European Commission v French Republic.
Date: 2010-10-05
27. It is moreover to be stressed that that head of claim does not relate to any alleged failure to comply with Article 22(1)(c) of Regulation No 1408/71, under which the competent institution is, except in special situations relating, in particular, to the insured person’s state of health or to the urgency of the treatment needed (see, to that effect, Case C‑173/09 Elchinov  [2010] ECR I‑0000, paragraphs 45 and 51), entitled to make subject to prior authorisation responsibility for the payment, on its own account, for treatment proposed in another Member State, by the institution of the Member State of stay depending on the rules governing cover in that latter Member State.
29. Those preliminary points having been made, it is to be emphasised that, in the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine, in particular, the conditions for the grant of social security benefits covering treatment such as that concerned by the first head of claim. The fact remains, nevertheless, that when exercising that power the Member States must comply with European Union law, in particular, with the provisions on freedom to provide services (see, to that effect, Case C‑211/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 53 and the case-law cited).
30. According to settled case-law, medical services supplied for consideration fall within the scope of those provisions, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Case C‑8/02 Leichtle  [2004] ECR I‑2641, paragraph 28; Watts , paragraph 86; and Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 19).
31. It has also repeatedly 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 without being hampered by restrictions (see, in particular, to that effect, Watts , paragraph 87, and Commission  v Spain , paragraph 49).
32. In the circumstances of the case, the prior authorisation to which the national legislation makes subject responsibility for payment by the competent institution, in accordance with the rules governing cover in force in the Member State to which it belongs, for treatment planned in another Member State and involving the use of major medical equipment outside hospital infrastructures is capable of deterring, or even preventing, persons insured under the French system from applying to providers of medical services established in such another Member State in order to obtain the treatment in question. It constitutes, therefore, for both the insured persons and the providers of those services, a restriction of the freedom to provide services (see, to that effect, Müller-Fauré and van Riet , paragraphs 44 and 103, and Watts , paragraph 98).
33. With regard to objective justification of such a restriction, it is to be borne in mind that the Court has on several occasions held that planning requirements relating, on the one hand, to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned and, on the other, to the wish to control costs and avoid, so far as possible, any waste of financial, technical and human resources may justify the requirement of prior authorisation for financial responsibility on the part of the competent institution for treatment proposed in another Member State (see, to that effect, Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 76 to 81; Müller-Fauré and van Riet , paragraphs 76 to 81, and Watts , paragraphs 108 to 110).
34. Such considerations, expressed in respect of medical services provided in a hospital setting, can be reproduced with regard to medical services involving the use of major medical equipment, even if those services, like those at issue in the Commission’s first head of claim, are supplied outside such a setting.
35. In this connection, it is true that in paragraph 75 of Müller-Fauré and van Riet , after emphasising how difficult it is to distinguish ‘hospital services’ from ‘non‑hospital services’, the Court pointed out that services provided in a hospital environment but that could also be provided by a practitioner in his surgery or in a health centre could, for that reason, be placed on the same footing as non-hospital services.
36. Contrary to the position defended by the Commission, it cannot, however, be deduced from that passage in that judgment that the fact that treatment involving the use of major medical equipment may be provided outside a hospital setting renders considerations relating to planning requirements quite irrelevant.
37. Regardless of the setting, hospital or otherwise, in which it is intended to be installed and used, it must be possible for the major medical equipment exhaustively listed in Article R. 6122‑26 of the Public Health Code to be the subject of planning policy, such as that defined by the national legislation at issue, with particular regard to quantity and geographical distribution, in order to help ensure throughout national territory a rationalised, stable, balanced and accessible supply of up-to-date treatment, and also to avoid, so far as possible, any waste of financial, technical and human resources.
38. Such waste would be all the more damaging because the conditions for the installation, operation and use of the five types of equipment exhaustively listed in Article R. 6122‑26 of the Public Health Code are especially onerous, while the budgetary resources which the Member States are able to make available for up‑to-date treatment and, in particular, the subsidising of such equipment, are not unlimited, whatever the mode of funding applied (see, by analogy, with regard to medicinal products, Case C‑531/06 Commission  v Italy  [2009] ECR I‑4103, paragraph 57, and Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I‑4171, paragraph 33).
39. Without being contradicted by the Commission, the French Republic and the United Kingdom, taking as an example positron emission tomography, used in the detection and treatment of cancer, have emphasised that that equipment represents costs of hundreds of thousands, even millions, of euro, in both its purchase and in its installation and use.
40. If persons insured under the French system could, freely and in any circumstances, obtain at the expense of the competent institution, from service providers established in other Member States, treatment involving the use of major medical equipment corresponding to that listed exhaustively in the Public Health Code, the planning endeavours of the national authorities and the financial balance of the supply of up-to-date treatment would as a result be jeopardised.
41. That possibility could lead to under-use of the major medical equipment installed in the Member State of affiliation and subsidised by it or yet to a disproportionate burden on that Member State’s social security budget.
42. Having regard to those dangers to the organisation of public health policy and to the financial balance of the social security system, the requirement, except in special circumstances such as those referred to at paragraph 27 above, of prior authorisation by the competent institution in order for the latter to be responsible for payment, according to the rules governing cover in force in the Member State to which it belongs, for treatment planned in a non-hospital setting in another Member State and involving the use of major medical equipment mentioned in Article R. 6122‑26 of the Public Health Code, would appear, as European Union law now stands, to be a justified restriction (see, by analogy, Müller-Fauré and van Riet , paragraph 81).
43. It is to be borne in mind also that, according to settled case-law, a prior authorisation scheme must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the authorities’ discretion so that it is not used arbitrarily. Such an authorisation system must, furthermore, be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time, and it must, in addition, be possible for refusals to grant authorisation to be challenged in judicial proceedings (see, to that effect, Smits and Peerbooms , paragraph 90; Müller-Fauré and van Riet , paragraph 85; and Watts , paragraph 116).
51. In paragraph 53 of Vanbraekel and Others , the Court, in connection with planned treatment provided in another Member State for which the authorisation necessary if the competent institution were to be responsible for its payment had been improperly refused, interpreted Article 49 EC as meaning that, if the reimbursement of costs incurred on hospital services provided in the Member State of stay, calculated under the rules in force in that State, is less than the amount which application of the legislation in force in the Member State of affiliation would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by that institution.
52. As the Court later made clear, the insured person’s right to such additional reimbursement falls within the limits of the costs actually incurred in the Member State of stay (see, to that effect, Watts , paragraphs 131 and 143).
53. It is to be emphasised here that Article 49 EC, as interpreted in paragraph 53 of Vanbraekel and Others , being a directly applicable provision of the Treaty, binds all the authorities of the Member States, including administrative and judicial, which are, therefore, obliged to observe it, and there is no need to adopt domestic implementing measures (see, to that effect, Case 168/85 Commission  v Italy  [1986] ECR 2945, paragraph 11 and Case C‑412/04 Commission  v Italy  [2008] ECR I‑619, paragraphs 67 and 68).
54. The right of individuals to rely on that article, as interpreted by the Court, before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of that provision (see, to that effect, Case 72/85 Commission  v Netherlands [1986] ECR 1219, paragraph 20; Case 168/85 Commission  v Italy , paragraph 11; and Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheur and Factortame  [1996] ECR I‑1029, paragraph 20).
55. It is necessary, in addition, that the legal order of the Member State in question should not give rise to an ambiguous situation that might keep the individuals concerned in a state of uncertainty as to the possibility of relying on that provision of European Union law with direct effect (see, to that effect, Case 168/85 Commission  v Italy , paragraph 11; Case C‑120/88 Commission  v Italy  [1991] ECR I‑621, paragraph 9; and Case C‑119/89 Commission  v Spain  [1991] ECR I‑641, paragraph 8).
56. In that regard, it is, however, to be borne in mind 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 the case-law cited).
58. Its terms being so general, that provision covers entitlement to an additional reimbursement to be paid by the competent French institution in the situation set out in paragraph 53 of Vanbraekel and Others , of which, moreover, the Commission has taken formal note during the procedure before the Court.
60. As the French Republic observed at the hearing, the Commission has not, in any event, identified any provision of French law that might impede the application of the solution laid down in paragraph 53 of Vanbraekel and Others .
61. Secondly, it is to be noted that the Commission has not, in the present case, mentioned any decisions made by national courts that led to denying the right stemming from Article 49 EC for persons insured under the French system in the situation referred to in paragraph 53 of Vanbraekel and Others .
63. Thirdly, the Commission has not established the existence of any administrative practice whatsoever that deprives persons insured under the French system of the right to additional reimbursement in the situation referred to in paragraph 53 of Vanbraekel and Others .
67. In the circumstances, while it is true that, in accordance with the settled case-law of the Court recalled by the Commission, mere administrative practices, by their nature alterable at will by the authorities, cannot, in the context of national legislation incompatible with European Union law, be regarded as constituting proper fulfilment of Treaty obligations (see Case C‑197/96 Commission  v France  [1997] ECR I‑1489, paragraph 14; Case C‑358/98 Commission v Italy  [2000] ECR I‑1255, paragraph 17; and Case C‑33/03 Commission  v United Kingdom  [2005] ECR I‑1865, paragraph 25), the fact nevertheless remains that, in the circumstances of this case, the lack of any evidence of administrative practices contrary to European Union law bears out the finding that the French legislation, in particular Article R. 332‑3 of the Social Security Code, does not give rise to a situation that deprives persons insured under the French system of the rights conferred by Article 49 EC, as interpreted in Vanbraekel and Others .
68. Fourthly, the Commission has not, in the instant case, set out any complaint concerning any alleged refusal by a French social security body to allow an insured person the right to an additional reimbursement in the situation referred to in paragraph 53 of Vanbraekel and Others . On the contrary, during the procedure before the Court the French Republic supplied several examples of cases of persons insured under the French system finding themselves in the situation referred to in paragraph 53 of Vanbraekel and Others  who had been, or were about to be, able to obtain an additional reimbursement in accordance with that judgment.
69. It follows from the foregoing considerations that the Commission has not established that the French legal order brings about a situation capable of depriving persons insured under the French system of the right to an additional reimbursement in the situation referred to in paragraph 53 of Vanbraekel and Others .