Petra von Chamier-Glisczinski v Deutsche Angestellten-Krankenkasse.
Date: 2009-07-16
40. In addition, it is necessary to point out that the Court has already held that benefits such as those provided under the German care insurance scheme, even if they have their particular characteristics, fall within ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71, since they are essentially intended to supplement the sickness insurance benefits to which they are, moreover, linked at the organisational level, in order to improve the state of health and the quality of life of persons reliant on care (see, to that effect, Molenaar , cited above, paragraphs 24 and 25).
42. In that regard, the national court drafted the present question with respect to the terms of Article 19 of Regulation No 1408/71. Read in the light of the case‑law of the Court of Justice, in particular the judgments in Case C‑215/90 Twomey  [1992] ECR I‑1823, paragraph 18, and Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraph 89, that provision guarantees, at the expense of the competent Member State, the right for an employed or self‑employed person as well as for members of that person’s family residing in the territory of another Member State whose condition requires treatment in the territory of the Member State of residence to receive sickness benefits in kind provided by the institution of the latter Member State.
43. However, in this case, in the light of the factual background to the main proceedings, it is necessary to examine whether, instead of Article 19 of Regulation No 1408/71, Article 22 of the same regulation can be taken into consideration. Even if, formally, the national court has limited its question to the interpretation of Article 19, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, inter alia, Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraph 38; Case C‑258/04 Ioannidis  [2005] ECR I‑8275, paragraph 20; and Case C‑392/05 Alevizos  [2007] ECR I‑3505, paragraph 64).
45. Such a situation, if it were to be confirmed by the national court, could lead to Article 22(1)(b) and (3) of Regulation No 1408/71 being taken into consideration. As is apparent in particular from that article’s heading, Article 22(1)(b) read together with the first paragraph of Article 22(3) concerns, in particular, the situation where a member of the family of an employed or self‑employed person transfers his residence during sickness to a Member State other than that of the competent institution.
48. In the context of Regulation No 1408/71, the concepts of benefits in kind and cash benefits must receive an autonomous Community law interpretation (see, to that effect, Case C‑466/04 Acereda Herrera  [2006], ECR I‑5341, paragraphs 29 and 30). However, the Court has already held, with regard to the care insurance scheme at issue in the main proceedings, that care insurance benefits consisting in the direct payment or reimbursement of the costs of a specialised home entailed by the insured person’s reliance on care fall within the definition of benefits in kind within the meaning of Title III of Regulation No 1408/71 (see, to that effect Molenaar , cited above, paragraphs 6 and 32, and also Joined Cases C‑502/01 and C‑31/02 Gaumain-Cerri and Barth  [2004] ECR I‑6483, paragraph 26), those benefits including, among other things, full in‑patient care as provided for in Paragraph 43 of SGB XI.
50. It should be borne in mind, in that context, that the Court has already interpreted Article 19 of Regulation No 1408/71 as meaning that an insured person in circumstances falling within that provision is to receive, in the Member State in which he resides, benefits in kind in so far as the leg islation of that State, whatever the more specific name given to the social protection scheme of which it forms part, provides for the provision of benefits in kind designed to cover the same risks as those covered by the insurance concerned in the competent State (see, to that effect, Molenaar , cited above, paragraph 37). That interpretation is confirmed both by the wording of Article 19, and by the objective of guaranteeing employed and self‑employed persons access, in the Member State of residence or stay, to care corresponding to their state of health on an equal footing with persons insured with the social security system of that Member State.
51. In addition, in accordance with Article 19(2) of Regulation No 1408/71, members of the family within the meaning of the regulation are to receive, at the expense of the competent State, benefits in kind provided by the institution of their place of residence within the limits and in accordance with the provisions of the legislation administered by that institution (see, to that effect, Case C‑451/93 Delavant  [1995] ECR I‑1545, paragraph 15).
56. Indeed, it would be both to go beyond the objective of Regulation No 1408/71 and to exceed the purpose and scope of Article 42 EC to interpret that regulation as prohibiting a Member State from granting workers and members of their family broader social protection than that arising from the application of that regulation (see, to that effect, Case 69/79 Jordens‑Vosters  [1980] ECR 75, paragraph 11; Case 21/87 Borowitz  [1988] ECR 3715, paragraph 24; and Case C‑352/06 Bosmann  [2008] ECR I‑3827, paragraphs 27 to 29 and 33).
63. First of all, it follows, both from the case-law of the Court and from Article 152(5) EC, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care (Case C‑169/07 Hartlauer  [2009] ECR I‑0000, paragraph 29 and the case‑law cited). In the absence of harmonisation at Community level, it is thus for the legislation of each Member State to determine the conditions for granting social security benefits in kind. However, when exercising that power, the Member States must comply with Community law (see, inter alia, Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 44 to 46, as well as Case C‑8/02 Leichtle  [2004] ECR I‑2641, paragraph 29 and the case‑law cited), in particular the provisions of the Treaty on the free movement of services (see Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 23), freedom of movement for workers (see Case C‑228/07 Petersen  [2008] ECR I‑0000, paragraph 42) or, further, the freedom of every citizen of the European Union to move and reside in the territory of the Member States (see Case C‑135/99 Elsen  [2000] ECR I‑10409, paragraph 33, and Case C‑507/06 Klöppel  [2008] ECR I‑943, paragraph 16).
64. Moreover, the Court has held that, by adopting Regulation No 1408/71, the Council, bearing in mind the wide discretion that it enjoys with regard to the choice of the most appropriate measures for achieving the result envisaged in Article 42 EC (see, to that effect, inter alia, Case C‑360/97 Nijhuis  [1999] ECR I‑1919, paragraph 30), has in principle fulfilled the obligation arising from the task entrusted to it by that article of setting up a system allowing workers to overcome any obstacles which may arise for them from national rules in the field of social security (see, to that effect, inter alia, Case C‑443/93 Vougioukas  [1995] ECR I‑4033, paragraph 30; Molenaar , cited above, paragraph 14, and Case C‑293/03 My  [2004] ECR I‑12013, paragraph 34). It has not been maintained in the present proceedings that Article 19 or 22, or any other provision of Regulation No 1408/71, is invalid in situations such as that in the dispute in the main proceedings, and no evidence to suggest that this might be the case has been submitted to the Court.
65. As follows from paragraphs 50 and 52 above, the mechanisms laid down, as the case may be, by Article 19 or Article 22 of Regulation No 1408/71 reflect the Community legislature’s intention to favour a solution according to which, with regard to sickness benefits provided in kind, the insured persons may gain access, in the Member State of residence or stay, to care corresponding to their state of health on an equal footing with persons insured with the social security system of that Member State (see also, to that effect, with regard to Article 22 of Regulation No 1408/71, Case C‑156/01 van der Duin and ANOZ Zorgverzekeringen  [2003] ECR I‑7045, paragraph 50, and Case C‑145/03 Keller  [2005] ECR I‑2529, paragraph 45). It is true that, in accordance with Article 36 of Regulation No 1408/71, in the case of residence outside the competent State, the benefits in kind provided by the institution of the place of residence on behalf of the competent institution, by virtue in particular of the provisions of Articles 19 and 22 of that regulation, give rise to full reimbursement by the latter institution. However, in exercising its wide discretion, the Community legislature was entitled to choose, in view in particular of the possibility of urgent medical treatment being needed outside the competent State, not to require the institution of the place of residence to provide, notwithstanding the practical and administrative complications involved, benefits in kind pursuant to the legislation applied by the competent institution, legislation with which the institution of the place of residence would not necessarily be familiar.
66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts  [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others  [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
68. With regard, first of all, to the applicability of Article 39 EC, it should be pointed out at the outset that there is no single definition of worker/employed or self‑employed person in Community law; it varies according to the area in which the definition is to be applied (see, inter alia, Case C‑543/03 Dodl and Oberhollenzer  [2005] ECR I‑5049, paragraph 27). Thus, the concept of worker used in the context of Article 39 EC and Regulation No 1612/68 does not necessarily coincide with the definition applied in relation to Article 42 EC and Regulation No 1408/71 (see, to that effect, Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraphs 31, 32, 35 and 36).
69. With regard to Article 39 EC, it is settled case‑law that the concept of ‘worker’ within the meaning of that provision has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration (see, inter alia, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Trojani , cited above, paragraph 15; and Petersen , cited above, paragraph 45).
70. It is also apparent from the case‑law that nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC (see, to that effect, Case C‑292/89 Antonissen  [1991] ECR I‑745, paragraph 12 and 13; Martínez Sala , cited above, paragraph 32; Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 57; Ioannidis , cited above, paragraph 21; as well as Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze  [2009] ECR I‑0000, paragraph 36).
74. Next, as for Article 49 EC, it should be noted at the outset that no provision of the Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service can no longer be regarded as the provision of services within the meaning of the Treaty. Thus, ‘services’ within the meaning of the Treaty may cover services varying widely in nature, including services which are provided over an extended period, even over several years (see, to that effect, Case C‑215/01 Schnitzer  [2003] ECR I‑14847, paragraphs 30 and 31, and Case C‑171/02 Commission  v Portugal  [2004] ECR I‑5645, paragraph 26).
75. None the less, it is apparent from the case‑law that the provisions of the Treaty relating to the freedom to provide services do not cover the situation of a national of a Member State who establishes his principal residence, on a permanent basis, or in any event without there being a foreseeable limit to the duration of that residence, in the territory of another Member State, thereby being able to benefit, during that indefinite period, from the provision of services (see, to that effect, Case 196/87 Steymann [1988] ECR 6159, paragraph 17; Trojani , cited above, paragraph 28; Case C‑200/02 Zhu and Chen  [2004] ECR I‑9925, paragraph 22; and, with regard to specialised care homes, Case C‑70/95 Sodemare and Others  [1997] ECR I‑3395, paragraph 38).
82. In that regard, it follows from the case‑law that the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in another Member State by legislation of his Member State of origin penalising the mere fact that he has used those opportunities (see Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher  [2007] ECR I‑9161, paragraph 26 and the case‑law cited, and Case C‑221/07 Zablocka‑Weyhermüller  [2008] ECR I‑0000, paragraph 34 and the case‑law cited).
84. However, as Article 42 EC provides for the coordination, not the harmonisation, of the legislation of the Member States, substantive and procedural differences between the social security systems of individual Me mber States, and hence in the rights of persons who are insured persons there, are unaffected by that provision (see, to that effect, with regard to free movement of workers, Case 41/84 Pinna  [1986] ECR 1, paragraph 20; Case C-340/94 Jaeck  [1997] ECR I‑461, paragraph 18; and Case C‑221/95 Hervein and Hervillier  [1997] ECR I‑609, paragraph 16).
85. In those circumstances, Article 18(1) EC cannot guarantee to an insured person that a move to another Member State will be neutral as regards social security, in particular as regards sickness benefits (see, by analogy with Article 39 EC, Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829, paragraph 51, and Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraph 34). As the Commission states, in view of the disparities existing between the schemes and legislation of the Member States in this field, such a move may, depending on the case, be more or less advantageous or disadvantageous for the person concerned, according to the combination of national rules applicable pursuant to Regulation No 1408/71.
87. In those circumstances, since the Federal Republic of Germany and the Republic of Austria may freely choose the mode of organisation of their sickness insurance schemes, one of those schemes cannot be considered to be the cause of a discrimination or a disadvantage for the sole reason that it has unfavourable consequences when it is applied, in accordance with the coordination mechanisms laid down in application of Article 42 EC, in combination with the scheme of another Member State.