OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 22 FEBRUARY 1978 ( 1 )

Mr President,

Members of the Court,

The dispute in the main action which gave rise to the matter submitted to the Court of Justice by the Centrale Raad van Beroep stems from a dispute between two social security institutions of a Member Sute, a sickness fund and a Bedrijfsvereniging (trade association), concerning the refund of the cost of a course of hydrotherapy treatment taken in April 1974 in the Federal Republic of Germany by a person, born in 1916, residing in the Netherlands, who worked in the ancillary medical services and who was granted in the Netherlands in 1962 invalidity benefit for an 80-100 % incapacity for work, being covered against this risk by compulsory insurance with a Netherlands sickness fund.

It should be noted that in the Netherlands no distinction whatever is drawn regarding the origin of the incapacity (sickness or disability or an accident at work) which gave rise to the payment of the invalidity benefit. Trade associations, some of which are run through a joint office, are entitled both to collect contributions and to pay cash benefits in respect of sickness insurance and incapacity for work. Benefits in kind on the other hand are provided by the sickness funds.

From 1962 onwards the person concerned on several occasions took a number of courses of physiotherapeutic treatment in the Federal Republic of Germany on medical advice, and these had beneficial effects.

She claimed and obtained from the Nieuwe Algemene Bedrijfsvereniging (new general trade association) pursuant to Article 60 of the Netherlands Wet op de Arbeidsongeschiktheidsverzekering (Law on insurance against incapacity for work), a refund of the costs incurred in such treatment subject to deduction of an amount corresponding to the cost of board and lodging. The said Article 60 states that persons in receipt of invalidity benefit provided by trade associations may receive, in addition to medical treatment, benefits intended for the maintenance, reestablishing or improvement of capacity for work, for example retraining, rehabilitation or tuition. Moreover such persons may be entitled to measures intended to improve their standard of living.

The Centrale Raad van Beroep (court of last instance in social security matters), which submitted the reference to the Court of Justice, stated in its judgment of 25 April 1973 in the dispute between the trade association in question and the person concerned with regard to the refund of costs incurred by the latter in courses of treatment up to 1970 (I am quoting from the summary of the judgment): ‘It is common ground that the treatment followed by the person concerned in the Federal Republic of Germany brought about a considerable improvement in her condition. The expert consulted by the Raad considered that treatment in a hospital in the Netherlands would not have been so effective as that actually followed by the person concerned. Her own doctor considered that the respondent was by her constitution certainly unsuited to a course of hydrotherapy at a general hospital. Accordingly serious doubt may be entertained as to the accuracy of the view of the executive agency, namely that the person concerned could have obtained treatment in the Netherlands with equal chances of success. Opinion in Netherlands medical circles is divided as to the value of treatment such as that to which Mrs Pierik's claim relates; this is however of little relevance: the decisive factor is that the treatment has brought about a considerable improvement in her condition.’

The trade association considered that the course followed in April 1974, for which Mrs Pierik claimed a refund, constituted benefits in kind coming under the Ziektefondswet (law on sickness funds) and the Algemene Wet Bijzondere Ziektekosten (general law on special sickness expenses) and accordingly did not come within the scope of the law on transitional rules for insurance against incapacity for work. Nevertheless the trade association, on the basis of the derogation provided for by another provision of the latter law, agreed to refund the costs incurred by Mrs Pierik on condition that she claimed payment thereof from the sickness fund to which she was affiliated and granted a written authorization to institute proceedings against the fund if it refused.

Since the fund in fact refused the payment in question the association appealed to the Raad van Beroep, Zwolle, in the name and on behalf of Mrs Pierik and was successful.

However, the sickness fund appealed against that decision to the Centrale Raad van Beroep, maintaining that the conditions laid down for such repayment in Article 22 of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community was not fulfilled.

The sole relevant point is to establish whether in a case of this nature, supposing that the conditions of Article 22, and in particular the one about obtaining prior authorization from the competent institution, are met, a national social security agency or institution is obliged to refund the expenses entailed in such treatment.

I shall not consider in particular the point whether, as the Commission maintains in its observations, Article 22 of Regulation No 1408/71 does not apply to the main action in that it refers only to ‘active workers’ and whether in fact the relevant provision is Article 31 which covers persons entitled to draw a pension or pensions under the legislation of one or more Member States.

The case in which a worker goes to the territory of another Member State to receive the treatment appropriate to his condition, for which provision is made in Article 22 (1) (c) of the regulation, in fact overlaps the case in Article 31 in which a pensioner receives medical treatment while staying in the territory of a Member Sute other than the one in which he resides. The same Form E 111 permits both workers and members of their families staying temporarily in a country other than the competent Sute and pensioners and members of their families staying temporarily in a country other than that in which they habitually reside to obtain from the insurance institutions of the country in which they are staying sickness or maternity benefits and, provisionally, benefits in respect of accidents at work and occupational diseases. This Certificate E 111 may also be requested on Form E 107 by the institution of the place of stay.

Although the person concerned, who is entitled to draw a pension or pensions under the legislation of a single Member Sute has never, as it appears, moved outside the Netherlands in order to pursue a professional or trade activity, she is classified by the Centrale Raad van Beroep as a ‘worker within the meaning of Article 22 of Regulation No 1408/71’ since persons in receipt of pensions for incapacity for work, provided such incapacity exceeds 45 %, are compulsorily insured under the law on sickness funds, and the sickness fund is the ‘competent institution’ within the meaning of the regulation. In the context of the procedure under Article 177 this Court in principle refuses, save in the case of manifest error, to amend definitions laid down by the national court and it does not appear to me in the present case that that court has committed such an error.

1. The Centrale Raad van Beroep asks the Court first of all whether a worker who has to go to the territory of another Member Sute to receive appropriate treatment there may receive only benefits in kind provided in accordance with the provisions of the legislation administered by the institution to which he is affiliated. The reply is that although the length of the period during which such benefits in kind are provided is governed by the legislation of the competent Sute (Article 22 (1) (c) (i)), on the other hand the said benefits are provided in accordance with the legislation administered by the institution of a place of stay or residence. The purpose of this provision is in fact to permit the person concerned to receive treatment which could not be effectively provided on the territory of the Member Sute in which he habitually resides and where he is insured.

2. If the authorization is issued by the competent institution the benefits in kind must be provided by the institution of the place of stay for the period fixed by the competent institution. It is for the national court to settle whether, although the person concerned must be considered as affiliated to the competent institution of the place of stay, she is not entitled under the legislation administered by that institution to the refund of the costs entailed in treatment of the kind in question because she is simply a pensioner and not an active worker.

3. The words ‘institution of the place of stay’ (or of residence) incontrovertibly refer to any institution empowered to refund benefits in kind corresponding to those which, if the person concerned had remained in his own country, would have been refunded by the institution to which he is affiliated. Annex 3 to Regulation No 574/72 of the Council of 21 March 1972 establishes for each Member Sute the various institutions which have competence in specific cases.

4. The criterion which must govern the provision of benefits in kind by the institution of the place of stay (or residence) is that the benefit can be provided by that institution and not by the frequency with which it is provided. Naturally the institution of the place of stay must itself appraise whether there are medical grounds for the grant of such a benefit, especially if the institution has for its part already provided a similar benefit.

5. The words ‘the treatment in question’ within the meaning of the second subparagraph of Article 22 (2) relate to the ‘treatment appropriate to his condition’ referred to in Article 22 (1) (c) and not only to the medical treatment appropriate to the illness. However this naturally differs from the case in which the condition of the worker ‘necessitates immediate benefits during a stay’ outside the competent Sute (paragraph (1) (a)), in which case moreover there is no need for an authorization.

6. Finally the sixth question overlaps with the first. The obligation set out in the second subparagraph of Article 22 (2) also extends to cases in which the treatment concerned does not feature amongst the range of benefits in kind of the country of origin. This is the actual purpose of that provision since the only restriction is the requirement of obtaining prior authorization. The scope of the provisions referred to by Article 22 is limited only by the provisions of the legislation administered by the institution of the place of stay. I recall that, according to the judgment of the Court of 30 June 1966, (Vaassen (née Göbbels) [1966] ECR 261) benefits in kind also cover benefits given in the form of reimbursement of expenses for medical treatment, medicines and nursing. Certain substantial benefits in kind set out in a list drawn up by the Administrative Commission on Social Security for Migrant Workers pursuant to Article 24 of Regulation No 1408/71 (Official Journal C 105 of 14 September 1974) require to be notified by the institution of the place of residence to the competent institution (Regulation No 574/72, Article 17 (6) and (7)). In this connexion the situation is similar with regard to pensioners staying in a Member Sute other than the Member Sute in which they reside since the institution of the pensioner's place of residence is to be considered as the competent institution (Article 31 (2) of Regulation No 574/72). According to Article 17 (7) of Regulation No 574/72 when substantial benefits in kind are granted the competent institution shall, except in cases of extreme urgency, have 15 days to raise any objection and to state the reasons on which such objection is based. Such right to raise a reasoned objection replaces the prior authorization of the competent institution which was formerly required pursuant to Article 19 (5) of Regulation No 3 and of Article 9 (2) (b) of Regulation No 36; it is intended to permit the competent institution to prevent abuses by appraising whether there are appropriate medical grounds for granting such benefits. In particular the taa that the grant of substantial benefits in kind is not provided for in the legislation administered by the competent institution does not constitute a sufficient justification for such objection; the scale of such benefits is to be determined exclusively by the provisions of the legislation applied by the institution of the place of stay or residence. Is it to be concluded from this that Regulation No 1408/71 has established an ‘independent Community right’ to receive such treatment? This appears to me to put the matter too generally; for my part I should rather maintain that the authorization necessary for the insured person to retain the right to benefits or to receive treatment in another country is no longer subject to a discretionary power of the institution to which he is affiliated, as was previously the case pursuant to Article 19 of Regulation No 3: such authorization can only be refused in certain clearly-specified cases, either where the transfer of the person concerned is inadvisable on properly-established medical grounds or where the treatment in question does not justify going to another Member Sute. In particular the mere fact that in the country of stay the relevant treatment can only be given under more burdensome conditions than would be the case if another, and ineffective, treatment had been given on the territory of the institution to which the person concerned is affiliated does not constitute a justification for refusing an authorization. I am of the opinion that the Court should reply in terms of the foregoing observations.

( 1 ) Translated from the French