Opinion of the Advocate General — ECLI:EU:C:2006:55
Date: 2006-01-19
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Freedom to provide services;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Social security for migrant workers – Sickness insurance – Benefits provided in another Member State – Articles 22(1)(c) and 36 of Regulation No 1408/71 (Art. 49 EC; Council Regulation No 1408/71, Arts 22(1)(c) and (2) and 36) 2. Social security for migrant workers – Sickness insurance – Benefits provided in another Member State (Art. 10 EC; Council Regulation No 1408/71, Art. 22(1)(a) and (c)) 3. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 234 EC) 1. Article 22(1)(c) and (2) and Article 36 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, must be interpreted as meaning that authorisation by the competent institution for an insured person to go to another Member State in order there to receive hospital treatment appropriate to his medical condition does not confer on such a person the right to be reimbursed by the competent institution for the costs of travel, accommodation and subsistence which that person and any person accompanying him incurred in the territory of that latter Member State, with the exception of the costs of accommodation and meals in hospital for the insured person himself. First, the obligation imposed on the competent institution by Article 22(1)(c)(i) of Regulation No 1408/71, so far as benefits in kind are concerned, relates exclusively to the expenditure connected with the healthcare received by the insured person in the host Member State, namely, in the case of hospital treatment, the cost of medical services strictly defined and the inextricably linked costs relating to the stay and meals in the hospital. Likewise, the concept of ‘cash benefits’ within the meaning of that article does not refer to the reimbursement of expenditure already incurred, such as ancillary costs like travel, accommodation and subsistence costs incurred in the territory of that Member State by the insured person and the person accompanying him. Secondly, Article 36 of Regulation No 1408/71 is exclusively concerned with the issue of reimbursements between institutions and does not confer any entitlement on persons insured. That interpretation is without prejudice to the outcome which would result were Article 49 EC found to be applicable. That article precludes national legislation which excludes reimbursement of the ancillary costs incurred by a patient authorised to go to another Member State in order there to receive hospital treatment whilst providing for the reimbursement of those costs where the treatment is provided in a hospital covered by the national system. (see paras 28, 33, 36, 38-39, operative part 1) 2. National legislation in which provision is made for entitlement to benefits additional to those provided for in Article 22(1) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, in the situation covered by paragraph (1)(a) of that article, but not in that covered by paragraph (1)(c) thereof, does not obstruct the direct effect of that provision or infringe the principle of cooperation in good faith stemming from Article 10 EC. (see para. 45, operative part 2) 3. 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. Nevertheless, the Court cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. (see paras 47-49)