European Commission v Grand Duchy of Luxemburg.
Date: 2011-01-27
32. First, it should be noted that, whilst it is established that EU law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at European Union 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, in particular, Case C‑157/99 Smits and Peerboms  [2001] ECR I‑5473, paragraphs 44 to 46; Case C‑385/99 Müller-Fauré and van Riet  [2003] ECR I‑4509, paragraph 100; Case C‑372/04 Watts  [2006] ECR I‑4325, paragraph 92, and Case C‑173/09 Elchinov  [2010] ECR I‑0000, paragraph 40).
33. In that regard, Article 49 EC 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 a Member State (Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraph 33, and Case C‑211/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 55).
34. According to settled case-law, medical services supplied for consideration fall within the scope of the provisions on the freedom to provide services (see, in particular, Kohll , paragraph 29, and Elchinov , paragraph 36), there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Case C‑368/98 Vanbraekel and Others  [2001] ECR I‑5363, paragraph 41; Müller‑Fauré and van Riet , paragraph 38; Watts , paragraph 86, and Case C‑512/08 Commission  v France  [2010] ECR I‑0000, paragraph 30).
35. The Court has also held that the freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to go to another Member State in order to receive those services there (see Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraph 16; Watts , paragraph 87; Elchinov , paragraph 37, and Commission  v France , paragraph 31).
36. Moreover, the fact that the applicable national rules are social security rules and, more specifically, provide, as regards sickness insurance, for benefits in kind rather than reimbursement does not mean that medical treatment falls outside the scope of that basic freedom (see, to that effect, Müller‑Fauré and van Riet , paragraph 103; Watts , paragraph 89, and Commission  v Spain , paragraph 47).
40. Admittedly, it is open to the sickness insurance funds of a Member State to enter into agreements with providers outside national territory. However, it seems unlikely, in principle, that a significant number of providers in other Member States would ever enter into agreements with those sickness funds, given that their prospects of admitting patients insured by those funds remain uncertain and limited (see Müller‑Fauré and van Riet , paragraph 43).
43. In that regard, the Court has acknowledged, first, that the objective of maintaining a balanced medical and hospital service open to all may fall within the derogations on grounds of public health provided for in Article 46 EC, in so far as such an objective contributes to the attainment of a high level of health protection ( Kohll , paragraph 50; Müller‑Fauré and van Riet , paragraphs 67 and 71, and Watts , paragraph 104), and, secondly, that it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying an obstacle to the principle of freedom to provide services ( Kohll , paragraph 41; Müller‑Fauré and van Riet , paragraph 73; Watts , paragraph 103, and Elchinov , paragraph 42).
45. Furthermore, in response to an argument that the Member States would be forced to abandon the principles and system of their sickness insurance scheme and that both their freedom to set up the social security system of their choice and the operation of that system would be adversely affected, in particular if their method of organising access to health care had to include mechanisms for reimbursement of the costs of such care provided in other Member States, the Court ruled in paragraph 102 of Müller‑Fauré and van Riet  that the achievement of the fundamental freedoms guaranteed by the EC Treaty inevitably requires Member States to make some adjustments to their systems of social security. It does not follow that this would undermine their sovereign powers in this field.
46. Moreover, when applying Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2), those Member States which have established a system providing benefits in kind, or even a national health service, must provide mechanisms for ex post facto  reimbursement in respect of care provided in a Member State other than the competent State ( Müller‑Fauré and van Riet , paragraph 105). In that regard, nothing precludes a competent Member State with a benefits in kind system from fixing the amounts of reimbursement which patients who have received care in another Member State can claim, provided that those amounts are based on objective, non‑discriminatory and transparent criteria ( Müller‑Fauré and van Riet , paragraph 107).
47. Finally, as regards the instructions issued by the Inspectorate General of Social Security to which the Grand Duchy of Luxembourg refers in order to disprove the alleged failure, it is sufficient to point out that mere administrative practices resulting from the application of such instructions, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, in particular, Case C‑465/05 Commission  v Italy  [2007] ECR I‑11091, paragraph 65).
49. With regard, in the second place, to the Commission’s action as regards Article 12 of the Statutes, it must be borne in mind from the outset that, in proceedings under Article 226 EC 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 C‑160/08 Commission  v Germany  [2010] ECR I‑0000, paragraph 116, and Commission  v France , paragraph 56).
50. Moreover, it is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case‑law relating to that provision that an application must state the subject‑matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on an objection (see Case C‑412/04 Commission  v Italy  [2008] ECR I‑619, paragraph 103; Commission  v Spain , paragraph 32, and Case C‑508/08 Commission  v Malta  [2010] ECR I‑0000, paragraph 16).
52. In that regard, as the Commission itself pointed out in its application initiating proceedings, the Court has ruled that the conditions on which social security benefits are granted, which the Member States have competence to determine, just as they have competence to determine the extent of the insurance cover guaranteed by the social security system, in so far as those conditions are neither discriminatory nor an obstacle to freedom of movement of persons, remain enforceable where treatment is provided in a Member State other than that of affiliation (see Müller‑Fauré and van Riet , paragraph 106).
59. It is true that the Court has ruled that Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC and to provide the Commission with all the information requested for that purpose (see Case C‑82/03 Commission  v Italy  [2004] ECR I‑6635, paragraph 15, and Case C‑221/08 Commission  v Ireland  [2010] ECR I‑0000, paragraph 60).
61. Finally, the Commission has also failed to show how the requirement referred to in paragraph 53 of this judgment restricts freedom to provide services, but has simply confined itself to noting disparities between national social security schemes which remain in the absence of harmonisation at the level of EU law in that respect (see, in that regard, Case 41/84 Pinna  [1986] ECR 1, paragraph 20, and Commission  v Spain , paragraph 61).