Opinion of the Advocate General — ECLI:EU:C:2012:210
Date: 2012-04-18
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary and order as to costs 96. In conclusion, since none of the claims advanced by the Commission must be upheld, the action must be dismissed. 97. However, it does not seem appropriate to order the Commission to pay all of the costs in accordance with the application: if the Commission had maintained its first claim, it would have been upheld, since at the relevant time of the reasoned opinion, Paragraph 34 of the SGB XI was not yet consistent with the Molenaar judgment with regard to the care allowance and in this respect an infringement of Article 56 TFEU for withholding the care allowance in another Member State would have been found to exist. 98. Accordingly, pursuant to Article 69(5) of the Rules of Procedure, it appears appropriate to order the Commission to pay two thirds of the costs and the Federal Republic of Germany to pay one third of the costs. VII – Conclusion 99. In the light of all the foregoing considerations, I propose that the Court should rule as follows: (1) The action is dismissed. (2) The Commission shall bear two thirds of the costs of the Federal Republic of Germany and two thirds of its own costs. The Federal Republic of Germany shall bear one third of the costs of the Commission and one third of its own costs. 1 – Original language: German; Language of the proceedings: German. 2– Case C‑160/96 Molenaar [1998] ECR I‑843. 3 – Case C‑208/07 Chamier-Glisczinski [2009] ECR I‑6095. 4 – Book XI of the Social Security Code – social care insurance scheme – (Article 1 of the Law of 26 May 1994, BGBl. I p. 1014), which was most recently amended by Article 4 of the Law of 22 December 2011 (BGBl. I p. 2983). 5 – See, for instance, Case C‑388/09 da Silva Martins [2011] ECR I‑5737, paragraphs 38 and 42. For the sake of completeness, it should be noted that a social care insurance scheme does not, in principle, come within the scope of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, which has to be implemented by 25 October 2013 (OJ 2011 L 88, p. 45). According to recital 14 and Article 1(3)(a) of that directive, it does not apply to ‘services in the field of long-term care the purpose of which is to support people in need of assistance in carrying out routine, everyday tasks’. In addition, the latter directive is not applicable ratione temporis to the present proceedings either. As a result of the two-month time-limit set in the reasoned opinion received by the defendant on 23 November 2009, the legal position as at 23 January 2010 should be taken as being authoritative and consequently the directive which only came into force in 2011 must be disregarded here. 6 – Recently, SPIEGEL online reported on so-called dementia-centres in Thailand at http://www.spiegel.de/wirtschaft/soziales/0,1518,773044-3,00.html. 7 – In relation to the malleable concept of the export of benefits, see the ‘Gemeinsame Rundschreiben der Spitzenverbände der Pflegekassen zu Leistungen der Pflegeversicherung bei Auslandsaufenthalt’ 13. September 2006, No. 1.2, available online at http://www.sindbad-mds.de/infomed/sindbad.nsf/002568A2003D5BAE/B6FAF6382466683E00256C72005C0D2C?OpenDocument, and Bassen, A., ‘Export von Sachleistungen der Pflegeversicherung nach der Entscheidung des EuGH in der Rechtssache von Chamier-Glisczinski’, NZS 2010, p. 479 et seq. 8– Molenaar, paragraphs 36 to 39. 9 – See also more extensively on the issue of payment of the old age insurance contributions of a third person to whom a person reliant on care resorts for assistance at home, Joined cases C‑502/01 and C‑31/02 Gaumain-Cerri and Barth [2004] ECR I‑6483, paragraph 36. 10 – Chamier-Glisczinski, paragraphs 24 to 28, 63 to 65, 83 to 88 and point 2 of the operative part of the judgment. 11 – Chamier-Glisczinski, paragraph 65. 12 – Chamier-Glisczinski judgment, paragraphs 84 und 85. 13– OJ, English Special Edition, Series I, Chapter 1971(II) p. 416, last amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008 (OJ L 177, p. 1). 14– OJ 2004 L 166, p. 1, as most recently amended by Commission Regulation (EU) No 1244/2010 of 9 December 2010 (OJ 2010 L 338, p. 35). 15– See Article 91 of Regulation No 883/2004. 16 – Introduced by Article 7 of the Law of 22 June 2011 coordinating the social security system in Europe and amending other statutes (BGBl. I p. 1202). In giving reasons for the amendment to the statute, the German Bundestag (the lower house of the Federal Parliament) expressly referred in paper number 17/4978 to the Molenaar judgment and to the fact that now the ‘wording of Paragraph 34 of the SGB XI is consistent with the requirements of EC law.’ 17 – This provision governs the setting aside of an administrative act with permanent effect where the circumstances have changed. 18 – Case C‑158/96 Kohll [1998] ECR I‑1931. 19 – Paragraph 37 of the SGB XI. 20 – Paragraph 36 of the SGB XI. 21 – Paragraph 40 of the SGB XI. 22 – Case C‑211/08 Commission v Spain [2010] ECR I‑5267, paragraph 32 and the case-law cited there. 23 – See, for instance, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Case C‑120/95 Decker [1998] ECR I‑1831, paragraph 27; Kohll, paragraph 20; and Commission v Spain, paragraph 45 and the case-law cited there. 24 – In relation to the possibility of granting more extensive social protection by the Member States, see Chamier-Glisczinski, paragraph 56. 25 – See, for instance, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 42, 45, 51 to 53. In that case, in relation to the question of the extent to which the insured person had to be reimbursed in respect of hospital treatment in another Member State, the Court held that ‘the fact that a person has a lower level of cover when he receives hospital treatment in another Member State than when he undergoes the same treatment in the Member State in which he is insured’ was a barrier to freedom to provide services. 26– A brief overview of the state of the discussion amongst commentators may be found in Bassen, p. 480, in particular footnotes 12 and 13. 27– See Article 168(7) TFEU. 28 – See, for instance, Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 92 and the case-law cited there and Commission v Spain, paragraph 53. 29 – In relation to this, see in connection with the supply of medicinal products, Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraphs 22 to 26 and the case-law cited there. 30 – See in relation to this Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I‑4171, paragraph 18 and the case-law cited there. 31– Apothekerkammer des Saarlandes, paragraph 19 and the case-law cited there. 32 – However, the freedom to provide services can require in an individual case that the costs of a treatment abroad must also be reimbursed if the social security system of the State of origin expressly denies reimbursement for the costs of certain treatments abroad. See in relation to this Case C‑444/05 Stamatelaki [2007] ECR I‑3185. 33– See also paragraphs 75 to 77 of that judgment. 34– See, in that regard, Commission v Spain, paragraph 47 to 52 and the case-law cited there. 35– See, in that regard, Commission v Spain, paragraph 47 and the case-law cited there. 36 – Kohll, paragraph 33; Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraph 61 and Stamatelaki, paragraph 25 and the case-law cited there. 37 – In practice, this situation might well only arise rarely, having regard to the high costs resulting from such an accompanying care worker which may not be borne in full but only within the limits of the relevant amounts paid by the care fund. 38– See: Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37. 39– Case C‑246/08 Commission v Finland [2009] ECR I‑10605, paragraph 52; Case C‑438/07 Commission v Sweden [2009] ECR I‑9517, paragraph 49; and Case C‑401/06 Commission v Germany [2007] ECR I‑10609, paragraph 27. 40 – See e.g.: Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21. 41 – See, in relation to this: Article 62 TFEU in conjunction with Article 52 TFEU and Kohll, paragraph 51 and the case-law cited there. 42 – See, in relation to this: Apothekerkammer des Saarlandes, paragraphs 25 to 28 and the case-law cited there. 43– Paragraph 45 of the defence. 44 – Apart from the scenario of being accompanied by his carer, which must be practically inconsequential: see Paragraph 34(1)(1) of the SGB XI. 45 – See: paragraph 84 and 85 there. 46 – See, in relation to this: pages 15 to 17 of the defence of the Federal Republic of Germany. 47 – See, for instance in relation to the details, the communication from the Federal government dated 17 December 2008, p. 3 to 7, which is enclosed as appendix 4 to the action. The quality standards for the care institutions, which are relevant for the purposes of concluding a service agreement, may be understood from Paragraph 71 and 72 of the SGB XI. 48 – However, pursuant to Paragraph 37(3) of the SGB XI, recipients of care allowances are also subject to regular advice and quality control by an authorised care institution. 49– Vanbraekel, paragraph 45; Emphasis added here alone. 50 – See the communication of the Federal Government dated 17 December 2008, p. 3 (previously mentioned in footnote 47). 51 – A formal procedure, subject to the intervention of the care fund, is provided for in Paragraph 40(1) of the SGB XI.