62008CC0211_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In these proceedings the Commission of the European Communities has brought an action before the Court of Justice under Article 226 EC seeking a declaration that the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC by refusing persons entitled under the Spanish national health system reimbursement of medical costs incurred in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, (2) in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for under Spanish legislation.
I – Legislative background
A – European Union law (3)
1. The relevant provisions of the EC Treaty
2. The first paragraph of Article 42 EC provides:
‘The Council shall, acting in accordance with the procedure referred to in Article 251, (4) adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.’
3. The first paragraph of Article 49 EC provides:
‘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.’
2. Secondary law
4. Regulation No 1408/71 was adopted on the basis of the powers granted to the Council under Article 42 EC (formerly Article 51 of the Treaty) in order to achieve the co-ordination of national legislation in the various sectors of social security covered by that provision. (5)
5. Points (a) and (c)(i) of Article 22(1) of that regulation are particularly relevant for the purposes of the present proceedings. Those provisions state that:
‘1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:
(a) whose condition requires benefits in kind which become necessary on medical grounds during a stay in the territory of another Member State, taking into account the nature of the benefits and the expected length of the stay;
...
(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 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; ...’
6. Under Article 36 of Regulation No 1408/71, which is entitled ‘Reimbursement between institutions’:
‘1. Benefits in kind provided in accordance with the provisions of this chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.’
7. Article 80 of Regulation No 1408/71 establishes, at the Commission, an Administrative Commission on Social Security for Migrant Workers (the ‘Administrative Commission’) made up of a government representative of each of the Member States. Pursuant to Article 81, that commission is empowered, among other things, to deal with all administrative questions and questions of interpretation arising from the provisions of the regulation, (6) ‘to foster and develop cooperation between Member States in social security matters, particularly in respect of health and social measures of common interest’, (7) and ‘to foster and develop cooperation between Member States by modernising procedures for exchange of information’. (8)
8. Paragraph 1 of Article 21 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, which is entitled ‘Benefits in kind in the case of a stay in a Member State other than the competent State’, provides that:
‘1. In order to receive benefits in kind under Article 22(1)(a)(i) of the Regulation, an employed or self-employed person shall submit to the care provider a document issued by the competent institution certifying that he is entitled to benefits in kind. That document shall be drawn up in accordance with Article 2. (9) …
A document issued by the competent institution for entitlement to benefits in accordance with Article 22(1)(a)(i) of the Regulation, in each individual case concerned, shall have the same effect with regard to the care provider as national evidence of the entitlements of the persons insured with the institution of the place of stay.’
9. Under paragraph 1 of Article 34 of Regulation No 574/72, which is entitled ‘Refund by the competent institution of one Member State of expenses incurred during a stay in another Member State’:
‘If it is not possible during an employed or self-employed person’s stay in a Member State other than the competent State to complete the formalities provided for in Articles 20(1) and (4) and 21, 23 and 31 of the implementing Regulation, his expenses shall, upon his application, be refunded by the competent institution in accordance with the refund rates administered by the institution of the place of stay.’
B – National law
10. The object of General Law on Health No 14/1986 of 25 April 1986 (10) is to implement the right to the protection of health recognised by Article 43 of the Spanish Constitution. In accordance with Article 1(2) thereof, the persons entitled to that right are Spanish citizens and foreign nationals who have established their residence on the national territory. Article 44 et seq. establish a national health service, consisting of public facilities and services with responsibility for providing healthcare nationally and at the level of the autonomous communities. The benefits provided to persons entitled under that system are free of charge.
11. The provisions of Law No 14/1986 are complemented by those of Law No 16/2003 of 23 May 2003 on the consistency and quality of the national health service. (11)
12. Article 4(3) of Royal Decree No 1030/2006 of 15 September 2006 laying down the nomenclature of the common benefits of the national health system and the procedure for its revision (12) provides:
‘All common benefits are provided solely by the centres, facilities and services belonging to the national health system or contracted thereto, except where there is danger to life and it has been proved that it was not possible to use the facilities of that system. Where urgent, immediate and vital care is administered outside the national health system, the expenses incurred shall be reimbursed once proof has been provided that it was not possible to use the system’s services in good time and that no evasion or abuse of this exception has occurred, without prejudice to the provisions of international agreements to which Spain is party or the provisions of domestic law governing treatment in the event of the provision of services abroad.’
13. Under the General Law on Social Security, (13) health benefits for persons affiliated to the national social security system are provided by the national health system.
14. According to the statements made by the Spanish Government in its defence, there are no domestic provisions governing in a general manner the reimbursement between institutions of the cost of health benefits provided in another Member State to a person affiliated to the Spanish social security system; such reimbursement is therefore governed solely by the relevant Community regulations and by bilateral agreements concluded by Spain in order to implement them. (14)
15. The reimbursement of such expenses directly to the affiliated person is covered, however, only in the situation envisaged in Article 34 of Regulation No 574/72, in other words if the formalities laid down in that regulation have not been completed in the State of stay. In that regard, Circular No 11/92 (15) from the National Social Security Institute to implement Article 34 provides that:
‘... the provincial offices of the Spanish National Social Security Institute shall refund expenses directly to the persons concerned, where appropriate, at the tariffs applied by the institution of the place of stay, which must assess or determine the immediate necessity that is a condition of entitlement to cover. If the necessary formalities had been completed, that amount would have been paid to the competent foreign institution under the system for the reimbursement of expenses between institutions’.
II – Pre-litigation procedure, proceedings before the Court and forms of order sought by the parties
16. The infringement procedure was triggered by a report from a French citizen, Mr Chollet, who is resident in Spain and insured with the Spanish social security system. Mr Chollet complained that, as a result of hospital treatment that occurred during his stay in France, the competent Spanish institution had rejected his application for refund of the percentage of the costs charged to him by the institution in the place of stay in accordance with French legislation (the ‘ticket modérateur’). After making an initial request for information, on 18 October 2006 the Commission sent the Spanish authorities a letter of formal notice in which it was assumed that Spanish legislation on the refund of expenses for health benefits received in another Member State by a person affiliated to the national social security system infringed Article 49 EC. The Spanish authorities replied by letter of 29 December 2006, in which they denied any failure to comply. As it was not satisfied with the response it had received, on 19 July 2007 the Commission sent the Spanish authorities a reasoned opinion in which it repeated the objections made in the letter of formal notice and invited the Member State to which it was addressed to adopt the necessary measures to end the infringement within two months. By letter of 19 September 2007 the Spanish authorities replied to the reasoned opinion by reiterating that national legislation was fully compliant with the Treaty.
17. By application lodged with the Registry of the Court on 20 May 2008, the Commission brought the action that is the subject of the present proceedings, in which it claims that the Court should:
– find that the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC by refusing persons entitled under the Spanish national health system reimbursement of medical costs incurred in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Regulation No 1408/71 if the level of cover applicable in the Member State in which that treatment is given is lower than that provided for in Spanish legislation;
– order the Kingdom of Spain to pay the costs.
18. The Kingdom of Spain contends that the Court should dismiss the application and order the Commission to pay the costs.
19. By an order of 23 October 2008, the President of the Court granted the Kingdom of Belgium, the Republic of Finland, the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark leave to intervene in support of the forms of order sought by the Kingdom of Spain. The representatives of the parties and of the Belgian, Danish and United Kingdom Governments presented oral argument at the hearing held on 24 November 2009.
III – Analysis
A – The admissibility of the application
20. The Kingdom of Spain, supported by the Kingdom of Belgium, challenges the admissibility of the application in a series of objections that can be summarised as follows: (i) the forms of order in the application are confused, incompatible with the requirements of Article 38(1) of the Rules of Procedure of the Court, and, moreover, before the Court the Commission changed the subject‑matter of the failure to fulfil obligations as defined in the pre-litigation procedure and substantively amended the petitum
in the rejoinder and (ii) the application is nugatory and inappropriate, as well as constituting an abuse of process, since the Treaty infringement alleged against the defendant is the result of provisions of secondary Community law.
1. The confused nature of the forms of order sought in the application and the alteration of the subject-matter of the failure to fulfil obligations and of the petitum
21. The Spanish Government maintains, first, that the forms of order adduced by the Commission do not comply with the requirements laid down in Article 38(1) of the Rules of Procedure. It alleges that the confusion is caused, in particular, by the reference to Article 22(1)(a) of Regulation No 1408/71, which relates to an infringement of Community regulations on social security, despite the fact that during the administrative stage of the procedure the Commission had allegedly accused the Kingdom of Spain of having infringed only Article 49 EC. The Spanish Government adds that in a passage of the application the Commission states that the Spanish regulations are incompatible with the requirements of Article 22(1)(a) of Regulation No 1408/71. According to the defendant, that allegation, as well as the allegation made both in the pre-litigation procedure and in the application that Article 4(3) of Royal Decree No 1030/2006 was presumed to be incompatible with Article 49 EC, was abandoned by the Commission in the rejoinder. In those circumstances, the Spanish Government objects that a significant change was made in the subject-matter of the infringement procedure in the litigation stage and a change in the petitum
in the proceedings before the Court. Lastly, the defendant states that, if the application is to be understood in reality as claiming an infringement of Article 34 of Regulation No 574/72, it is inadmissible since it would be based on an accusation brought out of time. The Kingdom of Belgium also maintains that in its application the Commission alleges an infringement of Article 49 EC of which Spain was not accused during the pre-litigation procedure.
22. In my opinion, these complaints are unfounded.
23. It is clear from a reading of the documents in the administrative procedure that from the outset the Commission accused Spain only of an infringement of Article 49 EC and that that infringement consists in the failure to provide
under Spanish law for a mechanism for refunding expenses incurred by beneficiaries of the national social security system for unplanned hospital treatment received during a temporary stay in another Member State if the level of cover of such expenses in that State is lower than that guaranteed by the Spanish system.
24. It is equally clear that, in formulating that complaint, the Commission referred in the application as well as in the administrative procedure to a type of refund that was different
both from refunds between institutions provided for in Article 36 of Regulation No 1408/71 and from direct refunds to a person affiliated to the national social security system, provided for in Article 34 of Regulation No 574/72 in cases in which treatment occurs without the prescribed formalities being completed. According to the Commission, the right to such reimbursement, which complements
the refunds provided for in the regulations mentioned above, derives from Article 49 EC.
25. As regards the reference to Article 4(3) of Royal Decree No 1030/2006 in the documents of the administrative procedure and in the application but not repeated in the rejoinder, the criticisms made by the Commission are based on the fact that that provision excludes, except in limited exceptional cases, the right to reimbursement of the cost of medical treatment received outside the national health system and on the finding that the additional reimbursement that is the subject-matter of the proceedings is not covered by those exceptions. Contrary to the assertions of the Spanish Government, the Commission’s objection that the provision in question illustrates the failure to make provision in Spanish legislation for entitlement to such reimbursement remained essentially unchanged in the various stages of the procedure. Moreover, it seems to me to be perfectly consistent with the subject-matter of the complaint made from the outset against the Kingdom of Spain.
26. Nor is it possible, in my opinion, for the defendant to maintain that, in a passage of the application whose wording is undoubtedly infelicitous, the Commission broadened the subject-matter of the procedure for failure to fulfil obligations to encompass infringement of Community regulations on social security by stating that the scope of the exception referred to in Article 4(3) of Royal Decree No 1030/2006 is ‘narrower than that of Article 22(1)(a) of Regulation No 1408/71, with the result that, in most cases covered by the latter, the Spanish authorities do not recognise entitlement to reimbursement of the cost of hospital treatment received in another Member State’. In the light of the application as a whole, there is no doubt that the reimbursement to which the Commission refers is the additional reimbursement to which, according to the Commission, beneficiaries of the Spanish social security system are entitled under Article 49 EC and not, as Spain maintains, the different types of reimbursement for which Regulations Nos 1408/71 and 574/72 provide.
27. As regards the allegedly confused nature of the forms of order sought in the application, I shall merely observe that Article 22(1)(a) of Regulation No 1408/71 is cited several times in the letter of formal notice and in the reasoned opinion in order to define the scope of the situations to which the application refers, that is to say cases in which hospital treatment is provided, as for Mr Chollet, during a stay in another Member State for purposes other than that of receiving medical treatment there. In such circumstances, I do not think that it can seriously be maintained that reference to that article in the forms of order sought in the application, where it again serves to define the scope of the cases involved, is likely to cause confusion as to the type of infringement on which the Court is called upon to rule.
28. Lastly, since it is clear that the only failure to fulfil obligations of which the Kingdom of Spain has been accused since the outset relates to Article 49 EC, the application cannot be interpreted, as the defendant claims, as being intended to allege an infringement of Article 34 of Regulation No 574/72.
29. On the basis of the above, I therefore consider there to be no foundation to the criticism voiced by Spain that the subject-matter of the failure to fulfil obligations as defined in the administrative procedure was changed during the litigation stage of the proceedings. The criticism of the same tenor expressed by the Belgian Government must likewise be rejected in that it stems from a patently erroneous premise. For the reasons I have stated, I also consider the defendant’s allegations about the alleged change in the petitum
at the rejoinder stage and the confused nature of the forms of order sought in the application to be unfounded.
2. The appropriateness of an action under Article 226 EC and abuse of process
30. Secondly, the Kingdom of Spain observes that the alleged infringement of Article 49 EC raised by the Commission stems from Community regulations themselves. According to the defendant, under Spanish law the reimbursement of medical expenses to beneficiaries of the national health system in the cases examined in the infringement procedure is governed directly by Community regulations on social security, since no specific domestic provision exists. Hence, in the opinion of the Spanish Government, situations similar to that of Mr Chollet cannot be protected in the manner desired by the Commission unless the Community regulations are amended. In those circumstances, in the defendant’s opinion it is both inappropriate and futile to take action against a single Member State, as the applicant institution has done, particularly as according to the defendant that State complies fully with Community law in this respect. Although it admits that in Mr Chollet’s case it failed to comply with Community regulations on social security, the defendant adduces a similar argument (albeit not included in the grounds for its claim of inadmissibility) to maintain that the failure to comply was ascribable not to Spain but to France, because the institutions of that Member State did not charge the Spanish institutions for the full cost of Mr Chollet’s hospital treatment, contrary to Article 36 of Regulation No 1408/71. Lastly, the Spanish Government highlights the particular nature of the present action, in which the Court is asked to find that a Member State has failed to fulfil its obligations in a matter on which it has so far delivered only a preliminary ruling.
31. In regard to that claim, the Kingdom of Spain disputes the admissibility of the action on grounds of appropriateness and alleges abuse of process.
32. As to the first aspect, it is sufficient to recall that the case-law of the Court allows the Commission wide discretion in the application of Article 226 EC. It is for that institution to decide whether it is appropriate to bring proceedings against a particular Member State and to determine the conduct or omission attributable to that State on the basis of which those proceedings should be brought; (16) it is also for the Commission to assess whether it is appropriate to bring proceedings for a declaration that a State has failed to fulfil its obligations. In keeping with the acknowledgement of that discretion, the Court has consistently refrained from assessing the appropriateness of an action under Article 226 EC when disputed by the Member State concerned. (17)
33. With regard to the second aspect, it is sufficient to note that the correctness of the premise on which the Spanish Government’s argument is based, that is to say that the disputed infringement cannot in any case be attributed to it since it supposedly stems from the incompatibility of provisions of secondary law with primary legislation, must be verified when ascertaining whether an infringement has occurred and hence when examining the substance of the application. However that may be, the purpose of an action to ascertain that a Member State has not fulfilled its obligations under a provision of primary law is to ensure compliance with the Treaty and cannot be considered an abuse of process. In that regard, the fact that the Court has hitherto only delivered a preliminary ruling on the matter to which the action relates is completely irrelevant and cannot prevent the Commission from defending the observance of rules which it considers to have been infringed.
34. Hence, in my opinion, the second claim of inadmissibility brought by the defendant must also be dismissed.
3. Conclusions as to admissibility
35. On the basis of all the foregoing considerations, I consider the application admissible.
B – The failure to fulfil obligations
1. The case-law of the Court on which the Commission’s application is based
36. Before setting out the arguments deployed by the Commission in support of its action, it is necessary to review briefly the stages that have led the Court to assert, in particular circumstances and within certain limits, the right of persons affiliated to the social security system of a Member State to obtain, pursuant to the Treaty provisions on the freedom of movement of services, a refund of health expenses incurred in another Member State at the rates applied in the State where they are insured and in addition to the reimbursement arrangements laid down in Article 22(1)(i) of Regulation No 1408/71.
37. The origins of that case-law go back to the well-known Kohll
judgment. (18) Seised by the Luxembourg Cour de Cassation (Court of Cassation) in a dispute between Mr Kohll, an insured Luxembourg national, and the Union des Caisses de Maladie about the refusal to reimburse the expenses incurred by Mr Kohll for dental treatment received by his daughter in Germany, the Court stated first and foremost that neither the fact that the national rules at issue in the main proceedings fall within the sphere of social security nor the fact that refusal may comply with Article 22 of Regulation No 1408/71 can preclude the application of the Treaty provisions on the freedom of movement of services in the case at issue. After having classified treatment provided for remuneration by an orthodontist established in another Member State outside any hospital infrastructure as a service within the meaning of Article 60 of the Treaty (now Article 50 EC), the Court ruled that the national rules at issue deterred insured persons from approaching providers of medical services established in another Member State and constituted, for them and their patients, a barrier to freedom to provide services. As to the possibility of justifying such a barrier, the Court found that reimbursement in accordance with the tariff of the State of insurance, as requested by Mr Kohll, would have had no significant effect on the financing of the social security system and that, in the case at issue, it was not demonstrated that the regulations in question were necessary to achieve the objective of maintaining a balanced medical and hospital service open to all, falling within the derogations on grounds of public health under Article 56 of the Treaty (now Article 46 EC). The Court therefore concluded that ‘Articles 59 and 60 of the EC Treaty preclude national rules under which reimbursement, in accordance with the scale of the State of insurance, of the cost of dental treatment provided by an orthodontist established in another Member State is subject to authorisation by the insured person’s social security institution’.
38. Those principles had been laid down by the Court with reference to medical treatment which had not been provided in a hospital. The question therefore arose whether they were also applicable to treatment provided in a hospital environment. That question was addressed in the Smits and Peerbooms
judgment (19) relating to the sickness insurance system in the Netherlands, under which health benefits were normally provided free of charge to insured persons on the basis of a system of agreements. Ms Smits had applied for reimbursement of the cost of treatment received in a German clinic, while Mr Peerbooms had sought refund of the cost of special neurological therapy carried out in an Austrian institute. In both cases the applicants in the main proceedings had been refused reimbursement, justified in the case of Ms Smits on the ground that satisfactory and adequate treatment for her illness was available in the Netherlands and in that of Mr Peerbooms by the experimental nature of the therapy. Citing case-law that in reality was less explicit than the Court wished to make it appear, the Court stated first and foremost that medical activities fell within the scope of Article 60 of the EC Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment. (20) It then stated that ‘a medical service provided in one Member State and paid for by the patient should not cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another Member State’s sickness insurance legislation which is essentially of the type which provides for benefits in kind’. (21) Similarly, according to the Court, the fact that hospital medical treatment was financed directly by the sickness insurance funds on the basis of agreements and pre-set scales of fees was not such as to remove it from the sphere of services within the meaning of Article 60 of the Treaty. (22) The Court therefore found that the national legislation in question was restrictive. However, it held that the requirement that the assumption of costs, under a national social security system, of hospital treatment provided in another Member State must be subject to prior authorisation was ‘a measure which is both necessary and reasonable’, since it was justified by the dual need to ensure ‘that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned’ and ‘to prevent, as far as possible, any wastage of financial, technical and human resources’. (23)
39. In the Vanbraekel
judgment, (24) which was delivered on the same day as the Smits and Peerbooms
judgment, the Court added another piece to the edifice. Ms Descamps, a Belgian national insured under the compulsory Belgian sickness and invalidity scheme, had sought authorisation to undergo orthopaedic surgery in France. Authorisation had been refused on the ground that the request had not been adequately supported. Despite the refusal, Ms Descamps had nevertheless gone ahead with the operation and had brought an action against the sickness fund with which she was insured for reimbursement of the expenses incurred. The court of reference, which had found the refusal to be unlawful, referred to the Court of Justice to clarify the amount that the health fund was required to assume. After stating that ‘if the request of an insured person for authorisation on the basis of Article 22(1)(c) of Regulation No 1408/71 has been refused by the competent institution and it is subsequently established ... that that refusal was unfounded, that person is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which it would ordinarily have borne if authorisation had been properly granted in the first place’, (25) the Court examined whether, given that the amount reimbursable under the Belgian system would have been higher than that calculated under the rules of the French system, Ms Descamps’ heirs, who in the meantime had taken over the action in the main proceedings, were entitled to additional reimbursement equal to the difference between the two systems, in accordance with the provisions on the freedom to provide se rvices. It reached the same conclusions as in the Smits and Peerbooms
judgment as regards both the classification of hospital medical treatment as services and the restrictive nature of the legislation in question, in that it had the consequence that ‘a person [had] a lower level of cover when he [received] hospital treatment in another Member State than when he [underwent] the same treatment in the Member State in which he [was] insured’. (26) As to the possible justification of such a restriction, the Court observed, first, that on the basis of the findings of the court of reference the authorisation sought by Ms Descamps to have an operation in France had been wrongly refused and, secondly, that recognition of her heirs’ entitlement to additional reimbursement, ‘which is a function of the system of cover applying in the State of registration, [did] not in theory impose any additional financial burden on the sickness insurance scheme of that State by comparison with the reimbursement to be made if hospital treatment had been provided in that latter State’ (27) and was therefore not liable to have a significant effect on the financing of the Belgian social security system. It concluded that ‘Article 59 of the EC Treaty ... is to be interpreted as meaning that, if the reimbursement of costs incurred on hospital services provided in a Member State of stay, calculated under the rules in force in that State, is less than the amount which application of the legislation in force in the Member State of registration would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by the competent institution’. (28)
40. In the Müller-Fauré and van Riet
judgment, (29) which again involved the sickness insurance system in the Netherlands, the Court repeated the rulings it had made in Kohll
and in Smits and Peerbooms . In the case that gave rise to that judgment, Ms Müller-Fauré had undergone dental treatment without recourse to any hospital facilities while on holiday in Germany. Upon her return to the Netherlands she had applied for reimbursement of the cost, which was refused. For her part, Ms van Riet had requested authorisation to have an arthroscopy performed in Belgium. Authorisation had been refused on the ground that the test could also be performed at a contracted hospital in the Netherlands. Ms van Riet had nevertheless had the procedure carried out, partly at a hospital, and had applied for reimbursement of the cost, which had been refused. The Court repeated that the requirement to obtain prior authorisation as a condition for the reimbursement of expenses incurred in another Member State for hospital treatment performed outside contracted facilities was compatible with Articles 59 and 60 of the EC Treaty and stated that authorisation may be refused for lack of medical necessity ‘only if treatment which is the same or equally effective for the patient can be obtained without undue delay in an establishment which has concluded an agreement with the [sickness] fund’. The Court thus required each case to be assessed individually in the light of the state of health of the person concerned and the urgency of the treatment the patient must undergo. (30) With regard to the cost of out-patient treatment received abroad, the Court confirmed its findings in the Kohll
judgment, in particular rejecting the objections raised by the Government of the Netherlands based on the fundamental difference between a reimbursement system, such as that provided for under the Luxembourg legislation at issue in the Kohll
case, and a system based on the provision of benefits in kind, such as that of the Netherlands.
41. Lastly, in the case that led to the Watts
judgment, (31) the question arose whether the principles laid down by the Court were applicable in cases where the cost of hospital treatment received by the insured person in another Member State was to be reimbursed by a national health system financed by the State and based on the principle of benefits provided free of charge, such as the National Health Service (NHS) of the United Kingdom. Mrs Watts had sought authorisation under Article 22(1)(c) of Regulation No 1408/71 to have an operation abroad. Authorisation had been denied, since the patient could receive similar treatment in a local hospital ‘without undue delay’. During the period of the action brought against that refusal, Mrs Watts, whose health had deteriorated in the meanwhile, had had the operation performed in France at her own expense. The Court found that Article 49 EC applied in the circumstances of the case ‘regardless of the way in which the national system with which [the person concerned] is registered and from which reimbursement of the cost of those services is subsequently sought operates’. (32) On the basis of the Smits and Peerbooms
and Müller-Fauré and van Riet
judgments, it ruled that the legislation in question was a restriction of the freedom to provide services, even if, under that legislation, treatment provided at private hospitals in England and Wales was not reimbursed by the NHS. (33) Transposing to the circumstances of the case what it had already stated in the above-mentioned judgments on the system of agreements in force in the Netherlands, the Court confirmed that a national measure which makes prior authorisation a condition for a patient’s right to obtain hospital treatment in another Member State at the expense of the system with which that person is registered is compatible with Article 49 EC.
2. The complaint lodged by the Commission
42. In brief, the Commission’s case can be set out as follows.
43. Under Spanish legislation, except in exceptional cases where ‘urgent, immediate and vital’ treatment is necessary, the national health system only pays for hospital treatment carried out in the system’s own facilities. Hence, expenses incurred by a person registered with the Spanish social security system for hospital treatment that is necessary on medical grounds and carried out during a temporary stay in another Member State in accordance with Article 22(1)(a)(i) of Regulation No 1408/71 are not refunded.
44. In such cases, where the level of cover of hospital medical expenses under the legislation of a Member State is less than that guaranteed by the Spanish legislation the refusal to reimburse may deter persons registered with the Spanish social security system from travelling to that Member State for non-medical services (such as education or tourist services) and may prompt them, when they are already in that Member State, to bring forward their return to Spain in order to benefit from free hospital treatment. The Spanish legislation therefore has a restrictive effect both on the provision of the services that initially motivated their travel to and temporary stay in another Member State and on the subsequent provision of hospital medical services in that State.
45. Such restrictions are not justified either by the need to avoid serious harm to the financial equilibrium of the Spanish social security system or by the need to maintain an efficient health system open to all.
46. The Commission concludes that the Spanish legislation on the refund of medical expenses incurred in another Member State contravenes Article 49 EC as far as the aspects described above are concerned.
3. The defence of the Kingdom of Spain
47. The defendant government first contends that the Kingdom of Spain cannot be accused of failing to fulfil its obligations, asserting that its national legislation complies with Community regulations on the social security of migrant workers and that the Spanish authorities have applied Regulation No 1408/71 correctly, especially as regards the case of Mr Chollet.
48. Secondly, on the basis of what it considers the correct relationship between secondary law on social security and the Treaty provisions on the freedom of movement of workers and the freedom to provide services, the Spanish Government denies in substance that an infringement of Article 49 EC can be alleged in the situations governed by Article 22(1)(a)(i) of Regulation No 1408/71.
49. Thirdly, the Kingdom of Spain, supported by various arguments put forward by the intervening governments, claims that the accusation against it is unfounded. For one thing, it denies that the conditions for the application of Article 49 EC apply in the present case. In particular, it maintains that: (i) the services subject to restriction are not identified precisely enough; (ii) the restriction on which the Commission relies is merely hypothetical; and (iii) the practice of the Spanish authorities criticised in the application is not discriminatory. In addition, the Spanish Government points out that accepting the Commission’s argument would have serious repercussions on the financial stability of the national health system and would give rise to considerable practical difficulties.
4. Assessment
50. Before I examine the substance of the Commission’s case, it is necessary to look briefly at the arguments of the defendant government summarised in paragraphs 47 and 48 above, since they raise a number of preliminary issues about the application and interpretation of Regulation No 1408/71.
(a) The preliminary issues about the application and interpretation of Regulation No 1408/71
(i) The effect of the alleged consistency of the Spanish legislation with Regulation No 1408/71
51. As I have already pointed out when I examined the admissibility of the application, the action relates solely
to an infringement of Article 49 EC. Hence this case does not relate to the question of whether the provisions of Regulation No 1408/71 are correctly applied in Spanish law. The Court is therefore not required to rule on the substance of that question and, despite the Spanish Government’s request to that effect, in my opinion it should refrain from doing so.
52. In reality, the defendant staunchly asserts that the Spanish legislation and administrative practices are fully compliant with Community regulations on the social security of migrant workers, since it considers that this is sufficient of itself to rebut the Commission’s complaint.
53. With particular reference to the case of Mr Chollet, it observes that the Spanish authorities never disputed his right to receive, in the State where he was temporarily staying, the benefits in kind provided for in Article 22(1)(i) of Regulation No 1408/71 and that, for that purpose, they had issued Mr Chollet with form E 111, which served as the basis for his hospital treatment in France.
54. However, the Spanish Government disputes the contention that a correct application of that provision obliged the Spanish authorities to reimburse Mr Chollet for the amount of the ‘ticket modérateur’. In support of its position it observes that, in paragraphs 36 and 37 of the Vanbraekel
judgment, the Court stated that, since Article 22 of Regulation No 1408/71 is not intended to regulate the reimbursement of expenses for medical treatment received in a Member State other than that of affiliation at the tariffs in force in the latter State, that article neither prevents nor prescribes such reimbursement ‘where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement’. In fact, according to the Spanish Government, such a provision does not exist in the Spanish social security system. Hence in the view of the defendant the Kingdom of Spain cannot be accused of any infringement.
55. I confess to some difficulty in fully understanding this argument of the Spanish Government. It appears to me first to disregard totally the subject-matter of the application, which, as we have seen, consists precisely in the lack of provision in Spanish law for additional reimbursement in situations similar to that of Mr Chollet, and secondly to proceed from a deliberately partial reading of the case-law of the Court.
56. In fact, in paragraphs 36 and 37 of the Vanbraekel
judgment mentioned in the defence statement the Court intended merely to state that the regime established by Article 22 of Regulation No 1408/71 is neutral as regards the possibility of granting the beneficiaries of the social security system of a Member State the right to obtain, in addition, the reimbursement of health expenses incurred in another Member State at the tariffs of the State of affiliation and not, as the Spanish Government appears to hold, to make that right subject to the condition that such reimbursement be expressly provided for in the legislation of that State.
57. Moreover, the defendant fails to consider that, after recognising such neutrality, which it had already stated in the Decker and Kohll judgments (34) and confirmed in a number of rulings subsequent to the Vanbraekel
judgment, the Court stated that under the Treaty provisions on the freedom of movement of services the Member States had a duty to guarantee, in given circumstances, the above-mentioned additional reimbursement to persons affiliated to its social security system.
58. As the case-law cited in paragraphs 36 to 41 shows, the coverage of health expenses incurred in a Member State other than that of affiliation is therefore subject to a kind of dual system in which the assumption of such expenses at the tariffs set out in the legislation of the Member State in which the benefits were provided, as laid down in Article 22 of Regulation No 1408/71, co-exists with the right, stemming from case-law, to additional reimbursement on the basis of the tariffs in force in the State of affiliation, guaranteed under the Treaty provisions on the freedom to provide services. In accordance with this interpretation, the Court has repeatedly stated that the fact that a Member State complies in this matter with Regulation No 1408/71 does not release it from the obligation to comply with the provisions on the freedom to provide services. (35)
59. In the present proceedings the Commission complains that the Kingdom of Spain failed to comply with precisely those provisions, on the assumption that the obligation to provide for additional reimbursement at the tariffs in force in the Member State of affiliation, within the meaning of the case-law cited above, is also incumbent on the Member States in the specific circumstances to which the present action relates. It follows that, unless the very foundation of that case-law is called into question (a possibility that the defendant government itself does not appear to consider, at least not explicitly), the defence argument based on the supposed compliance of the Spanish system with Regulation No 1408/71 serves neither to preclude attributing to Spain the infringement that is the subject-matter of the application nor to dispute the existence thereof, and is essentially inoperative.
60. Similarly, the defendant’s statement that the Spanish authorities had handled Mr Chollet’s case correctly, since the cost of his hospital treatment in France that had been refunded by the competent institution to the institution in the place of stay exceeded the cost of similar treatment in Spain, is irrelevant.
61. As the Commission stated repeatedly in its submissions and at the hearing, Mr Chollet’s complaint was only the point of departure for the infringement procedure, the subject of which, overall, was the system for the reimbursement of hospital expenses incurred by beneficiaries of the Spanish national health system in another Member State in the circumstances referred to in Article 22(1)(a) of Regulation No 1408/71.
(ii) The interpretation of Article 36 of Regulation No 1408/71
62. According to the defendant government, the failure to refund the expenses Mr Chollet incurred in France is not due to a shortcoming of the Spanish legislation but to an infringement of Article 36 of Regulation No 1408/71 by the French institution that provided the treatment in question. Instead of invoicing the competent Spanish institution for the entire cost of Mr Chollet’s hospital treatment, as required by that provision, it charged part of the cost to Mr Chollet in the form of the ‘ticket modérateur’.
63. It seems obvious to me that the Spanish Government’s argument is based on an error in the interpretation of Article 36 of Regulation No 1408/71.
64. It is true that that provision lays down that ‘benefits in kind provided ... by the institution of one Member State on behalf of the institution of another Member State shall be fully
refunded’. (36) However, for present purposes it must be read in conjunction with Article 22(1)(i) of the regulation, under which such benefits are provided ‘by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though (the beneficiary) were insured with it’. (37)
65. Hence, the institutions of the place of stay or residence asked to provide benefits in kind to a worker affiliated to the system of another Member State in the cases for which Article 22(1) of the regulation provides do so by applying their own legislation, on the basis of which the type of benefit, the terms and conditions for providing it – except the duration (38) – and the level of cover will be defined. It follows that, if the legislation of the Member State of the provider institution lays down that a percentage of the cost of the benefits in question shall be borne by the patient, as in the case of France for Mr Chollet’s hospital treatment, that legislation will also be applied to a person insured in another Member State. The percentage in question will then not be invoiced to the competent institution, since it is not included in the expenses borne by the provider institution. In other words, in laying down that the provision of benefits in accordance with Article 22 shall be fully refunded, Article 36 of Regulation No 1408/71 refers only to the expenses actually
borne by the provider institution. (39)
66. In my opinion, for the reasons set out above, the defendant government’s argument does not, as that government claims, preclude the attributability to the Kingdom of Spain of the infringement to which the application relates.
(iii)	The link between Regulation No 1408/71 and the Treaty provisions on the freedom of movement of services
67. Lastly the defendant government, supported in this regard by the Belgian and Danish Governments, observes that the regulations on the social security of migrant workers adopted on the basis of the Treaty provisions on the freedom of movement of workers must be considered a special rule defining the regime applicable to the provision of medical and health services while respecting the sovereignty of the Member States as regards the organisation and functioning of their health and social security systems. Following the same line of argument, the Kingdom of Spain opposes as a matter of principle a broad application of Article 49 EC to the provision of medical and health services, which is already governed by Regulation No 1408/71. In its opinion such interference would give the Treaty provisions on the freedom to provide services undue primacy over those on the freedom of movement of workers in the social security sector (the reference is to Article 42 EC) and furthermore it would impede the adoption of better co-ordinating regulations in that sector. In that regard, the Spanish Government points out first that Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (40) (the ‘services directive’) expressly excludes healthcare services from its scope (41) and its twenty-third recital states that the issue of the reimbursement of healthcare provided in a Member State other than that in which the recipient of the care is resident should be addressed in another Community legal instrument, and secondly that the Proposal for a Directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare (the ‘proposal for a directive on patients’ rights’), (42) which is intended to approximate the legislation in that sector, does not derogate from the system established by Article 22 of Regulation No 1408/71.
68. Although the line of argument of the Spanish Government set out above does not openly question the case-law initiated with the Kohll
judgment but only its possible extension to cover the circumstances considered in the application, it nevertheless appears to disregard what the Court has stated and reiterated several times.
69. It is certainly true, as Spain points out, that the Court has repeatedly stated (43) that Community law does not detract from the powers of Member States to organise their social security systems and that therefore, in the absence of harmonisation at Community level, and since Regulation No 1408/71 merely plays a coordinating role, it is for the legislature of each Member State to lay down the conditions for affiliation to a social security system (44) and the conditions for entitlement to the related benefits. (45) However, it has also stated that the Member States must nevertheless comply with Community law when exercising those powers, and in particular the provisions on freedom of movement. (46)
70. Moreover, the Court has repeatedly pointed out the differences between the objectives pursued by Community regulations on the social security of migrant workers on the one hand and those pursued by the Treaty provisions on the freedom to provide services on the other, and on the differences between the instruments used to implement those objectives in their respective fields. Thus, it has repeatedly stated that Regulation No 1408/71 is aimed at facilitating the freedom of movement of workers within the Community by ensuring that, as regards the assumption of health expenses incurred in a Member State other than the State of affiliation, they receive the same treatment as beneficiaries of the social security system of that State. The objective of the Treaty provisions on the freedom of movement of services, on the other hand, is to remove obstacles to the cross-border provision of health services by granting to persons insured in one Member State who intend to undergo health treatment in another Member State the right to obtain, on certain conditions, the same level of cover as they would have received had they undergone the same treatment in their State of residence. As I have mentioned above, there are therefore two autonomous systems that coexist and contribute to determining the regime applicable to the assumption of health expenses incurred in a Member State other than the State of affiliation.
71. It is true that the demarcation line between these two systems of legislation appears to have been blurred by the Community legislature. In Regulation No 883/2004, which replaced Regulation No 1408/71, the legislature provided for reimbursement at the tariffs applied by the competent institution alongside the regime that already existed under Article 22 of Regulation No 1408/71 for the assumption of health expenses incurred in a Member State other than that of affiliation, and transferred such reimbursement from the sphere of the provisions on the freedom to provide services from which it stems in case-law to that of the freedom of movement of workers.
72. However, in keeping with the broad scope of Regulation No 1408/71, that operation does not call into question the autonomy of that instrument and its complementary relationship with the Treaty provisions on the freedom of movement of services highlighted by the Court. In my opinion, that conclusion is not contradicted but rather confirmed by the proposal for a directive on patients’ rights, which lays down rules for co-ordination between the two systems.
73. On the basis of the foregoing, I do not consider that the arguments put forward by the Spanish Government to justify opposition in principle to the possible application of the case-law on additional reimbursement to the circumstances covered by Article 22(1)(a) of Regulation No 1408/71, as envisaged by the Commission in its application.
(b) The infringement of Article 49 EC by Spain
(i) The applicability of the provisions on the freedom to provide services
74. It is necessary first of all to examine whether the conditions for applying Article 49 EC are met in the circumstances considered by the Commission in its application.
75. As I have already stated, neither the fact that such circumstances are governed by Regulation No 1408/71 nor the fact that the competent authorities in the defendant State are acting in accordance with that regulation are impediments to the application of the Treaty provisions on the freedom of movement of services.
76. It is also clear from the case-law cited in paragraphs 36 to 41 above that medical treatment provided for remuneration falls within the scope of the provisions on the freedom to provide services, (47) there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment. (48) Moreover, as we have seen, the Court has already held, in particular in the Müller-Fauré and van Riet (49) and Watts (50) judgments, that a medical service does not cease to be a provision of services within the meaning of Article 49 EC because the patient, after having paid the foreign provider for the treatment received, subsequently applies for the cost of that treatment to be assumed by a national health service such as the Spanish system. Indeed, as stated in paragraph 90 of the Watts
judgment, Article 49 EC applies where a patient receives medical services in a hospital environment for consideration in a Member State other than his State of residence, regardless of the way in which the national system with which that person is registered operates.
77. It is true, as the defendant government and the intervening States point out, that hitherto the Court has ruled on cases in which the health treatments for which reimbursement had been applied for had been planned, (51) whereas in the present proceedings the Commission asks the Court to apply the same principles where the need to undergo medical treatment arises while the patient is already in the Member State in which that treatment is provided.
78. I do not consider that the differences between the situations considered affect the applicability of Article 49 EC. The fact that travel to the State in which hospitalisation occurred was for reasons other than that of undergoing medical treatment in that State does not seem, in my opinion, to be decisive in this regard, not least in view of the fact that, in its application, the Commission also relies on an assumed restriction of the provision of services other than healthcare. Moreover, in the rulings to which the Commission refers, in particular in the Vanbraekel
and Watts
judgments, the Court states in general terms, regardless of the factual context in which those judgments were delivered, that the Treaty provisions on the freedom to provide services apply ‘where a patient ... receives medical services in a hospital environment for consideration in a Member State other than [his] State of residence’. (52)
79. I shall therefore move on to examine whether, as the Commission claims in its application, the legislation that is the subject of the action has restrictive effects prohibited by Article 49 EC.
(ii) The existence of a restriction
80. The Commission maintains that the Spanish legislation is likely to cause persons affiliated to the national health system who need hospital treatment during a temporary stay in another Member State to return to Spain earlier than intended in order to undergo such treatment there if the level of cover of health expenses in the State of stay is lower than under Spanish regulations. In such cases the freedom to provide both medical services in a hospital environment and the services that prompted the journey to a Member State other than that of affiliation would be impeded. Moreover, according to the Commission, the contested Spanish legislation would deter persons affiliated to the national health system, in particular elderly persons or persons with existing or chronic health conditions, from travelling to a Member State where part of the cost of health services is charged to the patient, thereby preventing them from enjoying non-medical services in such States.
81. The Spanish Government notes that the nature of the services whose provision would allegedly be obstructed is unspecified and contends that such restriction is hypothetical. It produces statistical data which it claims show that tourist flows from Spain to other Member States, in particular to France, are continuously increasing and are not adversely affected by the Spanish system for the reimbursement of health expenses incurred abroad. Similar data are produced by the Belgian Government for visits to Belgium by Spanish tourists.
82. Quite apart from the putative value of such data, I too consider that the assumption on which the Commission builds its case – that is to say, that the said arrangements impede the enjoyment of non -medical services since they are liable to deter persons affiliated to the Spanish health system from travelling to a Member State where part of the cost of health services is charged to the patient – is based on mere supposition. In my opinion, the only case in which the Commission’s argument might be confirmed is that of persons with chronic diseases who of necessity
must undergo medical treatment (such as dialysis) during their stay abroad. In all other cases, even those involving persons at greater risk, such as elderly persons, pregnant women or persons with existing illnesses, the purely hypothetical nature of a medical necessity occurring, despite the higher probability of such an eventuality, is not, in my view, sufficient reason for supposing that the system in force in the state of affiliation for the reimbursement of medical expenses incurred abroad has any real impact on the decision to go to another Member State in order to receive a non-medical service there.
83. By contrast, analysis of the possible restrictive effects of the legislation in question on the provision of medical services leads me a different conclusion.
84. It is settled case-law that Article 49 EC requires the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, if it is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State where he lawfully provides similar services. (53) Moreover, according to established case-law, the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there. (54)
85. A person affiliated to the Spanish health system who, during a temporary stay in another Member State, needs to undergo hospital treatment of a non-vital nature (55) may face a choice between receiving treatment in the State of stay or returning to Spain to be treated. It is certainly true, as the defendant and the Belgian and Danish Governments observe, that the factors affecting such a choice may vary widely and may militate in favour either of remaining in the State of stay (for example, travel costs, the length of the journey, the seriousness of the illness) or of returning to the State of affiliation (such as better knowledge of or greater confidence in the health system, the language factor, the proximity of family members). However, I find it difficult to deny that those factors also include the level of coverage of the hospital expenses that will have to be incurred. If coverage is higher in the Member State of affiliation, the fact that that State excludes reimbursement at the tariffs applied on the basis of its own legislation in the case of treatment provided abroad undoubtedly renders the option of receiving treatment in the State of stay ‘less attractive’.
86. On the other hand, in the judgments mentioned above, the Court has already ruled that the legislation of a Member State which, while not preventing persons registered with the national social security system from receiving medical treatment in another Member State, does not provide for the cost of such treatment to be covered to the same extent as the cost of treatment received in the State of registration infringes the Treaty provisions on the freedom to provide services. The fact that those judgments relate to cases in which the health treatment received abroad and for which refund had been sought had been planned, whereas the present proceedings relate to situations in which the need to undergo medical treatment arises when the patient is already in a Member State other than that of affiliation is not, in my opinion, material.
87. A national measure may have a restrictive effect even when it operates not in the sense of deterring a person from going to another Member State in order to obtain services there but rather in the sense of deterring the person from prolonging his stay there for that purpose or of prompting him to bring forward his return to his State of residence in order to receive in that State a service similar to that which he could have obtained in the State of stay. In all of these cases, the effect of the measure is to give an advantage to the provision of services in the State of residence at the expense of that in the State of stay.
88. Moreover, as the Commission points out, the Court expressed itself in general terms in the above-mentioned judgments. In Verbraekel, for example, the Court stated that ‘there is no doubt 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 may deter, or even prevent, that person from applying to providers of medical services established in other Member States and constitutes, both for insured persons and for service providers, a barrier to freedom to provide services.’ (56) As stated by the Court, that principle clearly takes on a scope that transcends the factual context in which it is set. It therefore seems to me that there is no foundation to the argument relied upon by the Spanish Government, supported in this regard by the Belgian Government, that the case-law on which the Commission’s application is based is not relevant to the case since in reality it concerns ‘pathological’ cases in which the Court applied Article 49 EC in order to avoid the consequences of an infringement of Regulation No 1408/71 by the States concerned.
89. On the basis of the foregoing considerations, I therefore deem the restrictive nature of the Spanish legislation at issue to have been demonstrated. It remains for me to examine whether that legislation may be justified on objective grounds.
(iii)	The justified nature of the restriction
90. The defendant government, supported by the Belgian Government, observes first of all that to accept the Commission’s argument would have serious financial consequences for the national health system.
91. In that regard, the Court has held that it cannot be excluded that the possible risk of seriously undermining a social security system’s financial balance may constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services. (57) With reference to the additional reimbursement payable if planned hospital treatment is provided in a Member State other than that of affiliation, it has nevertheless stated that ‘since such ... reimbursement, which is a function of the system of cover applying in the State of registration, does not in theory impose any additional financial burden on the sickness insurance scheme of that State by comparison with the reimbursement to be made if hospital treatment had been provided in that latter State, it cannot be argued that making that sickness insurance fund bear such additional reimbursement would be liable to have a significant effect on the financing of the social security system. (58)
92. A person insured with a national scheme under which health services are in principle free of charge is not entitled, in any case, to the full reimbursement of expenses incurred on account of health treatment received abroad but only to reimbursement of the difference between the cost of the services borne by the institution in the State of stay and the cost of similar treatment in the Member State of affiliation if that difference is charged to the patient under the legislation of the Member State of stay. Hence, contrary to the assertions of the Belgian Government, it is not a question of charging national systems in which services are free of charge for the costs which, under the legislation of other Member States, are borne by the patient (such as the ‘ticket modérateur’ in France), since the State of affiliation is not in any case required to reimburse more that the cost that would have been borne by its own health institutions if treatment had been given on the national territory or in a contracted establishment, even taking into account the amount owed by its own health institutions in accordance with Article 36 of Regulation No 1408/71.
93. It follows that the risk of financial repercussions on the national health service relied upon by the Spanish Government cannot of itself justify a systematic refusal to grant additional reimbursement in the cases referred to in Article 22(1)(a) of Regulation No 1408/71, such as the refusal resulting, with limited exceptions, from the Spanish legislation in question. Nor can such justification be derived from the difficulty, mentioned by some of the intervening governments, of assessing the cost of treatment in States with a national health service or a system of agreements, where such services are free of charge, and of comparing them with the tariffs applied in national systems organised differently. In fact, the triggering of the reimbursement mechanism laid down in Article 36 of Regulation No 1408/71 and Article 34 of Regulation No 574/72 essentially confronts the Member States with the same difficulties.
94. The Court has also recognised that the objective of maintaining a balanced medical and hospital service open to all may also fall within the derogations on grounds of public health under Article 46 EC where that objective contributes to the attainment of a high level of health protection. (59) It has also stated that Article 46 EC permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, and even the survival of the population. (60) As regards medical services provided at a hospital, the Court has noted that the number of hospitals, their geographical distribution, the mode of their organisation and the equipment with which they are provided, and even the nature of the medical services which they are able to offer, are all matters for which planning must be possible. Such planning broadly meets a variety of concerns. For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned. For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. The Court has therefore concluded that, from both those perspectives, a requirement that the assumption of costs, under a national system, of hospital treatment provided in another Member State must be subject to prior authorisation appears to be a measure which is both necessary and reasonable. (61)
95. Using various arguments, the Member States intervening in the proceedings and the defendant rely on the risk of a resurgence of ‘health tourism’. In their view, extending the case-law of the Court on additional reimbursement to include instances other than planned treatment would allow persons intending to obtain hospital treatment in a Member State other than the State of insurance or affiliation without losing the financial coverage guaranteed under the scheme to which they belong to circumvent the requirement for prior authorisation from the health authorities, where such a requirement exists.
96. In this regard, I note first and foremost that the circumstances to which the Commission refers in its application are defined in Article 22(1)(a) of Regulation No 1408/71, which requires that there be medical necessity and that the patient be in the territory of a Member State other than that of registration when that necessity arises. The imposition of such requirements makes it possible in theory to limit the scope in which the Member State of registration or affiliation may have to reimburse, on the basis of its own tariffs, the costs incurred by persons affiliated to its own system for hospital services received in another Member State.
97. Moreover, and above all, it is possible to conceive of measures that are less restrictive than a systematic refusal of reimbursement (except for vital procedures) such as that which essentially derives from application of the Spanish legislation. Reimbursement on the basis of the tariffs of the State of affiliation could, for example, be made conditional on the production of documents proving that the requirements for applying Article 22(1)(a) of Regulation No 1408/71 are met and on the absence of fraudulent conduct aimed at circumventing the regulations on prior authorisation. Furthermore, any bureaucratic and administrative difficulties caused by such a verification system, either for persons intending to apply for such reimbursement or for the health authorities, are not, in my view, factors likely to tilt the scales in favour of denying entitlement to the financial coverage provided by the person’s social security system, as the Danish and Finnish Governments maintain.
98. Nor can it be excluded that, where his state of health permits, the person concerned may be required under the legislation of the Member State of affiliation to apply for and obtain prior authorisation, the grant of which would be subject to verification that the conditions set out in Article 22(1)(a) of Regulation No 1408/71 were met. (62)
99. Lastly, as the Commission points out, recourse to the mechanism for administrative co-operation laid down in Articles 84 and 84a of Regulation No 1408/71 may assist the Member States in carrying out any checks laid down in their social security legislation.
100. On the basis of the foregoing considerations, I therefore hold that the restriction in question cannot be justified on the ground of the overriding public interest requirements raised by the defendant government.
IV – Conclusions
101. In the light of all of the foregoing, I propose that the Court:
– declare that the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC by refusing persons entitled under the Spanish national health system reimbursement of medical costs incurred in another Member State in the event of hospital treatment received in accordance with Article 22(1)(a)(i) of Regulation No 1408/71, in so far as the level of cover applicable in the Member State in which that treatment is given is lower than that provided for under Spanish legislation;
– order the Kingdom of Spain to pay the costs.
(1) .
(2)
–	OJ, English Special Edition 1952-1972(V), p.89.
(3)
–	Since the Commission brought its action on the basis of Article 226 EC and claims that the Kingdom of Spain is in breach of the EC Treaty, the legislative context for the purposes of this Opinion, in terms of European Union law, is that preceding the entry into force of the Treaty of Lisbon.
(4)
– Article 48 of the Treaty on the Functioning of the European Union, which replaces Article 42 EC, provides for the application of the ordinary legislative procedure in this respect.
(5)  –	Regulation (EC) No 883/2004 on the coordination of social security systems will replace Regulation No 1408/71 with effect from 1 May 2010, the date of entry into force of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing that regulation (OJ 2009 L 284, p. 1).
(6) –	Article 81(a).
(7) –	Article 81(c).
(8) –	Article 81(d).
(9) – At the time of the facts considered by the Commission in the pre-litigation procedure, that document was Form E 111, which was subsequently replaced by the European health insurance card by means of Decision No 189 of 18 June 2003 of the Administrative Commission (2003/751/EC, OJ 2003 L 276, p. 1).
(10) –	BOE No 102, p. 15207.
(11) –	BOE No 128, p. 20567.
(12) –	BOE No 222, p. 32650.
(13) –	Royal Legislative Decree No 1/1994 approving the General Law on Social Security, BOE No 154, p. 20658.
(14) –	Spain has produced two agreements concluded with France.
(15) –	Circular of 12 May 1992, ‘Community regulations on social security Nos 1408/71 and 574/72. Application of Article 34 of Regulation No 574/72. Refund of health expenses incurred by a person insured under the Spanish social security system during a stay in another Member State of the EC’.
(16) –	See, for example, Case C‑431/92 Commission
v Germany
[1995] ECR I‑2189, paragraph 22.
(17) –	See, for example, Case 26/69 Commission
v France [1970] ECR 565, paragraph 10.
(18) –	Case C‑158/96 Kohll
[ 1998] ECR I‑1931.
(19)  –	Case C‑157/99 Smits and Peerbooms
[2001] ECR I‑5473.
(20) –	Paragraph 53. The reference was to the judgments in Joined Cases 286/82 and 26/83 Luisi and Carbone
[1984] ECR 377, paragraph 16; Case C‑159/90 Society for the Protection of Unborn Children Ireland
[1991] ECR I‑4685, paragraph 18, concerning advertising for clinics involved in the deliberate termination of pregnancies; and Kohll, cited in footnote 18, paragraphs 29 and 51.
(21)  –	Paragraph 55.
(22) –	In the view of the Court, payments by sickness insurance funds in the Netherlands on the basis of the system of agreements constituted income for the participating hospitals, which perform an economic activity.
(23)
–	Paragraphs 77 to 80. With regard to the conditions to which the granting of such authorisation was subject under the legislation in question, that is to say that the proposed treatment be considered ‘normal in the professional circles concerned’ and that the insured person’s medical treatment requires it, the Court stated, as to the first requirement, that authorisation could not be refused ‘where it appears that the treatment concerned is sufficiently tried and tested by international medical science’ and, as to the second requirement, that authorisation could be refused on the ground of lack of medical necessity ‘only if the same or equally effective treatment can be obtained without undue delay at an establishment having a contractual arrangement with the insured person’s sickness insurance fund’.
(24)  –	Case C‑368/98 Vanbraekel and Others
[ 2001] ECR I‑5363.
(25)  –	Paragraph 34.
(26)  –	Paragraph 45.
(27)  –	Paragraph 52.
(28) –	Paragraph 53 and the operative part.
(29)  –	Case C‑385/99 Müller-Fauré and van Riet
[ 2003] ECR I‑4509.
(30) –	To that effect, see also Case C‑56/01 Inizan
[ 2003] ECR I‑12403, and especially Case C‑372/04 Watts
[ 2006] ECR I‑4325, paragraphs 60 et seq., to which I shall refer at greater length in the next paragraph .
(31)  –	Cited in the preceding footnote.
(32)  –	Paragraph 90.
(33) –	The question of the assumption of the cost of hospital treatment incurred by the patient in private hospitals abroad by the patient’s sickness insurance system where the legislation of the State of registration refuses reimbursement for such treatment when provided in private establishments in that State was addressed by the Court in Case C‑444/05 Stamatelaki
[ 2007] ECR I‑3185.
(34) –	Case C‑120/95 Decker
[ 1998] ECR I‑1831, paragraph 29, and Kohll, cited in footnote 18. Previously the Court had stated that Regulation No 1408/71 did not prevent national legislation from providing persons affiliated to its social security system with wider coverage than that stemming from application of that regulation; with reference to Article 19 of the regulation, see Case 69/79 Jordens-Vosters
[ 1980] ECR 75, paragraph 11, and with regard to Article 22, see Case 117/77 Pierik I
[1978] ECR 825.
(35) –	See Kohll, cited in footnote 18, paragraph 25.
(36) –	My italics.
(37) –	My italics.
(38) –	Article 22(1)(i) expressly provides th at the length of the period during which benefits are provided shall be governed by the legislation of the competent State.
(39) –	Moreover, the Court appears to have followed that interpretation in paragraph 55 of the Vanbraekel
judgment, where it states that ‘it follows from the actual wording of Article 36 of Regulation No 1408/71 that the full refund between institutions to which that provision refers concerns only benefits in kind provided by the institution of a Member State of stay on behalf of the competent institution, pursuant to the provisions of Title III, Chapter 1, of that regulation. Consequently, ... that refund applies only to benefits in kind for which the assumption of costs by the institution of the place of stay is provided for by the legislation applied by that institution, and in precise proportion to which that assumption of costs is stipulated’. My italics.
(40) –	OJ 2006 L 376, p. 36.
(41) –	Article 2(2)(f).
(42) –	COM(2008) 414 final.
(43) –	Case 238/82 Duphar and Others
[ 1984] ECR 523, paragraph 16; Joined Cases C‑159/91 and C‑160/91 Poucet and Pistre
[ 1993] ECR I‑637, paragraph 6; and Case C‑70/95 Sodemare and Others
[1997] ECR I‑3395, paragraph 27.
(44) –	Case 266/78 Brunori
[ 1979] ECR 2705, paragraph 6; Case 110/79 Coonan
[ 1980] ECR 1445, paragraph 12; and Case C‑349/87 Paraschi
[1991] ECR I‑4501, paragraph 15.
(45) –	Joined Cases C‑4/95 and C‑5/95 Stöber and Piosa Pereira
[1997] ECR I‑511, paragraph 36.
(46) –	Kohll, cited in footnote 18, paragraphs 19 and 20.
(47) –	See, in particular, Society for the Protection of Unborn Children Ireland, cited in footnote 20, paragraph 18, and Kohll, cited in footnote 18, paragraph 29.
(48) –	Vanbraekel, cited in footnote 24, paragraph 41; Smits and Peerbooms, cited in footnote 19, paragraph 53; Müller-Fauré and van Riet, cited in footnote 29, paragraph 38; and Inizan, cited in footnote 30, paragraph 16.
(49) –	Paragraph 103.
(50) –	Paragraph 89.
(51) –	That fact does not emerge clearly, however, in the cases that gave rise to the judgments in Muller-Fauré and van Riet, cited in footnote 30, and Stamatelaki, cited in footnote 33.
(52) –	See Watts, cited in footnote 30, paragraph 90.
(53) –	Case C‑76/90 Säger
[1991] ECR I‑4221, paragraph 12; Case C‑205/99 Analir and Others
[2001] ECR I‑1271, paragraph 21; Case C‑433/04 Commission
v Belgium
[2006] ECR I‑10653, paragraph 28; and Case C‑208/05 ITC
[2007] ECR I‑181, paragraph 55.
(54)
–	Luisi and Carbone, cited in footnote 20.
(55) –	In this instance, in fact, the Spanish legislation provides for the entire cost to be borne by the national health service.
(56)
–	Paragraph 45.
(57)  –	Kohll, cited in footnote 18, paragraph 41; Smits and Peerbooms, cited in footnote 19, paragraph 72; and Müller-Fauré and van Riet, cited in footnote 29, paragraph 73.
(58)  –	Kohll, cited in footnote 18, paragraph 42, and Vanbraekel, cited in footnote 24, paragraph 52.
(59)  –	Kohll, cited in footnote 18, paragraph 50; Smits and Peerbooms, cited in footnote 19, paragraph 73; and Müller-Fauré and van Riet, cited in footnote 29, paragraph 67.
(60)  –	Kohll, cited in footnote 18, paragraph 51; Smits and Peerbooms, cited in footnote 19, paragraph 74; and Müller-Fauré and van Riet, cited in footnote 29, paragraph 67.
(61)  –	Paragraphs 76 to 80 of Smits and Peerbooms, cited in footnote 19.
(62)  –	In Case C‑145/03 Keller
[2005] ECR I‑2529, the applicant in the main proceedings, who had been diagnosed with a tumour during a stay in Germany, had requested and obtained Form E 112 from the Instituto Nacional de la Salud before undergoing surgery (the reference for a preliminary ruling hinged, however, on whether the cost of hospital treatment received in a Swiss clinic was eligible for refund on the basis of the system operating under Regulation No 1408/71).