Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal background

Community law

'A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislation of two or more Member States who is entitled to benefits under the legislation of one of those States shall, with members of his family who are staying in the territory of a Member State other than the one in which they reside, receive:

(a) benefits in kind provided by the institution of the place of stay in accordance with the provisions of the legislation which it administers, the cost being borne by the institution of the pensioner's place of residence;

...'

'An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits ... and:

(a) whose condition necessitates immediate benefits during a stay n 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;

...'.

'Notwithstanding Article 2 of the Regulation, Article 22(1)(a) and (c) shall also apply to persons who are nationals of a Member State and are insured under the legislation of a Member State and to the members of their families residing with them.'

'1. In order to receive benefits in kind under Article 31 of the Regulation, a pensioner shall submit to the institution of the place of stay a certified statement testifying that he is entitled to the said benefits. This certified statement, which shall be issued by the institution of the pensioner's place of residence, if possible before he leaves the territory of the Member State where he resides, shall indicate in particular, where appropriate, the maximum period during which benefits in kind may be granted, in accordance with the legislation of that Member State. If the pensioner does not submit the said certified statement, the institution of the place of stay shall obtain it from the institution of the place of residence.

2. The provisions of Article 17(6), (7) and (9) of the implementing Regulation shall apply by analogy. In such a case, the institution of the pensioner's place of residence shall be considered to be the competent institution.'

'6. In the event of hospitalisation, the institution of the place of residence shall, within three days of becoming aware of the fact, notify the competent institution of the date of entry into hospital, the probable duration of hospitalisation and the date of leaving hospital. Notification shall be unnecessary, however, when the costs of the benefits in kind are repaid in a lump sum to the institution of the place of residence.

7. The institution of the place of residence shall notify the competent institution in advance of any decision relating to the granting of benefits in kind where the likely or actual cost exceeds a lump sum which is fixed and periodically reviewed by the Administrative Commission. The competent institution shall have 15 days from the day on which such information is sent within which to raise any objection and to state the reasons on which such objection is based; if, at the end of that period, no such objection has been raised, the institution of the place of residence shall grant the benefits in kind. Where such benefits have to be granted in a case of extreme urgency, the institution of the place of residence shall forthwith inform the competent institution thereof. However, notification of its objection, stating the reasons on which such objection is based, shall be unnecessary when the costs of the benefits in kind are repaid in a lump sum to the institution of the place of residence.

...

9. Two or more Member States or the competent authorities of those Member States may, having received the opinion of the Administrative Commission, agree on other implementing provisions.'

'1. 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.'

'1. The actual amount of ... benefits in kind provided under Article ... 31 of [Regulation No 1408/71] shall be refunded by the competent institution to the institution which provided the said benefits as shown in the accounts of that institution.

2. In the cases referred to in ... Articles ... 31 of [Regulation No 1408/71], and for the purposes of implementing paragraph 1, the institution of the place of residence of the members of the family or of the pensioner, as the case may be, shall be considered as the competent institution.

3. If the actual amount of the benefits referred to in paragraph 1 is not shown in the accounts of the institution which has provided them, and no agreement has been concluded under paragraph 6, the amount to be refunded shall be determined on thebasis of a lump-sum payment calculated from all the appropriate references obtained from the data available. The Administrative Commission shall assess the bases to be used for the calculation of the lump-sum payments and shall decide the amount thereof.

...

6. Two or more Member States or the competent authorities of those Member States may, having received the opinion of the Administrative Commission, agree to other methods of assessing the amounts to be refunded, in particular on the basis of lump sums.'

'1. If it is not possible during an employed or self-employed person's stay in a Member State other than the competent State to complete the formalities provided for in Articles ... 31 of the implementing Regulation, his expenses shall, upon his application, be refunded by the competent institution in accordance with the refund rates administered by the institution of the place of stay.

2. The institution of the place of stay shall, at the request of the competent institution, supply it with the necessary information about such rates.

If the institution of the place of stay and the competent institution are bound by an agreement providing either that no refund, or that a lump-sum refund of benefits provided, in pursuance of Articles ... 31 of the Regulation, be made, the institution of the place of stay shall, in addition, be required to transfer to the competent institution the amount to be refunded to the person concerned in pursuance of the provisions of paragraph 1.

3. Where major expenses are involved, the competent institution may pay an appropriate advance to the person concerned as soon as that person submits to the said institution the claim for refund.

4. Notwithstanding paragraphs 1, 2 and 3, the competent institution may effect the reimbursement of expenses incurred in accordance with the rates it administers provided that it is possible to make a refund in accordance with these rates, that the expenses to be refunded do not exceed a level determined by the Administrative Commission and that the employed person or self-employed person or pensioner agrees to the application of this provision. In any case, the amount of reimbursement shall not exceed the amount of the expenses actually incurred.

5. If the legislation of the State of residence does not provide for rates of reimbursement, the competent institution may effect the reimbursement under the conditions laid down in paragraph 4 without the agreement of the person concerned being necessary.'

National law

'In very exceptional cases, the director of the competent regional branch may, after the competent medical committee has given its opinion, authorise hospital treatment which has already taken place abroad, provided that prior authorisation was not feasible, either because the illness manifested itself suddenly during a temporary stay of the insured person abroad or because he had to be transferred there urgently in order to avert a real risk to his life. In those cases the medical committee of appeal shall give its opinion on the basis of the information which exists both on any hospital or other treatment in Greece and on the hospital or other treatment which took place abroad.'

The main proceedings and the questions referred for a preliminary ruling

'(1) Is Article 3a(4)(g) of the Hospital Care Regulations of the IKA, in the version in force at the time of the defendant's hospital treatment, to the extent that it lays down as an additional requirement, before the IKA may in very exceptional cases - namely in cases where a particular illness of the pensioner of the IKA seeking their refund manifested itself suddenly while he was temporarily staying abroad or where he was transferred there urgently in order to avert a real risk to his life - refund the costs of treatment which has already taken place in hospital abroad, that the director of the competent regionalbranch of the IKA must grant the related authorisation after an opinion has been given by the IKA's Medical Committee of Appeal, consistent with the provisions ... of Articles 31 and 36 of Regulation (EEC) No 1408/71 of the Council and Articles 31 and 93 of Regulation (EEC) No 574/72 of the Council since, even if it were accepted that those provisions in principle confer on the Member States discretion - in respect of benefits, including sickness benefits in kind, for pensioners temporarily staying in the territory of a Member State other than the one in which they reside, which benefits must be considered also to comprise the provision of hospital treatment - to enact provisions establishing as an additional condition for the refund of the costs relating to the benefits the, albeit ex post facto, authorisation of those costs, it is in any event not entirely clear and free from doubt whether they additionally allow the Member States to enact provisions establishing as a necessary condition for the grant of such authorisation that requirements be met similar to those laid down in the aforementioned provision of the IKA Regulations at issue, that is to say requirements which are related to the immediate need for provision of hospital treatment?

(2) On the basis that services comprising the provision of care within hospitals constitute services within the meaning of Article 60 of the EC Treaty, is the aforementioned provision of the IKA Regulations, even if it were considered, to the extent referred to above, not to be contrary to the above provisions of the Council Regulations, consistent to that extent with Articles 59 and 60 of the EC Treaty?

(3) If Question 2 is answered in the negative, is the rule laid down by that provision of the IKA Regulations justified on grounds of public health which are related to the provision of a balanced hospital service accessible to everybody resident within Greece and does it therefore fall within the exceptions in Article 56 of the EC Treaty?

(4) On the basis that the entitlement to sickness benefits in kind and, by extension, the claim for refund of the costs relating to them constitute possessions within the meaning of Article 1 of the Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris on 20 March 1952, is the aforementioned provision of the IKA Regulations - even if it were considered that to the extent referred to above it is not contrary to the aforementioned provisions of the Council Regulations and of the EC Treaty, or, that is to say on the contrary basis, that it is justified in accordance with the matters previously set out - consistent to that extent with the first paragraph of Article 1 of the Protocol?

(5) If Question 4 is answered in the negative, is the rule laid down by the aforementioned provision of the IKA Regulations justified on grounds of public interest which are connected with preservation of the financial stability of thesocial security system and does it therefore fall within the exceptions in the second paragraph of Article 1 of that Protocol?'

Question 1

The relevance of the question

The scope of Article 31 of Regulation No 1408/71

The implementation in practice of Article 31 of Regulation No 1408/71

Funding of the treatment covered by Article 31 of Regulation No 1408/71

Article 31 of Regulation No 1408/71 must be interpreted as meaning that enjoyment of the benefits in kind guaranteed by that provision to pensioners staying in a Member State other than their State of residence is not subject to the condition that the illness which necessitated the treatment in question manifested itself suddenly during such a stay, making that treatment immediately necessary. That provision therefore precludes a Member State from subjecting that enjoyment to such a condition.

Article 31 of Regulation No 1408/71 precludes a Member State from subjecting the enjoyment of the benefits in kind guaranteed by that provision to any authorisation procedure.

The provision and funding of the benefits in kind referred to in Article 31 of Regulation No 1408/71 must normally take place in accordance with the provisions of that article in conjunction with Article 36 of that regulation and Articles 31 and 93 of Regulation No 574/72.

Where it appears that the institution of the place of stay has wrongly refused to provide the benefits in kind referred to in Article 31 of Regulation No 1408/71 and the institution of the place of residence, on being advised of that refusal, has declined to contribute, as it is obliged to, to facilitating the correct application of that provision, it is for the latter institution, without prejudice to the possible liability of the institution of the place of stay, to reimburse directly to the insured person the cost of the treatment he has had to bear, so as to guarantee him a level of funding equivalent to that which he would have enjoyed had the provisions of that article been complied with.

In the latter case, Articles 31 and 36 of Regulation No 1408/71 and Articles 31 and 93 of Regulation No 574/72 preclude national legislation from subjecting such reimbursement to the obtaining of ex post facto authorisation which is granted only in so far as it is shown that the illness which necessitated the treatment in question manifested itself suddenly during the stay, making that treatment immediately necessary.

Questions 2, 3, 4 and 5

Costs