EUROPEAN COMMISSIONEMPL/ 2222/- EN

A.C. 476/12
Healthcare in case of temporary stay in third countries on the basis of bilateral agreements for family members of frontier workers
NETHERLANDS-5.12.2012

Orig.: EN

ADMINISTRATIVE COMMISSION
FOR THE COORDINATION OF SOCIAL SECURITY SYSTEMS

Subject: Healthcare in case of temporary stay in third countries on the basis of bilateral Agreements for family members of frontier workers

Note from the Netherlands of 5 December 2012

1. Introduction

The competent institution in the Netherlands has received a complaint regarding the application of the bilateral social security Agreement between the Netherlands and a third country (Croatia) with regard to a family member residing in Germany of a frontier worker who is working in the Netherlands.

The complaint concerns the refusal by the Netherlands to grant the right to reimbursement of medical costs incurred during a temporary stay in Croatia by the family member on the basis of the bilateral Agreement between the Netherlands and Croatia. Ground for refusal was that the family member in question did not meet the conditions under which he could be entitled to benefits in kind under the bilateral Agreement: beneficiaries to benefits in kind under the said Agreement are insured persons, regardless of their nationality or place of residence and family members residing in the Netherlands or in Croatia. Non-resident family members are not insured under the Health Insurance Act and do not fall within the scope of the health care chapter of the bilateral Agreement. The family member concerned does not fall within the scope of the bilateral Agreement between Germany and the third country either, since the family member is not insured in Germany. As a result, the family member is not entitled under either bilateral Agreement to reimbursement of medical costs incurred during his temporary stay in Croatia.
This matter has raised the following questions:

  1. Should the Member States (competent state and state of residence)- on the basis of an extended interpretation of the ECJ Gottardo judgment (C-55/00) on the one hand and application of Article 17 of Regulation 883/2004 on the other hand – apply the provisions on medical care in case of temporary stay in their bilateral Agreements with third countries to non insured family members of (frontier) workers to ensure that these family members receive the same kind of treatment as family members of non-migrant workers?
  1. If so, which Agreement should be applied? Agreements concluded by the Member State of residence or Agreements concluded by the competent Member State within the meaning of Regulation 883/2004?

The Netherlands delegation wishes to bring these questions to the attention of the Members of the Administrative Commission. A Decision of the Administrative Commission and/or adaptation of Recommendation No P1 of 12 June 2009 could help towards providing a uniform solution.

2. Application of bilateral Agreements with third countries to non insured family members

a. Bilateral Agreements between the Netherlands and third countries
The Gottardo ruling prohibits discrimination on grounds of nationality: the Court ruled that the principle of equal treatment requires that Member States should grant nationals of other Member States the same advantages as regards pensions as those which its own nationals enjoy under that convention, unless it can provide objective justification for refusing to do so. This judgment has been incorporated in Recommendation No P1 of 12 June 2009[1]which states that the advantages as regards pensions which are enjoyed by a State’s own workers under a convention on social security with a non-member country are also, in principle granted to workers who are nationals in the other Member States and are in the same situation in objective terms.

The personal scope of the Netherlands bilateral Agreements with third countries covers persons who are or have been subject to the legislation of one or both of the Contracting Parties and persons deriving rights from them, regardless of their nationality or their place of residence. The provisions on medical care in these Agreements are applicable to insured persons and to non insured family members residing in the territory of one of the Contracting Parties.

Since there is no discrimination on grounds of nationality the Netherlands bilateral Agreements meet the requirements of the Gottardo judgment. Furthermore, non resident family members are not considered to be in the same situation in objective terms as resident family members of insured persons, as referred to in Article 1 of Recommendation No P1 of 12 June 2009. Only a more extended interpretation of the Gottardo judgment might lead to the conclusion that the criterion based on residence for non insured family members constitutes a covert – non allowed - form of discrimination.

Such an interpretation would require adaptation of Recommendation No P1 of 12 June 2009.

b. Bilateral Agreements between Germany and the third country
The German bilateral Agreements cover all persons who are insured by a German social insurance scheme irrespective of their nationality or place of residence. The German Agreements meet the requirements of the Gottardo judgment, since there is no discrimination on grounds of nationality.
It could be argued that application of Article 17 of Regulation 883/2004 – being a result of the application of the principle of equal treatment - leads to the conclusion that the Member State of residence is obliged to apply the provisions on medical care in its bilateral Agreement to a non-insured family member residing in its territory: on the basis of Article 17 of Regulation 883/2004 workers as well as the members of the family who reside in a Member State other than the competent Member State shall receive in the Member State of residence benefits in kind provided at the charge of the competent institution, by the institution of the place of residence, in accordance with the provisions of the legislation it applies, as though they were insured under the said legislation. The insurance fiction contained in Article 17 might lead to the conclusion that the Member State of residence has to apply its bilateral Agreements to members of the family residing in that State.

In such a scenario, it is clear that the Member State of residence is reimbursed, on the basis of Article 17, for its cost by the competent Member State. In case however, the Member State of residence is reimbursed by the competent Member State on the basis of fixed amounts, the costs of benefits in kind provided to family members temporarily staying in a third country should remain at the charge of this Member State.

Such an interpretation of Article 17 would require a Decision of the Administrative Commission.

  1. Which Agreement should be applied? The Agreement of the competent Member State or the Agreement of the Member State of residence?

In case the foregoing leads to the situation where both Agreements should be applied, the question is which bilateral Agreement has to be applied to the family member concerned. Does the family member have the right to choose? Or does one of the Agreements have priority? And if so, which one? The Agreement of the Member State of residence could take priority on the basis of application of Article 17 of Regulation 883/2004. The Agreement of the competent Member State could take priority on the basis of an analogue application of the principle contained in Article 19 of Regulation 883/2004 to family Members staying temporarily in a third country.

In order to ensure a uniform application by all Member States, the Netherlands delegation proposes to include the solution in a Decision of the Administrative Commission.

4. Questions to the Administrative Commission

1.

Is the Administrative Commission of the opinion that Member States (competent state and state of residence)- on the basis of an extended interpretation of the ECJ Gottardo judgment (C-55/00) on the one hand and application of Article 17 of Regulation 883/2004 on the other hand – should apply the provisions on medical care in case of temporary stay in their bilateral Agreements with third countries to non insured family members of (frontier) workers to ensure that these family members receive the same kind of treatment as family members of non-migrant workers?

2.

If so, which Agreements should be applied to –non-insured – family members: Agreements concluded by the Member State of residence or Agreements concluded by the competent Member State within the meaning of the Regulation 883/2004?

3.

Do the members of the Administrative Commission agree that a Decision of the Administrative Commission and/or adaptation of Recommendation No P1 of 12 June 2009 (depending on the outcome of the discussion about the Gottardo judgment) is required?

[1] 2010/C 106/14