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Decker (Free movement of goods) [1998] EUECJ C-120/95 (28 April 1998)
URL: http://www.bailii.org/eu/cases/EUECJ/1998/C12095.html
Cite as:
ECLI:EU:C:1998:167,
[1998] ECR I-1831,
EU:C:1998:167,
[1998] EUECJ C-120/95
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT
28 April 1998 (1)
(Free movement of goods - Articles 30 and 36 of the EC Treaty -
Reimbursement of medical expenses incurred in another Member State - Prior
authorisation of the competent institution - Purchase of spectacles)
In Case C-120/95,
REFERENCE to the Court under Article 177 of the EC Treaty by the Conseil
Arbitral des Assurances Sociales (Luxembourg) for a preliminary ruling in the
proceedings pending before that tribunal between
Nicolas Decker
and
Caisse de Maladie des Employés Privés
on the interpretation of Articles 30 and 36 of the EC Treaty,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann and H. Ragnemalm
(Rapporteur) (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,
P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch and
P. Jann, Judges,
Advocate General: G. Tesauro,
Registrar: D. Louterman-Hubeau, Principal Administrator,
after considering the written observations submitted on behalf of:
- Mr Decker, by Andrée Braun and Serge Wagner, of the Luxembourg Bar,
- the Luxembourg Government, by Claude Ewen, Social Security Inspector,
First Class, in the Ministry of Social Security, acting as Agent,
- the Belgian Government, by Jan Devadder, Director of Administration in
the Ministry of Foreign Affairs, Foreign Trade and Development
Cooperation, acting as Agent,
- the German Government, by Ernst Röder, Ministerialrat in the Federal
Ministry of Economic Affairs, and Gereon Thiele, Assessor in that ministry,
acting as Agents,
- the Spanish Government, by Alberto Navarro González, Director General
of Community Legal and Institutional Coordination, and Gloria Calvo Díaz,
Abogado del Estado, acting as Agents,
- the French Government, by Catherine de Salins, Deputy Director in the
Legal Affairs Directorate of the Ministry of Foreign Affairs, and Philippe
Martinet, Foreign Affairs Secretary in that directorate, acting as Agents,
- the Netherlands Government, by Adriaan Bos, Legal Adviser, acting as
Agent,
- the United Kingdom Government, by Lindsey Nicoll, of the Treasury
Solicitor's Department, acting as Agent, and Philippa Watson, Barrister,
- the Commission of the European Communities, by Hendrik van Lier, Legal
Adviser, and Jean-Francis Pasquier, a national civil servant seconded to the
Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Decker, represented by Serge Wagner,
the Caisse de Maladie des Employés Privés, represented by Albert Rodesch, of the
Luxembourg Bar, the Luxembourg Government, represented by Claude Ewen, the
German Government, represented by Ernst Röder, the Spanish Government,
represented by Gloria Calvo Díaz, the French Government, represented by
Philippe Martinet, the United Kingdom Government, represented by Philippa
Watson, and the Commission, represented by Jean-Francis Pasquier, at the hearing
on 2 July 1996,
after hearing the Opinion of the Advocate General at the sitting on 16 September
1997,
gives the following
Judgment
- By decision of 5 April 1995, received at the Court on 7 April 1995, the Conseil
Arbitral des Assurances Sociales (Social Insurance Arbitration Council),
Luxembourg, referred to the Court for a preliminary ruling under Article 177 of the
EC Treaty a question on the interpretation of Articles 30 and 36 of that Treaty.
- That question was raised in proceedings between Mr Decker, a Luxembourg
national, and the Caisse de Maladie des Employés Privés (hereinafter 'the Fund')
concerning a request for reimbursement of the cost of a pair of spectacles with
corrective lenses purchased from an optician established in Arlon, Belgium, on a
prescription from an ophthalmologist established in Luxembourg.
- By letter of 14 September 1992, the Fund informed Mr Decker that it would not
reimburse him the cost of those spectacles, on the ground that they had been
purchased abroad without its prior authorisation.
- Mr Decker contested that decision, relying in particular on the Treaty rules on the
free movement of goods. Upon hearing his complaint, the Fund maintained its
position by decision of its managerial committee of 22 October 1992 and so
rejected his claim.
- Mr Decker submitted an application to the Conseil Arbitral des Assurances
Sociales, which rejected it by order of 24 August 1993.
- By application of 8 September 1993, Mr Decker appealed against that order to the
Conseil Arbitral des Assurances Sociales, which dismissed the appeal by decision
of 20 October 1993, on the ground in particular that the matter was connected not
with the free movement of goods but with social security law, that is, 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 (see the version amended and updated by
Council Regulation (EC) No 118/97 of 2 December 1996, OJ 1997 L 28, p. 1).
- Mr Decker appealed to the Cour de Cassation (Court of Cassation). By judgment
of 12 January 1995, the contested decision was set aside and the case was remitted
to the Conseil Arbitral des Assurances Sociales. By judgment of 5 April 1995, it
held that Article 60 of the Code des Assurances Sociales (Social Insurance Code)
and Article 58 of the statutes of the Union des Caisses de Maladie des Salariés
(hereinafter 'UCM') applied to the dispute.
- Article 60 of the Luxembourg Code des Assurances Sociales, in the version in force
at the material time, provided in particular:
'Insured persons shall be entitled to approach the doctor, dentist, pharmacist,
hospital or medical auxiliary of their choice.
Only the following may provide treatment and services on the territory of the
Grand Duchy:
1. doctors, dentists, pharmacists, hospitals, midwives, medical auxiliaries
authorised to practise their profession in all or part of the Grand Duchy;
2. foreign doctors consulted in the Grand Duchy with the agreement of the
attending doctor and the medical adviser, without prejudice to wider
international arrangements.
However, insured persons may obtain treatment abroad only with the consent of
their sickness fund, except in the case of initial treatment in the event of accident
or illness occurring abroad.
The sickness fund may not refuse consent if the treatment abroad is recommended
by the doctor attending the insured person and a medical adviser, or if the
treatment needed is not available in the Grand Duchy.'
- Reimbursement of the cost of spectacle frames and corrective lenses was governed
at the material time by Article 78 of the UCM statutes and by the collective
agreement of 30 June 1975 concluded pursuant to Article 308 bis of the Code des
Assurances Sociales between the UCM and the professional grouping representing
opticians.
- Article 78 of the UCM statutes states:
'The cost of spectacles and other visual aids shall be borne by the sickness fund up
to the amounts stated in the tariffs and in accordance with the conditions
determined in the agreements or decisions in lieu thereof in accordance with
Article 308 bis of the Code des Assurances Sociales.'
- Article 2 of the collective agreement of 30 June 1975 provides that, without
prejudice to Community and international provisions concerning social security of
migrant workers and persons treated as such, spectacles are to be supplied to
insured persons, in so far as they are permanently or actually resident in
Luxembourg, by opticians who are registered in the Luxembourg register of trades
and established in the Grand Duchy.
- Under those provisions, reimbursement was on a flat-rate basis with a ceiling of
LFR 1 600 for frames.
- For corrective lenses, the reimbursement tariffs were fixed in Annex A to the
collective agreement of 30 June 1975. Under Article 12 of that agreement, the
amounts capable of reimbursement for corrective lenses fixed in Annex A were to
be adjusted up or down by reference solely to the price lists of the firms Zeiss and
American Optical.
- The Code des Assurances Sociales and the UCM statutes were substantially
amended in 1992. However, the principle set out in the old Article 60 of the Code
des Assurances Sociales, relating to prior authorisation by the sickness fund for all
medical treatment abroad, was incorporated in the new Article 20 of the code.
- Article 22 of Regulation No 1408/71 provides in particular:
'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:
...
(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.
2. ...
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.
3. The provisions of paragraphs 1 and 2 shall apply by analogy to members of
the family of an employed or self-employed person.
...'
- Since it was uncertain whether those national provisions were compatible with
Community law, more particularly with Articles 30 and 36 of the Treaty, the
Conseil Arbitral des Assurances Sociales stayed the proceedings and referred the
following question to the Court for a preliminary ruling:
'Is Article 60 of the Luxembourg Code des Assurances Sociales, under which a
social security institution of Member State A refuses to reimburse to an insured
person, who is a national of Member State A, the cost of spectacles with corrective
lenses, prescribed by a doctor established in Member State A but purchased from
an optician established in Member State B, on the ground that all medical
treatment abroad must be authorised in advance by the above social security
institution, compatible with Articles 30 and 36 of the EEC Treaty in so far as it
penalises in general the importation by private individuals of medicinal products or,
as in this case, spectacles from other Member States?'
- Mr Decker and the Commission submit that national rules under which an insured
person is denied reimbursement of the cost of products normally reimbursed, unless
prior authorisation has been granted by the insured person's social security
institution, constitutes an unjustified barrier to the free movement of goods.
- The Luxembourg, Belgian, French and United Kingdom Governments, on the other
hand, submit that rules such as those at issue in the main proceedings do not fall
within the scope of Articles 30 and 36 of the Treaty, in that they concern social
security. They submit, in the alternative, that those provisions do not in any event
preclude such rules from being maintained. The German, Spanish and Netherlands
Governments agree with the alternative submission.
- Having regard to the observations submitted, the questions to be considered
concern first the application of the principle of freedom of movement in the field
of social security, then the effect of Regulation No 1408/71, and finally the
application of the provisions on the free movement of goods.
Application of the fundamental principle of freedom of movement in the field of
social security
- The Luxembourg, Belgian, French and United Kingdom Governments submit,
primarily, that the rules at issue in the main proceedings, which concern
reimbursement of the cost of treatment, do not fall within the scope of Article 30
of the Treaty, in that they concern a particular branch of social security.
- It must be observed, first of all, that, according to settled case-law, Community law
does not detract from the powers of the Member States to organise their social
security systems (Case 238/82 Duphar and Others v Netherlands [1984] ECR 523,
paragraph 16, and Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 27).
- In the absence of harmonisation at Community level, it is therefore for the
legislation of each Member State to determine, first, the conditions concerning the
right or duty to be insured with a social security scheme (Case 110/79 Coonan v
Insurance Officer [1980] ECR 1445, paragraph 12, and Case C-349/87 Paraschi v
Landesversicherungsanstalt Württemberg [1991] ECR I-4501, paragraph 15) and,
second, the conditions for entitlement to benefits (Joined Cases C-4/95 and C-5/95
Stöber and Piosa Pereira v Bundesanstalt für Arbeit [1997] ECR I-511, paragraph
36).
- As the Advocate General observes in points 17 to 25 of his Opinion, the Member
States must nevertheless comply with Community law when exercising those
powers.
- The Court has held that measures adopted by Member States in social security
matters which may affect the marketing of medical products and indirectly influence
the possibilities of importing those products are subject to the Treaty rules on the
free movement of goods (see Duphar and Others, cited above, paragraph 18).
- Consequently, the fact that the national rules at issue in the main proceedings fall
within the sphere of social security cannot exclude the application of Article 30 of
the Treaty.
Effect of Regulation No 1408/71
- The Luxembourg Government submits that Article 22 of Regulation No 1408/71
lays down the principle that prior authorisation is required for any treatment in
another Member State. In that Government's view, to challenge the national
provisions relating to reimbursement of the cost of benefits obtained abroad
amounts to calling into question the validity of the corresponding provision in
Regulation No 1408/71.
- It must be stated that the fact that a national measure may be consistent with a
provision of secondary legislation, in this case Article 22 of Regulation No 1408/71,
does not have the effect of removing that measure from the scope of the provisions
of the Treaty.
- Moreover, as the Advocate General observes in points 55 and 57 of his Opinion,
Article 22(1) of Regulation No 1408/71 is intended to allow an insured person,
authorised by the competent institution to go to another Member State to receive
there treatment appropriate to his condition, to receive sickness benefits in kind,
on account of the competent institution but in accordance with the provisions of the
legislation of the State in which the services are provided, in particular where the
need for the transfer arises because of the state of health of the person concerned,
without that person incurring additional expenditure.
- On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light
of its purpose, is not intended to regulate and hence does not in any way prevent
the reimbursement by Member States, at the tariffs in force in the competent State,
of the cost of medical products purchased in another Member State, even without
prior authorisation.
- Consequently, the Court must examine the compatibility of national rules such as
those at issue in the main proceedings with the Treaty provisions on the free
movement of goods.
Application of the provisions on the free movement of goods
- It is necessary to examine whether rules such as those at issue in the main
proceedings are capable of hindering, directly or indirectly, actually or potentially,
intra-Community trade (Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
- Mr Decker and the Commission submit that a system under which reimbursement
of the cost of medical products, in accordance with the conditions laid down by the
State of insurance, is subject to prior authorisation by the competent institution of
that State where the products are supplied in another Member State constitutes a
restriction on the free movement of goods within the meaning of Article 30 of the
Treaty.
- The Member States which have submitted observations argue essentially that rules
such as those at issue do not have the purpose or effect of restricting trade flows,
but merely lay down the conditions for the reimbursement of medical expenses.
Such rules do not have the effect of prohibiting the import of spectacles, nor do
they have any direct influence on the possibility of purchasing them outside the
national territory. They do not prohibit Luxembourg opticians from importing
spectacles and corrective lenses from other Member States, processing them and
selling them.
- It must be observed that the rules at issue encourage persons insured under the
Luxembourg social security scheme to purchase their spectacles from, and have
them assembled by, opticians established in Luxembourg rather than in other
Member States.
- While the national rules at issue in the main proceedings do not deprive insured
persons of the possibility of purchasing medical products in another Member State,
they do nevertheless make reimbursement of the costs incurred in that Member
State subject to prior authorisation, and deny such reimbursement to insured
persons who have not obtained that authorisation. Costs incurred in the State of
insurance are not, however, subject to that authorisation.
- Such rules must be categorised as a barrier to the free movement of goods, since
they encourage insured persons to purchase those products in Luxembourg rather
than in other Member States, and are thus liable to curb the import of spectacles
assembled in those States (see Case 18/84 Commission v France [1985] ECR 1339,
paragraph 16).
- The Luxembourg Government submits, however, that the free movement of goods
is not absolute and that the rules at issue, the purpose of which is the control of the
health expenditure which must necessarily be taken into consideration, are justified
on that basis.
- Mr Decker, on the other hand, claims that if his purchase were reimbursed, the
financial burden on the Fund's budget would be the same, as it reimburses only a
flat-rate sum for both frames and corrective lenses sold by an optician. Since that
flat rate is fixed independently of the costs actually incurred, there is no objective
reason why the Fund should refuse reimbursement if the purchase is made from
an optician established in another Member State. The rules at issue therefore
cannot be justified by the need to control health expenditure.
- It must be recalled that aims of a purely economic nature cannot justify a barrier
to the fundamental principle of the free movement of goods. However, it cannot
be excluded that the risk of seriously undermining the financial balance of the
social security system may constitute an overriding reason in the general interest
capable of justifying a barrier of that kind.
- But, as the Luxembourg Government acknowledged in reply to a question from the
Court, it is clear that reimbursement at a flat rate of the cost of spectacles and
corrective lenses purchased in other Member States has no effect on the financing
or balance of the social security system.
- The Belgian, German and Netherlands Governments have also submitted that the
right of insured persons to have access to quality treatment constitutes a
justification for the rules at issue, on the ground of the protection of public health,
as provided for by Article 36 of the Treaty. The Belgian Government adds that
spectacles must be supplied by persons authorised by law to pursue the profession.
If they are supplied in another Member State, supervision to ensure that this has
been carried out properly is seriously called into question, or even impossible.
- It must be observed that the conditions for taking up and pursuing regulated
professions have been the subject of Council Directive 92/51/EEC of 18 June 1992
on a second general system for the recognition of professional education and
training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) and
Commission Directive 95/43/EC of 20 July 1995 (OJ 1995 L 184, p. 21), which
amended Annexes C and D to Directive 92/51.
- This means that the purchase of a pair of spectacles from an optician established
in another Member State provides guarantees equivalent to those afforded on the
sale of a pair of spectacles by an optician established in the national territory (see,
with reference to the purchase of medicinal products in another Member State,
Case 215/87 Schumacher v Hauptzollamt Frankfurt am Main-Ost [1989] ECR 617,
paragraph 20, and Case C-62/90 Commission v Germany [1992] ECR I-2575,
paragraph 18).
- Furthermore, in the present case the spectacles were purchased on a prescription
from an ophthalmologist, which guarantees the protection of public health.
- It follows that rules such as those applicable in the main proceedings are not
justified on grounds of public health in order to ensure the quality of medical
products supplied in other Member States.
- In those circumstances, the answer must be that Articles 30 and 36 of the Treaty
preclude national rules under which a social security institution of a Member State
refuses to reimburse to an insured person on a flat-rate basis the cost of a pair of
spectacles with corrective lenses purchased from an optician established in another
Member State, on the ground that prior authorisation is required for the purchase
of any medical product abroad.
Costs
47. The costs incurred by the Luxembourg, Belgian, German, Spanish, French,
Netherlands and United Kingdom Governments and by the Commission of the
European Communities, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, for the parties to the main proceedings,
a step in the action pending before the national court, the decision on costs is a
matter for that court.
On those grounds,
THE COURT
in answer to the question referred to it by the Conseil Arbitral des Assurances
Sociales by decision of 5 April 1995, hereby rules:
Articles 30 and 36 of the EC Treaty preclude national rules under which a social
security institution of a Member State refuses to reimburse to an insured person
on a flat-rate basis the cost of a pair of spectacles with corrective lenses purchased
from an optician established in another Member State, on the ground that prior
authorisation is required for the purchase of any medical product abroad.
Rodríguez IglesiasGulmann
Ragnemalm
Mancini Moitinho de Almeida
Kapteyn Murray Edward
Puissochet
Hirsch Jann
|
Delivered in open court in Luxembourg on 28 April 1998.
R. Grass
G.C. Rodriguez Iglesias
Registrar
President
1: Language of the case: French.