Case C-466/04: Reference for a preliminary ruling by the Tribunal Superior de Justicia de Cantabria, Sala de lo Social, by decision of that court of 1 October 2004 in the case of Manuel Acereda Herrera v Servicio Cántabro de Salud
Date: 2005-01-22
Institutions: Court of Justice
Subjects: EU Member State, EU national, civil servant, health care, interpretation of the law, social security, wage earner

C 19/12

EN

Official Journal of the European Union

22.1.2005

— Can Article 2449 of the Civil Code be held to be compa-
tible with Article 56 of the EC Treaty, as interpreted in the
judgments of the Court of Justice in Cases C-58/99, C-503/
inasmuch as,
99 and C-483/99, C-98/01 and C-463/00,
when applied in specific cases, it brings about a result that
is contrary to another provision of national law (in particu-
lar Article 2(1)(d) of Decree-Law No 332 of 31 May 1994,
converted into Law No 474 of 30 July 1994) which itself
complies with Article 56 of the EC Treaty and consequently
reflects,
the conditions on which special
powers are exercised and the requirements to which they
are subject, the principles established in that connection by
the judgments of the Court of Justice cited above?

in respect of

Reference for a preliminary ruling by the Tribunale
Amministrative Regionale per la Lombardia, Milano, by
order of that court of 29 September 2004, in the case of
Associazione Azionariato Diffuso dell'AEM and Others
against Comune di Milano, and Aem Spa

— Can Article 2449 of the Civil Code, applied in conjunction
with Article 4 of Decree-Law No 332 of 31 May 1994
converted into Law No 474 of 30 July 1994, be held to be
compatible with Article 56 of the EC Treaty as interpreted
in the judgments of the Court of Justice in Cases C-58/99,
C-503/99 and C-483/99, C-98/01 and C-463/00, when it is
invoked by a public entity which, although it has lost
control by operation of law over the company limited by
shares, retains a substantial shareholding (33.4 %) as a
shareholder holding a relative majority of the shares, and
thereby obtaining a disproportionate power of control?

— Can Article 2449 of the Civil Code be held to be compa-
tible with Article 56 of the EC Treaty, as interpreted in the
judgments of the Court of Justice in Cases C-58/99, C-503/
inasmuch as,
99 and C-483/99, C-98/01 and C-463/00,
when applied in specific cases, it brings about a result that
is contrary to another provision of national law (in particu-
lar Article 2(1)(d) of Decree-Law No 332 of 31 May 1994,
converted into Law No 474 of 30 July 1994) which itself
complies with Article 56 of the EC Treaty and consequently
reflects,
the conditions on which special
powers are exercised and the requirements to which they
are subject, the principles established in that connection by
the judgments of the Court of Justice cited above?

in respect of

(Case C-464/04)

(2005/C 19/24)

(Language of the case: Italian)

la Lombardia, Milano, Sezione I

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale Amministrative
Regionale per
(Regional
Administrative Court for Lombardy, Milan, Division I) (Italy) of
the Court Registry on 2
29 September 2004, received at
November 2004, for a preliminary ruling in the case of Asso-
ciazione Azionariato Diffuso dell'AEM and Others against
Comune di Milano on the following questions:

— Can Article 2449 of the Civil Code, as applied in the
circumstances at issue in this case, be held to be compatible
with Article 56 of the EC Treaty as interpreted in the judg-
ments in Cases C-58/99, C-503/99 and C-483/99, C-98/01
and C-463/00, when it is invoked by a public entity which,
although it has lost control by operation of law over the
company limited by shares, retains a substantial share-
holding (33.4 %) as a shareholder holding a relative
majority of the shares, thereby obtaining a disproportionate
power of control?

Reference for a preliminary ruling by the Tribunal
Superior de Justicia de Cantabria, Sala de lo Social, by deci-
sion of that court of 1 October 2004 in the case of Manuel
Acereda Herrera v Servicio Cántabro de Salud

(Case C-466/04)

(2005/C 19/25)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Superior de Justicia
Justice, Cantabria), Sala de lo
de Cantabria (High Court of
the Court Registry on 3
Social
November 2004, for a preliminary ruling in the case of Manuel
Acereda Herrera against the Servicio Cántabro de Salud on the
following questions:

(Social Court), received at

22.1.2005

EN

Official Journal of the European Union

C 19/13

1. Must Article 22(1)(c) and (2) and Article 36 of Council
Regulation (EEC) No 1408/71 of 14 June 1971,
in the
version arising from the consolidated text approved by
Council Regulation (EC) No 118/97 (1), be interpreted as
meaning that the authorisation, granted by the competent
institution, to go to the territory of another Member State
to receive there the appropriate medical
treatment also
confers on the individual concerned the right to be reim-
bursed, by the institution which granted the authorisation,
for the costs of travel to, and stay and/or subsistence on, the
territory of the Member State in question?

2. In the event that the reply to the first question is in the affir-
mative: is there a provision or rule of Community law in
accordance with which the costs to be refunded, and their
amount, must be set?

3. In the event that the reply to the first question is in the
negative:
is it compatible with the division of powers
between the Member States and the institutions of the Com-
munity laid down in the Treaty establishing the European
Community, and in particular with Article 10 EC (formerly
Article 5 of the EC Treaty), and with the legal status of
Community regulations
laid down in Article 249 EC
(formerly Article 189 of the EC Treaty), for a Member State
to implement the provisions of a Community regulation by
domestic law, adopting additional provisions which supple-
ment those of the regulation and by means of which it
introduces different rules for different cases which, under
the regulation, are governed by the same rules, thereby
impeding the exercise by individuals of certain options and
rights available to them under the Community provision?
Specifically, is it compatible with the Treaty establishing the
European Community, and with Council Regulation (EEC)
No 1408/71, for the Kingdom of Spain to maintain provi-
sions of domestic law which confer on individuals registered
with the social security scheme benefit rights additional to
those referred to in Article 22 of Regulation No 1408/71
but which differentiate between the cases referred to in that
regulation, with the result
the additional benefits
concerned may be provided only in the case of Article
22(1)(c), notwithstanding that there appears to be no objec-
tive, proportionate and reasonable justification for such
differentiation?

that

4. In any event:

individuals entitled to benefits under

(a) Is a rule of national law of the kind contained in Article
5.3 of Royal Decree 63/1995, which, by repealing
Article 18.3 of Royal Decree 2766/1967, abolishes the
right of
the
Spanish public social security scheme to obtain reimbur-
sement of the costs of medical treatment provided by
medical establishments and practitioners established on
Spanish territory where the treatment to which they are
entitled is not provided to them under
the public
scheme within a reasonable period, taking account of
their condition and the probable course of the disease,

notwithstanding that the body which administers the
social security scheme is required to authorise the indivi-
duals concerned to receive treatment in such cases from
medical establishments and practitioners established on
the territory of a Member State other
than Spain,
compatible with the prohibition of discrimination on
grounds of nationality laid down in Article 12 EC?

individuals entitled to benefits under

(b) Is a rule of national law of the kind contained in Article
5.3 of Royal Decree 63/1995, which, by repealing
Article 18.3 of Royal Decree 2766/1967, abolishes the
right of
the
Spanish public social security scheme to obtain reimbur-
sement of the costs of medical treatment provided by
medical establishments and practitioners established on
Spanish territory where the treatment to which they are
entitled is not provided to them under
the public
scheme within a reasonable period, taking account of
their condition and the probable course of the disease,
notwithstanding that the body which administers the
social security scheme is required to authorise the indivi-
duals concerned to receive treatment in such cases from
medical establishments and practitioners established on
the territory of a Member State other
than Spain,
compatible with the principle of freedom to provide
services enshrined in Article 49 EC et seq.?

individuals entitled to benefits under

(c) Is a rule of national law of the kind contained in Article
5.3 of Royal Decree 63/1995, which, by repealing
Article 18.3 of Royal Decree 2766/1967, abolishes the
right of
the
Spanish public social security scheme to obtain reimbur-
sement of the costs of medical treatment provided by
medical establishments and practitioners established on
Spanish territory where the treatment to which they are
entitled is not provided to them under
the public
scheme within a reasonable period, taking account of
their condition and the probable course of the disease,
notwithstanding that the body which administers the
social security scheme is required to authorise the indivi-
duals concerned to receive treatment in such cases from
medical establishments and practitioners established on
than Spain,
the territory of a Member State other
compatible with the rules on competition in Articles 81,
82 and 87 EC?

(1) Council Regulation (EC) No 118/97 of 2 December 1996 amending
and updating Regulation (EEC) No 1408/71 on the application of
social security schemes to employed persons,
to self-employed
persons and to members of their families moving within the Com-
munity and Regulation (EEC) No 574/72 laying down the procedure
for implementing Regulation (EEC) No 1408/71 (OJ 1997 L 28, p.
1).