62001CC0056_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
The Tribunal des affaires de sécurité sociale (Social Security Court), Nanterre, France, has applied to the Court of Justice, under Article 234 EC, for a ruling on the validity of Article 22 of Regulation (EEC) No 1408/71, (2) in the light of Articles 49 EC and 50 EC, with a view to determining whether it is lawful for a sickness fund to refuse to reimburse the costs of hospital treatment provided to an insured person in another Member State.
I ─ The facts of the main proceedings
2.
Ms Inizan, the applicant in the main proceedings, requested prior authorisation to undergo pain relief treatment at a hospital in Germany, which is equipped with a natural therapy and integrative medicine unit, (3) from the Caisse primaire d'assurance maladie des Hauts-de-Seine, the sickness fund with which she is registered, so that the fund would reimburse the costs of the treatment.
The patient, who is 37 years old, suffers from acute pain from which she can only obtain partial, temporary relief. She has attended specialist centres in Paris on several occasions but there has been no improvement in her condition. In 1986, she also began to undergo psychological treatment but that did not alleviate her condition either.
3.
Ms Inizan's request was refused on 6 July 1999, on the ground that the requirements of the second subparagraph of Article 22(2) of Regulation No 1408/71 had not been fulfilled.
4.
The applicant appealed against that decision to the Commission de Recours Amiable (Arbitration Committee) of the Caisse primaire d'assurance maladie des Hauts-de-Seine, which upheld the decision in October 1999 on the ground that the report of the National Medical Officer (Médecin Conseil National) had found that the patient's state of health was not such that it was necessary for her to travel abroad.
5.
In December 1999, Ms Inizan brought an action before the Tribunal des affaires de sécurité sociale, Nanterre. By interlocutory judgment of 6 July 2000, that court requested Ms Inizan to send her medical file to the National Medical Officer, and ordered that officer to issue a reasoned opinion on whether the French fund should reimburse the costs of treatment in Germany, having regard to the fact that no cure had been found in France for the patient's physical and psychological disorders.
6.
The National Medical Officer gave an unfavourable opinion, stating that, in his view, a wide range of treatments in the field was available in France, without undue delay. The National Medical Officer pointed out that the treatment sought was long-term, lasting several months or even years, and necessitated a continuity and regularity which could not be provided by a centre situated several hundred kilometres from the patient's home.
7.
Ms Inizan countered that, in his report, the National Medical Officer had merely proposed the repetition of treatment which she had already undergone in the past without success, because it was not appropriate to her condition.
8.
Ms Inizan has adduced evidence that, where treatment at the natural therapy and integrative medicine unit is prescribed by a doctor, it is paid for in Germany by the public sickness insurance scheme and by private insurance companies.
II ─ The French legislation
9.
In France, reimbursement of the cost of treatment provided in another Member State is governed by three articles of the Social Security Code, which provide:
L.332-3
Without prejudice to agreements and international rules, or to Article L.766-1, where medical treatment is given outside France to insured persons and their dependants, the corresponding benefits under the sickness and maternity insurance scheme shall not be provided.
The circumstances in which exceptions may be applied to the principle set out in the previous paragraph shall be laid down by decree on the advice of the Council of State, for cases where insured persons or their dependants are taken ill unexpectedly during a stay abroad or where the medical treatment appropriate to their condition cannot be provided in France.
L.766-1
People who receive treatment under this title shall be entitled to the benefits under the sickness and maternity insurance schemes which are provided for herein.
Without prejudice to agreements and international rules applicable to the workers referred to in Article L.761-1, the benefits concerned shall be paid in the country in which a person eligible under this title carries on his activity. Such benefits shall be based on actual expenditure, but shall be within the limits of the liability scales prescribed by ministerial order ...
R.332-2
Sickness insurance funds may reimburse, at a flat rate, the costs of treatment given outside France to insured persons, and members of their families, who are taken ill unexpectedly, provided that the amount does not exceed the total sum which would have been paid to them had they been treated in France.
Where it is not possible for an insured person or his dependants to receive in France the treatment appropriate to their condition, the agreements between the French competent bodies and certain hospitals abroad may, with the joint authorisation of the Minister for Social Security and the Minister for Health, lay down the conditions on which patients may stay in those hospitals, and the methods of reimbursing the costs of the treatment received.
Notwithstanding the cases referred to in the previous paragraph, in exceptional circumstances and subject to a favourable opinion from the medical supervisory body, sickness insurance funds may reimburse, at a flat rate, the cost of treatment provided outside France to an insured person or his dependants, where the person concerned establishes that he could not receive in French territory the treatment appropriate to his condition.
III ─ The questions referred for a preliminary ruling
10.
Before ruling on the substance of the case, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
"(1)
Is Article 22 of Regulation (EEC) No 1408/71 compatible with Articles 59 (now, after amendment, Article 49 EC) and 60 (now, after amendment, Article 50 EC) of the Treaty of Rome?
(2)
Consequently, is the Caisse primaire d'assurance maladie des Hauts-de-Seine entitled to refuse Ms Inizan reimbursement of the costs of psychosomatic pain treatment in Essen, Germany, following an adverse opinion from the National Medical Officer?
"
IV ─ The Community legislation
11.
In order to reply to the questions referred, it is necessary to analyse the following provisions of Community law:
Article 49 EC
"Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
...
"
Article 50 EC
"Services shall be considered to be
"services"
within the meaning of this Treaty where they are normally provided for remuneration, insofar as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
"Services"
shall in particular include:
...
(d)
activities of the professions.
...
"
Article 22 of Regulation No 1408/71
"1.
An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits
...
(c)
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 be entitled:
(i)
to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State;
...
2.
...
The authorisation required under paragraph 1(c) may not be refused where the treatment in question 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 within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.
...
"
V ─ The procedure before the Court
12.
In the preliminary phase of these proceedings, written observations were submitted, within the period prescribed by Article 20 of the EC Statute of the Court of Justice, by Ms Inizan, the Caisse primaire d'assurance maladie des Hauts-de-Seine, the Spanish, French, Irish, Luxembourg, Swedish and United Kingdom Governments, the Council and the Commission.
13.
The Court declared the conclusion of the written phase of these proceedings in May 2001. However, in March 2002, the Court decided to request the parties to the main proceedings, the Governments of the Member States, the Council, the Commission, and any other interested parties to comment in writing on the conclusions to be drawn from the judgments in
Vanbraekel and Others (4) and
Smits and Peerbooms
, (5) and their bearing on the replies to the questions referred for a preliminary ruling by the Tribunal des affaires de sécurité sociale, Nanterre.
The applicant and the defendant in the main proceedings, the Belgian, Spanish, French and United Kingdom Governments, the Council and the Commission responded to that request.
14.
At the hearing, which was held on 28 November 2002, oral observations were presented by the representatives of Ms Inizan and the Caisse primaire d'assurance maladie des Hauts-de-Seine, and the agents of the Spanish, French, Swedish and United Kingdom Governments, the Council and the Commission.
VI ─ Analysis of the first question
15.
By the first question, the national court asks the Court of Justice to rule on the validity of Article 22 of Regulation No 1408/71 in the light of Articles 49 EC and 50 EC.
A ─
The views set out in the observations
16.
The applicant in the main proceedings maintains that, in accordance with the principle of freedom to provide services, she is entitled to move freely from one Member State to another in order to receive medical treatment. However, Article 22 of Regulation No 1408/71 provides that she must obtain the prior authorisation of the national social security institution. That rule creates a difference in treatment depending upon the source of the benefit, dissuades people from obtaining medical treatment in other Member States, and constitutes a restriction on the freedom to provide services, contrary to Article 49 EC. The applicant contends that the fact that a particular treatment is not available under the social security scheme of the Member State of insurance does not preclude the treatment from being provided in another State and the cost being recovered from the patient's insurance fund, since that patient is entitled to benefit from scientific and medical advances achieved in other European Union countries.
17.
The Caisse primaire d'assurance maladie des Hauts-de-Seine is of the view that the purpose of Article 22(1)(c) and the second subparagraph of Article 22(2) of Regulation No 1408/71 is to impose minimum rules on the Member States in order to facilitate the free movement of medical services. The treatment of pain by means of natural therapy and integrative medicine is not scientifically recognised. Accordingly, such treatment is not available under the French social security system and the costs thereof are not reimbursed. The defendant notes that there are six hospitals in Paris providing multidisciplinary consultations aimed at treating the condition concerned, in addition to hospitals in the surrounding area and in the other regions of France. (6)
At the hearing, the defendant's representative informed the Court that the patient can receive in France virtually all the therapies that are available under the German treatment programme and that the costs are recoverable from her sickness fund. The only therapy which is not chargeable to the sickness fund is the one involving a healthy diet.
18.
The views of the Member States which submitted observations in these proceedings are divided on a fundamental question. Belgium and France are of the opinion that both the treatment provided by practitioners in their surgeries and the treatment provided to patients who have been admitted to hospital are services within the meaning of the Treaty. Luxembourg, which, like the aforementioned countries, administers a sickness insurance scheme under which a proportion of the costs of treatment given to patients is reimbursed, does not apply that rule to hospital treatment. Finally, Spain, Ireland, Sweden and the United Kingdom argue that national health systems where treatment is regarded as a benefit in kind do not provide services, since there is no requirement of remuneration in the relationship between medical staff and patients.
However, all the Member States agree that in the event that it is appropriate to regard all forms of medical treatment as services, irrespective of whether they are paid for, the prior authorisation referred to in Article 22 of Regulation No 1408/71 would be justified on the overriding public interest grounds cited by the Court in recent case-law, in which it held that Article 22 is compatible with Articles 49 EC and 50 EC and should not be declared invalid.
19.
In reply to the written questions addressed to it by the Court, the French Government outlined the procedure in France for determining which medicinal products and treatments should be paid for under the sickness insurance scheme. In the case of medicinal products, they must be included in a list which has been approved by joint order of the Minister for Health and the Minister for Social Security following a report from the Commission de Transparence, a commission made up of medical and scientific experts. Those experts give their opinion on the usefulness of the product concerned, taking into account its effectiveness, side effects, the position it occupies in the treatment strategy in relation to other remedies available, the seriousness of the complaint for which it is intended, whether it is preventive, curative or used for symptomatic treatment, and its benefits to public health. The file is then passed to the Comité Économique des Produits de Santé which sets the price of the product concerned. The entry in the list, the percentage of the price that may be reimbursed, and the price itself, are published in the
Journal Officiel
.
The decision concerning which treatments should be paid for under the sickness insurance scheme is taken by the Minister for Health, the Minister for Social Security and the Minister for Agriculture. Before approving the list, the ministers may consult the Commission Permanente de la Nomenclature Générale des Actes Professionnels, which was created in 1986 and whose duties include making proposals for provisional financial evaluations and entering into the catalogue any activities which are capable of improving medical services or reducing the costs of treatment.
The French Government adds that the treatment of pain by means of natural therapy and integrative medicine is not practised in France under the same name or in the same form, but states that it is possible to keep the condition effectively under control using the treatments available, even though they are not the same as the treatments provided in Germany. The fundamental difference in the therapies used to treat the condition from which Ms Inizan suffers is that, whereas in Germany the whole range of therapies is provided at the same centre, patients in France must go to different hospitals.
20.
The Council argues that, far from impeding the freedom to provide services, Article 22 of Regulation No 1408/71 promotes that freedom; accordingly, its compatibility with Articles 49 EC and 50 EC is not open to question.
21.
The Commission is of the view that the disputed provision, under which patients may be reimbursed for the costs of treatment in another Member State, does not impede the freedom to provide services and is not, therefore, incompatible with Articles 49 EC and 50 EC. At the hearing, the Commission stated that the uncertainties raised by the French court have been resolved by the Court of Justice in recent case-law.
B ─
Reply to the first question
22.
Although, in recent years, the Court has had occasion to interpret the requirement of prior authorisation laid down in Article 22(1)(c) and the second subparagraph of Article 22(2) of Regulation No 1408/71 in cases where the principle of freedom to provide services was at issue, the Advocates General have not proposed in their Opinions that the measure be declared invalid, and successive judgments have upheld its peaceful coexistence with Article 49 EC. (7)
23.
In the 1971 version of Regulation No 1408/71, the second subparagraph of Article 22(2) provided that:
"The authorisation required under paragraph 1(c) may not be refused where the treatment in question cannot be provided for the person concerned within the territory of the Member State in which he resides."
24.
However, in
Pierik I
, (8) the Court held that the duty to grant the authorisation covers both cases where the treatment provided in another Member State is more effective than that which is provided in the country of residence and cases where the treatment in question cannot be provided in the territory of the latter State. In
Pierik II
, (9) the Court found that where the social security institution acknowledges that the treatment in question constitutes a necessary and effective treatment of the sickness or disease from which the person concerned suffers, the conditions for the application of the second subparagraph of Article 22(2) are fulfilled and, as a result, the authorisation required under Article 22(1)(c) may not be refused. In the light of those judgments, the Council, in response to a proposal from the Commission, inserted a radical amendment into the provision, (10) the new version of which remains in force.
25.
The Commission's proposal stated that practical experience had demonstrated that the application of the provision was open to a certain amount of abuse, since a strong likelihood existed that the social security institution of a Member State could be required to grant authorisation to a worker even where that worker had never left his or her country of origin, each time that the worker concerned wished to travel to another Member State for the sole purpose of undergoing medical treatment which was not available in the Member State of insurance. In addition, the financial difficulties affecting national sickness insurance schemes justified the extension of the degree of latitude, relating to the grant of authorisation, available to the competent bodies from whom costs incurred in another Member State were recoverable. The Commission therefore recommended that the second subparagraph of Article 22(2) be amended to provide that authorisation may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State in which the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining it. The Council adopted that proposal. (11)
26.
In the scheme of Regulation No 1408/71, Article 22 is situated in Title III, Chapter 1 (which deals with sickness and maternity benefits), Section 2 (which deals with employed or self-employed persons and members of their families). Despite the fact that the aim of the regulation, which was adopted on the basis of Article 42 EC, is to ensure social security cover for migrant workers, it has ensured that all workers who are insured in one of the Member States, and their families, regardless of whether or not they have exercised their right to freedom of movement, can obtain the medical treatment they need while abroad, whether during a temporary stay or because the treatment cannot be provided to them in their place of residence. (12)
27.
The personal scope of Article 49 EC differs from that of Article 22 of Regulation No 1408/71, the latter provision being narrower in scope than the former. Article 49 EC applies to all nationals of Member States who are established in the Community, while Article 22 of Regulation No 1408/71 benefits only citizens of the European Union and their families who are insured under one of the statutory social security schemes of the Member States.
28.
Important distinctions apply to patients depending upon whether they follow the procedure outlined in Article 22 of Regulation No 1408/71 or whether they rely directly on Article 49 EC.
29.
Article 22 of Regulation No 1408/71 governs exclusively the relationship between the social security institutions of the Member States. As a general rule, authorisation is granted for hospital treatment and the institution granting the authorisation coordinates its work with the institution of the Member State where the treatment is to be provided. Since both institutions are responsible for ensuring that patients receive treatment as soon as possible, they decide in advance in which hospital the treatment will be provided, meaning that patients may not choose a hospital for themselves. Patients are, however, guaranteed medical treatment on the same conditions as the nationals of the Member State to which they travel, either in a hospital managed by the social security institution of that Member State, or in one which is the subject of an agreement with the institution. Patients are also guaranteed that the social security institution with which they are registered will assume the costs of the treatment and that they will not be responsible for any additional payments since, under Article 36 of Regulation No 1408/71, the institution concerned must fully refund the cost of the benefits to the institution which provided them. (13)
The provision imposes the same requirements on all the social security institutions of the Member States, lays down uniform criteria for the conditions on which authorisation may not be refused, and helps to promote the free movement of people insured under statutory social security schemes.
30.
By contrast, under Article 49 EC, all nationals of Member States who are established in the Community are entitled to seek reimbursement of medical expenses incurred in another Member State without prior authorisation, in accordance with the scale of the Member State of insurance. (14)
In principle, that rule applies to both outpatient and inpatient treatment, although the Court held in
Smits and Peerbooms
that the requirement of prior authorisation for the latter form of treatment was justified. (15)
Patients are free to choose the Member State and the hospital where they wish to be treated, and the practitioner who they wish to treat them. The hospital and practitioner may operate in the private sector or be under the authority of a local sickness fund. The people concerned are not entitled to be treated the same as people who are registered with a national social security scheme. (16)
They must pay for the treatment and the maximum amount which they are entitled to seek from their insurance fund by way of reimbursement is the sum that they would have received had the treatment been carried out in the Member State of insurance, provided that reimbursement is permitted under the legislation of that State. (17)
31.
In view of the fact that the two measures govern different cases and that the application of each measure leads to a different result, it is difficult to accept that they are incompatible. People who do not have sickness cover under any of the national statutory social security schemes, or who have arranged private insurance, are not precluded from travelling to the other Member States to receive medical treatment. People who are insured under one of the schemes in question are entitled to choose between using the procedure set out in Article 22(1)(c) of Regulation No 1408/71 or, within the limits prescribed by case-law, relying on Article 49 EC.
32.
The Court has acknowledged that Community law does not detract from the power of the Member States to organise their social security systems, (18) from which it follows that, in the absence of harmonisation at Community level, it is for national legislation to determine the conditions for entitlement to social security benefits. (19)
Nevertheless, in all cases, Member States must comply with Community law when exercising that power. (20)
Therefore, when legislating on the issue of prior authorisation and when applying national rules governing the conditions under which it may be granted, national authorities, including national courts, have a duty to ensure the primacy of, and compliance with, the principles of the Treaty, as interpreted in case-law. The incompatibility alleged between Article 22 of Regulation No 1408/71 and Article 49 EC does not exist because, in each case, it is necessary to examine whether the conditions laid down in national social security legislation, attaching to the grant of authorisation, are objective and non-discriminatory where the providers of the treatment are established;
(21) whether the conditions exceed the boundaries of Article 22; and whether the conditions are contrary to Article 49 EC in that they constitute restrictions on the freedom to provide services which are not justified on overriding public interest grounds.
33.
It follows from the above that the procedure set out in Article 22(1)(c)(i), in conjunction with the second subparagraph of Article 22(2), of Regulation No 1408/71 encourages freedom of movement for patients who are insured under national statutory social security schemes, and, accordingly, is not contrary to Article 49 EC.
VII ─ Analysis of the second question
34.
By its second question, the national court asks the Court of Justice whether the sickness fund is entitled to refuse to reimburse the costs of the treatment that Ms Inizan wishes to undergo in Germany.
35.
Some who have expressed an opinion on this enquiry from the French court state that the question is inadmissible because it is not for the Court to respond to it, while others state that it is nevertheless appropriate for the Court to give some guidance so that the national court may reach the conclusions needed to settle the dispute. I agree with the latter view.
36.
It is well-known that, in the context of proceedings brought under Article 234 EC, the Court may not give a ruling on the compatibility of a national legislative provision with Community law, (22) or on a specific implementing measure adopted by the national authorities. The Court may, however, provide the national court with an interpretation of all relevant points of Community law so as to enable that court to decide the matter itself. (23)
37.
It appears from the file submitted by the referring court that Ms Inizan was not granted the permission she sought because, in her case, the conditions laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71 had not been met.
38.
The second subparagraph of Article 22(2) establishes the degree of latitude available to social security institutions, and precludes them from refusing authorisation where the treatment is among the benefits covered by its sickness insurance scheme and where the patient cannot be given such treatment within the time normally necessary for obtaining it in the Member State of residence, taking account of his current state of health and the probable course of the disease.
That system does not, however, mean that permission may only be given in the circumstances described. It is open to the Member States to be more generous, having regard to the requirements and resources of their own sickness insurance arrangements, by setting criteria attaching to the grant of authorisation which promote the movement of people for medical treatment. (24)
However, the French legislation provides for the cost of treatment abroad to be reimbursed on the same conditions as those laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71.
39.
In 2001, the Court looked in detail at the requirement that sickness funds must grant prior authorisation for people to travel to another Member State for medical treatment in hospital, and also at the conditions attached to the grant of such authorisation in relation to the principle of freedom to provide services in the Community. (25)
40.
In the case of treatment provided in hospitals, whose number, geographical distribution, mode of organisation, and equipment are all matters for which planning must be possible in order to ensure that a balanced range of quality treatment can be provided with limited financial resources, the requirement of prior authorisation in order to guarantee the assumption of costs, under a national social security system, of hospital treatment provided in another Member State is a measure which is necessary and reasonable, provided that the conditions attached to the grant of such authorisation are justified in the light of overriding public interest considerations and that they satisfy the requirement of proportionality. (26)
41.
When considering a measure implementing the first of the conditions which must be satisfied so that authorisation may not be refused, and which are set out in the second subparagraph of Article 22(2) of Regulation No 1408/71, it must be borne in mind that the Court has accepted that it is not incompatible with Community law for the Member State concerned, with a view to achieving its aim of limiting costs, to prepare exhaustive lists excluding certain products from the social security reimbursement scheme, provided that the lists are drawn up in accordance with objective criteria, without reference to the origin of the products. (27)
The same principle applies to the decision regarding which medical and hospital treatments are paid for by national sickness insurance schemes, from which it follows that Community law cannot require a Member State to extend the list of medical services paid for by its social insurance system and that the fact that a particular type of medical treatment is covered by the sickness insurance schemes of other Member States is irrelevant. (28)
The differences in the cover provided under the sickness insurance schemes of the Member States stem from the freedom which the Member States have to organise their social security systems. According to case-law, Article 42 EC provides for the coordination, not the harmonisation, of the legislation of the Member States, and therefore leaves in being differences between the Member States' social security systems and, consequently, in the rights of persons working in the Member States. (29)
42.
As concerns the second condition, I should like to point out that on examination of a very similar condition provided for under Netherlands compulsory sickness insurance legislation, (30) the Court indicated that, in order to determine whether treatment which is as effective as the treatment available in another Member State can be obtained in the Member State of residence without undue delay, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought but also of his past record.
43.
In the case before the Court, the decision of the Caisse primaire d'assurance maladie des Hauts-de-Seine of 6 July 1999, refusing the request to bear the costs of hospitalisation in Germany, merely sets out the conditions laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71 and declares that they have not been fulfilled. The decision of the Commission de Recours Amiable of 19 October 1999, upholding the previous decision, merely states that, in the opinion of the National Medical Officer, the patient does not fulfil the conditions in question and, accordingly, there is no need for her to travel to another Member State. Finally, the reasoned opinion delivered by the National Medical Officer on 17 August 2000, at the request of the Tribunal des affaires de sécurité sociale, Nanterre, merely states that the patient can be treated in France and that it would be counterproductive for her to travel to another Member State, since the treatment requires continuity and regularity. In the light of those factors, it is appropriate to wonder whether the competent authorities did actually take into account the patient's condition and, in particular, her past record.
44.
Finally, a prior administrative authorisation scheme can never render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom. (31)
Therefore, in order for such a scheme to be justified, regard must be had to objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, to avoid any possibility of its being used arbitrarily. (32)
At the same time, there must be a procedural system in place which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time, and which safeguards the right to challenge refusals to grant authorisation in judicial or quasi-judicial proceedings. (33)
45.
Consequently, it is appropriate to provide the national court with some guidance to assist it in settling the dispute before it:
─
The conditions laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71 are the only conditions which, if fulfilled, preclude the refusal of authorisation, but the Member States may set conditions attaching to the grant of authorisation which are more favourable to the people concerned;
─
In the case of treatment provided in hospital, the grant of authorisation may be subject to certain conditions, provided that they are objective, non-discriminatory and known in advance;
─
Community law cannot require a Member State to extend the list of services paid for by one of its sickness insurance schemes;
─
In order to determine whether a particular treatment can be provided within the time normally necessary to obtain such treatment in the place of residence, account must be taken of all the circumstances of the case, the patient's medical condition, and the patient's past record; and
─
The procedure for obtaining authorisation must ensure that requests for authorisation are dealt with objectively and impartially within a reasonable time, and must safeguard the right to challenge refusals in judicial or quasi-judicial proceedings.
VIII ─ Conclusion
46.
In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions referred for a preliminary ruling by the Tribunal des affaires de sécurité sociale, Nanterre:
(1)
During the course of these proceedings no matter has been brought to light which would call into question the validity of Article 22(1)(c)(i), or the second subparagraph of Article 22(2), of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community.
(2)
In order to determine whether the Caisse primaire d'assurance maladie des Hauts-de-Seine is entitled to refuse to reimburse the costs of hospital treatment in another Member State, the following points should be considered:
─
The conditions laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71 are the only conditions which, if fulfilled, preclude the refusal of authorisation, but the Member States may set conditions attaching to the grant of authorisation which are more favourable to the people concerned;
─
In the case of treatment provided in hospital, the grant of authorisation may be subject to certain conditions, provided that they are objective, non-discriminatory and known in advance;
─
Community law cannot require a Member State to extend the list of services paid for by one of its sickness insurance schemes;
─
In order to determine whether a particular treatment can be provided within the time normally necessary to obtain such treatment in the place of residence, account must be taken of all the circumstances of the case, the patient's medical condition, and the patient's past record; and
─
The procedure for obtaining authorisation must ensure that requests for authorisation are dealt with objectively and impartially within a reasonable time, and must safeguard the right to challenge refusals in judicial or quasi-judicial proceedings.
(1) .
(2)
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to 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).
(3)
According to information relating to the programme at the University of Arizona,
"Integrative medicine is a healing-oriented medicine that draws upon all therapeutic systems to form a comprehensive approach to the art and science of medicine"
. (http://integrativemedicine.arizona.edu/about.html)
(4)
Case C-368/98 [2001] ECR I-5363.
(5)
Case C-157/99 [2001] ECR I-5473.
(6)
The French Government has supplied a list of centres which treat persistent chronic pain, detailing a total of 95 hospitals in metropolitan France and one on the island of Réunion.
(7)
See Case C-158/96
Kohll
[1998] ECR I-1931, paragraphs 26 and 27; Case C-120/95
Decker
[1998] ECR I-1831, paragraphs 28 and 29, on the issue of free movement of goods; and
Vanbraekel
, cited above, paragraphs 31 and 32.
(8)
Case 117/77 [1978] ECR 825, paragraph 22.
(9)
Case 182/78 [1979] ECR 1977, paragraph 13.
(10)
Council Regulation (EEC) No 2793/81 of 17 September 1981 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1981 L 275, p. 1).
(11)
When the Council adopted Regulation No 2793/81, it asked the Commission to report to it, two years after the regulation entered into force, on the experience gained from implementing the new measure, in order to assess the effects and repercussions of the regulation vis-à-vis the protection previously available and determine whether the regulation required amendment. In the report delivered to the Council in 1986, the Commission stated that, out of ten Member States, only France and Luxembourg were in favour of returning to the old system, and added that it was not necessary to amend the new measure since it had been found that the competent institutions were exercising their power to authorise travel for medical purposes as widely as before, by dealing with the real needs of the people concerned, with the advantage that, following the amendment, they were better able to supervise the exercise of the power so that it could be tailored to the objectives of their health policies and of their sickness insurance scheme.
(12)
In order to facilitate temporary residence and access to treatment with the authorisation of the competent institution in European Union territory, the Council inserted Article 22a into Regulation No 1408/71. That new provision extends the benefit of Article 22(1)(a) and (c) to all Community nationals who are insured under the legislation of a Member State and to the members of their families residing with them, even if they are neither employed nor self-employed. The amendment was introduced by Council Regulation (EC) No 3095/95 of 22 December 1995 amending Regulation (EEC) No 1408/71, Regulation (EEC) No 574/72, Regulation (EEC) No 1247/92 and Regulation (EEC) No 1945/93 (OJ 1995 L 335, p. 1).
(13)
That was confirmed by the Court in paragraph 24 of
Pierik I
, cited above.
(14)
That was the interpretation given by the Court in paragraph 54 of the
Kohll
judgment. The case dealt with the issue of dental treatment provided in Germany to a person insured under the Luxembourg social security scheme, which refunds part of the cost after the patient has paid the invoice. It remains to be determined whether the same arrangement is available to people insured under schemes which provide only benefits in kind. The issue should be resolved when judgment is delivered in Case C-385/99
Müller-Fauré
. The hearing in the latter case was held on 10 September 2002 and I delivered my Opinion on 22 October 2002.
(15)
Cited above. In the Opinion I delivered in
Müller-Fauré
, I proposed that the Court should find that it is not contrary to Articles 49 EC and 50 EC to require that social security schemes which provide benefits in kind must give prior authorisation for insured persons to travel to another Member State to receive outpatient treatment, since it is a justified restriction.
(16)
See Case C-411/98
Ferlini
[2000] ECR I-8081, in which it was established that, in Luxembourg, people who need medical treatment and who are not affiliated to the national social security scheme must pay significantly more than those who are affiliated to the scheme. In 1989, the year in which the facts that gave rise to those proceedings took place, the latter paid LUF 36 859 (EUR 913.71) for a birth, whereas the former were required to pay LUF 59 306 (EUR 1 470.15), in other words, 71.43% more for the same treatment at the same hospital.
(17)
Vanbraekel
, paragraph 36.
(18)
Case 238/82
Duphar
[1984] ECR 523, paragraph 16; Case C-70/95
Sodemare and Others
[1997] ECR I-3395, paragraph 27;
Kohll
, cited above, paragraph 17; and
Smits and Peerbooms
, cited above, paragraph 44.
(19)
Joined Cases C-4/95 and C-5/95
Stöber and Piosa Pereira
[1997] ECR I-511, paragraph 36;
Kohll
, paragraph 18; and
Smits and Peerbooms
, paragraph 45.
(20)
Kohll
, paragraph 19, and
Smits and Peerbooms
, paragraph 46.
(21)
Smits and Peerbooms
, paragraph 95.
(22)
Case C-188/91
Deutsche Shell
[1993] ECR I-363, paragraph 27, and Case C-62/93
BP Supergas
[1995] ECR I-1883, paragraph 13.
(23)
Case 30/70
Scheer
[1970] ECR 1197, and Case 188/86
Lefèvre
[1987] ECR 2963, paragraph 6.
(24)
The Luxembourg legislation provides for another case in which the sickness fund may not refuse authorisation for treatment abroad; namely, where the treatment required cannot be provided in the Grand Duchy. See Point I.3 of Annex VI to Regulation No 1408/71, in the version set out in Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 (OJ 1997 L 28, p. 1).
(25)
Smits and Peerbooms
, cited above.
(26)
Smits and Peerbooms
, paragraphs 76 to 82.
(27)
Duphar
, cited above, paragraphs 17 and 21.
(28)
Smits and Peerbooms
, paragraph 87.
(29)
Case 41/84
Pinna
[1986] ECR 1, paragraph 20, and Case 313/86
Lenoir
[1988] ECR 5391, paragraph 13.
(30)
Smits and Peerbooms
, paragraph 104.
(31)
Joined Cases C-358/93 and C-416/93
Bordessa and Others
[1995] ECR I-361, paragraph 25; Joined Cases C-163/94, C-165/94 and C-250/94
Sanz de Lera and Others
[1995] ECR I-4821, paragraphs 23 to 28; and Case C-205/99
Analir and Others
[2001] ECR I-1271, paragraph 37.
(32)
Analir and Others
, paragraph 38.
(33)
Smits and Peerbooms
, paragraph 90.