European Commission v Kingdom of Spain.
Date: 2010-06-15
32. In that regard, it should be borne in mind that it follows 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 the application initiating proceedings must state the subject-matter of the dispute 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 its 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 a claim (Case C‑195/04 Commission  v Finland  [2007] ECR I‑3351, paragraph 22 and the case-law cited, and Case C‑343/08 Commission  v Czech Republic  [2010] ECR I‑0000, paragraph 26).
33. Moreover, the subject-matter of an action brought under Article 226 EC is circumscribed by the pre-litigation procedure laid down in that provision. Consequently, the Commission’s reasoned opinion and its application must be based on the same complaints ( Commission  v Finland , paragraph 18).
45. First of all, it should be borne in mind that the applicability of Article 22 of Regulation No 1408/71 – and specifically, in the present case, of Article 22(1)(a)(i) – does not mean that Article 49 EC cannot apply at the same time. The fact that national legislation may be in conformity with Regulation No 1408/71 does not have the effect of removing that legislation from the scope of the provisions of the EC Treaty (see, to that effect, Case C‑372/04 Watts  [2006] ECR I‑4325, paragraphs 46 and 47).
46. That said, it must first be determined whether, in the case of a person insured under the national health system whose state of health makes hospital care necessary during a temporary stay in another Member State, the services identified by the Commission in its action are cross-border services and, as such, within the scope of Article 49 EC (see, to that effect, Case 352/85 Bond van Adverteerders and Others  [1988] ECR 2085, paragraph 13).
47. With regard, on the one hand, to healthcare services, it should be noted that, according to settled case-law, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services, including situations where care is provided in a hospital environment (see, to that effect, Watts , paragraph 86 and the case-law cited, and Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 19). Furthermore, the provision of medical services does not cease to be a provision of services for the purposes of Article 49 EC simply because, after paying the foreign provider for the care received, the insured person subsequently seeks reimbursement of the related costs through a social security system (see, to that effect, Watts , paragraph 89 and the case-law cited).
48. The Court has also held that Article 49 EC applies where the person providing the service and the recipient are established in different Member States (see Case C‑55/98 Vestergaard  [1999] ECR I‑7641, paragraph 19). Services which the provider carries out without moving from the Member State in which he is established for recipients established in other Member States constitute the provision of cross-border services for the purposes of Article 49 EC (see, inter alia, Case C-384/93 Alpine Investments  [1995] ECR I-1141, paragraphs 21 and 22 and Case C‑243/01 Gambelli and Others  [2003] ECR I‑13031, paragraph 53).
49. Furthermore, the Court has consistently held that the freedom to provide services involves not only the freedom of the provider to carry out services for recipients established in a Member State other than that in which the provider is established but also the freedom to receive or to benefit, as recipient, from the services carried out by a provider established in another Member State, without being hampered by restrictions (see, inter alia, Gambelli and Others , paragraph 55 and the case-law cited).
50. It follows that hospital services which are carried out in a Member State by a provider established there for a recipient established in another Member State are covered by the notion of the provision of services, for the purposes of Article 49 EC, including where – as in the present case – the reasons for which the recipient was staying temporarily in the Member State of establishment of the provider were not medical.
51. On the other hand, with regard to services other than medical services, such as tourist and educational services as specifically referred to by the Commission in its action, it is necessary to bear in mind, in addition to the case-law referred to in paragraph 48 above, that persons established in a Member State who travel to another Member State as tourists or on a study trip must be regarded as recipients of services for the purposes of Article 49 EC (Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraph 16; Case 186/87 Cowan  [1989] ECR 195, paragraph 15; and Case C‑348/96 Calfa  [1999] ECR I‑11, paragraph 16).
53. 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, Watts , paragraph 92 and the case-law cited).
55. It is settled law that 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 entirely within a single Member State (see, inter alia, Stamatelaki , paragraph 25 and the case-law cited).
56. In that connection, the Court has held that the fact that national legislation does not guarantee an insured person who has been authorised to receive hospital care in another Member State, in accordance with Article 22(1)(c) of Regulation No 1408/71, a level of insurance cover equivalent to that to which he would have been entitled had he received hospital treatment in the Member State of affiliation is a restriction of the freedom to provide services, for the purposes of Article 49 EC, in that it may deter, or even prevent, that person from applying to providers of services established in other Member States (see, to that effect, Vanbraekel and Others , paragraph 45). The Court stated, with regard to national legislation under which hospital care was to be free of charge if provided within the national health service, that such a level of cover corresponds to the cost, in the system of the Member State of affiliation, of care equivalent to that provided to the insured person in the Member State of stay (see, to that effect, Watts , paragraphs 131 and 133).
57. The Court has held that, in so far as complementary reimbursement, which depends on the rules governing social insurance cover in the Member State of affiliation, does not by definition impose any additional financial burden on the sickness insurance scheme of that Member State as compared with the reimbursement to be made or the costs to be borne if hospital care had been provided in that State, it cannot be argued that making that sickness insurance scheme bear the costs of complementary reimbursement would be liable to have a significant effect on the financing of the social security system of that Member State ( Vanbraekel and Others , paragraph 52).
59. First of all, it should be noted that scheduled hospital treatment is received in another Member State under Article 22(1)(c) of Regulation No 1408/71 where – as is clear from the second subparagraph of Article 22(2) of that regulation – an objective finding has been made that the treatment in question, or treatment which is comparable in terms of effectiveness, is not available in the Member State of affiliation within a medically acceptable length of time (see, to that effect, Watts , paragraphs 57 and 59). In such circumstances, as the Court held in Vanbraekel and Others , the Member State of affiliation must, if it is not to find itself in breach of the rules on freedom to provide services, ensure – in addition to meeting its obligations under Articles 22(1)(c) of Regulation No 1408/71, read in conjunction with Article 36 thereof – that, should the case arise, the insured person has a level of cover which is equally as advantageous as the level of cover which would have been recognised if that treatment had been available under its own national health system within a medically acceptable length of time.
61. With regard to an insured person whose travel to another Member State is for reasons relating to tourism or education, for example, and not to any inadequacy in the health service to which he is affiliated, the rules of the Treaty on freedom of movement offer no guarantee that all hospital treatment services which may have to be provided to him unexpectedly in the Member State of stay will be neutral in terms of cost. Given the disparities between one Member State and another in matters of social security cover and the fact that the objective of Regulation No 1408/71 is to coordinate the national laws but not to harmonise them, the conditions attached to a hospital stay in another Member State may, according to the circumstances, be to the insured person’s advantage or disadvantage (see, by analogy, Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829, paragraphs 50 to 52; Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 55; and Case C‑392/05 Alevizos  [2007] ECR I‑3505, paragraph 76).
67. Nevertheless, as paragraph 1 of the enacting terms of Decision No 194 makes clear, the system established under Article 22(1)(a)(i) of Regulation No 1408/71 is intended precisely to prevent the insured person from being constrained in such cases to return early to the Member State of affiliation to receive the necessary treatment there, by conferring on that person the right – which he would not otherwise have – of access to hospital treatment in the Member State of stay on conditions of reimbursement as favourable as those enjoyed by insured persons covered by the legislation of that State (see, by analogy, Case C‑56/01 Inizan  [2003] ECR I‑12403, paragraphs 21 and 22).
72. It follows that the possibility that persons insured under the Spanish national health system might be induced to return early to Spain in order to receive hospital treatment there which has been made necessary by a deterioration in their health during a temporary stay in another Member State, or to cancel a trip to another Member State – for tourism or study, for example – because, if their case does not fall within the scope of the second sentence of Article 4(3) of Royal Decree 1030/2006, they cannot count on the competent institution making a complementary contribution if the cost of equivalent treatment in Spain exceeds the level of cover applicable in that other Member State, appears too uncertain and indirect. Accordingly, the legislation at issue cannot, in general terms, be regarded as restricting the freedom to provide hospital treatment services, tourist services or educational services (see, by analogy, regarding the free movement of goods and freedom of movement for workers respectively, Case C‑69/88 Krantz  [1990] ECR I‑583, paragraph 11, and Case C‑190/98 Graf  [2000] ECR I‑493, paragraphs 24 and 25).
75. In its capacity as the Member State of affiliation, every Member State is free, within the framework of its powers under Articles 153 TFEU and 168 TFEU to organise its public health and social security system (see to that effect, Watts , paragraphs 92 and 146, and Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez  [2010] ECR I‑0000, paragraph 43), to adopt measures affecting the extent and the conditions – especially regarding time-limits – of the offer of hospital treatment in its own territory, so as to be able to control the number of authorisations to be issued, under Article 22(1)(c) of Regulation No 1408/71, for treatment in another Member State which has been scheduled by persons insured under its own system.