourg

summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (see Case C‑412/04 Commission v Italy [2008] ECR I‑619, paragraph 103; Commission v Spain, paragraph 32, and Case C‑508/08 Commission v Malta [2010] ECR I‑0000, paragraph 16). 51 It should be noted, first, that, with regard to Article 12 of the Statutes, the Commission complains that the Grand Duchy of Luxembourg makes reimbursement of the costs of medical analyses carried out in another Member State subject to compliance with all the conditions laid down by its national rules on that subject. It also claims that those conditions are ‘manifestly disproportionate’. 52 In that regard, as the Commission itself pointed out in its application initiating proceedings, the Court has ruled that the conditions on which social security benefits are granted, which the Member States have competence to determine, just as they have competence to determine the extent of the insurance cover guaranteed by the social security system, in so far as those conditions are neither discriminatory nor an obstacle to freedom of movement of persons, remain enforceable where treatment is provided in a Member State other than that of affiliation (see Müller‑Fauré and van Riet, paragraph 106). 53 However, with the exception of the requirement, which the Commission identified in the letter of formal notice and the reasoned opinion as well as in its application, that ‘medical analyses’ must be carried out by ‘a separate laboratory’, the Commission has not indicated in its pleadings what those conditions are. Nor has it specified which particular provisions of Luxembourg law lay down those conditions. 54 The Commission has therefore failed to place before the Court all the information needed to enable the Court to establish that those conditions are incompatible with Article 49 EC. 55 Secondly, with regard to the requirement referred to in paragraph 53 of this judgment, it must be stated that the Commission has not identified the provision of Luxembourg law which lays down that requirement or determined clearly and precisely the exact scope of that requirement or the medical benefits to which it applies. 56 In that regard, neither the description of the complaint referred to the Commission nor the information supplied by the latter at the hearing made it possible to clarify those matters. 57 In that respect, the Commission claimed at the hearing that it does not have the powers to investigate failures by a Member State to fulfil its obligations and that the Commission depends, for the purpose of investigating cases, on the replies and cooperation of the Member States. 58 However, that fact alone cannot allow the Commission to circumvent the obligations referred to in paragraphs 49 and 50 of this judgment. 59 It is true that the Court has ruled that Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC and to provide the Commission with all the information requested for that purpose (see Case C‑82/03 Commission v Italy [2004] ECR I‑6635, paragraph 15, and Case C‑221/08 Commission v Ireland [2010] ECR I‑0000, paragraph 60). 60 However, it is not clear from the case-file submitted to the Court whether the Commission asked the Grand Duchy of Luxembourg to send the Commission the applicable rules, or whether the Commission complained that that Member State had failed to fulfil its obligations under Article 10 EC. 61 Finally, the Commission has also failed to show how the requirement referred to in paragraph 53 of this judgment restricts freedom to provide services, but has simply confined itself to noting disparities between national social security schemes which remain in the absence of harmonisation at the level of EU law in that respect (see, in that regard, Case 41/84 Pinna [1986] ECR 1, paragraph 20, and Commission v Spain, paragraph 61). 62 In those circumstances, it must be concluded that the Commission has not established that, by maintaining in force Article 12 of the Statutes, which makes acceptance of liability by sickness insurance funds for health benefits and supplies subject to full compliance with the dispensing conditions laid down by the national agreements referred to in that article, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC. 63 It follows from the foregoing that the Commission’s application must be dismissed in so far as it concerns Article 12 of the Statutes. Costs 64 Under the first paragraph of Article 69(3) of the Rules of Procedure, the Court may order that the costs be shared or that the parties bear their own costs, in particular where each party succeeds on some and fails on other heads. In this case, since the parties have failed respectively on one or several heads, it is appropriate to order that they must each bear their own costs. On those grounds, the Court (Second Chamber) hereby: 1. Declares that, by failing to provide, under its social security rules, for the possibility of acceptance of liability for costs relating to laboratory analyses and tests, within the meaning of Article 24 of the Luxembourg Social Security Code, in the version applicable to the dispute, which are carried out in another Member State, by means of reimbursement of the costs paid for those analyses and tests, but by providing solely for a system of direct billing to sickness insurance funds, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC; 2. Dismisses the remainder of the action; 3. Orders the European Commission and the Grand Duchy of Luxembourg to bear their own costs. [Signatures] NaN – Language of the case: French.