Opinion of the Advocate General — ECLI:EU:C:2000:271
Date: 2000-05-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Social security for migrant workers — Sickness insurance — Benefits in kind 
provided in another Member State — Article 22 of Regulation No 1408/71 — 
Refusal of authorisation unfounded — Reimbursement by the competent State of 
costs incurred in connection with treatment provided in another State — Determina­
tion of the amount of reimbursement in accordance with the provisions in force in the 
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SUMMARY — CASE C-368/98 
State in which the treatment was given — Freedom to provide services — Obligation 
to make additional reimbursement covering any difference between that amount and 
that resulting from the application of the provisions in force in the competent State 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC); Council Regulation 
No 1408/71, Art. 22) 
2. Social security for migrant workers — Sickness insurance — Benefits in kind 
provided in another Member State — Article 36 of Regulation No 1408/71 — 
Scope — Right to reimbursement of all costs incurred — Excluded 
(Council Regulation No 1408/71, Art. 36) 
1. Article 22(1 )(c) and (i) of Regulation 
No 1408/71, in the version amended 
and updated by Council Regulation 
(EEC) No 2001/83, is to be interpreted 
as meaning that, when an insured 
person has been authorised by the 
competent institution to go to another 
Member State for treatment, the insti­
tution of the place where the treatment 
is provided is required to provide him 
with benefits in kind in accordance 
with the rules on assumption of the 
costs of health care which the latter 
administers, as if the person concerned 
were registered with it. 
Where the request of an insured person 
for authorisation on the basis of Arti­
cle 22(1 )(c) of that regulation has been 
refused by the competent institution 
and it is subsequently established that 
such refusal was unfounded, the person 
concerned is entitled to be reimbursed 
directly by the competent institution by 
an amount equivalent to that which 
would have been borne by the institu­
tion of the place of stay under the rules 
laid down by the legislation applied by 
the latter institution if authorisation 
had been properly granted in the first 
place. 
As Article 22 of that regulation is not 
intended to regulate any reimburse­
ment at the tariffs in force in the 
Member State of registration, it does 
not have the effect of preventing or 
prescribing payment by that State of 
additional reimbursement covering the 
difference between the system of cover 
laid down by the legislation of that 
State and the system applied by the 
Member State of stay, where the former 
is more advantageous than the latter 
and such reimbursement is provided 
for by the legislation of the Member 
State of registration. 
Article 59 of the EC Treaty (now, after 
amendment, Article 49 EC) is to be 
interpreted as meaning that, if the 
reimbursement of costs incurred on 
hospital services provided in a Member 
State of stay, calculated under the rules 
in force in that State, is less than the 
amount which application of the legis-
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VANBRAEKEL AND OTHERS 
lation in force in the Member State of 
registration would afford to a person 
receiving hospital treatment in that 
State, additional reimbursement cover­
ing that difference must be granted to 
the insured person by the competent 
institution. 
(see para. 53, and operative part 1) 
2. Article 36 of Regulation No 1408/71, 
in the version amended and updated by 
Regulation No 2001/83, cannot be 
interpreted as meaning that it follows 
from that provision that a covered 
person who has requested authorisa­
tion on the basis of Article 22(1 )(c) of 
that regulation and been refused by the 
competent institution is entitled to 
reimbursement of all the medical costs 
which he incurred in the Member State 
in which he received treatment once it 
is established that the rejection of his 
request for authorisation was unfoun­
ded. 
(see para. 56, and operative part 2) 
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