Opinion of the Advocate General — ECLI:EU:C:2002:583
Date: 2002-10-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social security for migrant workers;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment 
1. Social security for migrant workers — Sickness insurance — Entitlement to benefits 
in the event of a stay outside the competent Member State — Pensioners staying 
outside their Member State of residence — Provisions applicable 
(Council Regulation No 1408/71, Arts 22(1)(a) and 31) 
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SUMMARY — CASE C-326/00 
2. Social security for migrant workers — Sickness insurance — Entitlement to benefits 
in the event of a stay outside the competent Member State — Pensioners staying 
outside their Member State of residence — Entitlement to benefits in kind — 
Conditions 
(Council Regulation No 1408/71, Art. 31) 
3. Social security for migrant workers — Sickness insurance — Entitlement to benefits 
in the event of a stay outside the competent Member State — Pensioners staying 
outside their Member State of Residence — Obligation of cooperation on the 
institution of the place of stay and that of the place of residence 
(Art. 10 EC; Council Regulation No 1408/71, Art. 84) 
4. Social security for migrant workers — Sickness insurance — Entitlement to benefits 
in the event of a stay outside the competent Member State — Pensioners staying 
outside their Member State of residence — Refusal wrongly interposed by the 
institution of the place of stay — Obligations resulting for the institution of the place 
of residence 
(Council Regulations No 1408/71, Art. 31, and No 574/72, Art. 31) 
1. Pensioners fall within the provisions of 
Regulation No 1408/71 on 'workers', 
by virtue of being affiliated to a social 
security scheme, only if they are not the 
subject of special provisions laid down 
regarding them, such as those laid 
down by Articles 27 to 33 of that 
regulation. It follows that Arti­
cle 22(1)(a) of Regulation No 1408/71 
does not apply to pensioners staying in 
a Member State other than their State 
of residence, and cannot inspire the 
interpretation of Article 31 of that 
regulation. An interpretation harmon­
ising the systems established by the 
above two provisions would disregard 
the differences in their wording and the 
fact that the Community legislature 
thought fit to enact a specific provision 
for the category of insured persons 
consisting of pensioners and members 
of their families. The Community legis­
lature's decision not to model the 
system applicable to non-working pen­
sioners on that applicable to employed 
and self-employed persons may be 
explained by a desire to promote 
effective mobility of that category of 
insured persons, taking into account 
certain characteristics which typify 
them, such as a potentially greater 
vulnerability and dependence in health 
terms and an increased freedom from 
commitments permitting more frequent 
stays in other Member States. 
(see paras 32-35, 38) 
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IKA 
2. Article 31 of Regulation No 1408/71 
governs the entitlement to benefits in 
kind of pensioners and members of 
their families where those benefits 
become necessary during a stay in a 
Member State other than the State in 
which they reside. The entitlement 
conferred by that provision is not 
subject to the condition that the treat­
ment in question corresponds to an 
immediate medical necessity or to the 
condition that the treatment has 
become necessary because of a sudden 
illness. Moreover, Article 31 does not 
provide for a system of authorisation 
with respect to the provision of the 
benefits in kind which it guarantees to 
pensioners and members of their 
families staying in a Member State 
other than the State in which they 
reside. It follows that a Member State 
cannot make the provision of the 
benefits in kind guaranteed by 
Article 31 of Regulation No 1408/71 
to pensioners staying in a Member 
State other than the State in which 
they reside subject either to any auth­
orisation procedure whatever or to the 
requirement that the illness which 
necessitated the treatment in question 
manifested itself suddenly during that 
stay, making that treatment immedi­
ately necessary. 
(see paras 26, 40-43, 
operative part 1-2 ) 
3. The provision and funding of the 
benefits in kind referred to in 
Article 31 of Regulation No 1408/71 
must normally take place in accord­
ance with the provisions of that article 
in conjunction with Article 36 of that 
regulation and Article 31 and 93 of 
Regulation No 574/72. The institutions 
of the place of stay and the place of 
residence jointly assume the task of 
applying those provisions and must, in 
accordance with Article 10 EC and 
Article 84 of Regulation No 1408/71, 
cooperate in order to ensure that those 
provisions are applied correctly and, 
consequently, that the rights conferred 
on pensioners and members of their 
families by Article 31 of Regulation 
No 1408/71 with a view to facilitating 
the freedom of movement of those 
insured persons are fully respected. It 
follows that, where the institution of 
the place of residence receives from the 
institution of the place of stay a request 
to issue a Form E 112 even though it 
has previously issued its insured person 
with a Form E 111, it must ascertain 
whether the apparent refusal to provide 
the benefits in kind under Article 31 of 
Regulation No 1408/71 is well 
founded. If it is persuaded that that is 
not the case, it must inform the insti­
tution of the place of stay of this, and 
the latter is obliged to reconsider 
whether its position is well founded, 
and if necessary to modify it. 
(see paras 51-52, operative part 3) 
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SUMMARY — CASE C-326/00 
4. A refusal by the institution of the place 
of stay to apply Article 31 of Regu­
lation No 1408/71 and its requirement 
for production of a Form E 112 cannot 
be equated to a failure to carry out a 
formality provided for in Article 31 of 
Regulation No 574/72, so that the 
provisions of Article 34 of the latter 
regulation do not apply in such a case. 
In the presence of such a refusal and 
such a requirement, it is for the com­
petent institution of the place of resi­
dence which has previously issued its 
insured person with a Form E 111 to 
contribute to facilitating the correct 
application of Article 31 of Regulation 
No 1408/71. Accordingly, where it 
appears that the institution of the place 
of stay has wrongly refused to give 
effect to that provision and the institu­
tion of the place of residence, on being 
advised of that refusal, has declined to 
contribute, as it is obliged to, to 
facilitating the correct application of 
that provision, it is for the latter 
institution, without prejudice to the 
possible liability of the institution of 
the place of stay, to reimburse directly 
to the insured person the cost of the 
treatment he has to bear, so as to 
guarantee him a level of funding equiv­
alent to that which he would have 
enjoyed had the provisions of that 
article been complied with. Moreover, 
as such reimbursement takes the place 
in such a case of the benefits in kind 
which Article 31 of Regulation 
No 1408/71 guarantees to pensioners, 
a Member State cannot make the 
reimbursement conditional on any 
authorisation procedure, or on the 
requirement that the illness which 
necessitated the treatment in question 
manifested itself suddenly during the 
stay in another Member State, making 
the provision of that treatment immedi­
ately necessary. 
(see paras 59-62, operative part 4-5) 
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