Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G. Pierik.
Date: 1979-05-31
2THE COURT ANSWERED THOSE QUESTIONS IN ITS JUDGMENT OF 16 MARCH 1978 ( CASE 117/77 ( 1978 ) ECR 825 ), BUT THE NATIONAL COURT FOUND THAT IT COULD NOT REGARD ALL THE ISSUES IN THE MAIN ACTION AS BEING SETTLED BY THAT JUDGMENT . THUS CONTINUING THE PROCEEDINGS IN THE MAIN ACTION , THE SAID COURT HELD INTER ALIA THAT , IN SO FAR AS REGULATION NO 1408/71 WAS CONCERNED , THE DECISION IN THE CASE WAS STILL DEPENDENT UPON THE ANSWER TO THE FOLLOWING QUESTIONS :
' ' ( A ) IS THE CONCEPT OF WORKER IN ARTICLE 22 OF REGULATION NO 1408/71 MORE RESTRICTED THAN THE CONCEPT OF WORKER WITHIN THE MEANING OF ARTICLE 1 ( A ) OF THE REGULATION INASMUCH AS ARTICLE 22 RELATES SOLELY TO ACTIVE WORKERS , SO THAT , WITH REGARD TO PERSONS WHO ARE NOT , OR ARE NO LONGER , AT WORK AND ARE ENTITLED TO A BENEFIT ON THE GROUNDS OF INVALIDITY , DUE BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE , AND WHO BY VIRTUE OF THE LEGISLATION OF THAT MEMBER STATE TO WHICH THE REGULATION IS APPLICABLE IN THE MATTER OF MEDICAL TREATMENT AND SPECIAL SICKNESS EXPENSES ARE ENTITLED TO BENEFITS IN KIND , ONLY THE PROVISIONS OF ARTICLE 31 ARE APPLICABLE?

( B)DOES THE OBLIGATION REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) OF REGULATION NO 1408/71 TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) EXTEND SO FAR THAT THE SAID AUTHORIZATION CANNOT BE REFUSED BY THE COMPETENT INSTITUTION ON THE BASIS OF THE FACT THAT THE TREATMENT IN QUESTION IS DELIBERATELY NOT INCLUDED IN THE SCHEME OF BENEFITS IN KIND UNDER THE SICKNESS AND MATERNITY LEGISLATION ADMINISTERED BY THAT INSTITUTION , FOR EXAMPLE ON MEDICAL , MEDICAL-ETHICAL OR FINANCIAL GROUNDS OR BECAUSE THE VALUE OF THE TREATMENT IN QUESTION IN THE MEMBER STATE IN WHICH THE COMPETENT INSTITUTION HAS ITS SEAT IS IN GENERAL NOT REGARDED AS POSITIVE OR BECAUSE THE TREATMENT IS NOT REGARDED AS FALLING WITHIN THE FIELD OF HEALTH TREATMENT AND FURTHERMORE IS DELIBERATELY NOT PROVIDED BY VIRTUE OF ANY OTHER LEGISLATION OF THAT MEMBER STATE TO WHICH THE REGULATION IS APPLICABLE?

( C)DO THE WORDS ' BENEFITS IN KIND PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF STAY OR RESIDENCE '  IN ARTICLE 22 ( 1 ) ( C ) ( I ) RELATE DIRECTLY TO THE CASE IN WHICH THE INSTITUTION OF THE MEMBER STATE TO WHICH THE PERSON CONCERNED WISHES TO GO IN ORDER TO UNDERGO TREATMENT IS COMPETENT TO PROVIDE THAT TREATMENT AS A BENEFIT IN KIND BUT IS NORMALLY NOT OBLIGED TO MAKE USE OF SUCH COMPETENCE , OR MUST THE COMPETENT INSTITUTION IN SUCH A SITUATION , BEFORE PROVIDING THE AUTHORIZATION REQUESTED , INQUIRE WHETHER THE INSTITUTION OF THE MEMBER STATE TO WHICH THE PERSON CONCERNED WISHES TO GO IN ORDER TO UNDERGO THE TREATMENT WOULD PROVIDE SUCH TREATMENT AS A BENEFIT IN KIND FOR THE PERSON CONCERNED IF HE WERE INSURED IN PURSUANCE OF THE LEGISLATION ADMINISTERED BY THAT INSTITUTION?
' '
4ARTICLE 1 ( A ) OF REGULATION NO 1408/71 DEFINES THE CONCEPT OF ' ' WORKER ' '  AS ANY PERSON WHO IS COMPULSORILY OR VOLUNTARILY INSURED UNDER ONE OF THE SOCIAL SECURITY SCHEMES REFERRED TO IN SUBPARAGRAPHS ( I ), ( II ) OR ( III ) OF THAT PROVISION . LAID DOWN ' ' FOR THE PURPOSE OF THIS REGULATION ' ' , SUCH A DEFINITION HAS A GENERAL SCOPE , AND IN THE LIGHT OF THAT CONSIDERATION COVERS ANY PERSON WHO HAS THE CAPACITY OF A PERSON INSURED UNDER THE SOCIAL SECURITY LEGISLATION OF ONE OR MORE MEMBER STATES , WHETHER OR NOT HE PURSUES A PROFESSIONAL OR TRADE ACTIVITY . IT FOLLOWS THAT , EVEN IF THEY DO NOT PURSUE A PROFESSIONAL OR TRADE ACTIVITY , PENSIONERS ENTITLED TO DRAW PENSIONS UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES COME WITHIN THE PROVISIONS OF THE REGULATION CONCERNING ' ' WORKERS ' '  BY VIRTUE OF THEIR INSURANCE UNDER A SOCIAL SECURITY SCHEME , UNLESS THEY ARE SUBJECT TO SPECIAL PROVISIONS LAID DOWN REGARDING THEM .
5ARTICLES 27 TO 33 IN TITLE III , CHAPTER 1 , SECTION 5 OF REGULATION NO 1408/71 LAY DOWN SPECIAL PROVISIONS CONCERNING ' ' PENSIONERS AND MEMBERS OF THEIR FAMILIES ' ' . BY VIRTUE OF ARTICLE 34 , THESE PROVISIONS APPLY EXCLUSIVELY TO PENSIONERS WHO ARE ENTITLED TO BENEFITS IN KIND OTHERWISE THAN AS A RESULT OF PURSUING A PROFESSIONAL OR TRADE ACTIVITY , THUS COVERING INACTIVE PENSIONERS .
6HOWEVER , ARTICLE 31 OF THESE PROVISIONS GOVERNS THE ENTITLEMENT OF SUCH INSURED PERSONS TO BENEFITS IN KIND WHERE THOSE BENEFITS BECOME NECESSARY DURING A STAY IN A MEMBER STATE OTHER THAN THE ONE IN WHICH THEY RESIDE . ON THE OTHER HAND , THE ENTITLEMENT TO BENEFITS IN KIND OF AN INSURED PERSON WHO RESIDES IN ONE MEMBER STATE AND ASKS THE COMPETENT INSTITUTION FOR AUTHORIZATION TO GO TO THE TERRITORY OF ANOTHER MEMBER STATE TO RECEIVE THERE THE TREATMENT APPROPRIATE TO HIS CONDITION IS GOVERNED BY ARTICLE 22 ( 1 ) ( C ) IN THE SAME CHAPTER .
7BY THE REFERENCE TO A ' ' WORKER ' '  IN THE LATTER PROVISION , REGULATION NO 1408/71 DOES NOT PURPORT TO RESTRICT THE SCOPE OF THAT PROVISION TO ACTIVE WORKERS AS OPPOSED TO INACTIVE WORKERS , THE SAME REFERENCE BEING CONTAINED IN ARTICLES 25 AND 26 IN THE SAME CHAPTER , WHICH RESPECTIVELY CONCERN ' ' UNEMPLOYED PERSONS ' '  AND ' ' PENSION CLAIMANTS ' ' .
8FOR THESE REASONS THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT , IN THE CASE OF A PENSIONER WHO IS ENTITLED TO BENEFITS IN KIND UNDER THE LEGISLATION OF A MEMBER STATE AND WHO DOES NOT PURSUE A PROFESSIONAL OR TRADE ACTIVITY , THE RIGHT TO BE AUTHORIZED BY THE COMPETENT INSTITUTION TO GO TO ANOTHER MEMBER STATE TO RECEIVE THERE THE TREATMENT APPROPRIATE TO HIS CONDITION IS GOVERNED BY THE PROVISIONS OF ARTICLE 22 ( 1 ) ( C ) AND ( 2 ) OF REGULATION NO 1408/71 .
9AS TO THE SECOND QUESTION , IN ITS AFORESAID JUDGMENT OF 16 MARCH 1978 IN CASE 117/77 THE COURT HELD THAT , ' ' 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 ' ' .
10IN PARAGRAPH 15 OF THE DECISION IN THAT CASE IT WAS ALSO HELD THAT BENEFITS IN KIND FOR WHICH THE WORKER IS AUTHORIZED TO GO TO ANOTHER MEMBER STATE ' ' COVER ALL TREATMENT CALCULATED TO BE EFFECTIVE FOR THE SICKNESS OR DISEASE FROM WHICH THE PERSON CONCERNED SUFFERS ' ' , AND IN PARAGRAPH 16 IT WAS HELD TO FOLLOW THAT , ' ' IN 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 ) ' ' . IN SETTING A LIMIT TO THE COMPETENT INSTITUTION ' S POWER OF DECISION IN THIS AREA , PARAGRAPH 17 OF THE SAID DECISION IMPLICITLY ACKNOWLEDGES THAT IT IS FOR THAT INSTITUTION OBJECTIVELY TO ASSESS THE MEDICAL GROUNDS FOR GRANTING OR REFUSING THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ), HAVING REGARD INTER ALIA TO THE STATE OF HEALTH OF THE PERSON CONCERNED , THE SERIOUSNESS OF HIS SICKNESS OR DISEASE AND THE EFFECTIVENESS OF THE TREATMENT IN QUESTION .
14FINALLY AS TO THE THIRD QUESTION , IT IS ESTABLISHED - AS THE COURT HELD IN ITS AFORESAID JUDGMENT OF 16 MARCH 1978 IN CASE 117/77 - THAT BY VIRTUE OF THE PROVISIONS OF ARTICLES 93 ( 1 ) AND 96 OF 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 ) THE AMOUNT OF BENEFITS PROVIDED UNDER ARTICLE 22 OF REGULATION NO 1408/71 ' ' SHALL BE REFUNDED BY THE COMPETENT INSTITUTION TO THE INSTITUTION WHICH PROVIDED THE SAID BENEFITS AS SHOWN IN THE ACCOUNTS OF THAT INSTITUTION ' ' , AND MOREOVER THAT IT IS TO BE ' ' FULLY ' '  REFUNDED .