CELEX: 61977CJ0117
Language: en
Date: 1978-03-16
Title: Judgment of the Court of 16 March 1978. # Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G. Pierik. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Medical treatment. # Case 117/77.

Avis juridique important

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61977J0117

Judgment of the Court of 16 March 1978.  -  Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G. Pierik.  -  Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.  -  Medical treatment.  -  Case 117/77.  

European Court reports 1978 Page 00825 Greek special edition Page 00297 Portuguese special edition Page 00311 Swedish special edition Page 00085 Finnish special edition Page 00085

SummaryPartiesSubject of the caseGroundsDecision on costsOperative part
Keywords

1 . REFERENCE FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS  ( EEC TREATY , ART . 177 )   2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - BENEFITS IN KIND PROVIDED IN ANOTHER MEMBER STATE - CONDITIONS FOR GRANT - ART . 22 OF REGULATION NO 1408/71 - INTERPRETATION   ( REGULATION NO 1408/71 OF THE COUNCIL , ART . 22 ( 1 ) AND ( 2 ); REGULATION NO 574/72 OF THE COUNCIL , ANNEX 3 )   3 . SOCIAL SECURITY FOR MIGRANT WORKERS - SICKNESS INSURANCE - BENEFITS IN KIND PROVIDED IN ANOTHER MEMBER STATE - REIMBURSEMENT OF COST BETWEEN INSTITUTIONS   ( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 22 AND 36 )    

Summary

1 . ARTICLE 177 OF THE TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE , DOES NOT PERMIT THE LATTER TO PASS JUDGMENT ON THE RELEVANCE OF THE QUESTIONS SUBMITTED . ACCORDINGLY THE QUESTION WHETHER THE PROVISIONS OR CONCEPTS OF COMMUNITY LAW WHOSE INTERPRETATION IS REQUESTED ARE IN FACT APPLICABLE TO THE CASE IN QUESTION LIES OUTSIDE THE JURISDICTION OF THE COURT OF JUSTICE AND FALLS WITHIN THE JURISDICTION OF THE NATIONAL COURT .   2 . THE WORDS ' ' WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS ' '  AT THE BEGINNING OF ARTICLE 22 ( 1 ) DETERMINE THE PERSONS WHO IN PRINCIPLE ARE ENTITLED TO BENEFITS IN PURSUANCE OF THE RELEVANT NATIONAL LEGISLATION .   THE WORDS ' ' THE TREATMENT IN QUESTION ' '  IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) REFER TO ANY APPROPRIATE TREATMENT OF THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS .   THE WORDS ' ' BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  DO NOT REFER SOLELY TO BENEFITS IN KIND DUE IN THE MEMBER STATE OF RESIDENCE BUT ALSO TO BENEFITS WHICH THE COMPETENT INSTITUTION IS EMPOWERED TO  PROVIDE .   THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE .   THE WORDS ' ' INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  IN ARTICLE 22 ( 1 ) ( C ) ( I ) OF REGULATION NO 1408/71 MEAN THE INSTITUTION EMPOWERED TO PROVIDE THE BENEFITS IN THE STATE OF RESIDENCE OR STAY AS LISTED IN ANNEX 3 TO REGULATION NO 574/72 OF THE COUNCIL , AS AMENDED BY REGULATION NO 878/73 OF THE COUNCIL .   3 . THE COSTS RELATING TO BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ARE TO BE FULLY REFUNDED .    

Parties

IN CASE 117/77 REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN  BESTUUR VAN HET ALGEMEEN ZIEKENFONDS ( MANAGERS OF THE GENERAL SICKNESS FUND ), DRENTHE-PLATTELAND , ZWOLLE ,   AND  MRS G . PIERIK , WAPENVELD ,    

Subject of the case

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 1408/71 OF THE COUNCIL , CONCERNING THE RIGHT OF EMPLOYED PERSONS TO RECEIVE TREATMENT APPROPRIATE TO THEIR CONDITION ON THE TERRITORY OF ANOTHER MEMBER STATE ,  

Grounds

1THE CENTRALE RAAD VAN BEROEP BY A LETTER FROM ITS PRESIDENT OF 28 SEPTEMBER 1977 WHICH REACHED THE COURT ON 30 SEPTEMBER 1977 HAS SUBMITTED TO THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1971 ( II ), P . 416 ).    2THESE QUESTIONS WERE SUBMITTED WITHIN THE FRAMEWORK OF A DISPUTE CONCERNING THE REFUSAL OF THE COMPETENT NETHERLANDS SOCIAL SECURITY INSTITUTION TO REFUND TO A WORKER RESIDING IN THE NETHERLANDS AND ENTITLED TO INVALIDITY BENEFIT IN PURSUANCE OF NETHERLANDS LEGISLATION THE COSTS INCURRED IN A COURSE OF HYDROTHERAPY IN THE FEDERAL REPUBLIC OF GERMANY .    3THE ABOVE-MENTIONED SOCIAL SECURITY INSTITUTION BASED ITS REFUSAL ON THE WET OP ARBEIDSONGESCHIKTHEIDSVERZEKERING ( LAW ON INSURANCE AGAINST INCAPACITY FOR WORK ) IN ACCORDANCE WITH WHICH MEASURES INTENDED TO MAINTAIN , RE- ESTABLISH OR IMPROVE CAPACITY FOR WORK SHALL BE ACCORDED TO A PERSON ENTITLED TO INVALIDITY BENEFITS ONLY IN SO FAR AS THEY ARE NOT INCLUDED AMONGST THE BENEFITS IN KIND GOVERNED BY CERTAIN PROVISIONS OF NETHERLANDS SOCIAL SECURITY LEGISLATION .    4THE COMMISSION IN ITS OBSERVATIONS EXPRESSED DOUBTS REGARDING THE RELEVANCE AND UTILITY IN THE PRESENT CASE OF THE QUESTIONS SUBMITTED SINCE IT CONSIDERED THAT ARTICLE 22 OF REGULATION NO 1408/71 DOES NOT RELATE TO THE MATTER BEFORE THE NATIONAL COURT .    5IT SUGGESTED THAT THE COURT OF JUSTICE SHOULD MAKE A STATEMENT TO THIS EFFECT IN ITS DECISION .    6ARTICLE 177 OF THE TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE , DOES NOT PERMIT THE LATTER TO PASS JUDGMENT ON THE RELEVANCE OF THE QUESTIONS SUBMITTED .    7ACCORDINGLY THE QUESTION WHETHER THE PROVISIONS OR CONCEPTS OF COMMUNITY LAW WHOSE INTERPRETATION IS REQUESTED ARE IN FACT APPLICABLE TO THE CASE IN QUESTION LIES OUTSIDE THE JURISDICTION OF THE COURT OF JUSTICE AND FALLS WITHIN THE JURISDICTION OF THE NATIONAL COURT .    8IN THE FIRST QUESTION THE NATIONAL COURT ASKS WHETHER THE WORDS ' ' WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS ' '  AT THE BEGINNING OF ARTICLE 22 ( 1 ) OF REGULATION NO 1408/71 ARE INTENDED TO DETERMINE THE PERSONS WHO IN PRINCIPLE ARE ELIGIBLE FOR BENEFITS OR WHETHER THEY ARE INTENDED TO LIMIT ITS SCOPE TO THOSE BENEFITS INCLUDED IN THE NATIONAL BENEFITS IN KIND PROVIDED FOR UNDER THE LEGISLATION OF THE COMPETENT STATE .    9THE NATIONAL COURT ALSO REQUESTS THE COURT OF JUSTICE TO CLARIFY THE MEANING AND SCOPE OF THE WORDS ' ' TREATMENT IN QUESTION ' ' , CONTAINED IN THE ABOVE- MENTIONED PROVISION , IN ORDER TO ESTABLISH IN PARTICULAR WHETHER THOSE WORDS REFER TO SPECIFIC TREATMENT WHICH IS GIVEN ONLY IN THE TERRITORY OF THE STATE IN WHICH THE PERSON CONCERNED STAYS OR WHICH AT LEAST IS NOT GIVEN IN THE TERRITORY OF THE STATE IN WHICH HE RESIDES OR WHETHER , MORE GENERALLY , THEY REFER TO THE APPROPRIATE TREATMENT OF THE ILLNESS OR DISEASE .    10THE COURT IS FURTHER ASKED WHETHER ' ' BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  ARE THOSE TO WHICH ' ' A RIGHT EXISTS IN THE COUNTRY OF RESIDENCE ' '  OR THOSE WHICH THE COMPETENT INSTITUTION MAY PROVIDE .    11THE NATIONAL COURT FURTHER ASKS WHETHER THE OBLIGATION TO ISSUE THE AUTHORIZATION REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) ALSO COVERS CASES IN WHICH THE RELEVANT TREATMENT DOES NOT APPEAR IN THE LIST OF NATIONAL BENEFITS IN KIND .    12SINCE ALL THESE QUESTIONS ARE RELATED IT IS APPROPRIATE TO CONSIDER THEM TOGETHER .    13THE REFERENCE IN THE FIRST SENTENCE OF ARTICLE 22 ( 1 ) TO ARTICLE 18 CONCERNING THE AGGREGATION OF INSURANCE PERIODS FOR THE PURPOSES OF THE ACQUISITION OF THE RIGHT TO BENEFITS SHOWS THAT THAT SENTENCE IS SOLELY CONCERNED TO ESTABLISH THE CLASS OF PERSONS TO WHOM ARTICLE 22 APPLIES BY LAYING DOWN A GENERAL CONDITION FOR ITS APPLICATION TO WHICH THE FOLLOWING SUBPARAGRAPHS ( A ), ( B ) AND ( C ) ADD SPECIFIC CONDITIONS .    14WITHIN THE CONTEXT OF THE GENERAL OBJECTIVES OF THE TREATY ARTICLE 22 OF THE REGULATION CONSTITUTES ONE OF THE MEASURES INTENDED TO PERMIT A WORKER WHO IS A NATIONAL OF ONE OF THE MEMBER STATES OF THE COMMUNITY , WITHOUT REGARD TO THE NATIONAL INSTITUTION TO WHICH HE IS AFFILIATED OR THE PLACE OF HIS RESIDENCE , TO RECEIVE BENEFITS IN KIND PROVIDED IN ANY OTHER MEMBER STATE .    15IT IS CLEAR FROM THE WORDS ' ' TREATMENT APPROPRIATE TO HIS CONDITION ' '  CONTAINED IN ARTICLE 22 ( 1 ) ( C ) THAT THE BENEFITS IN KIND FOR WHICH THE WORKER IS AUTHORIZED IN ACCORDANCE WITH THIS PROVISION TO GO TO ANOTHER MEMBER STATE COVER ALL TREATMENT CALCULATED TO BE EFFECTIVE FOR THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS .    16IN THOSE CIRCUMSTANCES IT IS OF LITTLE IMPORTANCE WHETHER THE BENEFIT IN KIND WHICH THE WORKER REQUIRES CAN BE PROVIDED ON THE TERRITORY OF THE MEMBER STATE WHERE HE RESIDES SINCE THE MERE FACT THAT THAT BENEFIT CORRESPONDS TO TREATMENT MORE APPROPRIATE TO THE STATE OF HEALTH OF THE PERSON CONCERNED IS DECISIVE FOR THE PURPOSE OF ISSUING THE AUTHORIZATION REFERRED TO IN THE  ABOVE-MENTIONED PARAGRAPH ( 1 ) ( C ).    17WHILST THE WORKER ' S RIGHT TO RECEIVE BENEFITS IN KIND PROVIDED IN ANOTHER MEMBER STATE IS SUBJECT PURSUANT TO THE SAID PARAGRAPH TO AN AUTHORIZATION , THE POWER OF THE COMPETENT INSTITUTION TO REFUSE THE AUTHORIZATION IS NEVERTHELESS LIMITED BY THE REQUIREMENT LAID DOWN BY THE REGULATION THAT THE WORKER SHOULD BE GUARANTEED THE OPPORTUNITY OF RECEIVING TREATMENT APPROPRIATE TO HIS STATE OF HEALTH PROVIDED IN ANY MEMBER STATE , WHATEVER THE PLACE OF HIS RESIDENCE OR THE MEMBER STATE TO WHICH THE SOCIAL SECURITY INSTITUTION TO WHICH HE IS AFFILIATED BELONGS .    18THE PROVISION IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) THAT THE AUTHORIZATION ' ' MAY NOT BE REFUSED WHERE THE TREATMENT IN QUESTION CANNOT BE PROVIDED FOR THE PERSON CONCERNED WITHIN THE TERRITORY OF THE MEMBER STATE IN WHICH HE RESIDES ' '  MEANS THAT THE AUTHORIZATION MAY SIMILARLY NOT BE REFUSED IN CASES IN WHICH THE TREATMENT PROVIDED IN THE MEMBER STATE OF RESIDENCE IS LESS EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN ANOTHER MEMBER STATE .    19FOR THOSE REASONS THE REPLY TO THE QUESTION SUBMITTED MUST BE THAT THE WORDS ' ' WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS ' '  AT THE BEGINNING OF ARTICLE 22 ( 1 ) DETERMINE THE PERSONS WHO IN PRINCIPLE ARE ENTITLED TO BENEFITS IN PURSUANCE OF THE RELEVANT NATIONAL LEGISLATION .    20THE WORDS ' ' THE TREATMENT IN QUESTION ' '  IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) REFER TO ANY APPROPRIATE TREATMENT OF THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS .    21THE WORDS ' ' BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  DO NOT REFER SOLELY TO BENEFITS IN KIND PROVIDED IN THE MEMBER STATE OF RESIDENCE BUT ALSO TO BENEFITS WHICH THE COMPETENT INSTITUTION IS EMPOWERED TO PROVIDE .    22THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE .    23THE COURT IS FURTHER ASKED WHETHER THE WORDS ' ' ON BEHALF OF THE COMPETENT INSTITUTION ' '  IN ARTICLE 22 ( 1 ) ( C ) ( I ) MUST BE INTERPRETED AS MEANING THAT IF THE COMPETENT INSTITUTION HAS GIVEN THE AUTHORIZATION REFERRED TO IN THE FIRST PART OF ARTICLE 22 ( 1 ) ( C ) THE BENEFITS PROVIDED BY THE INSTITUTION OF THE PLACE OF STAY MUST BE REFUNDED TO IT WITHOUT FURTHER CONDITION .    24ARTICLE 36 OF REGULATION NO 1408/71 WHICH FORMS PART OF CHAPTER 1 OF TITLE III , AS ALSO DOES ARTICLE 22 , PROVIDES THAT BENEFITS IN KIND PROVIDED BY THE COMPETENT INSTITUTION OF A MEMBER STATE ON BEHALF OF THE INSTITUTION OF ANOTHER MEMBER STATE ' ' SHALL BE FULLY REFUNDED ' '  WITHOUT PREJUDICE TO THE PROVISIONS CONCERNING FORMER FRONTIER WORKERS .    25FURTHERMORE , REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ) P . 159 ) STATES IN ARTICLE 93 ( 1 ) THAT THE AMOUNT OF BENEFITS PROVIDED UNDER ARTICLE 22 OF THE REGULATION ' ' SHALL BE REFUNDED BY THE COMPETENT INSTITUTION TO THE INSTITUTION WHICH PROVIDED THE SAID BENEFITS AS SHOWN IN THE ACCOUNTS OF THAT INSTITUTION ' ' .    26THE REPLY MUST ACCORDINGLY BE THAT THE COSTS RELATING TO BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ARE TO BE FULLY REFUNDED .    27FINALLY , THE NATIONAL COURT WISHES TO ESTABLISH THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE WHICH IN PURSUANCE OF ARTICLE 22 ( 1 ) ( C ) ( I ) PROVIDES THE BENEFITS IN KIND ON BEHALF OF THE COMPETENT INSTITUTION .    28IMPLEMENTING REGULATION NO 574/72 , AS AMENDED BY REGULATION NO 873/73 OF THE COUNCIL OF 26 MARCH 1973 ( OFFICIAL JOURNAL 1973 , NO L 86 ), LISTS IN ANNEX 3 THE INSTITUTIONS OF THE PLACE OF RESIDENCE AND OF STAY OF EACH MEMBER STATE FOR THE PURPOSES OF PROVISIONS OF REGULATION NO 1408/71 INCLUDING THE PROVISIONS OF ARTICLE 22 .    29THE REPLY MUST THEREFORE BE THAT THE WORDS ' INSTITUTION OF THE PLACE OF STAY OR RESIDENCE '  IN ARTICLE 22 ( 1 ) ( C ) ( I ) OF REGULATION NO 1408/71 MEAN THE INSTITUTION EMPOWERED TO PROVIDE THE BENEFITS IN THE STATE OF RESIDENCE OR STAY , AS LISTED IN ANNEX 3 TO REGULATION NO 574/72 OF THE COUNCIL , AS AMENDED BY REGULATION NO 878/73 OF THE COUNCIL .    

Decision on costs

COSTS  30THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS , THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .    31AS 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  IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE CENTRALE RAAD VAN BEROEP , BY A LETTER OF 28 SEPTEMBER 1977 , HEREBY RULES :   1 . THE WORDS ' ' WHO SATISFIES THE CONDITIONS OF THE LEGISLATION OF THE COMPETENT STATE FOR ENTITLEMENT TO BENEFITS ' '  AT THE BEGINNING OF ARTICLE 22 ( 1 ) DETERMINE THE PERSONS WHO IN PRINCIPLE ARE ENTITLED TO BENEFITS IN PURSUANCE OF THE RELEVANT NATIONAL LEGISLATION .   2 . THE WORDS ' ' THE TREATMENT IN QUESTION ' '  IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) REFER TO ANY APPROPRIATE TREATMENT OF THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS .   3 . THE WORDS ' ' BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  DO NOT REFER SOLELY TO BENEFITS IN KIND PROVIDED IN THE MEMBER STATE OF RESIDENCE BUT ALSO TO BENEFITS WHICH THE COMPETENT INSTITUTION IS EMPOWERED TO PROVIDE .   4 . THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE .   5 . THE COSTS RELATING TO BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ARE TO BE FULLY REFUNDED .   6 . THE WORDS ' ' INSTITUTION OF THE PLACE OF STAY OR RESIDENCE ' '  IN ARTICLE 22 ( 1 ) ( C ) ( I ) OF REGULATION NO 1408/71 MEAN THE INSTITUTION EMPOWERED TO PROVIDE THE BENEFITS IN THE STATE OF RESIDENCE OR STAY AS LISTED IN ANNEX 3 TO REGULATION NO 574/72 OF THE COUNCIL , AS AMENDED BY REGULATION NO 878/73 OF THE COUNCIL .