Opinion of the Advocate General — ECLI:EU:C:2010:427
Date: 2010-07-15
Language of the case: French
Subject matter: Freedom to provide services;Social security for migrant workers
Procedure: Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment Freedom to provide services – Restrictions – National legislation on reimbursement of medical costs incurred in another Member State (Art. 49 EC) A Member State does not fail to fulfil its obligations under Article 49 EC when its national legislation makes conditional on prior authorisation, except in special situations relating, in particular, to the insured person’s state of health or to the urgency of the treatment needed, responsibility for the payment by the competent national institution, depending on the rules governing cover in the Member State to which that institution belongs, for treatment planned in another Member State and involving the use of major medical equipment outside hospital infrastructure. Even if that legislation is capable of deterring, or even preventing, persons insured under the national system in question from applying to providers of medical services established in another Member State in order to obtain the treatment in question and constitutes, therefore, for both the insured persons and the providers of those services, a restriction of the freedom to provide services, the fact remains, having regard to the dangers to the organisation of public health policy and to the financial balance of the social security system, that such a requirement would appear, as Union law now stands, to be a justified restriction. Those dangers are connected to the fact that, regardless of the setting, hospital or otherwise, in which it is intended to be installed and used, it must be possible for the major medical equipment exhaustively listed in the national legislation at issue to be the subject of planning policy, such as that defined by that legislation, with particular regard to quantity and geographical distribution, in order to help ensure throughout national territory a rationalised, stable, balanced and accessible supply of up-to-date treatment, and also to avoid, so far as possible, any waste of financial, technical and human resources. Given the lack of any evidence of administrative practices contrary to European Union law or of any complaints made by insured persons in this connection, national legislation that, corroborated by at least one decision given by a supreme national court, lays down the general principle that the competent national institution is to be responsible for the costs of treatment provided to a person insured under the national social security system in another Member State or in a State party to the Agreement on the European Economic Area on the same conditions as if the treatment had been received in the Member State in question, and within the limits of the costs actually incurred by the person insured, does not give rise to a situation that may deprive persons insured under the national system in question of the right to an additional reimbursement in the situation referred to in the judgment of 12 July 2001 in Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, in which the reimbursement of costs incurred on hospital services provided in the Member State of stay, calculated under the rules in force in that Member State, is less than the amount which application of the legislation in force in the Member State of affiliation would have afforded. Its terms being so general, that legislation includes entitlement to an additional reimbursement to be paid by the competent national institution in the situation set out in that judgment. (see paras 27-28, 32, 37, 42-43, 51, 57-58, 67-69)