Judgment of the Court (Third Chamber) of 18 September 1980. - Allgemeine Ortskrankenkasse Mittelfranken v Landesversicherungsanstalt Ober- und Mittelfranken. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Social security - Treatment for tuberculosis. - Case 818/79.



European Court reports 1980 Page 02729

Greek special edition Page 00039



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - SICKNESS BENEFITS - CONCEPT - TUBERCULOSIS BENEFITS WITHIN THE MEANING OF THE GERMAN STATE INSURANCE REGULATION ( THE REICHSVERSICHERUNGSORDNUNG ) - INCLUSION

( REGULATION NO 3 OF THE COUNCIL , ART . 2 ( 1 ) ( A ) AND ART . 16 ET SEQ .)

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - BENEFITS IN KIND PROVIDED IN ANOTHER MEMBER STATE - REIMBURSEMENT OF EXPENDITURE BY THE COMPETENT INSTITUTION - ALLOCATION OF THE COST AMONGST SEVERAL COMPETENT INSTITUTIONS OF THE SAME MEMBER STATE - APPLICATION OF NATIONAL LAW

( REGULATION NO 3 OF THE COUNCIL , ARTS . 20 ( 1 ) AND 23 ( 1 ) AND ( 3 ))

Summary

1 . SOCIAL SECURITY BENEFITS OF THE KIND WITH WHICH ARTICLE 1244A OF THE REICHSVERSICHERUNGSORDNUNG ( STATE INSURANCE REGULATION ) ARE CONCERNED MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 . IT FOLLOWS THAT THE PROVISIONS OF THE REGULATION RELATING TO SICKNESS BENEFITS , AND IN PARTICULAR ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) THEREOF , APPLY TO SUCH BENEFITS IRRESPECTIVE OF THE FACT THAT A WORKER WHO IS AFFILIATED TO THE PENSION INSURANCE SCHEME IS AT THE SAME TIME INSURED UNDER THE OFFICIAL GERMAN SICKNESS INSURANCE SCHEME AND MAY CLAIM AN ENTITLEMENT TO BENEFITS UNDER THAT SCHEME REGARDLESS OF THE PLACE OF TREATMENT .

2 . WHERE SEVERAL INSTITUTIONS OF THE SAME MEMBER STATE ARE COMPETENT INSTITUTIONS FOR THE PURPOSES OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 IT IS FOR THE NATIONAL LAW TO DETERMINE HOW , IN THE CONTEXT OF RELATIONS BETWEEN THE INSTITUTIONS CONCERNED , THE ALLOCATION OF THE COST OF THE REIMBURSEMENT PROVIDED FOR BY ARTICLE 23 ( 1 ) AND ( 3 ) OF THAT REGULATION IS TO BE REGULATED .

Parties

IN CASE 818/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALLGEMEINE ORTSKRANKENKASSE MITTELFRANKEN , NUREMBERG ,

AND

LANDESVERSICHERUNGSANSTALT OBER- UND MITTELFRANKEN , BAYREUTH ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 ( JOURNAL OFFICIEL 1958 , P . 561 ),

Grounds

1 BY ORDER OF 25 OCTOBER 1979 , WHICH WAS RECEIVED AT THE REGISTRY OF THE COURT ON 18 DECEMBER 1979 , THE BUNDESSOZIALGERICHT SUBMITTED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 ( JOURNAL OFFICIEL 1958 , P . 561 ).

2 THE QUESTIONS SUBMITTED BY THE BUNDESSOZIALGERICHT ARE WORDED AS FOLLOWS :

' ' 1 . DO ARTICLE 23 ( 1 ) AND ( 3 ) AND ARTICLE 20 ( 1 ) ( I ) OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 25 SEPTEMBER 1958 ON SOCIAL SECURITY FOR MIGRANT WORKERS

IN ACCORDANCE WITH WHICH MEMBERS OF THE FAMILY OF A WAGE-EARNER WHO IS AFFILIATED TO AN INSTITUTION IN A MEMBER STATE MAY OBTAIN BENEFITS IN KIND IN THE EVENT OF ILLNESS ALTHOUGH THEY RESIDE ON THE TERRITORY OF ANOTHER MEMBER STATE AS THOUGH THE WAGE-EARNER WERE AFFILIATED TO THE INSTITUTION OF THEIR PLACE OF RESIDENCE ,

AND IN ACCORDANCE WITH WHICH THE INSTITUTION TO WHICH THE WAGE-EARNER IS AFFILIATED SHALL ALSO BE REQUIRED TO REIMBURSE TO THE INSTITUTION WHICH PROVIDED THE BENEFITS IN KIND A SUM EQUAL TO THREE-FOURTHS OF THE EXPENDITURE INCURRED IN RESPECT THEREOF ,

ALSO APPLY , HAVING REGARD TO THE JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF 16 NOVEMBER 1972 IN CASE 14/72 , TO A WAGE-EARNER AFFILIATED TO THE GERMAN PENSION INSURANCE SCHEME WHO IS ENTITLED TO CLAIM FROM THE GERMAN PENSION INSURANCE INSTITUTION TUBERCULOSIS BENEFITS FOR HIS CHILD ( ARTICLE 1244A ( 1 ) OF THE REICHSVERSICHERUNGSORDNUNG ( RVO ) ( STATE INSURANCE REGULATION )) ONLY IF THE CHILD IS UNDERGOING TREATMENT WITHIN THE TERRITORY COVERED BY THE RVO ( ARTICLE 1244A ( 9 ) THEREOF)?

2 . IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE :

ARE THE TUBERCULOSIS BENEFITS RESTRICTED TO THE TERRITORY COVERED BY THE RVO ( ARTICLE 1244A ( 9 ) THEREOF ) IF THE WAGE-EARNER WHO IS COVERED BY PENSION INSURANCE IS AT THE SAME TIME AFFILIATED TO THE GERMAN COMPULSORY SICKNESS INSURANCE SCHEME AND HAS A CLAIM AGAINST THE GERMAN SICKNESS INSURANCE INSTITUTION IN RESPECT OF MEDICAL TREATMENT FOR HIS CHILD ( ARTICLE 205 OF THE RVO ) INDEPENDENTLY OF THE PLACE WHERE SUCH TREATMENT WAS PROVIDED?

' '

3 THESE QUESTIONS ARE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN TWO GERMAN INSURANCE INSTITUTIONS , ONE , THE ALLGEMEINE ORTSKRANKENKASSE MITTELFRANKEN , BEING COMPETENT FOR SICKNESS INSURANCE AND THE OTHER , THE LANDESVERSICHERUNGSANSTALT OBER- UND MITTELFRANKEN , BEING COMPETENT FOR PENSION INSURANCE , ON THE QUESTION WHICH OF THEM MUST ASSUME RESPONSIBILITY FOR THE EXPENDITURE INCURRED IN THE TREATMENT FOR TUBERCULOSIS ADMINISTERED TO THE SON OF ONE OF THEIR INSURED IN AN ITALIAN HOSPITAL DURING 1964 AND 1965 .

4 THE ALLGEMEINE ORTSKRANKENKASSE MITTELFRANKEN , THE PLAINTIFF IN THE MAIN PROCEEDINGS , WHICH IS BOUND BY VIRTUE OF ARTICLE 205 OF THE REICHSVERSICHERUNGSORDNUNG TO PROVIDE BENEFITS FOR MEDICAL TREATMENT , AGREED TO ASSUME PROVISIONAL RESPONSIBILITY FOR THE EXPENDITURE IN QUESTION . IT SUBSEQUENTLY BROUGHT PROCEEDINGS FOR REIMBURSEMENT AGAINST THE LANDESVERSICHERUNGSANSTALT OBER- UND MITTELFRANKEN , THE DEFENDANT IN THE MAIN PROCEEDINGS . THAT ACTION IS BASED UPON ARTICLE 1244A OF THE REICHSVERSICHERUNGSORDNUNG WHICH , IN THE CASE OF ACTIVE TUBERCULOSIS REQUIRING TREATMENT , PLACES ON THE COMPETENT PENSION INSURANCE INSTITUTION A PRIMARY OBLIGATION TO PROVIDE BENEFITS IN KIND WHICH TAKE THE FORM OF HOSPITAL TREATMENT . SINCE , BY VIRTUE OF ARTICLE 1244A ( 9 ), THAT OBLIGATION IS RESTRICTED TO THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY , THE DEFENDANT INSTITUTION REFUSED TO ASSUME RESPONSIBILITY FOR THAT EXPENDITURE . THE PLAINTIFF IN THE MAIN PROCEEDINGS THEREUPON COUNTERED THAT THAT TERRITORIAL RESTRICTION IS INCOMPATIBLE WITH ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 AND ACCORDINGLY CANNOT BE PLEADED IN DEFENCE TO ITS CLAIM FOR REIMBURSEMENT .

5 UNDER ARTICLE 20 ( 1 ) OF REGULATION NO 3 THE MEMBERS OF THE FAMILY OF A WORKER WHO IS AFFILIATED TO AN INSTITUTION IN A MEMBER STATE SHALL , WHERE THEY RESIDE IN ANOTHER MEMBER STATE , RECEIVE SICKNESS BENEFITS IN THE LATTER STATE AS THOUGH THE WORKER WERE THERE AFFILIATED TO A SOCIAL SECURITY INSTITUTION . UNDER ARTICLE 23 ( 3 ) OF THE SAME REGULATION THE INSTITUTION TO WHICH THE WORKER IS ACTUALLY AFFILIATED IS BOUND TO REIMBURSE THE INSTITUTION WHICH PROVIDED THE SICKNESS BENEFITS IN KIND TO THE EXTENT OF THREE-FOURTHS OF THE EXPENDITURE INCURRED IN RESPECT OF THOSE BENEFITS .

6 AS THE COURT HELD IN ITS JUDGMENTS OF 16 NOVEMBER 1972 IN CASE 14/72 , HEINZ V LANDESVERSICHERUNGSANSTALT RHEINPROVINZ ( 1972 ) ECR 1105 , CASE 15/72 , LAND NIEDERSACHSEN V LANDESVERSICHERUNGSANSTALT ECR 1127 AND CASE 16/72 , ALLGEMEINE ORTSKRANKENKASSE HAMBURG V LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN ( 1972 ) ECR 1141 , SOCIAL SECURITY BENEFITS OF THE KIND WITH WHICH ARTICLE 1244A OF THE REICHSVERSICHERUNGSORDNUNG IS CONCERNED MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING AF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 . SUCH BENEFITS ARE CONSEQUENTLY GOVERNED BY THE PROVISIONS OF REGULATION NO 3 RELATING TO SICKNESS BENEFITS , AMONG WHICH ARE INCLUDED ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ). THE SAME CONCLUSION APPLIES , MOREOVER , FOR BENEFITS OF THE KIND WITH WHICH ARTICLE 205 OF THE REICHSVERSICHERUNGSORDNUNG IS CONCERNED .

7 FROM THAT IT FOLLOWS THAT ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 ALSO APPLY TO SOCIAL SECURITY BENEFITS OF THE KIND WITH WHICH ARTICLE 1244A OF THE GERMAN LAW ON SOCIAL INSURANCE , THE REICHSVERSICHERUNGSORDNUNG , IS CONCERNED , IRRESPECTIVE OF THE FACT THAT A WORKER WHO IS AFFILIATED TO THE PENSION INSURANCE SCHEME IS AT THE SAME TIME INSURED UNDER THE OFFICIAL GERMAN SICKNESS INSURANCE SCHEME AND MAY CLAIM AN ENTITLEMENT TO BENEFITS UNDER THAT SCHEME REGARDLESS OF THE PLACE OF TREATMENT .

8 THE DISPUTE IN THE MAIN PROCEEDINGS IS CONCERNED WITH THE QUESTION OF ESTABLISHING WHICH OF THE TWO GERMAN INSTITUTIONS IS BOUND , AS THE COMPETENT INSTITUTION WITHIN THE MEANING OF ARTICLE 23 ( 3 ) OF REGULATION NO 3 , TO ASSUME RESPONSIBILITY FOR THE EXPENDITURE INVOLVED IN THE BENEFITS PROVIDED BY THE ITALIAN INSTITUTION .

9 THE TERM ' ' COMPETENT INSTITUTION ' ' IS DEFINED BY ARTICLE 1 ( F ) ( I ) OF REGULATION NO 3 AS MEANING , IN SOCIAL INSURANCE MATTERS , ' ' THE INSTITUTION DESIGNATED BY THE COMPETENT AUTHORITY OF THE MEMBER STATE CONCERNED , OR THE INSTITUTION WITH WHICH THE INSURED PERSON IS INSURED AT THE TIME OF THE APPLICATION FOR BENEFIT , OR FROM WHICH HE IS ENTITLED TO BENEFITS , OR WOULD CONTINUE TO BE ENTITLED TO BENEFITS IF HE WERE PERMANENTLY RESIDENT IN THE TERRITORY OF THE MEMBER STATE WHERE HE WAS LAST EMPLOYED ' ' . SINCE THE COMPETENT INSTITUTION IN THE FEDERAL REPUBLIC OF GERMANY FOR THE BENEFITS WITH WHICH ARTICLE 20 ( 1 ) IS CONCERNED WAS NOT DESIGNATED IN ANNEX 2 TO REGULATION NO 4 OF THE COUNCIL OF 3 DECEMBER 1958 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF AND SUPPLEMENTING THE PROVISIONS OF REGULATION NO 3 ON SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 597 ), THE INSTITUTION TO WHICH THE WORKER IS AFFILIATED OR FROM WHICH HE MAY CLAIM AN ENTITLEMENT MUST BE REGARDED AS THE ' ' COMPETENT INSTITUTION ' ' . IT FOLLOWS THAT , IN THE CONTEXT OF THE PRESENT CASE , BOTH THE PLAINTIFF AND THE DEFENDANT CONSTITUTE ' ' COMPETENT INSTITUTIONS ' ' FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) SINCE THE WORKER CONCERNED WAS AFFILIATED TO BOTH .

10 THE QUESTION HOW THE ULTIMATE ALLOCATION OF THE COSTS IS TO BE REGULATED AS BETWEEN THOSE TWO ' ' COMPETENT INSTITUTIONS ' ' IS EXCLUSIVELY A MATTER FOR NATIONAL LAW .

11 THE ANSWER SHOULD THEREFORE BE GIVEN THAT WHERE INSTITUTIONS OF THE SAME MEMBER STATE ARE COMPETENT INSTITUTIONS FOR THE PURPOSES OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 IT IS FOR THE NATIONAL LAW TO DETERMINE HOW , IN THE CONTEXT OF RELATIONS BETWEEN THE INSTITUTIONS CONCERNED , THE ALLOCATION OF THE COST OF THE REIMBURSEMENT PROVIDED FOR BY ARTICLE 23 ( 1 ) AND ( 3 ) OF THAT REGULATION IS TO BE REGULATED .

Decision on costs

12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY ORDER OF 25 OCTOBER 1979 , HEREBY RULES :

1 . ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 APPLY TO SOCIAL SECURITY BENEFITS OF THE KIND WITH WHICH ARTICLE 1244A OF THE GERMAN LAW ON SOCIAL INSURANCE ( THE REICHSVERSICHERUNGSORDNUNG ) IS CONCERNED , IRRESPECTIVE OF THE FACT THAT A WORKER AFFILIATED TO THE PENSION INSURANCE SCHEME IS AT THE SAME TIME INSURED UNDER THE OFFICIAL GERMAN SICKNESS INSURANCE SCHEME AND MAY CLAIM AN ENTITLEMENT TO BENEFITS UNDER THAT SCHEME REGARDLESS OF THE PLACE OF TREATMENT .

2 . WHERE SEVERAL INSTITUTIONS OF THE SAME MEMBER STATE ARE COMPETENT INSTITUTIONS FOR THE PURPOSES OF ARTICLE 20 ( 1 ) AND ARTICLE 23 ( 1 ) AND ( 3 ) OF REGULATION NO 3 IT IS FOR THE NATIONAL LAW TO DETERMINE HOW , IN THE CONTEXT OF RELATIONS BETWEEN THE INSTITUTIONS CONCERNED , THE ALLOCATION OF THE COST OF THE REIMBURSEMENT PROVIDED FOR BY ARTICLE 23 ( 1 ) AND ( 3 ) OF THAT REGULATION IS TO BE REGULATED .