Idryma Koinonikon Asfaliseon (IKA) v Vasileios Ioannidis.
Date: 2003-02-25
26.  On that point, the Court has indeed held that Article 22(1)(c) of Regulation No 1408/71 governs the entitlement to benefits in kind of pensioners, resident in a Member State, who ask the competent institution for authorisation to go to the territory of another Member State to receive treatment there which is appropriate to their condition, while Article 31 of that regulation governs the entitlement of that class of insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the State in which they reside (see Case 182/78   Pierik   [1979] ECR 1977, paragraphs 6 and 8).
27.  However, it should be remembered that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see   inter alia   Case 36/79   Denkavit Futtermittel   [1979] ECR 3439, paragraph 12, and Case C-235/95   Dumon and Froment   [1998] ECR I-4531, paragraph 25). Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see   inter alia   Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59).
32.  Second, while the Court has indeed held that, even if they do not pursue a professional or trade activity, pensioners fall within the provisions of Regulation No 1408/71 on   "workers"   by virtue of being affiliated to a social security scheme, it stated that that is the case only if they are not the subject of special provisions laid down regarding them (Pierik  , paragraph 4).
33.  Having observed in that respect that Regulation No 1408/71 lays down, in Articles 27 to 33, special provisions exclusively applicable to pensioners, the Court stated that those provisions govern, in Article 31, the entitlement of those insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the State in which they reside (Pierik  , paragraphs 5 and 6).
34.  In those circumstances, contrary to the suggestions of the Governments of a number of Member States, it cannot be argued either that pensioners staying in a Member State other than their State of residence fall within Article 22(1)(a) of Regulation No 1408/71 or that the provisions of that article should inspire the interpretation of Article 31 of that regulation.
38.  As both the Greek Government, in its written observations, and the Advocate General, at point 32 of his Opinion, have observed, the fact that the Community legislature did not wish to model the system applicable to non-working pensioners on that applicable to employed and self-employed persons may be explained by a desire to promote effective mobility of that category of insured persons, taking into account certain characteristics which typify them, such as a potentially greater vulnerability and dependence in health terms and an increased freedom from commitments permitting more frequent stays in other Member States.
39.  It follows that the system established by Article 31 of Regulation No 1408/71 must be distinguished from that laid down by Article 22(1)(a) of that regulation.
40.  In particular, Article 31 of Regulation No 1408/71 cannot be interpreted as meaning that the enjoyment of the benefits in kind it guarantees is reserved solely to pensioners whose condition requires immediate benefits during a stay in another Member State, that is to say, it cannot be limited solely to treatment which is found to be medically necessary immediately (Case C-206/94   Paletta   [1996] ECR I-2357, paragraph 20) and thus could not be deferred until the insured person returns to his State of residence.
43.  It follows from all the foregoing that it is not permissible for a Member State to make provision of the benefits in kind guaranteed by Article 31 of Regulation No 1408/71 to pensioners staying in a Member State other than the State in which they reside subject either to any authorisation procedure whatever or to the requirement that the illness which necessitated the treatment in question manifested itself suddenly during that stay, making that treatment immediately necessary.
The implementation in practice of Article 31 of Regulation No 1408/71
51.  The institutions of the place of stay and the place of residence jointly assume the task of applying Articles 31 and 36 of Regulation No 1408/71 and Articles 31 and 93 of Regulation No 574/72, and must, in accordance with Article 10 EC and Article 84 of Regulation No 1408/71, cooperate in order to ensure that those provisions are applied correctly and, consequently, that the rights conferred on pensioners and members of their families by Article 31 of Regulation No 1408/71 with a view to facilitating the freedom of movement of those insured persons are fully respected (see, to similar effect, Case C-335/95   Picard   [1996] ECR I-5625, paragraph 18, and Case C-202/97   FTS   [2000] ECR I-883, paragraphs 51 and 56).
61.  Accordingly, where it appears that the institution of the place of stay has wrongly refused to give effect to that provision and the institution of the place of residence, on being advised of that refusal, has declined to contribute, as it is obliged to, to facilitating the correct application of that provision, it is for the latter institution, without prejudice to the possible liability of the institution of the place of stay, to reimburse directly to the insured person the cost of the treatment he has had to bear, so as to guarantee him a level of funding equivalent to that which he would have enjoyed had the provisions of that article been complied with (see, by analogy, Case C-368/98   Vanbraekel and Others   [2001] ECR I-5363, paragraph 34).