Opinion of the Advocate General — ECLI:EU:C:2005:17
Date: 2005-01-13
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Preliminary rulings — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context (Art. 234 EC; Statute of the Court of Justice, Art. 23) 2. Preliminary rulings — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Determination and assessment of the facts of the dispute — Need for a preliminary ruling and relevance of the questions raised — Assessment by the national court (Art. 234 EC) 3. Social security for migrant workers — Community legislation — Scope — Treatment provided outside Community territory — No effect — Criterion of applicability — Person concerned affiliated to a social security scheme of a Member State (Council Regulations Nos 1408/71 and 574/72) 4. Social security for migrant workers –– Sickness insurance — Worker staying in a Member State other than the competent State — Issue by the competent institution of a Form E 111 or E 112 — Compulsory recognition, except in the case of abuse, of the medical findings and decisions of doctors authorised by the institution of the Member State of stay concerning urgent treatment (Council Regulation No 1408/71, Art. 22(1)(a)(i) and (c)(i)) 5. Social security for migrant workers — Sickness insurance — Worker staying in a Member State other than the competent State — Issue by the competent institution of a Form E 111 or E 112 — Medical findings of doctors authorised by the institution of the Member State of stay showing that treatment in another State is necessary — Right to benefits in kind whose cost is borne by the competent institution — Condition — Obligation of the competent institution of the Member State of stay under national legislation to provide persons insured with it with those benefits (Council Regulation No 1408/71, Art. 22(1)(c)(i)) 6. Social security for migrant workers — Sickness insurance — Worker staying in a Member State other than the competent State — Issue by the competent institution of a Form E 111 or E 112 — Medical findings of doctors authorised by the institution of the Member State of stay showing that treatment in a non-member country is necessary — Cost of medical treatment — Cost borne by the institution of the Member State of stay under its legislation and then reimbursed by the institution of the competent Member State in the case of treatment provided for by its legislation or, failing that, direct reimbursement by that institution to the person insured — Conditions (Council Regulation No 1408/71, Arts 22(1)(a)(i) and (c)(i) and 36) 1. The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments of the Member States and the interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties. (see paras 29-30) 2. In proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling. (see para. 33) 3. The mere fact that medical treatment was given outside Community territory is not enough to exclude the application of Regulations Nos 1408/71 and 574/72, as amended and updated by Regulation No 2001/83, since the decisive criterion for their applicability is that the insured person concerned is affiliated to a social security scheme of a Member State. (see para. 38) 4. Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71 and Article 22(1) and (3) of Regulation No 574/72, both as amended and updated by Regulation No 2001/83, must be interpreted as meaning that, where the competent institution has consented, by issuing a Form E 111 or Form E 112, to one of its insured persons receiving medical treatment in a Member State other than the competent Member State, it is bound – subject to the existence of any abuse – by the findings as regards the need for urgent vitally necessary treatment made during the period of validity of the form by doctors authorised by the institution of the Member State of stay, and by the decision of those doctors, taken during that period on the basis of those findings and the current state of medical knowledge, to transfer the patient to another State, even if that State is not a Member State of the European Union. In such circumstances, the competent institution is not entitled to require the person concerned to return to the competent Member State for a medical examination there or have him examined in the Member State of stay, nor to subject the above findings and decisions to its approval. (see paras 50, 53-54, 56-57, 63, operative part 1) 5. Where it turns out, in the course of the medical treatment undergone by an insured person in the territory of a Member State other than the competent Member State which he has been authorised by the competent institution to go to for medical purposes, that the pathology with which he is diagnosed necessitates urgent treatment of vital importance which, in the present state of medical knowledge, the doctors authorised by the institution of the State of stay consider can only be provided in an establishment in the territory of another State, Article 22(1)(c)(i) of Regulation No 1408/71 and Article 22(1) and (3) of Regulation No 574/72, both as amended and updated by Regulation No 2001/83, must be interpreted as meaning that the insured person’s right to the benefits in kind provided on behalf of the competent institution is subject to the condition that, under the legislation administered by the institution of the Member State of stay, that institution is obliged to provide a person insured with it with the benefits in kind corresponding to such treatment. (see paras 60, 63, operative part 1) 6. Where doctors authorised by the institution of the Member State of stay have for reasons of vital urgency and in the light of current medical knowledge chosen to transfer the insured person to a hospital establishment in a non-member country, Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71, as amended and updated by Regulation No 2001/83, must be interpreted as meaning that, provided that the institution of the Member State of stay has no reason seriously to doubt the correctness of that medical decision, the cost of the treatment given in that State is to be borne by the institution of the Member State of stay in accordance with the legislation it administers, under the same conditions as those applicable to insured persons covered by that legislation. In the case of treatment which is among the benefits provided for by the legislation of the competent Member State, it is then for the institution of that State to assume the cost of the benefits thus given, by reimbursing the institution of the Member State of stay under the conditions laid down in Article 36 of Regulation No 1408/71. Where the cost of the treatment provided in an establishment in a non-member country has not been assumed by the institution of the Member State of stay, but it is established that the person concerned would have been entitled to have the cost borne and the treatment is among the benefits provided for by the legislation of the competent Member State, it is for the competent institution to reimburse that person or his heirs directly the cost of that treatment, so as to ensure a level of assumption of costs equivalent to that which that person would have enjoyed if the provisions of Article 22(1) of Regulation No 1408/71 had been applied. (see paras 67, 69-70, operative part 2)