Aikaterini Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE).
Date: 2007-04-19
19. According to settled case-law, medical services supplied for consideration fall within the scope of the provisions on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Case C-372/04 Watts  [2006] ECR I‑4325, paragraph 86 and the case-law cited).
20. It has also been 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 ( Watts , paragraph 87).
21. Furthermore, the Court has held that a supply of medical services does not cease to be a supply of services within the meaning of Article 49 EC on the ground that the patient, after paying the foreign supplier for the treatment received, subsequently seeks reimbursement of the cost of that treatment through a social security system (see, to this effect, Case C-385/99 Müller-Fauré and van Riet  [2003] ECR I‑4509, paragraph 103).
23. Whilst it is settled case-law 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 in which social security benefits are granted, when exercising that power Member States must comply with Community law, in particular the provisions on the freedom to provide services. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector (see, in particular, Case C-157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 44 to 46, and Watts , paragraph 92).
25. The Court has repeatedly held 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 purely within a Member State (Case C-381/93 Commission  v France  [1994] ECR I‑5145, paragraph 17, and Smits and Peerbooms , paragraph 61).
30. The Court has held on a number of occasions that it is possible for the risk of seriously undermining the financial balance of a social security system to constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services (Case C-158/96 Kohll  [1998] ECR I‑1931, paragraph 41; Smits and Peerbooms , paragraph 72; and Müller-Fauré and van Riet , paragraph 73).
31. The Court has likewise acknowledged that the objective of maintaining on grounds of public health a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health, provided for in Article 46 EC in so far as it contributes to the attainment of a high level of health protection ( Kohll , paragraph 50; Smits and Peerbooms , paragraph 73; and Müller-Fauré and van Riet , paragraph 67).
32. The Court has also held that that provision of the EC Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, or even the survival of the population ( Kohll , paragraph 51; Smits and Peerbooms , paragraph 74; and Müller-Fauré and van Riet , paragraph 67).
35. As the Advocate General has observed in point 70 of his Opinion, the absolute terms, with the exception of the case of children under 14 years of age, of the prohibition laid down by the Greek legislation are not appropriate to the objective pursued, since measures which are less restrictive and more in keeping with the freedom to provide services could be adopted, such as a prior authorisation scheme which complies with the requirements imposed by Community law ( Müller-Fauré and van Riet , paragraphs 81 and 85) and, if appropriate, the determination of scales for reimbursement of the costs of treatment.