Ludwig Leichtle v Bundesanstalt für Arbeit.
Date: 2004-03-18
28. In order to answer that question, it must be noted as a preliminary point that, according to settled case‑law, medical activities fall within the scope of Article 50 EC, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see, among others, Case C‑368/98 Vanbraekel and Others  [2001] ECR I-5363, paragraph 41; Smits and Peerbooms , cited above, paragraph 53; and Case C‑385/99 Müller‑Fauré and Van Riet  [2003] ECR I-4509, paragraph 38).
29. Moreover, although it is not disputed that Community 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 Community level, it is for the legislation of each Member State to determine the conditions on which social security benefits are granted, it is nevertheless the case that, when exercising that power, the Member States must comply with Community law (see, among others, Smits and Peerbooms , paragraphs 44 to 46, and Müller-Fauré and Van Riet , cited above, paragraph 100, and the case-law cited there).
30. Accordingly, the Court has ruled in particular that Article 49 EC precludes the application of any national rule making reimbursement of medical costs incurred in another Member State subject to a system of prior authorisation where it is apparent that such a system deters, or prevents, insured persons from approaching providers of medical services established in Member States other than the State of insurance, save where the barrier to the freedom to provide services to which it gives rise is justifiable under one of the derogations allowed by the EC Treaty (see, to that effect, Kohll , paragraphs 33 to 36; Smits and Peerbooms , paragraphs 62, 69 and 71; and Müller‑Fauré and Van Riet , paragraphs 44 and 45).
32. It is nevertheless the case, however, that the fact that a Member State’s rules subject the reimbursement of the other expenditure incurred in respect of such a cure to conditions different from those applicable to cures taken in that Member State is capable of deterring those covered by social insurance from approaching providers of medical services established in Member States other than that in which they are insured.
37. As regards, first, the actual principle of the requirement for prior recognition of eligibility for assistance of expenditure on board, lodging, travel, visitors’ tax and the making of a final medical report, and leaving aside the conditions on which such recognition may be obtained, it is appropriate to note that it follows from Paragraphs 8(3) and 13(3) of the BhV that that principle applies in respect of the expenditure occasioned by a health cure taken either inside or outside Germany. It follows that that requirement does not, as such, have the effect of making the provision of services between Member States, in this case the services offered by cure centres in other Member States, more difficult than the provision of services purely within one Member State, namely those offered by cure centres in Germany (see, to that effect, Case C‑381/93 Commission  v France  [1994] ECR I‑5145, paragraph 17; Kohll , paragraph 33; and Smits and Peerbooms , paragraph 61).
41. The second condition, laid down in Paragraph 13(3)(1) of the BhV, applies, by contrast, only to expenditure occasioned in respect of a health cure taken in a Member State other than Germany, since it specifically implies that, in order for that expenditure to be recognised as eligible for assistance, it must be established in a report drawn up by a  medical officer or medical consultant that the health cure is absolutely necessary owing to the greatly increased prospects of success outside the Federal Republic of Germany.
42. As is clear from the case‑law referred to in paragraph 30 of this judgment, such a condition, which, by its very nature, has the effect of deterring officials covered by the BhV from approaching health cure centres established in other Member States, cannot be accepted unless the barrier to freedom to provide services resulting therefrom is justifiable in the light of the Treaty.
43. It is settled case-law that it is necessary, in that regard, where justification is based on an exception laid down in the Treaty or indeed on an overriding general-interest reason, to ensure that the measures taken in that respect do not exceed what is objectively necessary for that purpose and that the same result could not be achieved by less restrictive rules (see Müller‑Fauré and Van Riet , cited above, paragraph 68 and the case‑law cited there).
44. As is clear from the order for reference, the Bundesanstalt maintains, with reference to a letter from the Federal Interior Ministry, that a complete opening‑up of access to European cure establishments would involve a real danger to the financial equilibrium and the competence of the medical and hospital resources of the system of German cure establishments. The Spanish Government likewise submits, in its written observations, that the disputed condition is justified in the light of the need to maintain financial equilibrium in respect of health cures and to ensure the maintenance of treatment capacity and of medical competence in that sector in Germany.
45. However, the reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State.
46. In that regard, it must be held that neither the file transmitted to the Court by the referring court nor the observations submitted to the Court contain clear material substantiating the argument that Paragraph 13(3)(1) of the BhV is necessary in order to maintain treatment capacity or medical competence essential for the protection of public health (see, to similar effect, Müller‑Fauré and Van Riet , paragraph 70).
47. As regards the justification based on the need to avoid a risk of serious harm to the financial equilibrium of the social security system, no clear argument has been put before the Court in support of the assertion that Paragraph 13(3)(1) of the BhV is necessary for such purposes (see, to similar effect, Müller‑Fauré and Van Riet , paragraph 93).
48. Moreover, it should be borne in mind that it is for the Member States alone to determine the extent of the sickness cover available to insured persons ( Müller‑Fauré and Van Riet , paragraph 98). It follows that nothing precludes the amount up to which expenditure on board, lodging, travel, visitors’ tax and the making of a final medical report, incurred in respect of a health cure taken in another Member State being limited to the amounts up to which such expenditure would have been recognised as eligible for assistance if a cure which was available and afforded equivalent therapeutic effectiveness had been taken in Germany. Indeed, such a limitation, which, as the Commission submitted, can be justified by the consideration that the costs to be borne by the State must be limited to what is necessary for medical purposes, is based on an objective, non‑discriminatory and transparent criterion ( Müller‑Fauré and Van Riet , paragraph 107).
55. In that regard, it must be observed that, ruling on a somewhat similar problem, the Court has previously held, as regards the prior authorisation to receive health care provided in another Member State referred to in Article 22(1)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self‑employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), that both the practical effect and the spirit of that provision required that if the request of an insured person for authorisation on the basis of that provision has been refused by the competent institution and it is subsequently established 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 ( Vanbraekel and Others , cited above, paragraph 34).
58. In the light, particularly, of the information in the order for reference and reproduced in paragraph 25 of this judgment, it must be pointed out, in addition, that, as follows from consistent case‑law, in the face of directly applicable Treaty provisions, such as Article 49 EC, it is for the national court, to the full extent of its discretion under national law, to interpret and apply domestic law in conformity with the requirements of Community law and, where this is not possible, to disapply any incompatible domestic provisions (Case 157/86 Murphy and Others  [1988] ECR 673, paragraph 11, and Case C‑200/91 Coloroll Pension Trustees  [1994] ECR I‑4389, paragraph 29).