EUROPEAN COMMUNITY — Social security — Pensioner receiving hospital treatment in member state other than that of residence — Whether cost reimbursable only if treatment urgently required — Whether prior authorisation required —
Council Regulation (EEC) No 1408/71 (as amended), art 31
Idryma Koinonikon Asfaliseon (IKA) v Ioannidis (Case C-326/00)
ECJ: President Rodríguez Iglesias, Judges Wathelet, Schintgen, Timmermans, Gulmann, Edward, La Pergola, Jann, Skouris, Macken, Colneric, von Bahr and Cunha Rodrigues: 25 February 2003
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The right of pensioners staying in a member state other than that of their residence to benefits in kind in that state, guaranteed by art 31 of Regulation 1408/71 on social security schemes (as amended most recently by Council Regulation (EC) No 3096/95), was not reserved to situations where the illness which necessitated the treatment in question required immediate treatment or manifested itself suddenly during the stay, and was not subject to prior authorisation.
The Court of Justice of the European Communities so ruled, inter alia, on a reference for a preliminary ruling by the Diikitiko Protodikio Thessalonikis, Greece.
Art 22(1) of Regulation 1408/71 provides: "An employed or self-employed person … (a) whose condition necessitates immediate benefits during a stay in the territory of another member state; 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 … by the institution of the place of stay ..." Art 31 provides: "A pensioner entitled to a pension … under the legislation of one member state … shall, with members of his family who are staying in the territory of [another] member state … receive: (a) benefits in kind provided by the institution of the place of stay …" The relevant model forms to be filled in by or on behalf of insured persons were form E111 in the case of arts 22(1)(a) and 31 and form E112 in the case of art 22(1)(c).
The claimant, a Greek pensioner to whom a form E111 had been issued by the defendant Greek social security institution, required heart treatment in hospital during a stay in Germany. On his request to the German sickness fund to pay the costs of the hospital treatment on behalf of the defendant, the German fund asked the defendant to issue a form E112. The defendant, although aware that a form E111 had been issued, approached the matter on the footing that ex post facto authorisation for the hospital treatment was required from it, decided that such authorisation could not be given because, since the claimant suffered from chronic heart illness, his illness in Germany had not manifested itself suddenly and could have been treated in Greece, and accordingly declined to issue a form E112. On appeal by the defendant in proceedings in which the claimant, who had ultimately paid the hospital expenses himself, was initially successful, the appellate court referred to the European Court a number of questions on, inter alia, Regulation 1408/71.
THE COURT said, inter alia, that it followed from Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v Pierik (Case 182/78) [1979] ECR 1977 that if the claimant's stay in Germany was planned for medical purposes, his benefits entitlements were governed by art 22(1)(c) of Regulation 1408/71; otherwise, they were governed by art 31. On the national court's findings, the latter appeared to be the case. Art 31 contained no provision as to the state of health of the person concerned, such as that in art 22(1)(a), or requiring prior authorisation, as in art 22(1)(c), and the system established by art 31 was quite distinct from that laid down by art 22(1). Art 31 was not limited to treatment which was immediately necessary and thus could not be deferred until the insured person's return to the state of residence, or to cases of sudden illness only—thus, the fact that the illness in the host state was linked to a pre-existing pathology of which the insured person was aware did not exclude art 31.
Member states therefore could not make art 31 benefits subject to an authorisation procedure or to a condition that the illness manifested itself suddenly during the stay. Where it appeared that the social security institution of the state of stay had wrongly refused to provide art 31 benefits, it was the duty of the institution of the state of residence to ascertain whether the refusal was well founded. If the latter institution did not contribute to facilitating the correct application of art 31, it was obliged to reimburse directly to the insured person any costs of treatment borne by him, without prejudice to any liability of the institution of the state of stay.
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Appearances: Not listed
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Reported by: Michael Hawkings, Barrister at law