61978C0182
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 3 MAY 1979 (
1
)
Mr President,
Members of the Court,
This case comes before the Court for the second time by way of a reference for a preliminary ruling by the Centrale Raad van Beroep [court of last instance in social security matters] Utrecht. On the first occasion the case was numbered 117/77, and the Court gave judgment on 16 March 1978. The judgment appears in the 1978 Reports of Cases before the Court at p. 825.
The relevant facts were fully set out on that occasion, and it seems superfluous to me to recite them again today.
1.
Within the framework of the questions previously submitted to the Court in connexion with the dispute between Mrs Pierik, the recipient of an invalidity pension, or more precisely the Bedrijfsvereniging [trade association] to which she was affiliated, and the Ziekenfonds [Sickness Fund] of Drenthe, the Court did not have to rule on the issue of whether the concept of a ‘pensioner’ within the meaning of Article 31 of Regulation No 1408/71 of the Council is more restricted than the concept of a ‘worker’ used inter alia in Article l.(a) thereof.
The issue is now expressly raised, and it forms the subject-matter of the first question submitted to the Court. It appears moreover that the answer is of importance only if the rights conferred by Article 31 are different from those conferred by Article 22. However, the national court refrains from asking about this matter, and I must therefore answer the first question in the abstract.
Although the terms ‘active’ or ‘inactive’ population are not used in Chapter 1 of Title III of the regulation, that chapter is divided into sections which correspond to different categories of potential recipients of benefits. This structure shows that for the purpose of the provisions relating to sickness and maternity benefits a distinction is to be drawn between ‘active’ persons and pensioners so that, when the latter or members of their family are staying in a State other than the one in which they reside, they receive benefits in kind and, where appropriate, cash benefits in accordance with the rules laid down in Article 31 as amended by the Act of Accession.
A further argument in favour of this distinction comes from the provisions of Article 34, which distinguishes between the case of mere pensioners and the case of pensioners ‘who are entitled to benefits under the legislation of a Member State as a result of pursuing an occupational activity’and who ‘in such a case … shall be considered as a worker … for the purposes of this chapter’.
To tell the truth, I consider this argument irrelevant to the extent to which, as in the Netherlands for example, the overlapping of a pension for an accident at work or for an occupational disease on the one hand and of a salary on the other is practically impossible because, either the continued occupational activity prevents any entitlement from arising, or the amount of the pension is deducted from the salary. It therefore appears impossible, at least in that Member State, for a pensioner to pursue an occupational activity to any effect.
As I have said, acknowledgment of this distinction does not however prejudge the issue of whether the rights conferred by Article 31 are substantially different from those conferred by Article 22. The Commission expressly refuses to state a view; the Netherlands court also refrains from asking this Court about the point, and I do not think that in a reference under Article 177 it is for this Court to rule on this question of its own motion. Moreover it is not impossible that, in order to clarify all its doubts, the Centrale Raad van Beroep might refer the case to this Court a third time.
2.
In its second question, the national court asks this Court whether, for the purposes of the second subparagraph of Article 22 (2), the obligation upon the competent institution to grant the authorization required applies even where the ‘appropriate’ treatment in question has been deliberately excluded from the scheme of benefits provided under the legislation which that institution administers.
By its judgment of 16 March 1978 ([1978] ECR 825, at p. 839), this Court has already answered that ‘the words “benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence” do not refer solely to benefits in kind provided in the Member State of residence but also to benefits which the competent institution is empowered to provide’.
As the Government of the United Kingdom states in its observations, the question is whether that power is to be assessed by reference to the national legislation which the competent institution administers or whether it is sufficient for the power to arise directly from Regulation No 1408/71.
In this connexion, the Court has stated that at all events the obligation exists
(1)
where the ‘appropriate’ treatment cannot be provided on the territory of the Member State of residence, and
(2)
where the treatment provided in the Member State where the person concerned is temporarily staying is more effective than that which he can receive in the Member State where he resides.
The only limitation imposed by Article 22 (1) (c) (i) is that the length of the period during which benefits are provided shall be governed by the legislation of the competent State. Subject to this reservation, the treatment is provided in the Member State of stay (or residence) in accordance with the legislation of that State, because it would be unreasonable to ask the social security institutions of each State to take account of the social security schemes of each of the other States.
In particular, it would be directly contrary to the principle of freedom of movement for workers for the competent institution to refuse an insured person treatment appropriate to his condition if he could have received such treatment had he remained in his country of origin, even if for reasons of management or expediency the provision of such treatment — assuming it were technically possible — is not paid for by the competent institution. Possible reverse discrimination against insured nationals cannot deprive the worker of a right which he would have enjoyed if he had not ‘migrated’.
I do not think that there is anything to add to this answer, except perhaps to reserve the case of treatment which would be patently contrary to the public morality of the State of habitual residence. However, I should consider it unprofitable, if not dangerous, in the context of this case to deal in a general and abstract way with various medical-ethical grounds upon which a certain kind of treatment might be deli itely excluded from the scheme of d fits paid for by sickness funds. It is clear that neither of these hypotheses applies to the case of Mrs Pierik (the treatment of a rheumatic ailment).
3.
In its third question, the national court asks this Court whether the words of Article 22 (1) (c) (i) relate directly to the case in which the institution of the State of temporary stay has discretion to authorize or refuse provision of the treatment in question or whether, before providing the authorization requested, the competent institution must inquire whether the institution of the State of temporary stay would pay for the provision of such treatment for the person concerned if he were insured with the latter. In other words, the Centrale Raad van Beroep would like to know whether the institution of the State of temporary stay has the same powers in relation to a person coming from another Member State to receive treatment in that State as it has in relation to persons directly insured with it.
Under the terms of the provision at issue, the person concerned is entitled to treatment in accordance with the legislation of the State of stay (or residence) in accordance with the legislation which the institution of that State administers, as though he were insured with that institution. Of course the worker must be authorized by the competent institution to go to the territory of the other Member State, but the power to refuse such authorization may be exercised only within the limits laid down in Article 22 (2), which I have mentioned. Consequently the right to receive appropriate treatment exists to the full extent to which the institution of the place of stay (or residence) would grant it to its own members. To decide otherwise would constitute discrimination on grounds of nationality contrary to Article 7 of the Treaty. However, as the Government of the United Kingdom points out, no provision of Community law prevents the competent institution from seeking infornation from the institution of the State)f stay or residence before it gives its authorization.
I am of the opinion that the Court should answer the questions submitted to it as follows:
(1)
Benefits in the field of medical treatment and sickness expenses due under the legislation of one Member State to a pensioner who goes to another Member State are governed by Article 31 or Regulation No 1408/7.1.
(2)
The competent institution is obliged to grant the authorization required under Article 22 (1) (c) for any appropriate treatment of the sickness or disease from which the person concerned suffers.
(3)
Benefits in kind within the meaning of Article 22 (1) (c) (i) also refer to benefits which relate to treatment more effective than that which the person concerned could receive in the Member State where he habitually resides and which cannot be provided in that State.
(
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)	Translated from the French.