Judgment_paragraph 1. · Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G. Pierik (182/78)

1.In Case 117/77 ([1978] ECR 825), the President of the Centrale Raad van Beroep, Utrecht, by a letter of 28 September 1977, referred to the Court of Justice certain questions concerning the interpretation of Regulation No 1408/71 or the Council which were raised in the course of a dispute between the Bestuur van het Algemeen Ziekenfonds [Managers of the General Sickness Fund] and Mrs G. Pierik, who, being in receipt of an invalidity pension in the Netherlands, had claimed repayment of the costs relating to medical treatment received in Germany.The questions asked were in the following terms:(a) Do the words “who satisfies the conditions of the legislation of the competent State for entitlement to benefits” at the beginning of Article 22 (1) solely contain a restriction to those who in principle are eligible for benefits under the appropriate national rules or do those words contain a restriction on those benefits included in the national scheme of benefits in kind, an interpretation to which the last clause of Article 22 (1) (c) (i) may lend support?(b) Are the words “on behalf of the competent institution” in Article 22 (1) (c) (i) to be understood as meaning that if the competent institution has given authorization within the meaning of the first part of Article 22 (1) (c) it follows that the institution must refund the benefits in kind granted by the institution of the place of stay to the latter institution without further reservations?(c) Are the words “the institution of the place of stay or residence” in Article 22 (1) (c) (i) solely to be understood as meaning the institution which, in the Member State concerned, has a function corresponding to that of the competent institution or do those words include institutions which have another function in the said Member State?(d) Are the words “benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence” in Article 22 (1) (c) (i) to be understood as including benefits in kind to which a right exists in the Member State of the place of stay or is it sufficient that the competent institution can provide the benefits and does in fact make use of that power? In the latter case: is it sufficient that use is occasionally made of the power or does the use of the word “provided” imply that the use of the power constitutes the rule?(e) Do the words “the treatment in question” in the second subparagraph of Article 22 (2) refer to a specific treatment which is only given in the territory of the Member State to which the worker has moved or at least not in the territory of the Member State in which he lives or must the words “the treatment in question” be understood as meaning an adequate treatment of the illness or infection?(f) Does the obligation set out in the second subparagraph of Article 22 (2) also extend to cases in which the treatment concerned is not included in the national system of benefits in kind with the result that in such cases an independent Community right to the treatment is created?’By a judgment of 16 March 1978 the Court answered the questions as follows:1. The words “who satisfies the conditions of the legislation of the competent State for entitlement to benefits” at the beginning of Article 22 (1) determine the persons who in principle are entitled to benefits in pursuance of the relevant national legislation.2. The words “the treatment in question” in the second subparagraph of Article 22 (2) refer to any appropriate treatment of the sickness or disease from which the person concerned suffers.3. The words “benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence” do not refer solely to benefits in kind provided in the Member State of residence but also to benefits which the competent institution is empowered to provide.4. The dury laid down in the second subparagraph of Article 22 (2) to grant the authorization required under Article 22 (1) (c) covers both cases where the treatment provided in another Member State is more effective than that which the person concerned can receive in the Member State where he resides and those in which the treatment in question cannot be provided on the territory of the latter State.5. The costs relating to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence are to be fully refunded.6. The words “institution of the place of stay or residence” in Article 22 (1) (c) (i) of Regulation No 1408/71 mean the institution empowered to provide the benefits in the State of residence or stay as listed in Annex 3 to Regulation No 574/72 of the Council, as amended by Regulation No 878/73 of the Council.’The Centrale Raad van Beroep resumed the proceedings in the main action, but found at its hearing on 13 June 1978 that it could not regard all the issues in the main action as being settled by that judgment.In particular it held that, in so far as Regulation No 1408/71 was concerned, the decision in the case was still dependent upon the answer to the following questions:(a) Is the concept of worker in Article 22 of Regulation No 1408/71 more restricted than the concept of worker within the meaning of Article 1 (a) of the regulation inasmuch as Article 22 relates solely to active workers, so that, with regard to persons who are not, or are no longer, at work and are entitled to a benefit on the grounds of invalidity, due by virtue of the legislation of a Member State, and who by virtue of the legislation of that Member State to which the regulation is applicable in the matter of medical treatment and special sickness expenses are entitled to benefits in kind, only the provisions of Article 31 are applicable?(b) Does the obligation referred to in the second subparagraph of Article 22 (2) of Regulation No 1408/71 to grant the authorization required under Article 22 (1) (c) extend so far that the said authorization cannot be refused by the competent institution on the basis of the fact that the treatment in question is deliberately not included in the scheme of benefits in kind under the sickness and maternity legislation administered by that institution, for example on medical, medical-ethical or financial grounds or because the value of the treatment in question in the Member State in which the competent institution has its seat is in general not regarded as positive or because the treatment is not regarded as falling within the field of health treatment and furthermore is deliberately not provided by virtue of any other legislation of that Member State to which the regulation is applicable?(c) Do the words “benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence” in Article 22 (1) (c) (i) relate directly to the case in which the institution of the Member State to which the person concerned wishes to go in order to undergo treatment is competent to provide that treatment as a benefit in kind but is normally not obliged to make use of such competence, or must the competent institution in such a situation, before providing the authorization requested, inquire whether the institution of the Member State to which the person concerned wishes to go in order to undergo the treatment would provide such treatment as a benefit in kind for the person concerned if he were insured in pursuance of the legislation administered by that institution?’Therefore the Centrale Raad decided in its order of 18 July 1978 that these questions should be referred to the Court of Justice under Article 177 of the EEC Treaty.