European Commission v French Republic.

• Jurisdiction: European Union
• Celex Number: 62008CC0512
• ECLI: ECLI:EU:C:2010:427
• Court: Court of Justice (European Union)
• Date: 15 July 2010
• Procedure Type: Recours en constatation de manquement - non fondé
• Docket Number: C-512/08

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 15 July 2010 (1)

Case C‑512/08

European Commission

v

French Republic

(Freedom to provide services – Unjustified restrictions – Requirement of prior authorisation in France as a condition for reimbursement for non-hospital medical services in another Member State involving major medical equipment – No legislation granting insured patients additional reimbursement covering the excess of the amount the insured patient is entitled to receive according to the reimbursement formula used in the Member State of affiliation, over the amount which would have been payable according to the formula used in the Member State where treatment is provided)

1. Judgments of the Court concerning the application of the internal market rules to health care services (2) have been controversial. Often they raise issues of constitutional and substantive importance. They demonstrate the potentially disruptive effects on different national social welfare systems of the decision to bring essential and publicly organised services within the European Union’s free movement provisions. (3)

2. The present infringement proceedings are no exception. The Commission’s first ground of complaint against France alleges a failure to fulfil obligations under Article 49 EC (4) in as much as reimbursement for medical services provided outside a hospital setting requiring the use of major medical equipment (5) is subject to the grant of prior authorisation. The second ground of complaint alleges that the French authorities have failed to introduce specific legislation granting a patient insured under the French social security system additional reimbursement in the circumstances set out in paragraph 53 of the judgment in Vanbraekel and Others (‘Vanbraekel’). (6)

3.Vanbraekel concerned the basis for calculating the amount to be reimbursed to a patient insured under the Belgian social security system who had received medical treatment in a hospital in France. The question was whether the patient should be reimbursed by the Belgian insurance fund according to the amount which would have been reimbursed under the French legislation (FRF 38 608.99) or the level of reimbursement under the Belgian legislation (FRF 49 935.44). (7) The Court held that since Article 22 of Regulation No 1408/71 (8) did not regulate this issue, the matter should be considered under Article 49 EC. (9) The Court considered the fact that national law did not guarantee a right to additional reimbursement to be an unjustified restriction on the freedom to provide services (10) and set out, in paragraph 53 of its judgment, the circumstances in which patients are eligible for such additional reimbursement. (11)

Community legislation

Article 49 EC

4. The first paragraph of Article 49 EC provides: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.’

5. Article 55 EC applies the public health derogation from freedom of establishment contained in Article 46 EC to the provision of services under Article 49 EC.

Regulation No 1408/71

6.Regulation No 1408/71 (‘the Regulation’) is not directly at issue in the present proceedings. However, it is necessary to bear it in mind in order to understand the EU legislative framework. The Regulation aims to ensure that workers moving within the EU continue to receive social and health care benefits (see in particular the fifth and sixth recitals). The Regulation follows the principle that social security remains a domain reserved to Member States’ competence. It is therefore not a harmonising measure, but merely seeks to establish a degree of coordination by making provision for fundamentally different systems to work together so as to secure minimal social and health care benefits. (12) Article 22(1)(c) requires prior authorisation for medical treatment received outside the Member State where the patient is insured (a fact that does not preclude the patient from relying on Article 49 EC). (13) Article 36 sets out the procedure for reimbursement between the institutions of the State where the insured person is affiliated and those of the State where medical services are provided.

The national framework

The Code de la sécurité sociale

7. Decree No 2005-386 of 19 April 2005 introduced Articles R.332-3 and R.332-4 into the Code de la sécurité sociale (the French Social Security Code). Within the section dealing with medical treatment provided outside France, Article R.332-3 states: ‘Health insurance funds shall reimburse the cost of treatment given to insured persons and to those entitled under them in a Member State of the European Union or party to the Agreement on the European Economic Area, under the same conditions as if the treatment had been received in France, subject to the proviso that the amount reimbursed may not exceed the total sum paid out by the insured person and subject to the adjustments provided by Articles R.332-4 to R.332-6’.

8. Article R.332-4 provides: ‘Except in the case of unexpected treatment, health insurance funds may not, without prior authorisation, reimburse the cost of hospital treatment or treatment requiring the use of [major medical equipment] referred to at section II of Article R.712-2 of the public health code that is provided to insured persons and to those entitled under such funds in another Member State of the European Union or party to the Agreement on the European Economic Area …’.

9. The prior authorisation referred to in Article R.332-4 may be refused where either of the following conditions applies: the proposed treatment is not one that is reimbursed under the regulations applicable in France; or treatment that is identical or equally effective can be obtained without undue delay in France, taking into account the patient’s condition and the likely development of his illness. Article R.332-4 also sets out the process by which a request for prior authorisation may be made. Essentially, patients are required to apply to the health insurance fund to which they are affiliated; and any decision refusing prior authorisation must be reasoned and is subject to appeal.

The Code de la santé publique

10. Article L.6121-1 of the Code de la santé publique (the French Public Health Code), in the version applicable at the relevant time, sets out the objectives regarding public health care, which include taking account of the need to plan for the allocation of resources to ensure public access to health services. Article L.6122-1 states: ‘Projects relating to the creation of any healthcare establishment, the creation, conversion and merging of healthcare services, including alternatives to hospitalisation, and the installation of [major medical equipment] shall require prior authorisation by the regional hospital authority. The list of healthcare services and [major medical equipment] subject to authorisation shall be laid down by decree of the Council of State’.

11. Article L.6122-14 defines equipment that falls within the scope of the list as: ‘… movable equipment intended either for diagnosis, treatment or functional rehabilitation in the event of injury, illness or pregnancy, or for data processing, the use of which imposes particular constraints in terms of installation and operation, or is likely to give rise to an excessive number of medical procedures.’

12. The list of such equipment is set out in Article R.6122-26 (corresponding to the former section II of Article R.712-2 of that code), which provides: ‘The following [major medical equipment] requires prior authorisation:

1. Scintillation camera with or without positron emission coincidence detector, emission tomography or positron camera (“PET scanner”); (14)

2. Nuclear magnetic resonance imaging or spectrometry apparatus for clinical use; (15)

3. Medical scanner; (16)

4. Hyperbaric chamber; (17)

5. Cyclotron for medical use.’ (18)

13. The French authorities have issued three circulars to explain the position in national law regarding the reimbursement of the costs of medical treatment for persons insured under the French social security scheme who receive medical care in another Member State or within the European Economic Area (‘EEA’) and the requirement to obtain prior authorisation for medical treatment received abroad involving the use of major medical equipment. (19)

14. Circular DSS/DACI/2003/286 explains that persons insured under the French social security scheme may request the additional reimbursement set out in Vanbraekel.

15. Circular DSS/DACI/2005/235 states: ‘Decree No 2005-386 of 19 April 2005 relative to payment for treatment received outside France completes the integration into national law of Community case-law relating to freedom to provide services and the free movement of goods in the area of medical care. …’. The circular explains that requests for prior authorisation should not systematically be refused by the competent authorities, but only where the conditions in Article R.332-4 of the social security code apply. (20)

16. Circular DSS/DACI/2008/242 confirms that the additional reimbursement referred to in Vanbraekel shall be available to insured persons. It notes that, although insurance providers are to apply the Court’s case-law, there are obstacles to calculating the amount of the additional reimbursement (such as the lack of a common frame of reference for comparing the different cost of health care throughout the Member States), but nevertheless encourages the competent authorities to continue to process applications for the additional reimbursement.

Background and pre-litigation procedure

17. On 18 October 2006 the Commission issued a letter of formal notice...