F. van der Helder and D. Farrington v College voor zorgverzekeringen.
Date: 2013-10-10
31. The Court notes, in this regard, that Article 28 of Regulation No 1408/71 lays down a ‘conflict rule’ enabling the determination, particularly in relation to pensioners entitled to draw pensions in accordance with the legislation of several Member States and who reside in another Member State in which they are not entitled to sickness and maternity benefits, of the institution which is responsible for payment of those benefits and which legislation is applicable (see, to that effect, Case 69/79 Jordens‑Vosters  [1980] ECR 75, paragraph 12; Rundgren , paragraphs 43 and 44; Case C‑156/01 van der Duin and ANOZ Zorgverzekeringen  [2003] ECR I‑7045, paragraph 39; and Case C‑345/09 van Delft and Others  [2010] ECR I‑9879, paragraph 38).
32. In accordance with Article 28(1) of Regulation No 1408/71, those pensioners benefit from such sickness and maternity benefits as paid by the competent institution in their Member State of residence to the same extent that they would under the legislation of the State responsible for payment of the pension if they were resident in its territory (see, to that effect, van der Duin and ANOZ Zorgverzekeringen , paragraphs 40, 47 and 53, and van Delft and Others , paragraph 39).
36. According to settled case-law, it is necessary, when interpreting a provision of European Union law, to consider its wording, its context and its aims (see, inter alia, Rundgren , paragraph 41 and the case-law cited).
43. Article 27 of Regulation No 1408/71 deals with the situation of a pensioner who is entitled to draw pensions under the legislation of several Member States, including that of the Member State in whose territory he resides, and who is also entitled to benefits in that Member State. Article 28 of the regulation, as has been determined in paragraphs 31 and 32 above, deals with the situation of a pensioner who is entitled to draw pensions under the legislation of one or more Member States, other than the Member State in whose territory he resides, and who is not entitled to benefits in that latter Member State. Article 28a of the regulation governs a situation similar to that covered by Article 28, the difference being that there is an entitlement to benefits in kind in the Member State of residence ( Rundgren , paragraph 43).
44. Under the system thus established by Articles 27, 28 and 28a, the institution which has to bear the cost of the benefits in kind in respect of sickness and maternity will always be an institution of a Member State competent in respect of pensions, since the pensioner would have a right to those benefits under the legislation of that Member State if he resided in its territory (see, to that effect, Rundgren , paragraph 46).
45. In that regard, Article 28a of Regulation No 1408/71, which concerns the situation in which the State of residence of the pensioner does not make entitlement to benefits in kind subject to conditions of insurance or employment, also provides explicitly that ‘the cost of [those] benefits shall be borne by the institution of one of the Member States competent in respect of pensions’, in order that their cost should not be borne by the Member State in which the person concerned resides, merely by virtue of the fact that he resides there. The objective of this provision is to ensure that Member States are not penalised where their legislation confers a right to receive benefits in kind merely by virtue of residence in their territory. It does so by determining which institution will bear the costs of the benefits in kind provided by those States in accordance with rules identical to those which apply, pursuant to Article 28 of the regulation, in the case of Member States which do not confer such a right (see, to that effect, Rundgren , paragraph 45).
46. As the Court has already held, under those rules, the institution of the place of residence provides the benefits in kind to the pensioners on behalf and at the expense of the institution of one of the Member States with jurisdiction in respect of pensions (see Rundgren , paragraph 45, and van Delft and Others , paragraph 39).
47. The result is that the system put in place by Articles 27, 28 and 28a of Regulation No 1408/71 establishes a connection between the jurisdiction to provide pensions and the obligation to bear the cost of benefits in kind in respect of sickness and maternity, since that obligation is incidental to actual jurisdiction in respect of pensions (see Rundgren , paragraph 47).
52. That interpretation is also confirmed by Article 95 of Regulation No 574/72, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1223/98, from which it is clear that, in accordance with Article 36 of Regulation No 1408/71, benefits in kind in respect of sickness and maternity paid to pensioners in their State of residence are, in any event, reimbursed by the Member State responsible for payment of the pension, which thus bears the essential risk linked to the provision of sickness benefits in kind in the Member State in which the pensioner resides (see, to that effect, van der Duin and ANOZ Zorgverzekeringen , paragraph 44, and van Delft and Others , paragraph 79).
55. In those circumstances, since the question is hypothetical, the Court is not required to answer it (see, to that effect, Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli  [2010] ECR I‑5667, paragraph 27).