Patricia Inizan v Caisse primaire d'assurance maladie des Hauts-de-Seine.
Date: 2003-10-23
16.  First, 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; Case C-157/99   Smits and Peerbooms   [2001] ECR I-5473, paragraph 53, and Case C-385/99   Müller-Fauré and Van Riet   [2003] ECR I-4509, paragraph 38).
17.  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  , paragraph 100, and the case-law cited therein).
18.  Accordingly, the Court has ruled in particular that Article 49 EC precludes the application of national rules 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, in particular, Case C-158/96   Kohll   [1998] ECR I-1931, paragraphs 35 and 36, and   Smits and Peerbooms  , paragraphs 69 to 75, and   Müller-Fauré  and Van Riet  , paragraphs 44, 67 and 68).
19.  So far as concerns Article 22 of Regulation No 1408/71, it should nevertheless be borne in mind that that provision is in no way intended to regulate, and hence does not in any way prevent, the reimbursement by Member States, at the tariffs in force in the competent Member State, of costs incurred in connection with treatment provided in another Member State, even without prior authorisation (Kohll  , paragraph 27, and   Vanbraekel and Others  , paragraph 36).
20.  The purpose of Article 22(1)(c)(i) is to confer on the insured persons concerned an entitlement to benefits in kind provided on behalf of the competent institution by the institution of the place of stay, in accordance with the legislation of the Member State in which the benefits are provided, as though the covered person were insured in that State, the length of the period during which benefits are provided alone remaining to be governed by the legislation of the competent Member State (see, in particular,   Vanbraekel and Others  , paragraph 32).  The competent institution is then required to reimburse, directly, the institution of the place of stay in compliance with the conditions laid down in Article 36 of Regulation No 1408/71.
21.  It follows that, by guaranteeing in paragraph 1(c)(i) that insured persons covered by the legislation of one Member State and granted authorisation have access to treatment in the other Member States on conditions of reimbursement as favourable as those enjoyed by insured persons covered by the legislation of those other States and by stating, in the second subparagraph of paragraph 2, that the competent national institution may not refuse such authorisation where the two conditions laid down therein are satisfied, Article 22 of Regulation No 1408/71, as mentioned in particular by the Council and the Commission, helps to facilitate the free movement of insured persons (see, to that effect,   Vanbraekel and Others  , paragraph 32) and, to the same extent, the cross-border provision of medical services between Member States.
22.  Insured persons are thus granted rights which they would not otherwise have since, as they involve reimbursement by the institution of the place of stay in accordance with the legislation administered by it, those rights cannot by definition be guaranteed to those persons under the legislation of the competent Member State alone (see, by analogy, Case C-62/91   Gray   [1992] ECR I-2737, paragraph 10).
23.  However, it should be borne in mind that, as the Court has previously held, Article 51 of the EC Treaty (now, after amendment, Article 42 EC), does not prohibit the Community legislature from attaching conditions to the rights and advantages which it accords in order to ensure freedom of movement for workers or from determining the limits thereto (Joined Cases 41/79, 121/79 and 796/79   Testa and Others   [1980] ECR 1979, paragraph 14, and   Gray  , paragraph 11).
34.  However, it is for the Court to extract from all the information provided to it by the national court, in particular the grounds of the order for  reference, the points of Community law which require interpretation, having regard to the subject-matter of the proceedings (see, inter alia, Case 35/85   Tissier   [1986] ECR 1207, paragraph 9, and   Agorà and Excelsior  , paragraph 24).
37.  Article 22(2) of Regulation No 1408/71 lays down two conditions which, if satisfied, render mandatory the prior authorisation to which it refers.  However, one of those conditions is that the treatment in question cannot be given to the person concerned within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.  For its part, Article R. 332-2 of the Social Security Code provides that, in exceptional circumstances, sickness insurance funds may reimburse, at a flat rate, the cost of treatment given outside France where it is proved that the insured person could not receive the treatment appropriate to his condition in French territory.
41.  First of all, it should be borne in mind that the purpose of the second subparagraph of Article 22(2) of Regulation No 1408/71 is to identify two conditions which, where they are cumulatively satisfied, mean that the competent national institution cannot refuse the authorisation sought on the basis of Article 22(1)(c)(i) thereof (Vanbraekel and Others  , cited above, paragraph 31).
42.  The first of those conditions is that the treatment in question be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides.  In that regard, it is none the less sufficient to note that there is nothing in the order for reference nor in the case-file relating to the main proceedings to show that the CPAM refused to reimburse the treatment in question on the ground that that condition had not been satisfied.
44.  That second condition requires, as noted in paragraph 37 of the present judgment, that the treatment which the patient intends to undergo in a Member State other than that in which he resides cannot be given to the patient within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.
45.  It follows that such a condition is not satisfied whenever it is apparent that treatment which is the same or equally effective for the patient can be obtained without undue delay in the Member State of residence (see, to similar effect,   Smits and Peerbooms  , paragraph 103, and   Müller-Fauré  and Van Riet  , paragraph 89).
46.  In that connection, in order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in the Member State of residence, the competent institution is required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient's disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history (see   Smits and Peerbooms  , paragraph 104, and   Müller-Fauré and Van Riet  , paragraph 90).
49.  It follows in particular that refusals to grant authorisation, or the opinions on which such refusals may be based, must refer to the specific provisions on which they are based and be properly reasoned in accordance with them.  Likewise, courts or tribunals hearing and determining actions against such refusals must be able, if they consider it necessary for the purpose of carrying out the review which is incumbent on them, to gather the advice of fully objective and impartial independent experts.
51.  As to whether Article R. 332-2 of the Social Security Code is consistent with the provisions of the Treaty relating to freedom to provide services, the first point to note is that, although the Court has no jurisdiction in proceedings brought under Article 234 EC to rule on the question whether a provision of national legislation is compatible with the Treaty, it may provide the national court with all such criteria for the interpretation of Community law as may enable it to answer that question (see, among others, Case 45/75   REWE Zentrale  [1976] ECR 181, paragraph 11, and Case C-228/98   Dounias   [2000] ECR I-577, paragraph 36).
57.  According to the case-law of the Court, in order for such a prior administrative authorisation scheme to be justified even though it derogates from a fundamental freedom such as that in issue in the main proceedings, it is none the less necessary that it be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (see   Smits and Peerbooms  , paragraph 90, and   Müller-Fauré  and Van Riet  , paragraph 85).  As stated in paragraph 48 of this judgment, such a prior administrative authorisation scheme must, similarly, 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 refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings.
59.  A condition of that type can be justified under Article 49 EC, provided that the condition is construed to the effect that authorisation to receive treatment in another Member State may be refused on that ground only if treatment which is the same or equally effective for the patient can be obtained without undue delay within the territory of the Member State in which the insured person's sickness fund is established (see, to that effect,   Smits and Peerbooms  , paragraph 103, and   Müller-Fauré and Van Riet  , paragraph 89).
60.  In view of all the foregoing considerations, the answer to the second part of the question must be that:
─  the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation to which that provision refers may not be refused where it is apparent, first, that the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and, secondly, that treatment which is the same or equally effective cannot be obtained without undue delay in that Member State;
─  Articles 49 EC and 50 EC must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which, first, makes reimbursement of the cost of hospital care provided in a Member State other than that in which the insured person's sickness fund is established conditional upon prior authorisation by that fund and, secondly, makes the grant of that authorisation subject to the condition that it be established that the insured person could not receive within the territory of the Member State where the fund is established the treatment appropriate to his condition.  However, authorisation may be refused on that ground only if treatment which is the same or equally effective for the patient can be obtained without undue delay in the territory of the Member State in which he resides.