Nicolas Decker v Caisse de maladie des employés privés.
Date: 1998-04-28
21 It must be observed, first of all, that, according to settled case-law, Community law does not detract from the powers of the Member States to organise their social security systems (Case 238/82 Duphar and Others v Netherlands [1984] ECR 523, paragraph 16, and Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 27).
22 In the absence of harmonisation at Community level, it is therefore for the legislation of each Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme (Case 110/79 Coonan v Insurance Officer [1980] ECR 1445, paragraph 12, and Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg [1991] ECR I-4501, paragraph 15) and, second, the conditions for entitlement to benefits (Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, paragraph 36).
23 As the Advocate General observes in points 17 to 25 of his Opinion, the Member States must nevertheless comply with Community law when exercising those powers.
24 The Court has held that measures adopted by Member States in social security matters which may affect the marketing of medical products and indirectly influence the possibilities of importing those products are subject to the Treaty rules on the free movement of goods (see Duphar and Others, cited above, paragraph 18).
25 Consequently, the fact that the national rules at issue in the main proceedings fall within the sphere of social security cannot exclude the application of Article 30 of the Treaty.
Effect of Regulation No 1408/71
28 Moreover, as the Advocate General observes in points 55 and 57 of his Opinion, Article 22(1) of Regulation No 1408/71 is intended to allow an insured person, authorised by the competent institution to go to another Member State to receive there treatment appropriate to his condition, to receive sickness benefits in kind, on account of the competent institution but in accordance with the provisions of the legislation of the State in which the services are provided, in particular where the need for the transfer arises because of the state of health of the person concerned, without that person incurring additional expenditure.
29 On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light of its purpose, is not intended to regulate and hence does not in any way prevent the reimbursement by Member States, at the tariffs in force in the competent State, of the cost of medical products purchased in another Member State, even without prior authorisation.
31 It is necessary to examine whether rules such as those at issue in the main proceedings are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
36 Such rules must be categorised as a barrier to the free movement of goods, since they encourage insured persons to purchase those products in Luxembourg rather than in other Member States, and are thus liable to curb the import of spectacles assembled in those States (see Case 18/84 Commission v France [1985] ECR 1339, paragraph 16).
38 Mr Decker, on the other hand, claims that if his purchase were reimbursed, the financial burden on the Fund's budget would be the same, as it reimburses only a flat-rate sum for both frames and corrective lenses sold by an optician. Since that flat rate is fixed independently of the costs actually incurred, there is no objective reason why the Fund should refuse reimbursement if the purchase is made from an optician established in another Member State. The rules at issue therefore cannot be justified by the need to control health expenditure.
39 It must be recalled that aims of a purely economic nature cannot justify a barrier to the fundamental principle of the free movement of goods. However, it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier of that kind.
40 But, as the Luxembourg Government acknowledged in reply to a question from the Court, it is clear that reimbursement at a flat rate of the cost of spectacles and corrective lenses purchased in other Member States has no effect on the financing or balance of the social security system.
42 It must be observed that the conditions for taking up and pursuing regulated professions have been the subject of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) and Commission Directive 95/43/EC of 20 July 1995 (OJ 1995 L 184, p. 21), which amended Annexes C and D to Directive 92/51.
43 This means that the purchase of a pair of spectacles from an optician established in another Member State provides guarantees equivalent to those afforded on the sale of a pair of spectacles by an optician established in the national territory (see, with reference to the purchase of medicinal products in another Member State, Case 215/87 Schumacher v Hauptzollamt Frankfurt am Main-Ost [1989] ECR 617, paragraph 20, and Case C-62/90 Commission v Germany [1992] ECR I-2575, paragraph 18).