Abdon Vanbraekel and Others v Alliance nationale des mutualités chrétiennes (ANMC).
Date: 2001-07-12
21 In regard to that argument, it should be observed that the Court has consistently ruled that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, in particular, judgment in Joined Cases C-320/90 to 322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6; orders in Case C-152/92 Banchero [1993] ECR I-1085, paragraph 4, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 5, and Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 15). The Court has also repeatedly emphasised the importance for the referring court to state the precise reasons which prompted it to question the interpretation of Community law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling (see, in particular, orders in Case C-101/96 Italia Testa [1996] ECR I-3081, paragraph 6, Testa and Modesti, paragraph 15, and Laguillaumie, paragraph 16).
31 It follows from the second subparagraph of Article 22(2) of Regulation No 1408/71 that the sole purpose of that provision is to identify the circumstances in which the competent national institution is precluded from refusing authorisation sought on the basis of Article 22(1)(c). That provision is not designed to limit the circumstances in which such authorisation may be granted pursuant to Article 22(1)(c). It follows that, where permission is granted on the basis of a national rule which, like the legislation at issue in the main proceedings, provides that authorisation is to be granted where it is established that hospital treatment can be provided under better medical conditions abroad, such permission constitutes an authorisation within the meaning of Article 22(1)(c) of Regulation No 1408/71.
32 As regards the extent of the rights conferred by Article 22(1)(c) on an insured person who has been granted such authorisation, it follows from paragraph 1(i) that the insured person must in principle be entitled to the benefits in kind provided on behalf of the competent institution by the institution of the place where the insured person is staying, in accordance with the provisions of the legislation of the State in which the benefits are provided, as if the covered person were insured in that State. Only the length of the period during which benefits are provided remains to be governed by the legislation of the competent State. By guaranteeing that insured persons covered by the legislation of one Member State and granted authorisation have access to treatment in the other Member States on conditions as favourable as those enjoyed by persons covered by the legislation of those other States, that provision helps to facilitate the free movement of persons covered by social insurance.
33 It follows from the foregoing that, as regards the basis on which costs are borne, the legislation of the Member State in which the treatment is given is to be applied, while the competent institution remains responsible for subsequently reimbursing the institution of the place of stay, as provided for in Article 36 of Regulation No 1408/71.
34 Both the practical effect and the spirit of those provisions require, moreover, that the request of an insured person for authorisation on the basis of Article 22(1)(c) of Regulation No 1408/71 has been refused by the competent institution and it is subsequently established, either by the competent institution itself or by a court decision, that that refusal was unfounded, that person is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which it would ordinarily have borne if authorisation had been properly granted in the first place.
36 It should be noted that Article 22 of Regulation No 1408/71 is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State (see Case C-158/96 Kohll [1998] ECR I-1931, paragraph 27) where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the tariffs applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided.
37 Although Article 22 of Regulation No 1408/71 does not have the effect of preventing extra reimbursement, additional to that resulting from the application of the system of the Member State where the treatment was provided, when the system applied in the Member State in which the person concerned is insured is more beneficial, that provision does not have the further effect of requiring such additional reimbursement. Consequently, it is necessary to consider whether such an obligation might arise under Article 59 of the Treaty.
The rules on freedom to provide services
38 It must be determined first of all whether the situation at issue in the main proceedings falls within the scope of freedom to provide services within the meaning of Article 59 of the Treaty.
39 A number of the Governments which have submitted written observations to the Court have argued that hospital services cannot constitute an economic activity for the purposes of Article 60 of the EC Treaty (now Article 50 EC).
40 It should be borne in mind first of all that, under Article 60 of the Treaty, services for the purposes of the Treaty are services normally provided for remuneration in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
41 It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 18, and Kohll, paragraphs 29 and 51).
42 It is also settled case-law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10, and Kohll paragraph 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of Articles 59 and 60 of the Treaty (Kohll, paragraph 21).
43 Since the hospital services at issue in the main proceedings fall within the scope of freedom to provide services, it is necessary to go on to consider whether the fact that national legislation does not guarantee a person covered by its social insurance scheme who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71 a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the Member State in which he was insured entails a restriction of freedom to provide services within the meaning of Article 59 of the Treaty.
44 In that regard, it is settled case-law that Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33).
45 In the present case, there is no doubt that the fact that a person has a lower level of cover when he receives hospital treatment in another Member State than when he undergoes the same treatment in the Member State in which he is insured may deter, or even prevent, that person from applying to providers of medical services established in other Member States and constitutes, both for insured persons and for service providers, a barrier to freedom to provide services (see, by analogy, Luisi and Carbone, paragraph 16, Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31, and Kohll, paragraph 35).
46 Consequently, it is necessary to examine whether the fact that the national legislation of a Member State does not guarantee a person insured in that State at least an equally advantageous level of cover when hospital services are provided in another Member State could be objectively justified.
47 It should be remembered that the Court has held that it cannot be excluded that the risk of seriously undermining the financial balance of a social security system might constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services (Kohll, paragraph 41).
48 The Court has likewise recognised, as regards the objective of maintaining a balanced medical and hospital service open to all, that even if that objective is intrinsically linked to the method of financing the social security system, it may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC) in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50).
49 The Court has also stated that Article 56 of the Treaty allows Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival, of the population (Kohll, paragraph 51).
50 In the situation at issue in the main proceedings, however, none of the overriding reasons referred to in paragraphs 47 to 49 above can justify the barrier in question.
51 In the present case, the national court held that Ms Descamps was in fact entitled to obtain the authorisation provided for by the national legislation under which she was covered and by Article 22(1)(c) of Regulation No 1408/71. In such circumstances, it cannot be claimed that payment of additional reimbursement, covering the difference between the system of cover laid down by the legislation of the Member State in which she was insured and that applied by the Member State in which the treatment was provided, when the former is more advantageous than the latter, would be liable to jeopardise the maintenance, in the Member State of registration, of a balanced medical and hospital service open to all or the maintenance of treatment capacity or medical competence on national territory.
52 Furthermore, since such additional reimbursement, which is a function of the system of cover applying in the State of registration, does not in theory impose any additional financial burden on the sickness insurance scheme of that State by comparison with the reimbursement to be made if hospital treatment had been provided in that latter State, it cannot be argued that making that sickness insurance fund bear such additional reimbursement would be liable to have a significant effect on the financing of the social security system (Kohll, paragraph 42).
53 In view of all the foregoing considerations, the answer to be given to the first part of the question referred to the Court must be that Article 22(1)(c) and (i) of Regulation No 1408/71 is to be interpreted as meaning that, when an insured person has been authorised by the competent institution to go to another Member State for treatment, the institution of the place where the treatment is provided is required to provide him with benefits in kind in accordance with the rules on assumption of the costs of health care which the latter administers, as if the person concerned were registered with it.
Where the request of an insured person for authorisation on the basis of Article 22(1)(c) of that regulation has been refused by the competent institution and it is subsequently established that such refusal was unfounded, the person concerned is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which would have been borne by the institution of the place of treatment under the rules laid down by the legislation applied by the latter institution if authorisation had been properly granted in the first place.
As Article 22 of that regulation is not intended to regulate any reimbursement at the tariffs in force in the Member State of registration, it does not have the effect of preventing or prescribing payment by that State of additional reimbursement covering the difference between the system of cover laid down by the legislation of that State and the system applied by the Member State of treatment, where the former is more advantageous than the latter and such reimbursement is provided for by the legislation of the Member State of registration.
Article 59 of the EC Treaty is to be interpreted as meaning that, if the reimbursement of costs incurred on hospital services provided in a Member State of stay, calculated under the rules in force in that State, is less than the amount which application of the legislation in force in the Member State of registration would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by the competent institution.
Second part of the question referred to the Court