1. The reference for a preliminary ruling concerns the interpretation of Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999 (OJ 1999 L 164, p. 1) (‘Regulation No 574/72’).
2. The reference was made in proceedings between the Betriebskrankenkasse der Robert Bosch GmbH (‘R. Bosch’) and the Bundesversicherungsamt (‘the BVA’) concerning the decision by the latter to require R. Bosch to end a practice by which it reimbursed fully medical expenses of up to DEM 200 incurred in other Member States. Legal framework Community law
3. Under the heading ‘Refund by the competent institution of one Member State of expenses incurred during a stay in another Member State’, Article 34 of Regulation No 574/72 provides: ‘1. If it is not possible during an employed or self-employed person’s stay in a Member State other than the competent State to complete the formalities provided for in Articles 20(1) and (4) and 21, 23 and 31 of … Regulation [No 574/72], his expenses shall, upon his application, be refunded by the competent institution in accordance with the refund rates administered by the institution of the place of stay. 2. The institution of the place of stay shall, at the request of the competent institution, supply it with the necessary information about such rates. If the institution of the place of stay and the competent institution are bound by an agreement providing either that no refund, or that a lump sum refund of benefits provided, in pursuance of Articles 22(1)(a)(i) and 31 of … Regulation [No 1408/71], be made, the institution of the place of stay shall, in addition, be required to transfer to the competent institution the amount to be refunded to the person concerned in pursuance of the provisions of paragraph 1. …
4. Notwithstanding paragraphs 1, 2 and 3, the competent institution may effect the reimbursement of expenses incurred in accordance with the rates it administers provided that it is possible to make a refund in accordance with these rates, that the expenses to be refunded do not exceed a level determined by the Administrative Commission and that the employed person or self-employed person or pensioner agrees to the application of this provision. In any case, the amount of reimbursement shall not exceed the amount of the expenses actually incurred.
5. If the legislation of the State of residence does not provide for rates of reimbursement, the competent institution may effect the reimbursement under the conditions laid down in paragraph 4 without the agreement of the person concerned being necessary.’ 4. According to Article 1 of Decision No 176 of the Administrative Commission of the European Communities on social security for migrant workers of 24 June 1999 concerning the reimbursement by the competent institution in a Member State of the costs incurred during a stay in another Member State by means of the procedure referred to in Article 34(4) of Regulation No 574/72 (OJ 2000 L 243, p. 42), the maximum amount of expenses to which the latter provision refers is EUR 1 000. 5. Article 22(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community, as amended and updated by Regulation No 2001/83, as amended by Regulation No 1399/1999 (‘Regulation No 1408/71’), provides: ‘1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State ... shall be entitled: (i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State; ...’.
6. Article 31 of Regulation No 1408/71 provides: ‘A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislation of two or more Member States who is entitled to benefits under the legislation of one of those States shall, with members of his family who are staying in the territory of a Member State other than the State in which they reside, receive: (a) benefits in kind provided by the institution of the place of stay in accordance with the provisions of the legislation which it administers, the cost being borne by the institution of the pensioner’s place of residence; ...’. National legislation
7. Paragraph 13(3) of the Fünftes Buch des Sozialgesetzbuches - Gesetzliche Krankenversicherung (Book V of the Social Security Code - Statutory health insurance scheme, ‘the SGB V’) provides that, by way of exception to the reimbursement scheme normally applicable under that legislation: ‘When the health insurance fund is unable to provide urgent benefits in time or wrongly refuses a benefit, thereby causing insured persons to incur expenses for that benefit which they must themselves cover, it shall reimburse the amount to the insured persons in so far as the benefit is necessary.’ The main proceedings and the question referred for a preliminary ruling
8. As a federal health insurance fund, R. Bosch is subject to the supervision of the BVA.
9. The documents in the case-file and the observations submitted to the Court show that, within the framework of the application of the national provisions governing reimbursement of health care costs, R. Bosch instituted a practice of reimbursing fully expenses incurred by its members when the amount paid by them for care received during a stay in another Member State does not exceed DEM 200 (‘the disputed practice’).
10. According to R. Bosch, instances of insured persons’ paying directly for medical costs incurred during a stay in another Member State are quite numerous. It is in fact quite common for documents issued by the health insurance fund for the purpose of obtaining health care abroad not to be accepted by health care providers or for the insured persons not to be in possession of the documents. In those circumstances, the need for administrative simplification and economy justifies, in cases where the amount involved for medical costs is quite low, the competent institution simply proceeding to make full reimbursement of those costs, rather than submitting to the lengthy, complex and, in R. Bosch’s experience, cumbersome procedures provided for by Article 34 of Regulation No 574/72.
11. By decision of 31 January 2001, the BVA ordered R. Bosch to end the disputed practice, which it deems to be contrary to the requirements of Article 34(4) of Regulation No 574/72.
12. In support of the action it brought against that decision, R. Bosch maintains that the decision is vitiated by an error of assessment and that it disregards the principle of proportionality.
13. The Sozialgericht Stuttgart seems to consider that the disputed practice does result in greater efficiency, gives rise to savings and benefits the insured persons, who are reimbursed more quickly. It adds that Article 34(4) of Regulation No 574/72, and the decisions adopted pursuant thereto which set first at EUR 500 and then EUR 1 000 the maximum amounts below which the competent authorities, subject to certain conditions, are authorised to apply their own rates of reimbursement rather than those applicable by the institution of the place of stay, reflect preoccupations similar to those underlying the disputed practice.
14. It is in that context that the Sozialgericht Stuttgart decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does Article 34 of Regulation (EEC) No 574/72 preclude, in the application of Paragraph 13(3) of the SGB V, a practice of flat-rate reimbursement by an insurance institution of medical treatment incurred in another Member State, in line with similar provisions regarding small amounts?’ The question referred for a preliminary ruling
15. As stated in paragraph 9 of this judgment, the disputed practice criticised in the decision at issue in the main proceedings consists of reimbursing in full medical costs incurred by insured persons during a stay in another Member State when those costs do not exceed DEM 200.
16. It follows that, by its question, the national court is asking essentially whether Article 34 of Regulation No 574/72 is to be interpreted as precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.
17. In order to answer the question thus reformulated, it is appropriate to note that, as evidenced by Article 34(1), the reimbursement scheme established by Article 34 of Regulation No 574/72 applies when the formalities provided for in Articles 20(1) and (4), 21, 23 and 31 of that regulation could not be completed during the stay in another Member State.
18. It should also be borne in mind that completion of those formalities should normally enable the insured persons, when staying in a Member State other than the competent State, to receive the benefits in kind provided by the institution of the place of stay on behalf of the competent institution, in accordance with the provisions of the legislation applied by the latter, as if they were members meeting the requirements of Articles 22 and 31 of Regulation No 1408/71.
19. Moreover, as the Court has already held, the rights conferred by those provisions are intended to facilitate the free movement of persons covered by social insurance (see Case C-368/98 Vanbraekel and Others [2001] ECR I-5363, paragraph 32; Case C-326/00 IKA [2003] ECR I-1703, paragraphs 38 and 51; and Case C-56/01 Inizan [2003] ECR I-0000, paragraph 21).
20. The same is true of the reimbursement scheme established by Article 34 of Regulation No 574/72, which, since it is intended to apply only in the alternative when the benefits in kind guaranteed by Articles 22 and 31 of Regulation No 1408/71 could not be procured because the formalities provided for could not be completed, is aimed at ensuring that the entitlement to reimbursement of health care costs established by those provisions cannot be made contingent on purely formal requirements.
21. The Court has stated with respect to Article 22 of Regulation No 1408/71, furthermore, that that provision is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States, at the rates in force in the competent State, of costs incurred in connection with treatment provided in another Member State where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the rates applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided (see, inter alia, Vanbraekel , cited above, paragraph 36).
22. The same approach should be adopted with respect to a provision which, like Article 34 of Regulation No 574/72 and as alluded to in paragraph 20 of this judgment, is intended only to introduce an alternative form of reimbursement, to be applied when a person covered by social insurance could obtain only benefits in kind provided directly by the institution of the place of stay on behalf of the competent institution in accordance with Article 22(1)(a)(i) or Article 31 of Regulation No 1408/71.
23. In this case, as stated in paragraph 9 of this judgment, the disputed practice consists of awarding, on the basis of national law, full reimbursement of medical costs incurred by the member during a stay in another Member State, when the amount of those costs does not exceed DEM 200.
24. In those circumstances, it is clear that the fact that that reimbursement is in full suffices to ensure that the reimbursement received by the person covered by social insurance is at least equivalent to, if not higher than, what that person would have received had reimbursement been made in the circumstances provided for in Article 34 of Regulation No 574/72.
25. It follows that that provision does not preclude a practice which, like the disputed practice, ensures full reimbursement of medical costs incurred by the person covered by social insurance.
26. The q uestion whether or not such a practice may be based on the applicable national rules does not fall within the Court’s jurisdiction to assess.
27. It follows from all the foregoing that the answer to the question should be that Article 34 of Regulation No 574/72 is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.