Case C-515/08: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 26 November 2008 — Criminal proceedings against Vítor Manuel dos Santos Palhota, Mário de Moura Gonçalves, Fernando Luís das Neves Palhota, Termiso Lda
Date: 2008-11-26
Institutions: Court of Justice
Subjects: employer, foreign enterprise, interpretation of the law, services contract, social legislation

21.2.2009

EN

Official Journal of the European Union

C 44/29

Action brought on 25 November 2008 — Commission of
the European Communities v French Republic

(Case C-512/08)

(2009/C 44/48)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and E. Traversa, Agents)

Defendant: French Republic

Form of order sought

— declare that:

By its second complaint, the Commission further objects to the
absence, in French law, of a provision allowing the patient —
insured under the French social security system — to be granted
additional reimbursement in the circumstances set out in para-
graph 53 of the judgment of 12 July 2001 in Vanbraekel and
Others, that is to say, a reimbursement covering the difference in
relation to the amount to which that patient would have been
entitled if the hospital treatment had been provided in his own
Member State. Consequently, those patients, insured under the
French social security system, do not benefit fully from the
rights which they are granted under Article 49 EC, as inter-
preted by the Court of Justice.

aanleg

Reference for a preliminary ruling from the Rechtbank van
on
eerste
26 November 2008 — Criminal proceedings against Vítor
Manuel dos Santos Palhota, Mário de Moura Gonçalves,
Fernando Luís das Neves Palhota, Termiso Lda

te Antwerpen

(Belgium)

lodged

— by making, pursuant to Article R-332-4 of the Social
Security Code, the reimbursement for medical services
available at a general practitioner's surgery requiring the
use of
II of
the extensive material supplies in part
Article R-712-2 of the Public Health Code, subject to the
grant of prior authorisation;

— by failing to provide, in Article R-332-4, or in any other
provision of French law, for the possibility of granting a
the French social security
patient — insured under
system — additional
in the circum-
reimbursement
stances set out in paragraph 53 of
the judgment of
12 July 2001 in Case C-368/98 Vanbraekel and Others,

the French Republic has failed to fulfil its obligations under
Article 49 of the EC Treaty;

(Case C-515/08)

(2009/C 44/49)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

— order the French Republic to pay the costs.

Parties to the main proceedings

Pleas in law and main arguments

The Commission raises two complaints in support of its action.

By its first complaint, the Commission contests the requirement
— imposed by the defendant — of obtaining prior authorisation
in order to receive reimbursement of expenses for certain non-
hospital treatment provided in another Member State. While
that requirement can be justified where it concerns medical
services provided in a hospital, on account of
the need to
ensure both adequate and permanent access to a balanced range
of high-quality hospital treatment, and a control of the costs
which that involves, such a requirement seems disproportionate
as regards non-hospital services. Several factors are capable of
limiting the possible financial
impact of abolishing the prior
authorisation, such as the option, for the Member States, to
determine the scope of the medical cover to which the insured
are entitled, or the national conditions for the granting of bene-
fits, provided that
they are not discriminatory and do not
constitute an obstacle to the free movement of persons.

Criminal proceedings against Vítor Manuel dos Santos Palhota,
Mário de Moura Gonçalves, Fernando Luís das Neves Palhota,
Termiso Lda

Question referred

Do the provisions of Article 8 of the Law of 5 March 2002 and
Articles 3, 4 and 5 of the Royal Decree of 29 March 2002
(implementation decree) infringe Article 49 and Article 50 of
the EC Treaty, in that they impose on foreign employers who
wish to post workers the prior obligation of sending a declara-
tion of posting to the Social Laws Inspection Service (Dienst
Toezicht op de Sociale Wetten) and also of keeping documents
which are comparable with the Belgian individual accounts or
pay slips, as a result of which access to the Belgian services
market is prevented or at least hampered?