EUROPEAN COMMISSIONEMPL/01838/11 - EN

AdvC05/11
Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2010 to mid-2011)
SECRETARIAT – 30.09.2011

Orig. EN

ADVISORY COMMITTEE
FORTHE COORDINATION OF SOCIAL SECURITY SYSTEMS

Subject:Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2010 to mid-2011)

Note from the Secretariat of 30 September 2011

By the present note, the Legal Service informs the Advisory Committee about the case-lawof the Court of Justice on Articles 45 to 48 TFEU (the free movement of workers and coordination of social security from mid-2010 to mid-2011.

1.Judgment of the Court of 5 October 2010 in Case C-173/09, Elchinov

2.Judgment of the Court of 15 June 2010 in Commission v Spain

3.Judgment of the Court of 5 October 2010 in Case C-512/08, Commission v France

4.Judgment of the Court of 14 October 2010 in Case C-345/09, van Delft

5.Judgment of the Court of 14 October 2010 in Case C-16/09, Schwemmer

6.Judgment of the Court of 18 November 2010 in Case C-247/09, Xhymshiti

7.Judgment of the Court of 9 December 2010 in Case C-296/09, Baesen

8.Judgment of the Court of 3 March 2011 in Case C-440/09, Tomaszewska

9.Judgment of the Court of 10 March 2011 in Case C-379/09, Casteels

10.Judgment of the Court of 5 May 2011 in Case C-206/10, Commission v Germany

11.Judgment of the Court of 5 May 2011 in Case C-537/09, Bartlett et al.

12.Judgment of the Court of 26 May 2011 in Case C-485/07, Akdas et al.

13.Judgment of the Court of 22 June 2011 in Case C-399/09, Landtová

14.Judgment of the Court of 30 June 2011 in Case C-388/09, da Silva Martins

15.Judgment of the Court of 21 July 2011 in Case C-503/09, Stewart

1.Judgment of the Court of 5 October 2010 in Case C-173/09, Elchinov

  1. This reference for a preliminary ruling concerns the interpretation of Article 49 EC (now Article 56 TFEU) and of 22 of Regulation No 1408/71. The reference has been made in proceedings between Mr Elchinov and the national social security fund of Bulgaria (NZOK) concerning its refusal to authorise him to receive an advanced hospital treatment in Germany, which was not available in Bulgaria. Given the state of his health, Mr. Elchinov was treated in a hospital in Germanybefore receiving the answer of NZOK to his request pursuant to Article 22 of Regulation No 1408/71. After the treatment, NZOK refused to give the authorisation sought.
  2. The CJ held that Articles 49 EC (now Article 56 TFEU) and 22 of Regulation No 1408/71 preclude legislation of a MemberState which is interpreted as excluding, in all cases, reimbursement in respect of hospital treatment given in another MemberStatewithout prior authorisation. Such a national legislation deprives the insured person who, for reasons relating to his state of health or to the need to receive urgent treatment in a hospital, was prevented from applying for such authorisation or was not able, like Mr Elchinov, to wait for the answer of the competent institution, of reimbursement, even though all other conditions for such reimbursement are met.
  3. By a number of questions the national court asked, whether, with regard to medical treatment which cannot be given in the Member State in whose territory the insured person resides, Article 22 of Regulation No 1408/71 must be interpreted as meaning that the authorisation required under Article 22(1)(c)(i) cannot be refused where, on the one hand, the treatment in question is among the benefits provided for under the legislation of the Member State on whose territory the person concerned resides, but that legislation does not expressly and precisely stipulate the method of treatment applied, and, on the other hand, he cannot be given alternative treatment offering the same level of effectiveness without undue delay.
  4. The Court underlined that it is for each MemberState to decide which medical benefits are reimbursed by its own social security system, Thus, it is not, in principle, incompatible with European Union law for a MemberState to establish limitative lists of the medical benefits reimbursed under its social security scheme.
  5. Where the list of medical benefits reimbursed does not expressly and precisely specify the treatment method applied but defines types of treatment, it is for the competent institution of the Member State of residence of the insured person to assess, on the basis of objective and non-discriminatory criteria, taking into consideration all the relevant medical factors and the available scientific data, whether that treatment method corresponds to benefits provided for by the legislation of that Member State. An application for prior authorisation cannot be refused on the ground that such a treatment method is not available in the MemberState of residence of the insured person.
  6. As to the second condition set out in the second subparagraph of Article 22(2) of Regulation No 1408/71 the Court held that it is necessary to ascertain whether the treatment in question can be given to the insured person within the time normally necessary for obtaining that treatment in the MemberState of residence, taking account of his current state of health and the course of the disease. The Court referred in that regard to its standard case-law(C-372/04 Watts [2006] ECR I-4325, paragraphs 59 to 61). Article 22 of Regulation No 1408/71 precludes the national bodies called upon to rule on an application for prior authorisation from presuming, in the application of that provision, that the hospital treatment which cannot be given in the Member State on whose territory the insured person resides is not included in the benefits for which reimbursement is provided for by the legislation of that State.

Operative part:

1.European Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law.

2.Articles 49 EC and 22 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, preclude a rule of a Member State which is interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation.

3.With regard to medical treatment which cannot be given in the Member State on whose territory the insured person resides, the second subparagraph of Article 22(2) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that that authorisation required under Article 22(1)(c)(i) cannot be refused:

–if, where the list of benefits for which the national legislation provides does not expressly and precisely specify the treatment method applied but defines types of treatment reimbursed by the competent institution, it is established, applying the usual principles of interpretation and on the basis of objective and non-discriminatory criteria, taking into consideration all the relevant medical factors and the available scientific data, that the treatment method in question corresponds to types of treatment included in that list, and

–if no alternative treatment which is equally effective can be given without undue delay in the Member State on whose territory the insured person resides.

That article precludes the national bodies called upon to rule on an application for prior authorisation from presuming, in the application of that provision, that the hospital treatment which cannot be given in the Member State on whose territory the insured person resides is not included in the benefits for which reimbursement is provided for by the legislation of that State or, conversely, that the hospital treatment included in those benefits can be given in that Member State.

4.Where it is established that a refusal to issue the authorisation required under Article 22(1)(c)(i) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, was unjustified, when the hospital treatment has been completed and the related expenses incurred by the insured person, the national court must oblige the competent institution, in accordance with national procedural rules, to reimburse that insured person in the amount which it would ordinarily have paid if authorisation had been properly granted.

That amount is equal to that determined in accordance with the provisions of the legislation to which the institution of the MemberState on whose territory the hospital treatment was given is subject. If that amount is less than that which would have resulted from application of the legislation in force in the Member State of residence if hospital treatment had been provided there, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution.

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2.Judgment of the Court of 15 June 2010 in Commission v Spain

  1. By its application, the Commission asked the Court to declare that Spain has failed to fulfil its obligations under Article 49 EC (now Article 56 TFEU) by refusing persons insured under the Spanish national health scheme reimbursement of medical expenses which they have incurred in another Member State for hospital treatment received in accordance with Article 22(1)(a)(i) of Regulation (EEC) No 1408/71 in so far as the level of cover applicable in the Member State where the treatment is administered is lower than that provided for under the Spanish legislation (see in that regard paragraph 53 of the judgment of 12 July 2001 in Case C-368/98 Vanbraekel and Others [2001] ECR I-5363).
  2. The Court reiterates its consistent case-lawaccording to which in the case of an insured person whose state of health makes hospital care necessary during a temporary stay in another Member State, those services are cross-border services and, as such, within the scope of Article 49 EC (now Article 56 TFEU). Furthermore, the provision of medical services does not cease to be a provision of services for the purposes of Article 49 EC (now Article 56 TFEU) simply because, after paying the foreign provider for the care received, the insured person subsequently seeks reimbursement of the related costs through a social security system.
  3. Whilst it is established that EU law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, the fact nevertheless remains that, when exercising that power, Member States must comply with EU law and, in particular, with the provisions on the freedom to provide services.
  4. In that connection, the Court has held that the fact that national legislation does not guarantee an insured person who has been authorised to receive hospital care in another Member State, in accordance with Article 22(1)(c) of Regulation No 1408/71, a level of insurance cover equivalent to that to which he would have been entitled had he received hospital treatment in the Member State of affiliation is a restriction of the freedom to provide services, for the purposes of Article 49 EC, in that it may deter, or even prevent, that person from applying to providers of services established in other Member States (see, to that effect, Vanbraekel and Others, paragraph 45).
  5. However, cases of ‘unscheduled treatment’, as referred to in Article 22(1)(a) of Regulation No 1408/71 – and at issue in the present case – must be distinguished, in the light of Article 49 EC, from cases of ‘scheduled treatment’, as referred to in Article 22(1)(c) of that regulation, at issue both in Vanbraekel and Others and in Watts. While in case of the non-reimbursement of the difference in costs in cases of “scheduled treatment” is likely to induce the insured person to cancel the treatment planned in that other Member State, that consequence can be excluded in case of an urgent treatment which became necessary pursuant to Article 22(1)(a) of Regulation No 1408/71 (‘unscheduled treatment’).
  6. For that reason, the claim and the application had to be rejected.

3.Judgment of the Court of 5 October 2010 in Case C-512/08, Commission v France

  1. In October 2006 the Commission sent the FrenchRepublic a letter of formal notice in which it alleged that Article R. 332-4 of the Social Security Code was incompatible with Article 49 EC, as interpreted by the Court. The two main clams, which finally lead to the application, were:

i) the requirement of prior authorisation for reimbursement of certain non-hospital treatment provided in another MemberState and

ii) the lack of any provision enabling a person insured under the French system to receive an additional reimbursement in the circumstances laid down in paragraph 53 of the judgment of 12 July 2001 in Case C-368/98 Vanbraekel and Others [2001] ECR I-5363.

  1. The first claim – based on Article 49 EC (now Article 56 TFEU) alleged that the requirement of prior authorisation for the purpose of reimbursement by the competent social security institution of the costs of treatment available at a general practitioner’s surgery in another Member State and requiring the use of major medical equipment constitutes a restriction of the freedom to provide services.
  2. At the outset, the Court clarified that under Article R. 332-4 of the Social Security Code the prior authorisation requirement does not apply in the case of unforeseen treatment and that the Commission did not allege a failure to comply with Article 22(1)(c) of Regulation No 1408/71.
  3. Those preliminary points having been made, the Court emphasised that, in the absence of harmonisation at European Union level, it is for the legislation of each MemberState to determine, in particular, the conditions for the grant of social security benefits covering treatment such as that concerned by the first claim. The fact remains, nevertheless, that when exercising that power the Member States must comply with European Union law, in particular, with the provisions on freedom to provide services.
  4. Since the freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to go to another MemberState in order to receive those services, a prior authorisation requirement constitutes a restriction of the freedom to provide services.
  5. But the Court held that there is an objective justification for that restriction: Regardless of the setting, hospital or otherwise, in which it is intended to be installed and used, it must be possible for the major medical equipment exhaustively listed in Article R. 612226 of the Public Health Code to be the subject of planning policy, such as that defined by the national legislation at issue, with particular regard to quantity and geographical distribution, in order to help ensure throughout national territory a rationalised, stable, balanced and accessible supply of up-to-date treatment, and also to avoid, so far as possible, any waste of financial, technical and human resources. Without the prior authorisation requirement the planning of treatment would be jeopardised.
  6. In paragraph 53 of Vanbraekel and Others, the Court, in connection with planned treatment provided in another Member State for which the authorisation necessary if the competent institution were to be responsible for its payment had been improperly refused, interpreted Article 49 EC as meaning that, if the reimbursement of costs incurred on hospital services provided in the 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 affiliation would afford to a person receiving hospital treatment in that State, additional reimbursement covering that difference must be granted to the insured person by that institution.
  7. The Court then emphasised here that Article 49 EC, as interpreted in paragraph 53 of Vanbraekel and Others, being a directly applicable provision of the Treaty, binds all the authorities of the Member States, including administrative and judicial, which are, therefore, obliged to observe it, and there is no need to adopt domestic implementing measurs. The Court found that nothing in the relevant French legislation could impede the application of this principle.
  8. Therefore, the allegations in both claims had to be rejected.

4.Judgment of the Court of 14 October 2010 in Case C-345/09, van Delft

  1. Before 1 January 2006, the Law on sickness funds (Ziekenfondswet, ‘the ZFW’) laid down a compulsory statutory sickness insurance scheme only for employees whose income was below a certain threshold. From 1 January 2006, the Law on healthcare insurance (Zorgverzekeringswet, ‘the ZVW’) has laid down a compulsory statutory sickness insurance scheme for all persons residing or working in the Netherlands. This new rules also applied to persons living in other Member States.
  2. The appellants in the main proceedings, who are all Netherlands nationals residing in a Member State other than the Kingdom of the Netherlands are recipients of pensions under the AOW or the WAO. Before 2006, they were not insured under the compulsory statutory sickness insurance scheme laid down by the ZFW. They had concluded insurance contracts privately with insurance companies established either in the Netherlands or in other Member Statesin order to cover themselves against the risk of sickness.
  3. Also on 1 January 2006, the appellants in the main proceedings who had concluded insurance contracts privately with companies established in the Netherlands had those contracts automatically terminated pursuant to the provisions of the IZVW. Those of them who had concluded such contracts with companies established in other Member States, on the other hand, retained them. At the same time, the authorities in the Netherlands started to deduct from the pensions of the appellants the contributions for the compulsory statutory sickness insurance.
  4. The appellants challenged those decisions arguing that Articles 28 and 28a of Regulation No 1408/71 do not contain binding rules for determining the applicable legislation on the basis of which they are automatically subject to the system of benefits in kind of the MemberState of residence. Furthermore, all the appellants in the main proceedings claim that there has been an infringement of their rights under Articles 21 TFEU and 45 TFEU, since they are obliged to pay a contribution for benefits in the State of residence which they do not wish to receive because, in their opinion, they are less advantageous. They wish instead to preserve the position prior to 1 January 2006, so as to be able to conclude insurance contracts themselves privately for all sickness costs.
  5. The Court rejected the first claim using arguments developed in previous case law: Pensioners covered by Articles 28 and 28a of Regulation No 1408/71, having regard to the mandatory nature of the system established by those provisions, cannot choose to waive the right to benefits in kind in their Member State of residence by declining to register with the competent institution of that Member State. Such a failure to register cannot have the consequence of exempting them from payment of contributions in the MemberState responsible for payment of the pension, since they remain in any case the responsibility of that State, as they cannot withdraw from the system laid down by that regulation.
  6. Replying to the second question the Court underlined that Article 21 TFEU (45 TFEU does not apply to pensioners) does not preclude national legislation, such as that at issue in the main proceedings, which provides in accordance with Articles 28, 28a and 33 of Regulation No 1408/71 that pensioners who reside in a Member State other than the State responsible for payment of the pension are required to pay contributions in the latter State for the provision of sickness benefits in kind in their Member State of residence even if they are not registered with the competent institution of that State.
  7. Those rules do not constitute an obstacle to the free movement of persons, given that the amount of the contributions to be paid by recipients of pensions payable under Netherlands legislation who reside in a Member State other than the Netherlands is duly adjusted by the use of a coefficient reflecting the cost of living in the Member State of residence. In fact, the appellants pay now less than recipients of pensions who reside in the Netherlands.
  8. However, the Netherlands legislation also provided at the same time for the automatic termination as from 1 January 2006 of the insurance contracts concluded before that date by such non-residents with companies established in the Netherlands, in so far as those contracts created rights equivalent to those deriving from the application of Regulation No 1408/71. Similar private insurance contracts concluded by residents remained unchanged. The national Court has to verify these allegations and investigate, whether there is a discrimination of migrant workers.

Operative part: