R.P. van der Duin v Onderlinge Waarborgmaatschappij ANOZ Zorgverzekeringen UA and Onderlinge Waarborgmaatschappij ANOZ Zorgverzekeringen UA v T.W. van Wegberg-van Brederode.
Date: 2003-07-03
36.  In order to reply to the question reformulated as above, it should first be noted that, according to the case-law of the Court, Article 22(1)(c) of Regulation No 1408/71 governs the entitlement to benefits in kind of pensioners and members of their family, resident in a Member State, who ask the competent institution for authorisation to go to the territory of another Member State to receive treatment there which is appropriate to their condition, while Article 31 of that regulation, to the exclusion of Article 22(1)(a), governs the entitlement of that class of insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the State in which they reside (Pierik  , paragraphs 6 and 7; Case C-326/00   IKA   [2003] ECR I-1703, paragraphs 26, 34 and 39).
38.  It should, however, be remembered that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see   inter alia   Case 36/79   Denkavit Futtermittel   [1979] ECR 3439, paragraph 12; Case C-235/95   Dumon and Froment   [1998] ECR I-4531, paragraph 25; and   IKA  , paragraph 27).  In this case, as stated in paragraph 27 of this judgment, the national court has indicated that it provisionally accepts that both Mr van der Duin and Mrs van Wegberg-van Brederode went to the Netherlands to receive the treatment at issue in the main proceedings, which explains, moreover, why it considered it appropriate to ask the Court about the possible applicability of Article 22(1)(c) and (i) of Regulation No 1408/71 to such situations.
39.  Secondly, the case-law of the Court of Justice shows that Article 28 of Regulation No 1408/71 lays down a   "conflict rule"  , enabling the determination, in relation to pensioners resident in a Member State other than the one liable for payment of the pension, of the institution responsible for the payment of the benefits therein mentioned and the law applicable (Jordens-Vosters  , paragraph 12).
40.  Once a pensioner and the members of his family have subscribed to the system established by Article 28 of Regulation No 1408/71 by registering with the institution of the place of residence as Article 29 of Regulation No 574/72 requires, then, as the wording itself of Article 28 makes clear, that pensioner enjoys, for himself and his family, a right to benefits in kind provided as if the person concerned held a pension under the legislation of the Member State on whose territory he resides and were entitled to benefits in kind by virtue of that legislation.
41.  The case-law of the Court shows that although, in such a case, the legislation of the Member State liable for payment of the pension may provide for additional social benefits in favour of those insured persons, that is simply an option that that Member State has, and any such conduct does not constitute for those persons a right flowing from Regulation No 1408/71 (Jordens-Vosters  , paragraphs 11 to 13).
44.  Indeed, as is apparent from Article 95 of Regulation No 574/72, the amount of the benefits provided by virtue of that Article 28 is in principle repaid to the institution of the place of residence by the competent institution of the State liable for payment of the pension by means of a lump-sum amount which is intended to cover the whole of the benefits in kind to be provided to the persons concerned, and the amount of which is calculated by reference to the average annual healthcare costs generated by a pensioner falling within the system of the Member State of residence, which lump sum therefore includes the cost of any healthcare that may be provided in a Member State other than that of residence.
47.  It follows from the above considerations that, once pensioners and members of their families are registered with the institution of the place of residence, those pensioners enjoy, in accordance with Articles 28 of Regulation No 1408/71 and 29 of Regulation No 574/72, for themselves and members of their families, a right to benefits in kind from the competent institution of the Member State of residence as if they were pensioners under the legislation of that latter State and were entitled on that basis to those benefits in kind.  It follows that that institution and the Member State of residence become, for those socially insured persons, by reason of this legal fiction and the assimilation resulting therefrom, the competent institution and the competent State as regards the granting of those benefits, without prejudice to the considerations set out in paragraph 41 of this judgment.
50.  It should also be noted in that respect that, placed in the context of the general objectives of the EC Treaty, Article 22 of Regulation No 1408/71 is one of a number of measures designed to allow workers from one Member State to enjoy, under the conditions which it specifies, benefits in kind in the other Member States, whatever the national institution to which he is affiliated and whatever the place of his residence (see, by analogy, in relation to a previous version of that Article 22,   Pierik  , paragraph 14).
53.  As is apparent from paragraph 47 of this judgment in particular, once pensioners and members of their families are registered with the institution of the place of residence, those pensioners enjoy, in accordance with Articles 28 of Regulation No 1408/71 and 29 of Regulation No 574/72, for themselves and members of their families, a right to benefits in kind from the competent institution of the Member State of residence as if they were pensioners under the legislation of that latter State and were entitled on that basis to those benefits in kind, with the result that that institution and the Member State of residence become, for those socially insured persons, by reason of this legal fiction and the assimilation resulting therefrom, the competent institution and the competent State as regards the granting of those benefits.