1 By judgment of 7 October 1998, received at the Court on 18 November 1998, the Tribunal d'Arrondissement (District Court), Luxembourg, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation, first, of the first paragraph of Article 6 and Article 48 of the EC Treaty (now, after amendment, the first paragraph of Article 12 EC and Article 39 EC), of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 312/76 of 9 February 1976 amending the provisions relating to the trade union rights of workers contained in Regulation (EEC) No 1612/68 (OJ 1976 L 39, p. 2; Regulation No 1612/68), and 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, as 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, second, of Article 85(1) of the EC Treaty (now Article 81(1) EC).
2 That question was raised in proceedings between Mr Ferlini and the Centre Hospitalier de Luxembourg (the CHL) concerning the scale of fees for the care given at his wife's confinement and for her stay in the maternity unit of the CHL. Legal background Community legislation
3 Article 2(1) of Regulation No 1408/71 provides: This regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.
4 Under Article 7(1) and (2) of Regulation No 1612/68: 1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal and, should he become unemployed, reinstatement or re-employment; 2. He shall enjoy the same social and tax advantages as national workers.
5 Articles 64 and 72 of the Staff Regulations of Officials of the European Communities (the Staff Regulations) provide that EC officials are to pay contributions to the Sickness Insurance Scheme common to the institutions of the European Communities, commonly known as the Joint Sickness Insurance Scheme (the Joint Scheme), and that their medical expenses are to be reimbursed by that scheme.
6 Under Article 72 of the Staff Regulations, Articles 1, 2 and 3 of the Joint Rules on sickness insurance for officials of the European Communities (the Joint Rules) and Section VIII of Annex I to those rules, the expenses incurred by EC officials or their spouses in the case of confinements which are to be reimbursed by the Joint Scheme are the fees for the doctor and midwife and for anaesthesia, as well as the fees for a labour room and a physiotherapist and all other expenses relating to services directly connected with the confinement. The cost of the stay in hospital is to be reimbursed at the rate of 85%, and the other expenses and fees at the rate of 100%. However, the reimbursement of the fees for the doctor and midwife and for anaesthesia is subject to a maximum limit of BEF 33 230 and that of the cost of the stay in hospital to a limit of BEF 5 946 per day for 10 days.
7 Article 9(2) of the Joint Rules provides that [t]he institutions shall, wherever possible, endeavour to negotiate with the representatives of the medical profession and/or the competent authorities, associations and establishments agreements specifying the rates for both medical treatment and hospitalisation applicable to persons covered by this scheme, account being taken of local conditions and, where appropriate, the scales already in force.
8 It is apparent from the documents before the Court that, at the material time, there was no agreement between the Joint Scheme and the representatives of the medical profession and/or the competent authorities, associations and establishments in Luxembourg. National legislation
9 The CHL was established by the Law of 10 December 1975 creating a public body called the Centre Hospitalier de Luxembourg, bringing together the Maternité Grande-Duchesse Charlotte, the Clinique Pédiatrique Fondation Grand-Duc Jean et Grande-Duchesse Joséphine-Charlotte and the municipal hospital (Mémorial A 1975, p. 1794). It is financed by the Luxembourg State and the city of Luxembourg.
10 The persons entitled to insurance for sickness and childbirth are those who are affiliated to Luxembourg sickness funds, which are independent public bodies with legal personality, subject to Government supervision.
11 The first paragraph of Article 13 of the Code des Assurances Sociales (Social Insurance Code) (Laws of 27 June 1983 and 3 July 1975) in the version applicable at the material time (the Code) provided that insured persons are entitled, at the time of confinement, to the services of a midwife, medical assistance, a stay in a maternity home or clinic, pharmaceutical supplies and dietetic products for infants. Under the second paragraph of Article 13 of the Code, those benefits were covered by a lump sum determined by regulation, payable by the State.
12 The Grand-Ducal Regulation of 31 December 1974 (Mémorial A 1974, p. 2398), as amended (the Grand-Ducal Regulation), in force at the material time, fixed the flat rate at which, in normal circumstances, the medical and hospital services normally necessary at the time of a confinement were supplied to those affiliated to the Luxembourg insurance scheme for sickness and childbirth. It also determined the amount reimbursed by the State.
13 In accordance with the circular of the Union des Caisses de Maladie (Association of Sickness Funds; the UCM) of 1 December 1988 on the apportionment of the components of the flat-rate childbirth charges as from 1 January 1989, the scheme established by the Code and the Grand-Ducal Regulation provided in practice for a calculation based on three elements, namely medical assistance, childbirth expenses and dietetic products.
14 As regards other services in the event of sickness, Article 308a of the Code made the conclusion of agreements between the UCM and the various categories of service providers compulsory, without distinguishing between in-patient and out-patient services. Those collective agreements were to be approved by the competent minister and thus became binding, even on providers who were not members of the association which had negotiated the agreement.
15 It is apparent from the order for reference that a distinguishing feature of the scheme of insurance for sickness and childbirth in Luxembourg is the uniformity of the fees charged, regardless of the provider, for health care covered by insurance. Those fees do not constitute ceilings for reimbursement, but fixed prices which depend neither on the patient's income nor on the provider's qualifications.
16 At the material time, Article 4 of the Code provided that the Minister for Labour and Social Security could exempt from insurance foreigners who were only temporarily resident in the Luxembourg. Under the second paragraph of Article 4 of the Code, in the version currently in force, [p]ersons covered by a sickness insurance scheme by reason of their activity in the service of an international body or by virtue of a pension [which has been] granted to them in that capacity are not ... liable to pay insurance contributions.
17 In practice, that applies principally to officials and other servants of the institutions of the European Communities (Parliament, Commission, Court of Justice, Court of Auditors), the European Investment Bank, Eurocontrol, the EFTA Court and the NATO Supply Centre in Luxembourg. The main proceedings
18 Mrs Ferlini, the wife of an official of the Commission of the European Communities residing in Luxembourg, gave birth on 17 January 1989 at the CHL, where she stayed until 24 January 1989.
19 Mr Ferlini and the members of his family are affiliated to the Joint Scheme. Thus, Mr and Mrs Ferlini are not covered by the Luxembourg social security scheme, in particular the compulsory insurance scheme for sickness and childbirth.
20 On 24 January 1989, the CHL sent Mr Ferlini an invoice in the amount of LUF 73 460 for the expenses of his wife's confinement and stay in the maternity hospital.
21 That invoice was drawn up on the basis of, in particular, the scales of hospital fees as from 1 January 1989 applicable to persons and bodies not affiliated to the national social security scheme, which were fixed unilaterally and on a uniform basis by all the Luxembourg hospitals within the Entente des Hôpitaux Luxembourgeois (Luxembourg Hospitals Group; the EHL). In accordance with those scales, Mr Ferlini was asked to pay a sum of LUF 49 030 corresponding to a normal single birth.
22 Mr Ferlini was also invoiced for fees for the hospital doctor, amounting to LUF 5 042, and pharmaceutical expenses, in the amount of LUF 674. The fees for those services had also been fixed on a uniform basis by the EHL for persons not affiliated to the national social security scheme, including EC officials.
23 Mr Ferlini refused to pay the sum claimed from him on the ground that the amount invoiced was discriminatory. He submitted that, according to the rules applicable at the material time, the flat rate invoiced, reimbursable by the Luxembourg sickness fund, would have been LUF 36 854, while Mr Ferlini and the Joint Scheme were required to pay the sum of LUF 59 306 for the same services, which is 71.43% more than the fee applicable to persons subject to Luxembourg insurance for sickness and childbirth.
24 Mr Ferlini challenged a conditional payment order issued on 22 April 1993 requiring him to pay the sum of LUF 73 460 to the CHL.
25 By judgment of 24 June 1994, the Tribunal de Paix (Magistrates' Court), Luxembourg, declared the challenge unfounded and ordered Mr Ferlini to pay to the CHL the abovementioned sum, together with statutory interest.
26 On 5 October 1994, Mr Ferlini appealed against that judgment to the Tribunal d'Arrondissement, Luxembourg.
27 Before that court, Mr Ferlini submits that the CHL invoice derives, first, from application of the scales of hospital fees fixed by the EHL, applicable as from 1 January 1989 to persons and bodies not affiliated to the national social security scheme and, second, from application of the scales of fees applicable to those affiliated to sickness funds, set out in the UCM circular of 1 December 1988.
28 In support of his appeal, Mr Ferlini claims, first, that the CHL's determination of charges for hospital care is contrary to the principle of equality and, second, that the Luxembourg system of scales of fees for hospital care which is applied to EC officials is contrary to Article 85(1) of the Treaty.
29 The CHL contends that the appeal should be dismissed and the contested judgment upheld. First, it submits, in essence, that the situation of EC officials is not comparable to that of persons affiliated to the national social security scheme. The former do not pay taxes or contributions to the national social security scheme and their income is higher. Moreover, at the material time, the Joint Scheme had not concluded any agreement with the EHL. Second, the CHL submits that the conditions set out in Article 85 of the Treaty are not satisfied in this case. The question referred for a preliminary ruling
30 The national court observes, in essence, that Article 48 of the Treaty and Regulations No 1408/71 and No 1612/68 concern only Community nationals who, in another Member State, take up employment or become covered by social security arrangements governed by the laws of that Member State, which is not true of EC officials. It adds that it cannot, however, be accepted that EC officials residing in another Member State may, by reason of their duties, be placed in a less favourable position than that of any other employed person who is a Member State national. They should, on the contrary, enjoy the same advantages flowing from Community law as Member State nationals in relation to freedom of movement for persons, freedom of establishment and social protection.
31 Thus, the national court finds that it is possible that the application to EC officials of scales of medical and hospital fees which are higher than those applied to persons affiliated to the national social security scheme may constitute a breach of the general principle of equal treatment. It considers that the arguments put forward by Mr Ferlini in order to rebut the CHL's objective justifications for that difference in treatment are not without foundation, and therefore the court cannot reject them outright.
32 The national court adds that the pleas raised by the parties in the main proceedings also call for an interpretation of the principles of competition law, in particular in the light of the issues of the power of Member States to organise their social security schemes, the particular status of the undertakings and services concerned, and the effect on the common market.
33 Accordingly, the Tribunal d'Arrondissement, Luxembourg, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: Having regard to the principle of non-discrimination between nationals of Member States of the European Union, a principle embodied in Articles 6 and 48 of the EC Treaty and, as regards freedom of movement for workers within the Community, in Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation No 312/76 of 9 February 1976 and, as regards social security, in Council Regulation 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, as amended and updated by Council Regulation No 2001/83 of 2 June 1983, and having regard to Article 85(1) of the EC Treaty which prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, are the Grand-Ducal Regulation of 31 December 1974 (Mémorial A No 95 of 31 December 1974, p. 2398), as amended, whose purpose is to determine, in implementation of Articles 6 and 13 of the Code des Assurances Sociales, benefits in kind in the event of sickness and childbirth, the scales of hospital fees as from 1 January 1989 which are to apply to persons and bodies not affiliated to the national social security scheme, and the UCM circular of 1 December 1988 on the apportionment of the components of flat-rate childbirth charges as from 1 January 1989 and the practices of the EHL, whereby it applies to persons and bodies not affiliated to the national social security scheme and to officials of the European Communities affiliated to the Joint Sickness Insurance Scheme uniform scales of fees for medical and hospital expenses which are higher than those applied to residents affiliated to the national social security scheme, compatible with Community law? The question referred for a preliminary ruling
34 In the light of the legislative and factual background as described by the national court, the question referred must be understood to be asking, in substance, whether the application, on a unilateral basis, by a group of healthcare providers to EC officials of scales of fees for medical and hospital maternity care which are higher than those applicable to persons affiliated to the national social security scheme, first, constitutes discrimination on the ground of nationality and, second, is contrary to Article 85(1) of the Treaty.
35 The Luxembourg Government submits that EC officials covered by the Joint Scheme are not subject to obligations to pay contributions to the Luxembourg scheme of insurance for sickness and childbirth and cannot therefore claim benefits provided for under the Grand-Ducal Regulation.
36 It endorses the reasoning set out by the Tribunal d'Arrondissement in its order for reference, according to which Regulation No 1408/71 is not applicable to EC officials. Officials and other servants of an international organisation avoid all affiliation to a national social security scheme, even where there is no express provision for their exemption. That is true a fortiori where the Staff Regulations are very comprehensive and advantageous in relation to social security. Furthermore, EC officials do not need to rely on Community provisions in order to move freely throughout the Member States, since they come under the Protocol on Privileges and Immunities of the European Communities.
37 In the alternative, the Luxembourg Government contends that the Grand-Ducal Regulation does not contain any provision discriminating against nationals of other Member States.
38 The Commission and, with minor differences, Mr Ferlini take the view that the application to persons and bodies not affiliated to the Luxembourg social security scheme and to EC officials affiliated to the Joint Scheme of uniform scales of fees for medical and hospital expenses which are higher than those applied to persons affiliated to that social security scheme is incompatible with the principle of non-discrimination between nationals of Member States of the European Communities embodied in the first paragraph of Article 6 and Article 48 of the Treaty. The Commission adds that the conditions for the application of Regulation No 1408/71 are not satisfied in this case.
39 It should be recalled at the outset that, according to settled case-law, the first paragraph of Article 6 of the Treaty, which lays down as a general principle the prohibition of discrimination on grounds of nationality, applies independently only to situations governed by Community law for which the Treaty lays down no specific rules prohibiting discrimination (see, inter alia, Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 11; Case C-379/92 Peralta [1994] ECR I-3453, paragraph 18; and Case C-176/96 Lehtonen and Castors Braine v FRBSB [2000] ECR I-2681, paragraph 37).
40 As regards freedom of movement for workers, that principle was implemented by Article 48 of the Treaty.
41 As the Advocate General pointed out in point 49 of his Opinion, EC officials and members of their families who are affiliated to the Joint Scheme cannot be characterised as workers within the meaning of Regulation No 1408/71. They are not subject to national legislation on social security, as required under Article 2(1) of Regulation No 1408/71.
42 On the other hand, there can be no doubt that an EC official has the status of a migrant worker. Indeed, according to settled case-law, a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 48(1) of the Treaty through occupying a post within an international organisation, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement (Joined Cases 389/87 and 390/87 Echternach and Moritz v Minister for Education and Science [1989] ECR 723, paragraph 11; and Case C-310/91 Schmid v Belgian State [1993] ECR I-3011, paragraph 20).
43 It follows that a worker who is a Member State national, such as Mr Ferlini, may not be refused the rights and social advantages which Article 48 of the Treaty and Regulation No 1612/68 afford him (see Case 152/82 Forcheri v Belgian State [1983] ECR 2323, paragraph 9; Echternach and Moritz, paragraph 12; and Schmid, paragraph 22).
44 However, as the Advocate General pointed out in points 52 to 54 of his Opinion, the application of scales of fees for medical and hospital maternity care which are higher than those applicable to persons affiliated to the national social security scheme cannot be characterised as a condition of work within the meaning of Article 48(2) of the Treaty and Article 7(1) of Regulation No 1612/68.
45 As regards the concept of social advantage, to which reference is made in Article 7(2) of Regulation No 1612/68, Mr Ferlini does not claim entitlement to such a social advantage, provided for by Luxembourg legislation, consisting in payment by the host Member State of a flat rate to reimburse maternity expenses. He merely seeks equal treatment in the fixing of scales of fees for medical and hospital maternity care.
46 In those circumstances, it is clear that neither Article 48 of the Treaty nor Regulation No 1612/68 is applicable in the present case.
47 Consequently, the question relating to the alleged discrimination must be examined in the light of the first paragraph of Article 6 of the Treaty.
48 In the main proceedings, the determination by the EHL of scales of fees for medical and hospital maternity care given to persons not affiliated to the national social security scheme, fees applied by the CHL to Mr Ferlini, does not come under the national legislation, or the rules adopted in the form of collective agreements, on social security.
49 The scales of hospital fees as from 1 January 1989 applicable to persons and bodies not affiliated to the national social security scheme were fixed unilaterally and on a uniform basis by all the Luxembourg hospitals within the EHL in the absence of agreements concluded with the Joint Scheme specifying the rates applicable to persons covered by the Joint Scheme. In accordance with those scales of fees, Mr Ferlini and the Joint Scheme are being asked to pay a sum of LUF 59 306, which is 71.43% more than the fee applicable for the same services to persons subject to Luxembourg insurance for sickness and childbirth.
50 According to the case-law of the Court, the first paragraph of Article 6 of the Treaty also applies in cases where a group or organisation such as the EHL exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms guaranteed under the Treaty (see, to that effect, Case 36/74 Walrave and Koch v Association Union Cycliste Internationale and Others [1974] ECR 1405; Case 43/75 Defrenne v SABENA [1976] ECR 455; and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921).
51 It is settled case-law that discrimination can consist only of the application of different rules to comparable situations or the application of the same rule to different situations.
52 It is therefore necessary to consider whether a person not affiliated to the national social security scheme of a Member State, such as Mr Ferlini, is in a situation which differs from that of persons from that Member State who are affiliated to that scheme.
53 In this respect, the arguments put forward both before the national court and during proceedings before the Court of Justice in order to show that Mr Ferlini's situation was not comparable to that of a person affiliated to the Luxembourg social security scheme cannot be accepted.
54 First of all, the fact that Mr Ferlini does not pay tax on his salary to the national exchequer or contributions to the national social security scheme is irrelevant in this respect, since, in any event, he is not seeking entitlement to social security benefits under that scheme, but only the application of non-discriminatory scales of fees for hospital care given at the CHL.
55 As regards the argument that EC officials are in receipt of average incomes which are higher than those of residents working in the national public or private sectors, it is sufficient to recall that the cost of the service in question in the main proceedings, when invoiced to persons affiliated to the national social security scheme, does not vary according to their income.
56 Accordingly, and on the basis only of the evidence brought before the Court, it appears that Mr Ferlini and the members of his family, who are affiliated to the Joint Scheme, are in a situation comparable to that of nationals affiliated to the national social security scheme.
57 The Court has held that the rules regarding equal treatment forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11; and Case C-151/94 Commission v Luxembourg [1995] ECR I-3685, paragraph 14).
58 The criterion of affiliation to the national social security scheme which is applied by the CHL and on which the EHL bases the differentiation of fees for medical and hospital care constitutes indirect discrimination on the ground of nationality. First, the great majority of those affiliated to the Joint Scheme and not to the national social security scheme, although in receipt of medical and hospital care given in Luxembourg, are nationals of other Member States. Second, the overwhelming majority of nationals residing in Luxembourg are covered by the national social security scheme.
59 Such differentiation could be justified only if it were based on objective considerations which were independent of the nationality of the persons concerned and proportionate to the objective legitimately pursued.
60 In the light of the facts of the case, and since no arguments were raised in this respect either before the Court of Justice or before the national court, it is clear that the considerable difference in treatment between persons affiliated to the national social security scheme and EC officials, in respect of the scales of fees for healthcare connected with childbirth, is not justified.
61 It is therefore not necessary to examine the question in the light of Article 85 of the Treaty.
62 The answer to the question referred must therefore be that the application, on a unilateral basis, by a group of healthcare providers to EC officials of scales of fees for medical and hospital maternity care which are higher than those applicable to residents affiliated to the national social security scheme constitutes discrimination on the ground of nationality prohibited under the first paragraph of Article 6 of the Treaty, in the absence of objective justification in this respect.