Judgment of the Court (Grand Chamber) of 12 April 2005 in Case C-145/03 Reference for a preliminary ruling from the Juzgado de lo Social n° 20 de Madrid: Heirs of Annette Keller v Instituto Nacional de la Seguridad Social (INSS) and Others (Social security — Articles 3 and 22 of Regulation No 1408/71 — Article 22 of Regulation No 574/72 — Hospital treatment in a Member State other than the competent Member State — Need for vital urgent treatment — Transfer of the insured person to a hospital institution in a non-member country — Scope of forms E 111 and E 112)
Date: 2005-05-28
Institutions: Court of Justice
Subjects: EU national, equal treatment, form, hospital expenses, interpretation of the law, social-security benefit, third country

28.5.2005

EN

Official Journal of the European Union

C 132/5

JUDGMENT OF THE COURT

(Third Chamber)

of 14 April 2005

in Joined Cases C-128/03 and C-129/03 (reference for a
preliminary ruling from the Consiglio di Stato): AEM SpA
(C-128/03), AEM Torino SpA (C-129/03) v Autorità per
l'energia elettrica e per il gas and Others (1)

(Internal market in electricity — Increased charge for access
to and use of the national electricity transmission system —
State aid — Directive 96/92/EC — Access to the system —
Principle of non-discrimination)

(2005/C 132/09)

(Language of the case: Italian)

In Joined Cases C-128/03 and C-129/03: reference for a preli-
minary ruling under Article 234 EC from the Consiglio di Stato
(Italy), made by decision of 14 January 2003, received at the
Court on 24 March 2003, in the proceedings pending before
that court between AEM SpA (C-128/03), AEM Torino SpA (C-
129/03) and Autorità per l'energia elettrica e per il gas and
Others, third party: ENEL Produzione SpA — the Court (Third
Chamber), composed of A. Rosas, President of the Chamber, A.
Borg Barthet, S. von Bahr (Rapporteur), J. Malenovský and U.
Lõhmus, Judges; C. Stix-Hackl, Advocate General, L. Hewlett,
Principal Administrator, for the Registrar, gave a judgment on
14 April 2005, the operative part of which is as follows:

1. A measure such as the one at issue in the main proceedings,
which imposes an increased charge for a transitional period for
access to and use of the national electricity transmission system
only on undertakings generating and distributing electricity from
hydroelectric or geothermal
installations to offset the advantage
created for those undertakings, during the transitional period, by
the liberalisation of the market in electricity following the imple-
mentation of Directive 96/92/EC of the European Parliament and
of the Council of 19 December 1996 concerning common rules
for the internal market in electricity, constitutes different treatment
of undertakings in relation to charges which is attributable to the
nature and general scheme of the system of charges in question.
That different treatment is not therefore per se State aid within the
meaning of Article 87 EC.

there is hypothecation of

However, aid cannot be considered separately from the effects of its
method of financing. If, in a situation such as that in the main
proceedings,
the increased charge for
access to and use of the national electricity transmission system to
a national scheme of aid, in the sense that the revenue from the
increase is necessarily allocated for the financing of the aid, that
increase is an integral part of that scheme and must therefore be
considered together with the latter.

2. The rule of non-discriminatory access to the national electricity
transmission system laid down in Directive 96/92 does not

preclude a Member State from adopting a measure, such as the
one at issue in the main proceedings, which imposes an increased
charge for a transitional period for access to and use of that
system only on certain electricity generation and distribution
undertakings to offset the advantage created for those undertak-
ings, during the transitional period, by the altered legal framework
following the liberalisation of the market in electricity as a result
of the implementation of that directive. However, it is a matter for
the national court to satisfy itself that the increased charge does
not go beyond what is necessary to offset that advantage.

(1) OJ C 146 of 21.06.2003.

JUDGMENT OF THE COURT

(Grand Chamber)

of 12 April 2005

in Case C-145/03 Reference for a preliminary ruling from
the Juzgado de lo Social no 20 de Madrid: Heirs of Annette
Keller v Instituto Nacional de la Seguridad Social (INSS)
and Others (1)

(Social security — Articles 3 and 22 of Regulation No
1408/71 — Article 22 of Regulation No 574/72 — Hospital
treatment
in a Member State other than the competent
Member State — Need for vital urgent treatment — Transfer
institution in a non-
of the insured person to a hospital

member country — Scope of forms E 111 and E 112)

(2005/C 132/10)

(Language of the case: Spanish)

In Case C-145/03: reference for a preliminary ruling under
Article 234 EC from the Juzgado de lo Social no 20 de Madrid
(Spain), made by decision of 6 November 2001, received at the
Court on 31 March 2003, in the proceedings pending before
that court between the Heirs of Annette Keller and Instituto
Nacional de la Seguridad Social (INSS), Instituto Nacional de
formerly Instituto Nacional de la
Gestión Sanitaria (Ingesa),
Salud (Insalud) — the Court (Grand Chamber), composed of V.
Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R.
Silva de Lapuerta, K. Lenaerts
(Rapporteur) and A. Borg
Barthet, Presidents of Chambers, N. Colneric, S. von Bahr, J.N.
Cunha Rodrigues, E. Juhász, G. Arestis and M. Ilešič, Judges;
L.A. Geelhoed, Advocate General; H. von Holstein, Deputy
Registrar, for Registrar, gave a judgment on 12 April 2005, the
operative part of which is as follows:

C 132/6

EN

Official Journal of the European Union

28.5.2005

1. Article 22(1)(a)(i) and (c)(i) of 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
their families moving within the Community and
members of
Article 22(1) and (3) of Council Regulation (EEC) No 574/72 of
21 March 1972 laying down the procedure for implementing
Regulation No 1408/71, both as amended and updated by
Council Regulation (EEC) No 2001/83 of 2 June 1983, must be
interpreted as meaning that, where the competent institution has
consented, by issuing a Form E 111 or Form E 112, to one of its
insured persons receiving medical treatment in a Member State
other than the competent Member State, it is bound by the find-
ings as regards the need for urgent vitally necessary treatment
made during the period of validity of
the form by doctors
authorised by the institution of the Member State of stay, and by
the decision of those doctors, taken during that period on the basis
of those findings and the current state of medical knowledge, to
transfer the patient to a hospital establishment in another State,
even if that State is a non-member country. However, in such a
situation, in accordance with Article 22(1)(a)(i) and (c)(i) of Regu-
lation No 1408/71, the insured person's right to the benefits in
kind provided on behalf of the competent institution is subject to
the condition that, under the legislation administered by the insti-
tution of the Member State of stay, that institution is obliged to
provide persons insured with it with the benefits in kind corre-
sponding to such treatment.

In such circumstances, the competent institution is not entitled to
require the person concerned to return to the competent Member
State in order to undergo a medical examination there or to have
him examined in the Member State of stay, nor to make the above
findings and decisions subject to its approval.

establishment

in a non-member

2. Where doctors authorised by the institution of the Member State
of stay have for reasons of vital urgency and in the light of current
medical knowledge chosen to transfer the insured person to a
hospital
country, Article
22(1)(a)(i) and (c)(i) of Regulation No 1408/71 must be inter-
preted as meaning that the cost of the treatment provided in that
State must be borne by the institution of the Member State of stay
in accordance with the legislation administered by that institution,
under the same conditions as those applicable to insured persons
treatment which is
covered by that
among the benefits provided for by the legislation of the competent
Member State, it is then for the institution of that State to bear
the cost of the benefits thus provided, by reimbursing the institu-
tion of the Member State of stay under the conditions laid down
in Article 36 of Regulation No 1408/71.

legislation. In the case of

Where the cost of the treatment provided in an establishment in a
non-member country has not been assumed by the institution of
the Member State of stay, but it is established that the person
concerned was entitled to have the cost borne and the treatment is
among the benefits provided for by the legislation of the competent
Member State, it is for the competent institution to reimburse to
that person or his heirs directly the cost of that treatment, so as to

ensure a level of assumption of costs equivalent to that which that
person would have enjoyed if the provisions of Article 22(1) of
Regulation No 1408/71 had been applied.

(1) OJ C 146 of 21.06.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 14 April 2005

in Case C-157/03: Commission of the European Commu-
nities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations — Directives
68/360/EEC, 73/148/EEC, 90/365/EEC and 64/221/EEC —
Right of residence — Residence permit — Third-country
national who is a member of the family of a Community
national — Time-limit for issue of residence permit)

(2005/C 132/11)

(Language of the case: Spanish)

In Case C-157/03, Commission of the European Communities
(Agents: C. O'Reilly and L. Escobar Guerrero) v Kingdom of
Spain (Agent: N. Díaz Abad) — action under Article 226 EC
for failure to fulfil obligations, brought on 7 April 2003 — the
Court (Second Chamber), composed of C.W.A. Timmermans,
President of
J. Makarczyk
the Chamber, C. Gulmann,
(Rapporteur), P. Kūris and J. Klučka,
Judges; C. Stix-Hackl,
Advocate General; R. Grass, Registrar, gave a judgment on 14
April 2005, in which it:

1. — Declares that, by failing to transpose correctly into its national
law Council Directive 68/360/EEC of 15 October 1968 on
the abolition of restrictions on movement and residence within
the Community for workers of Member States and their
families, Council Directive 73/148/EEC of 21 May 1973 on
the abolition of restrictions on movement and residence within
the Community for nationals of Member States with regard to
establishment and the provision of services and Council Direc-
tive 90/365/EEC of 28 June 1990 on the right of residence
for employees and self-employed persons who have ceased their
occupational activity, in particular, by requiring third-country
nationals who are members of the family of a Community
national who has exercised his right to freedom of movement
to obtain a residence visa for the issue of a residence permit,
and