OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 11 January 2007 1( )

Case C-444/05

Aikaterini Stamatelaki

v

NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE)

(Reference for a preliminary ruling from the Diikitiko Protodikio Athinon (Greece))

(Restrictions on the freedom to provide services – Refusal to reimburse the cost of treatment received in private hospitals abroad – Justification for, and proportionality of, the exclusion)

I – Introduction

1. For some time the Court of Justice has had to settle uncertainties of interpretation which have arisen in relation to patient mobility within the Community and the financing of the cross-border provision of medical services.

2. Now another link is added to the chain with the questions referred for a preliminary ruling pursuant to Article 234 EC by the Diikitiko Protodikio Athinon (Administrative Court of First Instance, Athens), regarding the effect of Article 49 EC on Greek legislation excluding reimbursement of the cost of treatment in private hospitals abroad except in cases concerning children under 14 years of age.

3. Specifically, the issues requiring clarification are whether that exclusion constitutes a restriction on the freedom to provide services, whether it is justified by overriding reasons in the general interest, such as the need to avoid the risk of seriously undermining the financial balance of the national social security system or the maintenance of an adequate medical service open to all, and whether it is proportionate to the objective pursued.

II – Legal framework

A – Community law

4. Community action in this sphere involves, according to Article 3(1)(c) EC, ‘an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital’. These last three aspects are developed in Title III of Part Three of the Treaty.

5. In Chapter 3, which is devoted to ‘services’, the first paragraph of Article 49 lays down the general principle:

‘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.

...’

6. That principle is supplemented by the provisions of Article 50 EC:

‘Services shall be considered to be “services” within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

“Services” shall in particular include:

(a) activities of an industrial character;

(b) activities of a commercial character;

(c) activities of craftsmen;

(d) activities of the professions.

Without prejudice to the provisions of the chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.’

B – The Greek legislation

1. Statutory provisions

7. Article 40(1) of Law No 1316/1983, ( ) as amended by Article 39 of Law No 1759/1988, ( ) permits hospital treatment abroad, in the case of exceptionally serious illnesses, for inter alia ‘persons insured with social security institutions or services falling within the competence of the Ministry of Health, Welfare and Social Security’ (Article 40(1)(c)). Under Article 40(2) such persons must obtain authorisation for the treatment, which is granted following the issue of an opinion by a medical board which, under Article 40(3), assesses the necessity for medical treatment.

8. In accordance with Article 40(4), the manner of, and procedure for, authorising the hospital treatment of the patient and any donor, the use of a person to accompany the patient, the nature and extent of the services, the amount of the expenditure (specifying the amount which may have to be contributed by the insured person) and all other details necessary for application of Article 40 are to be determined by decree of the Minister of Health, Welfare and Social Security.

2. Provisions of secondary legislation

9. The powers granted by the aforementioned legislation served as a basis for Ministerial Decreee F7/ik. 15 of 7 January 1997, ( ) which governs the hospital treatment abroad of persons insured under all sickness bodies and branches which, irrespective of their name and legal form, fall within the competence of the Geniki Grammatia Kinonikon Asfaliseon (General Secretariat for Social Security; ‘the GGKA’).

10. On the same legal basis, Ministerial Decree 35/1385/1999 ( ) approved the Rules of the Health Branch of the Organismos Asfaliseos Eleftheron Epangelmation (Insurance Institution for the Liberal Professions; ‘the OAEE’).

a) The 1997 Decree

11. Within the field of competence of the GGKA, Article 1 of the 1997 Decree provides that the cost of treatment in other States will be met where ‘the insured person:

(a) is suffering from a serious illness which cannot be treated in Greece, either because the appropriate scientific resources do not exist or because the particular method of medical diagnosis and treatment that is required is not applied;

(b) is for any reason suffering from a serious illness which cannot be treated sufficiently promptly in Greece and any delay in treatment places his life in danger;

(c) goes abroad as a matter of urgency, without observing the prescribed procedure for prior authorisation from the insurance body concerned, because his case necessitates immediate treatment;

(d) is for any reason temporarily in a foreign country and owing to a violent, unexpected and unavoidable event is suddenly taken ill and treated in a hospital’.

In all these cases a reasoned opinion must first be issued by one of the Special Medical Boards, although in the last two cases a posteriori authorisation is possible.

12. Article 4(6) provides that ‘the cost of treatment in private hospitals abroad shall not be paid for, except in situations concerning children’.

b) The 1999 Decree

13. Article 13(1) of this Decree classifies as hospital care treatment of the patient in public hospitals, and also in private hospitals with which the OAEE has entered into an agreement.

14. Article 15(1) recognises the right of persons insured with the OAEE ‘to hospital treatment abroad, following a decision by the Administrator and authorisation by the Special Medical Board, in so far as they satisfy the conditions laid down in each particular case by the ministerial decrees on hospital treatment abroad’. Article 15(2) lists the ‘costs reimbursed’, which include (Article 15(2)(a)) those incurred in ‘public hospitals abroad’, and states that ‘the costs of treatment in private hospitals abroad shall not be paid, except where they relate to children under 14 years of age.

III – The facts, the main proceedings and the questions referred for a preliminary ruling

15. Dimitrios Stamatelakis was insured with the Tamio Asfaliseos Emboron (Merchants’ Insurance Fund; ‘the TAE’). He suffered from cancer of the bladder and was therefore treated, from 18 May to 12 June 1998 and from 16 June to 18 June 1998, in London Bridge Hospital (a private hospital in the United Kingdom), to which he paid GBP 13 600.

16. His action for reimbursement of that sum brought before the Polimeles Protodikio Athinon (Court of First Instance, Athens) was dismissed on 26 April 2000 on the ground that the case fell within the jurisdiction of the administrative courts.

17. After the death of Mr Stamatelakis on 29 August 2000, his widow, as his sole legal heir, claimed reimbursement of the sum from the OAEE, which had replaced the TAE. ( ) By Decision St/4135/00 the request was dismissed and, by Decision 392/2/248 of 18 September 2001, the complaint brought against that decision was dismissed, on the ground that reimbursement of the cost of treatment in private hospitals abroad is not permitted.

18. An action was brought before the Diikitiko Protodikio Athinon, which has stayed proceedings in order to refer three questions to the Court of Justice for a preliminary ruling:

‘1. Does a national rule which excludes in all circumstances reimbursement by a domestic insurance body of the cost of treatment of a person insured with it in a private hospital abroad except in cases concerning children under 14 years of age, while on the other hand providing for the possibility of reimbursement of the relevant cost if the treatment in question takes place in a public hospital abroad, following authorisation which is granted provided that the insured person cannot obtain appropriate treatment without undue delay from a hospital that has entered into an agreement with his insurance body, constitute a restriction on the principle of freedom to provide services within the Community which is enshrined in Article 49 et seq. of the EC Treaty?

2. If the answer to the first question is in the affirmative, can that restriction be regarded as dictated by overriding reasons in the general interest, such as in particular the need to avoid the risk of seriously undermining the financial balance of the Greek social security system, or the maintenance of a balanced hospital and medical service open to all?

3. If the answer to the second question is in the affirmative, can a restriction of this nature be regarded as permissible in the sense that it is not contrary to the principle of proportionality, that is to say that it does not go beyond what is objectively necessary in order to attain the objective at which it is aimed and that the same result cannot be achieved by less restrictive rules?’

IV – The proceedings before the Court of Justice

19. Written observations have been submitted, within the period laid down by Article 23 of the Statute of the Court of Justice, by the Greek and Belgian Governments and by the Commission.

20. At the hearing held on 29 November 2006, the representative of the Greek Government, the representative of the Netherlands Government and the agent of the Commission presented oral argument.

V – Analysis of the questions referred for a preliminary ruling

A – Preliminary considerations

21. Before tackling the questions referred by the national court, it is necessary to consider the Community legislation to be applied to them and the case-law concerning cross-border hospital treatment.

1. Determination of the relevant Community legislation

a) Article 49 EC and Article 22 of Regulation No 1408/71

22. The Belgian Government requests determination of the provisions of Community law relevant to the main proceedings and suggests, in that regard, the Treaty and 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, ( ) citing in particular Article 22 of that regulation, which relates to treatment in another Member State. It relies on paragraphs 30 and 31 of the judgment in Vanbraekel and Others, ( ) according to which the fact that prior authorisation of treatment abroad is refused on the basis of the criteria laid down in the national legislation, and not according to the criteria set out in Regulation No 1408/71, does not entirely preclude the application of that Community provision.

23. The Court of Justice considered the relationship between the aforementioned provisions when a question was raised by a French court concerning their compatibility. The judgment in Inizan, ( ) in line with the Opinion I delivered in the case, accepted that the two rules are compatible. ( )

24. As I explain in that Opinion, the two provisions are compatible, even though they govern different cases and the application of each leads to a different result (point 31).

25. First, ‘the personal scope of Article 49 EC differs from that of Article 22 of Regulation No 1408/71, the latter provision being narrower in scope than the former. Article 49 EC applies to all nationals of Member States who are established in the Community, while Article 22 of Regulation No 1408/71 benefits only citizens of the European Union and their families who are insured under one of the statutory social security schemes of the Member States’ (point 27).

26. Secondly, ‘important distinctions apply to patients depending upon whether they follow the procedure outlined in Article 22 of Regulation No 1408/71 or whether they rely directly on Article 49 EC’ (point 28); whereas the regulation ‘governs exclusively the relationship between the social security institutions ... , lays down uniform criteria for the conditions on which authorisation may not be refused, and helps to promote the free movement of people insured under statutory social security schemes’ (point 29), under the Treaty ‘all nationals of Member States ... are entitled to seek reimbursement of medical expenses incurred in another Member State without prior authorisation, in accordance with the scale of the Member State of insurance’ (point 30).

27. These same ideas direct my thoughts regarding the legal guidelines for settling the present case.

b) The provision applicable to the main proceedings

28. The order for reference omits to mention Regulation No 1408/71 but contains details which imply that it might be applied: the fact that Mr Stamatelakis was insured with the TAE and the subsequent claim made to the OAEE.

29. The Greek social security system is characterised by the existence of numerous public bodies responsible for covering the various sectors of the population, according to profession-based criteria. Over time the number of bodies has been reduced, and the functions are centred at the Idrima Kinonikon Asfaliseon (Social Security Institution; ‘the IKA’) for employed persons and at the OAEE for self-employed persons and persons exercising the liberal professions. ( )

30. The OAEE, a legal person governed by public law which absorbed the TAE, provides compulsory cover for traders, craftsmen, drivers and hotel-keepers. ( ) Article 2 of Regulation No 1408/71 mentions self-employed persons, so it can be imagined that it concerns the persons insured with the OAEE.

31. However, as the Commission points out, there is nothing in the documents before the Court to suggest that the insured person applied for prior authorisation in accordance with Article 22 of Regulation No 1408/71; nor are reasons adduced for his not doing so. Even if he did apply for it, it should be pointed out that, according to the case-law, the provision is intended to allow an insured person, authorised to go for treatment to another Member State, to receive sickness benefits in kind at the expense of the competent institution, in accordance with the legislation of the place in which the treatment is provided, but it does not regulate the reimbursement, at the tariffs in force in the competent State, of the amount paid for that treatment. ( )

32. The doubts entertained by the national court do not stem from an authorisation scheme but from the fact that, with the exception of children under 14 years of age, treatment in private hospitals abroad must be paid for by the patient.

33. Moreover, it was held in Vanbraekel and Others that, in some circumstances, an insured person is entitled, pursuant to Article 49 EC, to receive medical treatment in another Member State under terms of cover other than those contained in Article 22 (paragraphs 37 to 53). ( )

34. In view of this, the questions referred by the national court should be studied in the light of Article 49 EC which, let us not forget, represents a unique expression of the principle of equality of treatment.

2. Hospital treatment in the case-law

35. Those who have submitted observations in these proceedings point to the judgments of the Court of Justice on the subject. It is appropriate to recall them in order to understand the questions asked by the Diikitiko Protodikio Athinon.

36. First of all, the freedom to provide services includes medical care provided for remuneration, ( ) both in a hospital environment and outside such an environment; ( ) it also includes the freedom, for the recipients of services, to go to another Member State in order to receive the necessary care. ( )

37. In the present case it is established that Mr Stamatelakis paid the United Kingdom hospital directly, and the fact that he subsequently sought reimbursement from the OAEE does not render the provisions of the Treaty irrelevant, ( ) since a medical service supplied does not cease to fall within the scope of Article 49 EC because a patient requests reimbursement of the costs paid from a national health insurance body. ( )

38. Community law does not detract from the power of the Member States to organise their social security systems; ( ) in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions for entitlement to benefits, ( ) but when exercising that power Member States must comply with Community law, ( ) which means that they cannot introduce or maintain in force unjustified restrictions on the exercise of the freedom to provide health services. ( )

39. It is therefore necessary to examine whether the Greek prohibition on reimbursing the cost of treatment received in private hospitals abroad infringes that freedom (the first question referred for a preliminary ruling), whether it is justified (the second question) and whether it is proportionate to the objective pursued (the third question).

40. However, although the case-law takes as the main point of reference the fundamental freedoms established in the Treaty, there is another aspect which is becoming more and more important in the Community sphere, namely the right of citizens to health care, proclaimed in Article 35 of the Charter of Fundamental Rights of the European Union, ( ) since, ‘being a fundamental asset, health cannot be considered solely in terms of social expenditure and latent economic difficulties’. ( ) This right is perceived as a personal entitlement, unconnected to a person’s relationship with social security, ( ) and the Court of Justice cannot overlook that aspect.

B – The existence of a restriction on the freedom to provide services

41. The Belgian Government and the Commission maintain that the Greek legislation restricts the freedom to provide services because, although it does not prevent people from going to private hospitals in other Member States, it discourages possible users from doing so since, if they are more than 14 years old, they bear the cost of the treatment.

42. Greece, on the other hand, cannot see that there is any obstacle, since its legislation provides for reimbursement only when treatment has been received in a private hospital within its territory which has entered into an agreement. The generalised refusal to bear the costs, without differentiating according to the location of the hospital, means that there can be no objection at Community level.

43. It appears to me that the premiss of this argument is pertinent, but not its development or its conclusion.

44. In asking the questions, the national court has examined the chances of reimbursement according to whether treatment has taken place in public or in private hospitals abroad. That reasoning, used by Belgium and, in part, by the Commission, disregards the link between freedom to provide services and freedom of movement, which allows Article 49 EC to prohibit restrictions imposed on nationals established in another Member State.

45. In connection with the freedom to provide services, there are two territories involved; in the main proceedings these are the territory of Mr Stamatelakis’s nationality – Greece – and the territory in which the treatment was provided – the United Kingdom. In order to determine whether there is a restriction of a fundamental freedom, the provisions enacted by the national legislature concerning reimbursement are applied and it is ascertained whether the patient has gone abroad. The situation becomes distorted when, as in the order for reference, only public or private hospitals abroad are taken into account and those in the patient’s own country are disregarded. This approach overlooks the journey abroad. According to well-established case‑law, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State. ( )

46. I therefore suggest that the questions referred for a preliminary ruling should be reformulated, because I agree with the representative of the Hellenic Republic that it is necessary to consider the cases in which Greek nationals might obtain the cost of treatment in private hospitals in Greece and no provision is laid down regarding care received in any kind of hospital abroad. The point on which I disagree is that I consider that the Greek rules are stricter for those who travel to other States in the Community.

47. First, the legislation does not provide for a possible agreement between the private hospital and the public health service abroad, unlike what happens in the national context. Thus, if a person goes to a private hospital in Greece which has entered into an agreement with the health service, he pays nothing; but, if he goes to an identical hospital in another country, he has to pay the bill. The Greek Government’s claim that in this case – and also when Form E 112 is used ( ) – the patient does not bear the cost, is unfounded, because the 1997 and 1999 Decrees exclude reimbursement, except for children under 14 years of age. ( )

48. Secondly, there is an exception to the refusal to reimburse sums paid to private Greek hospitals which have not entered into an agreement, since the insuring body pays for emergency treatment if certain formalities are observed. ( ) However, no such exception is made when the emergency occurs abroad and it is objectively impossible to have recourse to the public health service of the country in which the patient finds himself. ( )

49. The first question referred for a preliminary ruling should therefore be answered in the affirmative, not because provision is made for reimbursement of the cost of hospital treatment in public hospitals abroad, but not in private hospitals abroad, but because the exclusion of the latter, except in the case of children under 14 years of age, is more unconditional than when the service is provided in Greece in similar circumstances, thus limiting the opportunities for private hospitals in other States to treat Greek patients.

C – Justification for the restriction

50. Having established that there is a restriction on a fundamental freedom, it is necessary to decide whether it is justified.

51. The Court of Justice has recognised that certain overriding reasons in the general interest may justify a barrier to the freedom to provide hospital services, such as the risk of seriously undermining a social security system’s financial balance, ( ) the objective of maintaining a high quality balanced medical and hospital service open to all ( ) or the maintenance of treatment capacity or medical competence on national territory. ( )

52. Specifically, it has acknowledged that the number of hospitals, their geographical distribution, the way in which they are organised and the facilities with which they are provided, and the nature of the medical services which they are able to offer are all matters for which it must be possible to plan in such a way as to meet a variety of concerns, including those of ensuring that there is sufficient and permanent access to a range of high-quality hospital treatment, or of controlling costs and preventing any wastage of resources, principally financial resources, which are not unlimited, whatever the mode of funding applied. ( ) It has added that, if patients were at liberty to use the services of any kind of hospital, including hospitals with which their health insurance fund had no agreement, the planning work would be jeopardised. ( )

53. In the present case, the grounds stated provide the national court and many of those who submitted observations in these preliminary reference proceedings with an excuse to steer the argument towards the alternative of public or private health provision. This should be avoided since, as I have indicated in previous points, it is not at the root of the restriction on the Community fundamental freedom; moreover, in that debate circumstances of various kinds apply, especially non-legal circumstances.

54. In the sphere of private hospital care – either in Greece or in another Member State – the exclusion of services provided by contracted private hospitals in other countries or of emergency treatment is difficult to reconcile with the above justifications when the costs are reimbursed only if they are incurred at a hospital in the country or if the emergency occurs in national territory.

55. The financial consequences and medical cover are the same in both situations. Let me gave as an example a Greek citizen who suffers an accident and, because he is seriously injured, is taken, unconscious, by the ambulance to the nearest hospital, which turns out to be private. I can imagine the patient’s bewilderment when he learns that, if the mishap had occurred in Greece, he would have been exempt from paying for treatment provided that the hospital had entered into an agreement or he needed treatment urgently, whereas, if it occurs elsewhere, he has to pay, unless he is under 14 years of age and the conditions for reimbursement are satisfied.

56. The reasons put forward yield to the freedom of contracted private hospitals abroad to provide services and to the right to health.

57. Moreover, several aspects of the Greek legislation contradict those reasons. Thus, it is difficult to understand that the exclusion of contracted private hospitals abroad should be based on the lack of control by the Greek authorities over the quality of their services, since it is for the authorities of the country in which they are situated to monitor them; ( ) many other activities could be rejected for the same reason, undermining the foundations of the Community. The Court of Justice has held that, for the purposes of freedom to provide services, doctors established in other Member States offer professional guarantees equivalent ( ) to those afforded by doctors established on national territory; ( ) this principle may be extended to the hospitals, of which doctors constitute the main professional element.

58. Nor can I find any explanation for paying for the treatment of children under 14 years of age in private hospitals abroad, since, if the Greek Government’s claim that this covering of costs reflects the intention of protecting a vulnerable category of people is accepted, I do not know why it does not encompass other categories also requiring special protection, such as the elderly, the disabled and pregnant women. ( ) Moreover, in relation to children, the objection that it is impossible to evaluate the services is not raised.

59. There is therefore no valid justification for restricting the freedom to provide health services in private hospitals in other Community countries more rigorously than in similar hospitals on national territory. The second question referred for a preliminary ruling should therefore be answered in the negative.

D – The proportionality of the rule

60. Proportionality suggests balance and harmony between the objective pursued and the measures adopted to attain it, but, when there is not sufficient justification for that objective, as in the present case, it is pointless analysing its relation to the measures. The referring court was therefore right to formulate this question in the alternative.

61. However, in case the Court of Justice should find a reason to protect the restriction, I shall consider proportionality briefly.

62. I think that, leaving aside the position of children, the example given in the above section illustrates the excessive nature of the outright ban on reimbursement of the cost of treatment in private hospitals in other Member States, both in respect of hospitals which have entered into agreements with the public health authorities or bodies and in cases in which a patient’s life is in danger.

63. There are other measures which are less restrictive and more in keeping with the Community freedom. Given the approach suggested for the questions referred for a preliminary ruling, it would be sufficient to eliminate the differences in the regulation of payment for treatment in private hospitals abroad.

64. Therefore, the third question referred for a preliminary ruling should also be answered in the negative.

E – Corollary and alternative

65. It may be inferred from the foregoing considerations that national legislation infringes Article 49 EC if it allows patients to recover the cost of treatment provided in private hospitals on national territory, if these have entered into an agreement or in the case of an emergency, whereas, except in the case of children under 14 years of age, it prohibits reimbursement if the treatment is provided in private hospitals abroad, because the freedom to provide services and citizens’ right to health care are unjustifiably and disproportionately restricted.

66. In this Opinion I have stated that the infringement of Community law does not stem from the fact that the Greek rules deny reimbursement of the cost of treatment in private hospitals abroad and allow it, subject to certain conditions, in public hospitals abroad. Nevertheless, in case the Court of Justice, following the argument put forward by the Diikitiko Protodikio Athinon, concentrates on the different arrangements for hospital costs incurred outside Greece, it is appropriate to add a few more observations.

67. First, the mobility of patients in the Community is one of the aspects of the general debate on health care which most concerns the institutions and the Member States, ( ) in view of the fact that there are insufficient budgetary, material and human resources to achieve complete liberalisation. ( ) The Court of Justice has only to ensure compliance with the law, without trying to replace the will of the legislature. ( )

68. Secondly, there is no doubt that the Greek rules discourage people insured with public bodies from entering private hospitals in other States, so they therefore restrict the freedom to provide services, if the situation is considered without taking account of the position within Greece.

69. Thirdly, the restriction is designed, as is apparent from the information supplied by Greece, to guarantee the viability of the social security system.

70. Finally, the measures, although justifiable, are disproportionate, since, with the sole exception of children, they provide for no derogation, such as those in respect of treatment in public hospitals abroad, even though this is subject to authorisation; nor do they lay down scales for reimbursement. The absolute terms of the prohibition are not appropriate to the objective pursued, because there are measures which are less restrictive and more in keeping with the fundamental freedom and, I repeat, with the right to health care.

71. Therefore, from this perspective, a national rule which excludes in all circumstances reimbursement by a national body of the cost of treatment of a person insured with it in a private hospital abroad, except in cases concerning children under 14 years of age, constitutes a restriction on the freedom to provide services enshrined in Article 49 EC which, while justifiable, goes beyond what is necessary for achieving its objective.

VI – Conclusion

72. In the light of the foregoing considerations, I suggest that the Court’s reply to the questions referred to it by the Diikitiko Protodikio Athinon should be as follows:

A national rule which prohibits reimbursement by an insurance body of the cost of treatment of a person insured with it in a private hospital abroad except in cases concerning children under 14 years of age, but allows reimbursement if the treatment has been provided in a private hospital on national territory, if it has entered into an agreement or in the case of an emergency, constitutes an unjustified and disproportionate restriction on the freedom to provide services enshrined in Article 49 EC.