1 By judgment of 9 October 1998, received at the Court on 16 October 1998, the Cour de travail de Mons (Higher Labour Court, Mons) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Articles 234 EC) a question on the interpretation of Articles 22 and 36 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, Regulation No 1408/71), and of Article 59 of the EC Treaty (now, after amendment, Article 49 EC).
2 That question has been raised in proceedings between Abdon Vanbraekel and his six children, as heirs of Ms Jeanne Descamps, and the Alliance nationale des mutualités chrétiennes (the ANMC) concerning the latter's refusal to reimburse the costs of hospital treatment incurred by Ms Descamps in connection with orthopaedic surgery which she underwent in a hospital in France. Legal framework Community law
3 Article 22(1) of Regulation No 1408/71 provides: 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; or (b) ... or (c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition, 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; (ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay or residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.
4 The second subparagraph of Article 22(2) of Regulation No 1408/71 provides: The authorisation required under paragraph 1(c) may not be refused where 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 where he cannot be given such treatment 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.
5 Section 7 of Chapter 1 in Title III of Regulation No 1408/71, headed Reimbursement between institutions, contains a single provision, Article 36, which is worded as follows: 1. Without prejudice to the provisions of Article 32, benefits in kind provided in accordance with the provisions of this chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded. 2. The refunds referred to in paragraph 1 shall be determined and made in accordance with the procedure provided for by the implementing Regulation referred to in Article 98, either on production of proof of actual expenditure or on the basis of lump-sum payments. In the latter case, the lump-sum payments shall be such as to ensure that the refund is as close as possible to actual expenditure. 3. Two or more Member States, or the competent authorities of those States, may provide for other methods of reimbursement or may waive all reimbursement between institutions under their jurisdiction. National legal framework
6 Article 76 quater(1) of the Law of 9 August 1963 introducing and organising a compulsory sickness and invalidity insurance scheme (the Law of 9 August 1963) provided at the material time: Unless the King provides otherwise, the benefits provided for in this Law shall not be granted where the recipient is not actually present on Belgian territory at the time of making the claim for benefits or where health benefits have been provided outside the national territory.
7 Article 221(1) of the Royal Decree of 4 November 1963 implementing the Law of 9 August 1963 provides: Authorisation to receive health benefits provided outside the national territory shall be granted: ... (2) for the recipient, where the restoration of his health requires hospital treatment which can be given under better medical conditions abroad provided that the medical expert has first determined such treatment to be essential.
8 However, the Belgian Government states in its written observations that requests for authorisation to receive treatment in another Member State are now considered under Article 22 of Regulation No 1408/71 rather than the Belgian legislation cited above.
9 Thus it follows from ministerial instructions set out in Circular No 83/54-80/54 of the Institut national d'assurance maladie-invalidité (INAMI) of 4 February 1983 that the Belgian legislation no longer applies where the situation in question is governed by Community rules.
10 As regards the issue of Form E 112, referred to in Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 (OJ, English Special Edition 1972 (I), p. 159) and, accordingly, the reimbursement of medical benefits provided in another Member State, Ministerial Circular O.A. No 81/215-80/51 of 18 June 1971 provides as follows: I. As regards the application of Article 22 of Regulation No 1408/71, the following principles shall apply: 1 Authorisation to receive treatment abroad shall not be given where the medical and technical facilities for providing such treatment are also available in Belgium; 2 Where authorisation to receive treatment abroad is given in very exceptional cases, that is to say where the treatment cannot be given in Belgium, the medical expert must clearly specify the establishment which is to provide the treatment and/or the medical specialist and also the proposed period of treatment; 3 Subject to paragraph 2, benefits not covered by Belgian insurance cannot be provided abroad, that is to say Form E 112 cannot be issued for benefits which are not reimbursable in Belgium under the compulsory sickness-invalidity insurance scheme (absolute bar). ... The main proceedings and the question referred to the Court
11 Ms Descamps, a Belgian national residing in Belgium and insured under the ANMC, suffered from bilateral gonarthrosis. In February 1990, she sought authorisation from the ANMC to undergo orthopaedic surgery in France, to be paid for by the ANMC.
12 Authorisation was refused on the ground that the request was not adequately supported, since Ms Descamps had not produced the opinion of a doctor practising in a national university institution.
13 Despite being refused authorisation, Ms Descamps went ahead with the operation in France in April 1990. She then brought an action against the ANMC before the Tribunal du travail de Tournai (Belgium) for reimbursement of the cost of that treatment.
14 By judgment of 10 December 1991, the Tribunal du travail de Tournai dismissed her action. It held that the ANMC's decision refusing authorisation was well founded, notably on the ground that Ms Descamps [had] not shown, by at the least producing the opinion of a Belgian university professor, that the operative treatment in France [had been] performed under better medical conditions than would have been the case in Belgium.
15 Ms Descamps appealed against that decision to the Cour du travail de Mons, which, by interlocutory judgment of 8 October 1993, held that the requirement, upheld by the Tribunal du travail de Tournai, that the opinion of a Belgian university professor was necessary before authorisation could be granted was excessive. In the same judgment, the Cour du travail de Mons designated an expert to assess whether the restoration of Ms Descamps's health in March 1990 necessitated hospital treatment which could be provided in better medical conditions abroad than in Belgium.
16 The expert's report submitted on 29 December 1994 concluded that in March 1990 Mrs Jeanne Descamps's recovery required hospital treatment which could be provided in better medical conditions abroad (an operation performed by Dr Cartier in Paris, Article 221(1) of the Royal Decree of 4 November 1963).
17 According to the pleadings exchanged before the Cour du travail de Mons after submission of the expert's report, reimbursement of the medical costs incurred by Ms Descamps came to a total of FRF 38 608.99 using the formula for calculating reimbursement laid down in the French legislation and to a total of FRF 49 935.44 using the formula laid down in the Belgian legislation.
18 Ms Descamps died in the course of the proceedings, on 10 August 1996. Her heirs, namely her husband, Mr Vanbraekel, and her six children, are pursuing this action.
19 In view of the report of the designated expert, the Cour du travail de Mons held that the ANMC would be ordered to pay the costs connected with Ms Descamps's hospital treatment in accordance with Article 22 of Regulation [No] 1408/71 and Articles 59 and 60 of the Treaty. It held that the only question still to be resolved was the amount of the costs assumed and decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: Where, in the context of proceedings before it, a national court has acknowledged that hospital treatment in a Member State other than that of the competent institution was necessary, although the prior authorisation provided for in Article 22 of Regulation No 1408/71 was refused: (a) Must the costs of hospital treatment be reimbursed in accordance with the scheme of the State of the competent institution or in accordance with that organised by the State on whose territory the hospital treatment has taken place? (b) Is a limitation of the amount reimbursed under the legislation of the State of the competent institution permitted, having regard to Article 36 of Regulation No 1408/71 which refers to reimbursement in full? Admissibility
20 The Irish, Netherlands and United Kingdom Governments argue that the judgment asking for a preliminary ruling does not state precisely why the national court needs an interpretation of Community law to decide the case and that it does not contain sufficient information about the relevant points of law and facts to enable the Member States effectively to exercise their right to lodge written observations before the Court.
21 In regard to that argument, it should be observed that the Court has consistently ruled that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, in particular, judgment in Joined Cases C-320/90 to 322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6; orders in Case C-152/92 Banchero [1993] ECR I-1085, paragraph 4, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 5, and Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 15). The Court has also repeatedly emphasised the importance for the referring court to state the precise reasons which prompted it to question the interpretation of Community law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling (see, in particular, orders in Case C-101/96 Italia Testa [1996] ECR I-3081, paragraph 6, Testa and Modesti, paragraph 15, and Laguillaumie, paragraph 16).
22 In the present case, however, the national court has not failed to comply with those requirements.
23 The referring court's judgment indicates the applicable national provisions and gives a description of the facts which, although concise, is sufficient to enable the Court to adjudicate on the matter.
24 Furthermore, as previously observed, the national court has already held that, in the circumstances of the case before it, the conditions to which Community law subjects the existence of a right to reimbursement of the costs of treatment received in a Member State other than the State in which the person concerned is insured were satisfied. As the judgment makes clear, the request for a preliminary ruling addressed to the Court seeks only to ascertain the amount of the reimbursement to be made and, in particular, whether it is the scheme of the Member State in which the person concerned is insured or the scheme governed by the legislation of the Member State on whose territory the treatment was provided that must be applied in this regard.
25 In those circumstances, the question referred by the national court does indeed call for examination. First part of the question
26 By the first part of its question, the national court is asking essentially whether, when a person who has requested authorisation on the basis of Article 22(1)(c) of Regulation No 1408/71 has been refused by the competent institution and it is subsequently established that that refusal was unfounded, the reimbursement by the competent institution of the costs of the treatment should be made according to the relevant rules in force in the Member State in which the person concerned is insured or according to those laid down in the legislation of the Member State on whose territory the treatment was provided.
27 In answering that question, it should be noted at the outset that, although the national court does not say so, the Community provisions whose interpretation appears to be relevant for the purpose of answering the question are, first, Article 22(1)(c) and (i) of Regulation No 1408/71 and, second, Article 59 of the Treaty.
28 As already observed, the national court states that it has held that the medical costs at issue in the main proceedings must be paid by the ANMC in accordance with Article 22 of Regulation No 1408/71 and Articles 59 and 60 of the Treaty. Article 22 of Regulation No 1408/71
29 As regards the applicability of Article 22 of Regulation No 1408/71 to the case before the national court, it must be borne in mind first of all that Ms Descamps did request prior authorisation on the basis of that provision and that the national court decided to declare the refusal of authorisation inoperative.
30 The fact that the refusal of authorisation was held unfounded in the main proceedings, on the basis of the criteria for authorisation laid down in the national legislation and not according to the criteria set out in the second paragraph of Article 22(2) of Regulation No 1408/71, does not mean that there was no ground to apply that regulation, as the Belgian Government maintains.
31 It follows from the second subparagraph of Article 22(2) of Regulation No 1408/71 that the sole purpose of that provision is to identify the circumstances in which the competent national institution is precluded from refusing authorisation sought on the basis of Article 22(1)(c). That provision is not designed to limit the circumstances in which such authorisation may be granted pursuant to Article 22(1)(c). It follows that, where permission is granted on the basis of a national rule which, like the legislation at issue in the main proceedings, provides that authorisation is to be granted where it is established that hospital treatment can be provided under better medical conditions abroad, such permission constitutes an authorisation within the meaning of Article 22(1)(c) of Regulation No 1408/71.
32 As regards the extent of the rights conferred by Article 22(1)(c) on an insured person who has been granted such authorisation, it follows from paragraph 1(i) that the insured person must in principle be entitled to the benefits in kind provided on behalf of the competent institution by the institution of the place where the insured person is staying, in accordance with the provisions of the legislation of the State in which the benefits are provided, as if the covered person were insured in that State. Only the length of the period during which benefits are provided remains to be governed by the legislation of the competent State. By guaranteeing 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 as favourable as those enjoyed by persons covered by the legislation of those other States, that provision helps to facilitate the free movement of persons covered by social insurance.
33 It follows from the foregoing that, as regards the basis on which costs are borne, the legislation of the Member State in which the treatment is given is to be applied, while the competent institution remains responsible for subsequently reimbursing the institution of the place of stay, as provided for in Article 36 of Regulation No 1408/71.
34 Both the practical effect and the spirit of those provisions require, moreover, that the request of an insured person for authorisation on the basis of Article 22(1)(c) of Regulation No 1408/71 has been refused by the competent institution and it is subsequently established, either by the competent institution itself or by a court decision, that that refusal was unfounded, that person is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which it would ordinarily have borne if authorisation had been properly granted in the first place.
35 The national court states that the amount reimbursable under the Belgian system is higher than the amount payable under the French system and is uncertain about the amount of the reimbursement to which the plaintiffs, in their capacity as Ms Descamps's heirs, are actually entitled under Community law. The question therefore arises whether the plaintiffs can also claim extra reimbursement to cover the difference between the two systems.
36 It should be noted that Article 22 of Regulation No 1408/71 is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State (see Case C-158/96 Kohll [1998] ECR I-1931, paragraph 27) where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the tariffs applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided.
37 Although Article 22 of Regulation No 1408/71 does not have the effect of preventing extra reimbursement, additional to that resulting from the application of the system of the Member State where the treatment was provided, when the system applied in the Member State in which the person concerned is insured is more beneficial, that provision does not have the further effect of requiring such additional reimbursement. Consequently, it is necessary to consider whether such an obligation might arise under Article 59 of the Treaty. The rules on freedom to provide services
38 It must be determined first of all whether the situation at issue in the main proceedings falls within the scope of freedom to provide services within the meaning of Article 59 of the Treaty.
39 A number of the Governments which have submitted written observations to the Court have argued that hospital services cannot constitute an economic activity for the purposes of Article 60 of the EC Treaty (now Article 50 EC).
40 It should be borne in mind first of all that, under Article 60 of the Treaty, services for the purposes of the Treaty are services normally provided for remuneration in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
41 It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 18, and Kohll, paragraphs 29 and 51).
42 It is also settled case-law that the special nature of certain services does not remove them from the ambit of the fundamental principle of freedom of movement (Case 279/80 Webb [1981] ECR 3305, paragraph 10, and Kohll paragraph 20), so that the fact that the national rules at issue in the main proceedings are social security rules cannot exclude application of Articles 59 and 60 of the Treaty (Kohll, paragraph 21).
43 Since the hospital services at issue in the main proceedings fall within the scope of freedom to provide services, it is necessary to go on to consider whether the fact that national legislation does not guarantee a person covered by its social insurance scheme who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71 a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the Member State in which he was insured entails a restriction of freedom to provide services within the meaning of Article 59 of the Treaty.
44 In that regard, it is settled case-law that Article 59 of the Treaty precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17, and Kohll, paragraph 33).
45 In the present case, there is no doubt that the fact that a person has a lower level of cover when he receives hospital treatment in another Member State than when he undergoes the same treatment in the Member State in which he is insured may deter, or even prevent, that person from applying to providers of medical services established in other Member States and constitutes, both for insured persons and for service providers, a barrier to freedom to provide services (see, by analogy, Luisi and Carbone, paragraph 16, Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 31, and Kohll, paragraph 35).
46 Consequently, it is necessary to examine whether the fact that the national legislation of a Member State does not guarantee a person insured in that State at least an equally advantageous level of cover when hospital services are provided in another Member State could be objectively justified.
47 It should be remembered that the Court has held that it cannot be excluded that the risk of seriously undermining the financial balance of a social security system might constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services (Kohll, paragraph 41).
48 The Court has likewise recognised, as regards the objective of maintaining a balanced medical and hospital service open to all, that even if that objective is intrinsically linked to the method of financing the social security system, it may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC) in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50).
49 The Court has also stated that Article 56 of the Treaty allows Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival, of the population (Kohll, paragraph 51).
50 In the situation at issue in the main proceedings, however, none of the overriding reasons referred to in paragraphs 47 to 49 above can justify the barrier in question.
51 In the present case, the national court held that Ms Descamps was in fact entitled to obtain the authorisation provided for by the national legislation under which she was covered and by Article 22(1)(c) of Regulation No 1408/71. In such circumstances, it cannot be claimed that payment of additional reimbursement, covering the difference between the system of cover laid down by the legislation of the Member State in which she was insured and that applied by the Member State in which the treatment was provided, when the former is more advantageous than the latter, would be liable to jeopardise the maintenance, in the Member State of registration, of a balanced medical and hospital service open to all or the maintenance of treatment capacity or medical competence on national territory.
52 Furthermore, since such additional reimbursement, which is a function of the system of cover applying in the State of registration, does not in theory impose any additional financial burden on the sickness insurance scheme of that State by comparison with the reimbursement to be made if hospital treatment had been provided in that latter State, it cannot be argued that making that sickness insurance fund bear such additional reimbursement would be liable to have a significant effect on the financing of the social security system (Kohll, paragraph 42).
53 In view of all the foregoing considerations, the answer to be given to the first part of the question referred to the Court must be that Article 22(1)(c) and (i) of Regulation No 1408/71 is to be interpreted as meaning that, when an insured person has been authorised by the competent institution to go to another Member State for treatment, the institution of the place where the treatment is provided is required to provide him with benefits in kind in accordance with the rules on assumption of the costs of health care which the latter administers, as if the person concerned were registered with it. Where the request of an insured person for authorisation on the basis of Article 22(1)(c) of that regulation has been refused by the competent institution and it is subsequently established that such refusal was unfounded, the person concerned is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which would have been borne by the institution of the place of treatment under the rules laid down by the legislation applied by the latter institution if authorisation had been properly granted in the first place. As Article 22 of that regulation is not intended to regulate any reimbursement at the tariffs in force in the Member State of registration, it does not have the effect of preventing or prescribing payment by that State of additional reimbursement covering the difference between the system of cover laid down by the legislation of that State and the system applied by the Member State of treatment, where the former is more advantageous than the latter and such reimbursement is provided for by the legislation of the Member State of registration. Article 59 of the EC Treaty is to be interpreted as meaning that, if the reimbursement of costs incurred on hospital services provided in a Member State of stay, calculated under the rules in force in that State, is less than the amount which application of the legislation in force in the Member State of registration would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by the competent institution. Second part of the question referred to the Court
54 By the second part of its question, the national court asks essentially whether Article 36 of Regulation No 1408/71 is to be interpreted as meaning that an insured person who has requested authorisation on the basis of Article 22(1)(c) of Regulation No 1408/71 and been refused by the competent institution is entitled to reimbursement of all the medical costs which he incurred in the Member State in which he received treatment once it is established that the rejection of his request for authorisation was unfounded.
55 In order to answer that reformulated question, it is sufficient to state that it follows from the actual wording of Article 36 of Regulation No 1408/71 that the full refund between institutions to which that provision refers concerns only benefits in kind provided by the institution of a Member State of stay on behalf of the competent institution, pursuant to the provisions of Title III, Chapter 1, of that regulation. Consequently, as observed in paragraphs 32 and 33 above, that refund applies only to benefits in kind for which the assumption of costs by the institution of the place of stay is provided for by the legislation applied by that institution, and in precise proportion to which that assumption of costs is stipulated.
56 The answer to be given to the second part of the question referred to the Court must therefore be that Article 36 of Regulation No 1408/71 cannot be interpreted as meaning that it follows from that provision that a covered person who has requested authorisation on the basis of Article 22(1)(c) of that regulation and been refused by the competent institution is entitled to reimbursement of all the medical costs which he incurred in the Member State in which he received treatment once it is established that the rejection of his request for authorisation was unfounded.