Opinion of the Advocate General — ECLI:EU:C:2000:274
Date: 2000-05-18
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, as follows: - maintaining the infrastructure and the financial equilibrium of the system of agreements in such a way as to keep the costs, volume and quality of care under control; - making health care accessible to everyone; - ensuring an adequate number of doctors, facilities and hospital beds by striking a balance which avoids both waiting lists (which result in a restriction on access to health care) and the wasting of financial resources (which are very limited in the health sector), the achievement of which requires the regulation of access to hospitals; - limiting the number of patients who go abroad for treatment and to avoid a large influx of foreign patients, on account of the disruption this would create in the use of hospital facilities. The Member States which have intervened in these proceedings cite, as overriding reasons in the general interest justifying maintenance of the authorisation requirement, in addition to those already referred to, the need for insurance funds to be able to control costs; respect for the power of each State to establish health-care priorities on the basis of the resources available to it and the needs of its population; and respect for the principle of equality among insured persons, a breach of which would be detrimental to more disadvantaged patients, for whom travel to another Member State would inevitably involve cost concerns. 52. All the foregoing reasons can be reduced to three, namely, maintaining the financial equilibrium of the compulsory sickness insurance scheme, providing a balanced medical and hospital service open to everyone without distinction, and ensuring the availability of the requisite health care and medical skills within national territory. 53. Those three reasons have already been examined by the Court in Kohll, where it held that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying the requirement that an insured person obtain authorisation to receive care abroad. (78) As regards the need to provide a balanced medical and hospital service open to all insured persons without distinction, and the purpose of ensuring an adequate treatment facilities and medical service on national territory, the Court held that they could be linked to the derogations on grounds of publichealth under Article 56 of the Treaty, which permit Member States to restrict the freedom to provide medical and hospital services. (79) 54. What is in dispute is not, therefore, whether those three reasons are valid justifications for a barrier to freedom to provide services such as the authorisation requirement at issue, where, as in this case, it is applied without distinction to national providers and to providers established abroad, but whether that requirement is necessary in order to ensure that the objectives it pursues are attained and whether it complies with the principle of proportionality. 55. I shall attempt to dispel those doubts. Under schemes such as that in this case, which provide insured persons with benefits in kind, the sickness funds manage their budget by concluding with medical practitioners and health-care institutions agreements which lay down the benefits contracted for, the services that will be available and the financial contribution which the funds undertake to make. Provision is thus made in advance for the financing of all the health care insured persons may need in the course of a year, whether as out-patients or in hospital, in order to ensure that the funds do not in principle have to bear any additional expenditure. It is my view that, in those circumstances, the requirement of authorisation constitutes not only a necessary and proportionate means of attaining the objective of maintaining the financial equilibrium of the system, but also the only means available to sickness funds for controlling payments to a non-contracted provider for health care which they have already paid the contracted providers to dispense, since this represents an additional financial burden. It seems clear to me that, under a social security system where health-care resources, practitioners and institutions are pre-established, sickness funds must be able to expect that, barring rare exceptions subject to their consent, any health care which insured persons require will actually be provided by the practitioners and institutions contracted, regardless of whether they are situated on national territory or abroad. 56. I should like to add that, under a system of benefits in kind such as that at issue, the distinction drawn by Advocate General Tesauro in point 59 of his Opinion in Decker (80) and Kohll (81) between benefits provided by independent practitioners and those provided in hospitals, does not apply. As I see it, the use by insured persons of non-contracted providers represents an additional financial burden for the fund in every case. I therefore consider that the requirement of prior authorisation is justified. 57. I believe that both the objective of providing a balanced medical and hospital service open to everyone and the objective of maintaining essential treatment facilities and medical service on national territory, apart from being intrinsically linked to the method of financing the system, can be brought within the ambit of the public health grounds which, under Article 56, are capable of justifying a restriction on freedom to provide services, as the Court held in paragraphs 50 and 51 of its judgment in Kohll. In contrast to Kohll, (82) however, in the present case it has been demonstrated that, because of the structure of the Netherlands compulsory sickness insurance scheme, which is based on prior comprehensive agreements with medical practitioners and health-care institutions regarding technical resources, hospital facilities and manpower, the authorisation requirement is justified for the purpose of ensuring that funds are alerted to any additional health-care needs that arise, so that the imbalances detected can be corrected. 58. The foregoing considerations support the inference that a sickness fund can legitimately deny an insured person authorisation to receive non-contracted health care abroad, on the ground that the care necessary can be afforded to him by a practitioner or an institution on national territory with whom or which it has entered into an agreement. D. The application of Article 22 of Regulation No 1408/71 59. Despite the fact that the national court has not raised the matter of the interpretation of Article 22(1)(c)(i) and the second paragraph of Article 22(2) of Regulation No 1408/71, it nonetheless merits a few lines. As will be recalled, that provision confers on a worker insured in one Member State who is authorised by the competent institution to go to another Member State to receive health care the right to enjoy the benefits he requires at the expense of the competent institution, in accordance with the provisions of the legislation of the State in which the benefits are provided. Authorisation may not be denied where the treatment is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment in that State within the time normally necessary because of his current state of health and the probable course of the disease. 60. The provision regulates the specific case of an insured person who goes to another Member State to receive, in accordance with the legislation of that State, treatment paid for by the competent institution. This situation is clearly different from that at issue in Kohll, where the insured person received treatment in another Member State but was reimbursed by the competent institution only at the rate applied in the State of insurance. 0. The conditions which sickness funds in the Netherlands lay down for granting authorisation for treatment by a non-contracted medical practitioner or hospital, namely that the treatment should be regarded as a benefit covered by compulsory sickness insurance, and that it should be impossible for the treatment required by the patient's state of health to be given to him within a reasonable period under the agreement, are the same as those contained in Article 22 of Regulation No 1408/72 for authorising treatment abroad. I also note that under the proposal which the Commission submitted to the Council with a view to simplifying Regulation No 1408/71 (83), Article 22 would become Article 18 and the present negative wording 'the authorisation may not be refused' would be replaced by the more positive formula 'the authorisation shall be granted', although the existing conditions, namely that the treatment should be a benefit covered by insurance and should be urgently required, would be maintained. (84) 1. In my opinion, that provision is still valid and should be applied (85) in parallel with the rules laid down by the Court in its judgments in Decker (86) and Kohll (87) in relation to a social security scheme such as that in Luxembourg, which cannot be transposed to all the other schemes operated in the Member States because of their inherent diversity. I should like to add in this respect that I find it regrettable that the competent institutions of the Member States apply that provision so restrictively and grant so few authorisations each year, when it could, under their control, provide an invaluable means of reducing the long waiting lists with which patients in some Member States have to contend. Patients could thus obtain health care in another Member State by invoking Article 22 of Regulation No 1408/71, or by relyingdirectly on Decker and Kohll, without having to run the risk, on return to their State of residence, of being denied reimbursement. (88) 2. The practice of 'clinico-social tourism', whereby patients, usually of sound financial means, seek better medical treatment abroad, is an age-old phenomenon which pre-dates the creation of the European Union. In 1911, the German writer Thomas Mann and his wife, who was ill, booked themselves into a sanatorium in Davos, Switzerland. Contact with the patients who had come from all over the world to find a cure in this remote mountain-top establishment provided the inspiration for his masterpiece 'Der Zauberberg' (The Magic Mountain) (1924), which centres around the fraught search for ideal health care. (89) This 'clinico-social tourism' is a further reason why the competent institutions should be more flexible when authorising persons insured with them to go to another Member State for treatment, in such a way that the principle of equal treatment for insured persons as regards access to the highest possible level of medical care can be maintained without the financial equilibrium of the respective systems being jeopardised. (90) IX. Conclusion 3. In view of the foregoing, I propose that the Court's reply to the questions referred to it by the Arrondissementsrechtbank, Roermond (Netherlands), should be as follows: (1) The health-care benefits in kind which a compulsory sickness insurance scheme such as that in the Netherlands grants to the persons insured with it do not incorporate any remunerative element and do not therefore constitute services within the meaning of Article 60 of the EC Treaty (now Article 50 EC). Accordingly, Articles 59 (now, after amendment, Article 49 EC) and 60 of the Treaty do not preclude sickness funds from requiring persons registered with them to seek authorisation in order to be able to receive benefits from a practitioner or an institution with whom or which they have not entered into a health-care agreement. (2) If, on the other hand, the proposition is accepted that such benefits are services within the meaning of Article 60 of the Treaty, the requirement of authorisation would, in practice, constitute a barrier to freedom to provide services, but would have to be regarded as a necessary and proportionate means of maintaining the financial equilibrium of the system in order to provide a balanced medical and hospital service open to everyone, and to ensure the availability of the necessary treatment facilities and medical service within national territory. 1: Original language: Spanish. 2: - The Netherlands Government states that, for 1997, the ceiling was NLG 60.750 3: - Care considered to be extraordinary because, for example, of its long duration or high cost, and which cannot be paid for by individuals or satisfactorily provided for by private insurance companies, is governed by the Algemene Wet Bijzondere Ziektekosten (General law on special costs in connection with sickness). 4: - According to the information provided by the Netherlands Government at the hearing, there is a total of 30 insurance funds in the Netherlands. 5: - Staatscourant 1988, No 123. 6: - No special conditions have been laid down for insured persons who wish to be treated by medical practitioners or health-care institutions established abroad with whom or which their funds have not entered into an agreement for the provision of health care. An insured person seeking such treatment must obtain prior authorisation from his sickness fund in exactly the same way as he has to when seeking treatment by a medical practitioner or health-care institution established in the Netherlands with whom or which his fund has not entered into a health-care agreement. 7: - In a judgment of 23 May 1995, the Centrale Raad van Beroep held that authorisation to receive treatment abroad under Article 9(4) of the ZFW is not to be given where such treatment cannot be regarded as a benefit within the meaning of the aforementioned provisions. In that case, treatment in New York was not classified as a benefit because it was experimental in nature and could not be deemed 'normal within professional circles'. In another judgment, of 19 December 1997, the same court upheld the view of the sickness fund which was a party in the proceedings to the effect that the treatment at issue, which was provided in Germany, did not (yet) have a sufficient scientific basis and was still regarded in the Netherlands as experimental. 8: - That is to say, two days before his neurologist sought authorisation from the sickness fund for him to receive care at that centre. 9: - Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1). 10: - C-120/95 [1998] ECR I-1831. 11: - C-158/96 [1998] ECR I-1931. 12: - The number of commentators who have written about those two judgments, to date, is in excess of 40. 13: - C. Nourissat, in 'Quand Panacée rejoint Europe ou comment la Cour de justice consacre la liberté des soins dans la communauté' [When Panacea joins Europe or how the Court of Justice is establishing freedom of health care in the Community], published in La Semaine Juridique, edition générale 1999 II 10002, expresses the view: 'Nicolas Decker's pair of spectacles and Aline Kohll's dental treatment are destined to enter Community judicial mythology alongside Mr Costa's electricity bill and Dijon's blackcurrant liqueur'; Ph. Gosseries, in Journal des Tribunaux du Travail, 1999, pp. 446 to 449, in particular p. 446, states: 'the Court's two judgments of 28 April 1998 [...] have driven a coach and horses through the organisation of health-care insurance schemes in the Member States of the European Union. Some have claimed that, through those two judgments, the Court has created a state of real panic among managers of social security institutions across the entire Union [.]'. 14: - In that judgment, the Court held that Articles 30 and 36 of the EC Treaty preclude national rules under which a social security institution of a Member State refuses to reimburse to an insured person on a flat-rate basis the cost of a pair of spectacles with corrective lenses purchased from an optician established in another Member State, on the ground that prior authorisation is required for the purchase of any medical product abroad. 15: - Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16, and Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31. 16: - Judgment in Case 131/85 Gül v Regierungspräsident Düsseldorf [1986] ECR 1573, paragraph 17. 17: - The Court cites Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1978 L 233, p. 1); Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10); and Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1). 18: - The dissenting voice would appear to come from L González Vaqué in 'Aplicación del principio fundamental de la libre circulación al ámbito de la seguridad social: la sentencia Decker' [Application of the fundamental principle of freedom of movement to the field of social security: the judgment in Decker], published in Revista de Derecho Comunitario Europeo, 1999, pp. 129 to 139, in particular p. 139, although he does state that there are sufficient elements within that case-law to make it possible to limit any (adverse) effects it might have in the short and medium term on the economy of the sensitive health-care sector. 19: - P. Mavridis, in 'Libéralisation des soins de santé: un premier diagnostic' [Liberalisation of health care: an initial diagnosis], published in Revue du Marché Unique Européen, 1998, No 3, pp. 145 to 196, in particular p. 195, states '[...] today's decision was already embodied in yesterday's case-law on Articles 30 and 59 to 60. The judgments in Kohll and Decker do not therefore represent a big bang, revolution, explosion or any other natural disaster. They had long been in the pipeline'. J. Ph. Lhernould, in 'Une caisse de sécurité est-elle tenue de rembourser les frais médicaux engagés par un assuré dans un autre Etat membre?' [Is a social-security fund required to reimburse the medical costs incurred by an insured person in another Member State?], published in Revue de droit sanitaire et social, 1998, pp. 616 to 623, in particular p. 622, regards it as a positive development that those two judgments have triggered a movement of resistance to the practice whereby Member States almost automatically refuse to give authorisation for insured persons to receive health care in another Member State at the expense of their insurance fund. R. Giesen, in Common Market Law Review, 1999, pp. 841 to 850, in particular p. 850, states that both judgments deserve his approval, despite the surprise they caused when they were delivered, especially in Germany. 20: - P. Cabral, in 'Cross-border medical care in the European Union - bringing down a first wall', published in European Law Review, 1999, pp. 387 to 395, in particular p. 395, takes the view that that extension is implicit in the judgments in question. 21: - A. Bosscher, in 'La seguridad social de los trabajadores migrantes en la perspectiva del establecimiento del mercado' [Social security for migrant workers from the point of view of the establishment of the internal market], published in Los sistemas de seguridad social y el Mercado único europeo, Madrid, 1993, pp. 23 to 33, in particular p. 32, considers that the unrestricted right to go to another Member State in order to receive health care at the expense of the competent State would be disproportionate to the financial capabilities of the Member States' social security institutions. 22: - These doubts are expressed by A. P. van der Mei in 'Cross-border access to medical care within the European Union - Some reflections on the judgments in Decker and Kohll', published in Maastricht Journal of European and Comparative Law, 1998, pp. 277 to 297, in particular p. 293: 'But what are the implications of the judgments? For which types of foreign treatment are patients entitled to be reimbursed? In which cases can Member States refuse to pay the medical bill? Do Member States have the right to protect themselves against a possible large influx of patients coming from abroad?' Some commentators, such as A. Bonomo, in Giustizia Civile, 1998, I, pp. 2391 to 2401, in particular p. 2401, take the view that implementation of the single market is incompatible with such restrictive State rules which require prior authorisation to be obtained for the reimbursement of medical costs incurred in another Member State and unjustifiably hinder the free movement of patients within the Community. 23: - As anticipated by M Thill in 'Decker et Kohll ou la libre circulation des patients à l'intérieur de l'Union européenne et ses limites' [Decker and Kohll or the free movement of patients within the European Union and its limits], published in Feuillet de Liaison de la Conférence Saint-Yves, 1999, No 92/93, pp. 57 to 89, in particular p. 84. 24: - It is not surprising that there has been such concern, given the views expressed by commentators such as P. Mavridis in 'Libéralisation des soins de santé: un premier diagnostic' [Liberalisation of health care: an initial diagnosis], published in Revue du Marché Unique Européen, 1998, No 3, pp. 145-196, in particular p. 171, where he states that the merit of the judgments in Decker and Kohll lies in the fact that insured persons have been granted a direct right, irrespective of national law and Regulation No 1408/71, which means that they can now go to another Member State in order to obtain medical products, receive the treatment necessary for their condition, and have the costs reimbursed at the rate applied in the State of insurance. Should the sickness funds refuse to reimburse the costs, he reminds his readers of the principle established in Brasserie du Pêcheur and Factortame that the State must make good any damage caused to individuals as a result of failure to comply with Community law. 25: - Those same experiments are cited by A. P. van der Mei, op. cit., pp. 278 and 279: '[...] in a number of border regions, health insurers and health providers have concluded agreements which are aimed at giving patients the right to obtain care on the other side of the border'. 26: - It has emerged from the proceedings pending before the Court of Justice in Case C-411/98 Ferlini v Centre Hospitalier de Luxembourg (OJ 1999 C 20, p. 18) that, in Luxembourg, persons requiring treatment who are not insured under the national social security scheme have to pay considerably more than those who are insured. The Report for the Hearing in that case states that, at the material time (1989), persons insured under the Luxembourg social security scheme were charged LUF 36 859 for childbirth, while those not insured had to pay LUF 59 306 (that is to say 71.43% more) for the same benefit in the same hospital. Advocate General Cosmas, in the Opinion he delivered in that case on 21 September 1999,considered that difference in treatment to be contrary to Article 7(2) of Council Regulation No 1612/68 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475). 27: - Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4685, paragraph 21. 28: - Cited in footnote 14 above, paragraph 16. 29: - Case 279/80 Webb [1981] ECR 3305, paragraphs 8 and 10, and Kohll, cited in footnote 10 above, paragraph 20. 30: - Case 238/82 Duphar v Netherlands [1984] ECR 523, paragraph 16, Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 27, and Kohll, cited in footnote 10 above, paragraph 17. 31: - It would be true to say that it is free in virtually all cases, even though certain benefits may be subject to the payment of a contribution by the person concerned. The legislation does provide, however, that the persons receiving the benefits do not all have to make the same contribution. 32: - Case 352/85 Bond van Adverteerders v Netherlands [1988] ECR 2085, paragraph 16. 33: - Details of how the charges are calculated have been taken from the leaflet 'Wat is het CTG (College Tarieven Gezondheidszorg)?' [What is the Health-care Tariffs Authority?], Utrecht, January 2000, and in particular from paragraph 5, entitled 'Hoe komen budgetten en tarieven tot stand (Rekenvoorbeeld A: ziekenhuisbudget) (Rekenvoorbeeld B: Tarief voor huisartsbezoek)' [How are budgets and tariffs set? Calculation example A: hospital budget; Calculation example B: Tariff for home visits by GPs]. Part of that leaflet has been published in English (by COTG, Utrecht, 1995) under the title 'What is the National Health Tariffs Authority?'. 34: - The budget is calculated on the basis of four elements: infrastructure costs; operating costs, which remain fixed irrespective of the level of occupation of the facilities; semi-fixed costs, which are based on capacity, beds and specialist units, and variable costs, which depend on the volume of activity in each hospital. 35: - These are nation-wide charges for certain activities performed by the hospital. There are approximately 1,600 such charges for every type of treatment: operations, diagnoses, tests etc. 36: - This is different for each hospital and varies considerably from one to the other. It is obtained from the hospital's budget as follows: receipts from supplementary charges are deducted from the budget and the figure arrived at is divided by the estimated number of days of hospital accommodation, that is to say the period for which a patient occupies a bed. It does not reflect the real cost of a day's hospital accommodation, but is used to balance the financing of each hospital. In the example given in the aforementioned leaflet, the estimated number of days of hospital accommodation for hospital X was 115 000, which, applied to a budget of NLG 104 940 000, and estimated receipts by way of supplementary charges of NLG 36 355 000, gives an attendance charge of NLG 596. 37: - This includes salary, holiday pay, insurance, bonuses, premiums and pension plans. The salary is determined on the basis of the pay scales applicable to public servants and is adjusted annually. 38: - There are general guidelines for calculating the cost of running the facilities necessary for each profession. Account is taken of the cost of accommodation, transport, support staff, telephones, catchment area, instruments etc. Costs are adjusted as and when the need arises, for example to provide for the computerisation of practices. 39: - That charge rises to NLG 157 for each insured person over the age of 64. 40: - The system of remuneration for contracted practitioners providing health care under the compulsory sickness insurance scheme is clearly different from the system applicable to private patients, where consultations are paid for individually rather than on the basis of a subscription charge. 41: - Such staff have the status of civil servants or quasi civil servants whose relationship with the social security institutions is governed in certain Member States by public law. 42: - The French and Belgian systems operate according to the same principles. 43: - This also applies to health care provided in hospital, since, although treatment is paid for by the sickness fund rather than the insured person, there is a charge for each medical procedure based on the cost of the benefits involved. 44: - For a detailed examination of the statutory social security systems in force in the Member States, see R. Langer: 'Grenzüberschreitende Behandlungsleistungen - Reformbedarf für die Verordnung 1408/71?' [Cross-border provision of treatment - What reform for Regulation No 1408/71?], in Neue Zeitschrift für Sozialrecht, 11/1999, pp. 537 to 542, in particular pp. 537 to 539. The author differentiates between 'sogenannte reine Versicherungsmodelle' [so-called pure insurance models], in which category she includes the Luxembourg, Belgian and French systems, 'staatliche Gesundheitssysteme' [State health-care systems], in which category she includes the systems of the majority of the Member States, and 'sogenannten Mischsysteme' [so-called mixed systems], in which category she includes the German, Austrian and Netherlands systems. 45: - Case 263/86 Belgian State v Humbel [1988] ECR 5365, paragraphs 15 to 19. 46: - Case C-109/92 S. M. Wirth v Landeshauptstadt Hannover [1993] ECR I-6447, paragraphs 16 and 17. 47: - Case C-159/91 and C-160/91 Poucet and Pistre v Assurances Générales [1993] ECR I-637, paragraphs 17 and 18. 48: - Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, paragraph 21. 49: - Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, cited in footnote 10 above, paragraph 33. 50: - Luisi and Carbone and Bachmann, cited in footnote 14 above, paragraphs 16 and 31 respectively, and Kohll, cited in footnote 10 above, paragraph 35. 51: - Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299, paragraph 25. See also the judgments in Joined Cases 110/78 and 111/78 Ministère Public v Van Wesemael and Others [1979] ECR 35, paragraph 27, and Webb, cited in footnote 28 above, paragraph 14. 52: - Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8, and Case C-360/89 Commission v Italy [1992] ECR I-3401, paragraph 11. 53: - Bond van Adverteerders and Others v Netherlands, cited in footnote 31 above, paragraph 32, and Case C-260/89 ERT v Dimotiki [1991] ECR I-2925, paragraph 24. 54: - Bond van Adverteerders and Others v Netherlands, cited in footnote 31 above, paragraph 34. 55: - As an example of such differences, I can cite the Spanish general social security scheme, under which health care in the fields of stomatology and odontology does not include the cost of or procedure for fillings (except for persons under the age of fourteen), endodontics, dental prostheses, osteo-integrated implants and orthodontics. 56: - In Spain, for example, it appears that the Servicio Andaluz de Salud [Andalucian Health Service] was the first public-health institution to include sex changes among its benefits. 57: - To give an example of such differences in cover, Miss Kohll could have obtained her orthodontic treatment from a private specialist in Spain and claimed reimbursement in Luxembourg, but a person insured under the Spanish social security scheme cannot obtain such treatment anywhere without bearing the full cost himself. 58: - Duphar and Others and Sodemare and Others, cited in footnote 29 above, paragraphs 16 and 27 respectively. 59: - Case 110/79 Coonan v Insurance Officer [1980] ECR 1445, paragraph 12, Case C-349/98 Paraschi [1991] ECR I-4501, paragraph 15, and Kohll, cited in footnote 10 above, paragraph 17. 60: - Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, paragraph 36, and Kohll, cited in footnote 10 above, paragraph 18. 61: - Coonan, cited in footnote 58 above, paragraph 12, Case 368/87 Hartman Troiani v Landesversicherungsanstalt Rheinprovinz [1989] ECR 1333, paragraph 21, Case C-245/88 Daalmeijer [1991] ECR I-555, paragraph 15, Case C-297/92 INPS v Baglieri [1993] ECR I-5211, paragraph 13, and Case C-340/94 De Jaeck v Staatssecretaris van Financiën [1997] ECR I-461, paragraph 36. 62: - This situation is clearly different from that in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, where the Court held that it was not necessary for all undertakings in a Member State to be placed at an advantage in comparison with foreign undertakings, it being sufficient that the preferential system set up should benefit a national provider of services. In that case, the Commission criticised the Netherlands for requiring national broadcasters established in its territory to entrust the making of all or part of its programmes to a Netherlands undertaking. 63: - OJ 1993 L 165, p. 1. 64: - Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 12, and Case C-398/95 SETTG v Ypourgos Ergasias [1997] ECR I-3091, paragraph 16. 65: - Case 205/84 Commission v Italy [1986] ECR 3755, paragraph 27, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraphs 17 and 18, and Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 29 to 31. 66: - Case 62/79 Coditel v Ciné Vog [1980] ECR 881, paragraph 18. 67: - Van Wesemael, cited in footnote 50 above, paragraph 28. 68: - Webb, cited in footnote 28 above, Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 14, Case C-113/89 Rush Portuguesa v Office National d'Immigration [1990] ECR I-1417, paragraph 18, Case C-43/93 Van der Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 23, and Case C-272/94 Guiot [1996] ECR I-1905, paragraph 16. 69: - Case 220/83 Commission v France [1986] ECR 3663, paragraph 20, Case 252/83 Commission v Denmark [1986] ECR 3713, paragraph 20, Commission v Germany, cited in footnote 13 above, paragraph 30, Case 206/84 Commission v Ireland [1986] ECR 3817, paragraph 20, Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 21, and Case C-222/95 Parodi [1997] ECR I-3899, paragraph 32. 70: - Joined Cases C-34/95, C-35/95 and C-36/95 Konsummentombudsmannen De Agostini Forlog AB and TV-Shop v Banque H. Albert de Bary [1997] ECR I-3843, paragraph 53. 71: - Case C-288/89 Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraphs 23 and 25, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 30, and Case C-148/91 Vereniging Veronica v Commissariaat voor de Media [1993] ECR I-487, paragraph 15. 72: - Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 36. 73: - Case C-300/90 Commission v Belgium [1992] ECR I-305, paragraph 21, Bachmann, cited in footnote 14 above, paragraph 28, and Case C-484/93 Svensson and Gustavsson v Ministre du Logement et de L'Urbanisme [1995] ECR I-3955, paragraph 16. 74: - Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 44. 75: - Case C-180/89 Commission v France [1991] ECR I-659, paragraph 17, and Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 21. 76: - Case C-154/89 Commission v France [1991] ECR I-659, paragraph 17, and Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 21. 77: - Kohll, cited in footnote 10 above, paragraph 41. 78: - Cited in footnote 10 above, paragraph 41. 79: - Ibid., paragraphs 50 and 51. 80: - Cited in footnote 9 above. 81: - Cited in footnote 10 above. 82: - Ibidem 83: - Proposal for a Council Regulation (EC) on coordination of social security systems - COM/98/0779 final (OJ 1999 C 38, p. 10). 84: - The proposed text is as follows: 'Authorisation to receive appropriate treatment outside the competent State. A person who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition shall receive the benefits in kind provided, on behalf of the competent institution, by the institution of the place of stay, in accordance with the provisions of the legislation it administers, as though he were insured pursuant to the said legislation. The authorisation must be accorded where the treatment in question is among the benefits provided for by the legislation of the competent State in whose territory the person involved resides and if he cannot, taking account of his current state of health and the probable course of the illness, be given such treatment within the necessary time.' 85: - See, in the same connection, R. Cornelissen: 'The principle of territoriality and the Community regulations on social security (Regulations 1408/71 and 574/72)', Common Market Law Review, 1996, 33 pp. 439 to 471, in particular pp. 465 and 466. 86: - Cited in footnote 9 above. 87: - Cited in footnote 10 above. 88: - A. P. van der Mei, op. cit., pp. 286 and 287, states in this regard: 'in all other cases authorisation may be refused. The Regulation thus leaves it largely to the Member States to decide whether or not authorisation is given and, in practice, authorisation is indeed usually refused. National laws and regulations limit the number of circumstances in which the health (insurance) institutions may grant authorisation, and within these limits the relevant institutions appear to follow rather strict authorisation policies'. 89: - Es waren da Liegehallendamen verschiedener Nationalität untermischt mit (...) einem bebrillten jungen Holländer mit rosigem Gesicht und monomanischer Leidenschaft für den Briefmarkentausch; verschiedenen Griechen, pomadisiert (...) Der Bucklige Mexikaner, dem Nichtkenntnis der hier vertretenen Sprachen den Gesichtsausdruck eines Tauben verlieh (...). T. Mann: Der Zauberberg, S. Fischer Verlag GmbH 1974, p. 324. ('New figures turned up on the terrace: ladies of various nationalities from the general rest-halls [...] monocled youths of seventeen, a spectacled, rosy-faced young Dutchman with a mania for collecting postage stamps; certain Greeks, with pomaded hair [...] the hump-backed Mexican, whose ignorance of any language save his own lent him the facial expression of a deaf person [...]' T. Mann: 'The Magic Mountain', Vintage (Random House), London 1999, p. 232, translated from the German by H. T. Lowe-Porter.) 90: - According to J. Le Grand: 'La asistencia sanitaria y la construcción del mercado único: perspectiva y problemática' [Health care and construction of the single market: outlook and problems], Mercado único europeo y seguridad social, Madrid, 1993, pp. 332 and 333, social tourism can prompt States which are losing patients to other health systems to improve their own medical services. He points out, however, that whether or not this will happen in practice will depend on the system of remuneration for medical services: if it is based on fees for the services provided, the incentive will be to treat as many patients as possible; if remuneration depends on the number of persons health systems have on their lists, the incentive will be to keep relatively healthy patients on those lists and to send patients requiring expensive treatments to social security systems in other countries; if, finally, remuneration takes the form of a salary, the incentive will be to try to have the least number of patients possible. In his opinion, the latter two situations may give rise to social tourism prompted by the service providers, who will seek to persuade their patientsto look elsewhere, including in other Member States, to receive treatment.