Heirs of Annette Keller v Instituto Nacional de la Seguridad Social (INSS) and Instituto Nacional de Gestión Sanitaria (Ingesa).
Date: 2005-04-12
29. On this point, it must be recalled that, according to settled case-law, 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 should 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, inter alia, Case C‑72/03 Carbonati Apuani  [2004] ECR I‑0000, paragraph 10).
30. The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments of the Member States and the interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties (Case C‑67/96 Albany  [1999] ECR I‑5751, paragraph 40).
33. In this regard, it must be recalled that, in proceedings under Article 234 EC, which are 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. 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 concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA  [2003] ECR I‑1703, paragraph 27).
38. It must be observed on this point, however, that the mere fact that the treatment was given outside Community territory is not enough to exclude the application of those regulations, since the decisive criterion for their applicability is that the insured person concerned is affiliated to a social security scheme of a Member State (see, to that effect, Case 300/84 van Roosmalen  [1986] ECR 3097, paragraph 30; Joined Cases 82/86 and 103/86 Laborero and Sabato  [1987] ECR 3401, paragraph 25; and Case C‑60/93 Aldewereld  [1994] ECR I‑2991, paragraph 14).
45. In the context of the general objectives of the EC Treaty, Article 22 of Regulation No 1408/71 is one of a number of measures designed to allow a worker from one Member State to enjoy, under the conditions which it specifies, benefits in kind in the other Member States, whatever the national institution to which he is affiliated and whatever the place of his residence (Case C‑156/01 Van der Duin and ANOZ Zorgverzekeringen  [2003] ECR I‑7045, paragraph 50).
46. By guaranteeing that a person covered by social insurance under the legislation of one Member State whose state of health makes medical services immediately necessary during a stay in another Member State, or who has been authorised by the competent institution to go to another Member State to receive treatment there which is appropriate to his state of health, has access to treatment in that other Member State on reimbursement conditions as favourable as those enjoyed by insured persons covered by the legislation of that State, Article 22 of Regulation No 1408/71 helps to facilitate the free movement of persons covered by social insurance and, to the same extent, the provision of cross-frontier medical services between Member States (see Case C‑368/98 Vanbraekel and Others  [2001] ECR I‑5363, paragraph 32, and Case C‑56/01 Inizan  [2003] ECR I‑12403, paragraph 21).
50. It follows from that rule of sharing of responsibilities, in correlation with the Community measures relating to the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of medicine (see, in this respect, Case C‑120/95 Decker  [1998] ECR I-1831, paragraph 42, and Case C‑158/96 Kohll  [1998] ECR I-1931, paragraphs 47 and 48), that, once it has agreed, by issuing a Form E 111 or Form E 112, that one of its insured persons in one of the cases provided for in Article 22(1) of Regulation No 1408/71 may receive medical treatment outside the competent Member State, the competent institution is in the hands of the doctors authorised by the institution of the Member State of stay, acting within the scope of their office, who are called on to treat the insured person in the latter State, and it is obliged to accept and recognise the findings and choices of treatment made by those doctors as if they had been made by authorised doctors who would have had to treat the insured person in the competent Member State, subject to the existence of any abuse (see, by analogy, in the context of medical findings concerning the incapacity for work of a person covered by social insurance made by the institution of the Member State of residence or stay pursuant to Article 18 of Regulation No 574/72, Case C‑206/94 Paletta  [1996] ECR I-2357, paragraphs 24 to 28).
52. It must be recalled in this respect that, as the Court has held in the field of the freedom to provide services, doctors established in other Member States must be regarded as providing the same guarantees of professional competence as doctors established within the country (see Kohll , paragraph 48).
53. Accordingly, where the competent institution, by issuing a Form E 111 or Form E 112, has agreed that one of its insured persons is to receive medical treatment outside the competent Member State, it is bound by the findings relating to the need for urgent vital treatment made by the doctors authorised by the institution of the Member State of stay (see, in an analogous sense, in the context of Article 19 of Regulation No 1408/71 and Article 18 of Regulation No 574/72, Case 22/86 Rindone  [1987] ECR 1339, paragraphs 9 to 14, and Case C‑45/90 Paletta  [1992] ECR I‑3423, paragraph 28).
56. In those circumstances, and as the defendants in the main proceedings themselves conceded in their written observations, the person concerned, covered by a Form E 111 or E 112, cannot be required to return to the competent Member State to undergo a medical examination there, when doctors authorised by the institution of the Member State of stay consider that his state of health requires urgent vitally necessary treatment (see, to that effect, Rindone , paragraph 21).
62. While the Court has indeed held that such an objective may be justification for the assumption by the competent institution of the costs of hospital treatment received outside the competent Member State being subject to prior authorisation by that institution (see Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 76 to 80, and Case C‑385/99 Müller-Fauré and Van Riet  [2003] ECR I‑4509, paragraphs 76 to 82), considerations connected with that objective are not relevant, by contrast, where the competent institution has precisely consented, by issuing a Form E 111 or E 112, to one of its insured persons receiving hospital treatment outside the competent Member State.
65. It should be recalled that, according to Article 22(1)(i) of Regulation No 1408/71, an insured person who is in one of the situations referred to in points (a) and (c) of that paragraph must in principle, for the period fixed by the competent institution, enjoy the benefits in kind provided on behalf of that institution by the institution of the Member State of stay, in accordance with the provisions of the legislation it administers, as if the insured person were insured with it (see Vanbraekel and Others , paragraph 32, and Inizan , paragraph 20).
66. The right thus conferred on the insured person consequently means that the cost of the treatment given is initially borne by the institution of the Member State of stay, in accordance with the legislation it administers, and the competent institution is subsequently to reimburse the institution of the Member State of stay under the conditions laid down in Article 36 of Regulation No 1408/71 (see Vanbraekel and Others , paragraph 33, and Inizan , paragraphs 20, 22 and 23).
68. As to the argument of the defendants in the main proceedings concerning the need to control social security expenditure, it must be observed that the fact that the medical treatment is provided outside the Member State of stay does not put the competent institution in a different situation from that in which the same treatment could have been provided in that Member State, since the legislation applicable and any consequent limits on reimbursement are, in both cases, those of the Member State of stay (see, by analogy, Decker , paragraphs 38 to 40, and Kohll , paragraphs 40 to 42).
69. It should also be added that both the effectiveness and the spirit of the Community provisions at issue require the conclusion that, where it is established that the person concerned would have been entitled to have the cost of medical treatment received in a non-member country borne by the institution of the Member State of stay (see paragraphs 25 and 26 above) and that treatment is among the benefits provided for by the legislation of the competent Member State, it is for the competent institution to reimburse to that person or his heirs directly the cost of that treatment, so as to ensure a level of assumption of costs equivalent to that which that person would have enjoyed if the provisions of Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71 had been applied (see, to that effect, Vanbraekel and Others , paragraph 34, and IKA , paragraph 61).