European Commission v Federal Republic of Germany.
Date: 2012-07-12
41. As the Court has repeatedly held, in proceedings for failure to fulfil obligations, it is for the Commission to prove the alleged failure by placing before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled (see, in particular, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6, and Case C-512/08 Commission  v France  [2010] ECR I-8833, paragraph 56).
44. In that regard, it must be clarified at the outset that the notion of dependence refers, in essence, to a situation in which, as a result of his reduced autonomy, a person is reliant on the assistance of others in order to carry out the basic routines of everyday life (see, to that effect, Case C-388/09 da Silva Martins [2011] ECR I-5737, paragraphs 39 and 40).
45. It also follows from the case-law deriving from Case C-160/96 Molenaar  [1998] ECR I-843 that, in the absence of provisions in Regulation No 1408/71 referring specifically to the risk of reliance on care, the Court has treated benefits relating to that risk as ‘sickness benefits’ within the meaning of that regulation (see, to that effect, da Silva Martins , paragraphs 39 to 48).
46. It follows from that same case-law that care insurance benefits consisting in the direct payment or reimbursement of the costs incurred as a result of the insured person’s reliance on care, in particular the costs entailed by care services at home provided by third persons as well as the provision and installation of necessary care equipment, fall within the definition of ‘benefits in kind’ within the meaning of Title III of Regulation No 1408/71 (see, to that effect, Molenaar , paragraphs 5, 6, 23 and 32, and Joined Cases C-502/01 as well as C-31/02 Gaumain-Cerri and Barth [2004] ECR I-6483, paragraph 26).
47. In addition, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions of the FEU Treaty on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Smits and Peerbooms , paragraph 53, and Commission  v France , paragraph 30).
48. In that respect, the fact that the applicable rules are social security rules or provide for benefits in kind does not mean that the medical treatment in question falls outside the scope of the freedom to provide services guaranteed by the FEU Treaty (see, to that effect, Müller-Fauré and van Riet , paragraph 39).
49. According to equally well-established case-law, whilst EU law does not detract from the power of the Member States to organise their social security systems and whilst, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, the fact nevertheless remains that, when exercising that power, Member States must comply with EU law and, in particular, with the provisions on the freedom to provide services (see, to that effect, in particular, Kohll , paragraphs 17 to 21; Case C-208/07 von Chamier-Glisczinski  [2009] ECR I-6095, paragraph 63; and Case C-490/09 Commission  v Luxembourg  [2011] ECR I-247, paragraph 32 and the case-law cited).
51. Although, as is apparent from paragraph 45 above, in the absence of provisions in Regulation No 1408/71 referring specifically to the risk of reliance on care, benefits relating to that risk are to be assimilated to ‘sickness benefits’ within the meaning of that regulation, the fact remains that there are differences between benefits relating to the risk of reliance on care and sickness benefits in respect of medical treatment (see, to that effect, in particular, da Silva Martins , paragraphs 47 and 48). In particular, unlike sickness benefits in respect of medical treatment, benefits relating to the risk of reliance on care — being generally long-term benefits — are not, in principle, intended to be paid on a short-term basis (see, to that effect, da Silva Martins , paragraph 48).
56. It should be added, in that regard, that the Court has already held, in the context of medical care, that the provision of benefits in kind guaranteed by Article 31 of Regulation No 1408/71 cannot be subject either to any authorisation procedure or to the requirement that the illness which necessitated the treatment in question manifested itself suddenly during that stay, making that treatment immediately necessary (see Case C-326/00 IKA  [2003] ECR I-1703, paragraph 43).
57. Moreover, as Article 48 TFEU provides for the coordination, not the harmonisation, of the legislation of the Member States relating to social security, the rules of the FEU Treaty on free movement cannot guarantee an insured person that moving to another Member State will be neutral in terms of social security, in particular where sickness benefits or care-related benefits are concerned. In view of the disparities existing between the schemes and legislation of the Member States in this field, such a move may, in financial terms and depending on the case, be more or less advantageous for the person concerned (see, to that effect, Joined Cases C-393/99 and C-394/99 Hervein and Others  [2002] ECR I-2829, paragraphs 50 to 52; von Chamier-Glisczinski , paragraphs 84 and 85; and Case C-211/08 Commission  v Spain  [2010] ECR I-5267, paragraph 61 and the case-law cited).
58. Consequently, when temporarily staying in a Member State, the application, possibly under the provisions of Regulation No 1408/71, of the national legislation of that State which may be less favourable as regards social security benefits than that of the competent State, within the meaning of Article 1(q) of that regulation, may, in principle, be compatible with the requirements of primary EU law on the freedom of movement for persons (see, inter alia, by analogy, von Chamier-Glisczinski , paragraphs 85 and 87, and da Silva Martins , paragraph 72).