Court of Justice 16-03-1978 ECLI:EU:C:1978:72

Data

Court: Court of Justice

Case date: 16 maart 1978

Verdict

JUDGMENT OF 16. 3. 1978 — CASE 117/77 ALGEMEEN ZIEKENFONDS DRENTHE-PLATTELAND v PIERIK

In Case 117/77

REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep (court of last instance in social security matters) for a preliminary ruling in the action pending before that court between

BESTUUR VAN HET ALGEMEEN ZIEKENFONDS (Managers of the General Sickness Fund), DRENTHE-PLATTELAND, Zwolle,

and

MRS G. PIERIK, Wapenveld,

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. P es cato re, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

Advocate General: H. Mayras

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts, the procedure and the written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community may be summarized as follows:

Facts and written procedure

Mrs G. Pierik, a resident of the Netherlands, worked as an assistant midwife and auxiliary nurse and since 1 December 1962 has been in receipt of invalidity benefit calculated on the basis of an 80 to 100 % incapacity for work. Until 1970 she took a number of courses of treatment in the Federal Republic of Germany. Following court proceedings she obtained a refund of the costs entailed in such treatment from the Nieuwe Algemene Bedrijfsvereniging (the new general trade association) pursuant to Article 60 of the Wet op de Arbeidsongeschiktheidsverzekering (Law on insurance against incapacity for work, hereinafter referred to as ‘the WAO’) pursuant to a decision of the Centrale Raad van Beroep of 25 April 1973.

The said Article 60 states that inter alios persons in receipt of invalidity benefits provided by trade associations may be the subject of measures intended to maintain, re-establish or improve their capacity for work. The third paragraph of that provision however provides that such measures shall be accorded only in so far as they are not included amongst the benefits in kind governed by Article 6 (2) of the Algemene Wet Bijzondere Ziektekosten (general law on special sickness expenses) or by Article 8 (2) of the Ziekenfondswet (law on the sickneu fund).

The action now pending before the Centrale Raad van Beroep relates to the refund of the cost of a course of treatment followed in April 1974 in Bad Krozingen in the Federal Republic of Germany for which Mrs Pierik lodged a claim on 12 January 1974 with the above-mentioned trade association. The trade association, on the basis of the above-mentioned Article 60 (3) of the WAO stated that the benefit claimed formed part of the group of benefits in kind provided for by the Ziekenfondswet (and the Algemene Wet Bijzondere Ziektekosten) so that in this case it was necessary to refuse the claim. Nevertheless the trade association, on the basis of Article 61 of the WAO and Decree No 58062 of the Minister for Health and Social Affairs of 29 August 1967 adopted in pursuance of the said law, decided by derogation from the said Article 60 (3) to refund the costs in question provided that the person concerned claimed payment from the sickness fund to which she was affiliated and that she authorized the trade association to institute proceedings against the fund in the event of its refusing the claim.

Mrs Pierik accordingly claimed from the competent sickness fund, the Algemene Ziekenfonds Drenthe-Platteland, Zwolle (hereinafter referred to as ‘the Fund’) the above-mentioned refund. The Fund refused the claim by a letter of 16 May 1974 and the association appealed in the name and on behalf of the person concerned before the Raad van Beroep (Court of Appeal) Zwolle, which, by a judgment of 3 November 1975, found in favour of the appellant. In the course of those proceedings the Fund relied upon Article 22 of Regulation No 1408/71 arguing that in accordance therewith the refund may only be effected if the treatment in question is appropriate to the condition of the insured person and if the latter has obtained the authorization of the competent institution.

The Fund lodged an appeal with the Centrale Raad van Beroep. In the course of the proceedings the question of the interpretation of Article 22 of Regulation No 1408/71 was again raised. The President of the Centrale Raad van Beroep, by a letter of 28 September 1977, submitted the following questions to the Court of justice:

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?
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 reservation?
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 Sute 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 Sute?
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 Sute 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?
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 Sute to which the worker has moved or at least not in the territory of the Member Sute in which he lives or must the words ‘the treatment in question’ be understood as meaning an adequate treatment of the illness or infection?
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?

The letter of the President of the Centrale Raad van Beroep reached the Court on 30 September 1977.

The Vereniging van Nederlandse Ziekenfondsen (the Association of Netherlands Sickness Funds), represented by Mr H. de Jong, the Netherlands Government, represented by the Minister for Foreign Affairs, the Government of the United Kingdom, represented by the Treasury Solicitor's Office, and the Commission of the European Communities, represented by H. Bronkhorst, a member of its Legal Department, acting as Agent, submitted written observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Having heard the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The Vereniging van Nederlandse Ziekenfondsen states as follows:

Question (a):

The words at the beginning of Article 22 of Regulation No 1408/71 of the Council imply a restriction in respect of persons but not in respect of benefits. A different interpretation of those words would entail certain absurdities and could not be reconciled with a logical and systematic interpretation of Article 22.

In those circumstances the reply to the first question should be to the effect that the words ‘who satisfies the conditions of the legislation of the competent Sute for entitlement to benefits’ at the beginning of Article 22 refer only to persons who in principle are entitled to benefits in pursuance of the relevant national legislation.

Question (b):

This question should be answered in the affirmative. Article 36 of Regulation No 1408/71 and Article 93 of implementing Regulation No 574/72 of the Council are moreover based on the same principle.

Question (c):

The reply should be that the words ‘institution of the place of stay or residence’ contained in the said Article 22 (1) (c) (i) are to be understood as referring only to the institution which in the Member Sute concerned carries out corresponding duties as a competent institution (cf. Annex 3 to Regulation No 574/72).

Question (d):

Having regard in particular to the words ‘shall be entitled’ in Article 22 (1) (c), the ‘benefits in kind’ referred to in subparagraph (c) (i) can only be benefits to which the persons concerned are entitled in the Member Sute where they reside.

Question (e):

The words ‘the treatment in question’ in the second subparagraph of Article 22 (2) can only refer to the attention entailed in treatment appropriate to the sickness or disease.

Question (f):

One may wonder what further purpose there could be in requiring an authorization if the duty to grant it were extended to benefits which are not included in the list of national benefits.

The Vereniging concludes by asking whether Regulation No 1408/71 is in fact intended to create in this sphere an independent Community right or whether it is not rather intended to effect co-ordination.

The Netherlands Government recalls the fundamental objectives of Regulation No 1408/71 and the general plan of Article 22 and states that the article must be interpreted in conjunction with Articles 4 (1) (a) and 13 of the regulation. An interpretation of Article 22 considered in isolation from the above-mentioned provisions would lead to the creation of new rights taking precedence over national legislation, which would risk creating a distortion in the application of the latter.

Article 22 (1) (c), Article 4 (1) (a) and Article 13 of the regulation taken together can only concern the provision in another Member Sute of appropriate treatment which could also have been made available to the person concerned by the competent institution but for the particular circumstances of the case. The legislation applicable is thus the legislation of the Member Sute on whose territory the worker carries on a professional or trade activity.

In order that the authorization required pursuant to Article 22 (1) (c) may be granted it is consequently necessary to establish first whether the legislation of the Member Sute on whose territory the person concerned works includes the desired treatment amongst the benefits for which it provides.

If it appears that the treatment requested is included amongst such benefits but that for some reason it cannot be provided at the appropriate time and place whilst it can be so provided in another Member Suu the authorization requested cannot be refused.

If on the other hand under the legislation of the Member Sute in ich the person concerned works the treatment desired is not regarded as a benefit to which the person concerned is entitled the question of granting or refusing the authorization no longer arises.

This is so in the present case since the Netherlands legislation on sickness insurance does not provide any right to treatment at a spa such as that in question.

The Government of the United Kingdom, concerning itself principally with Questions (e) and (f), makes the following particular observations inter alia:

Question (e):

No specific provision is made as to who is to decide whether the treatment is appropriate or whether it can be provided.

In view of the disadvantages which would arise under a system based on the free choice by the patient of the means of medical treatment and on medical opinions extraneous to the competent institutions, and by reason also of the waste of resources which such a system would entail, the question whether the treatment requested is appropriate or not can only be decided by the competent institution, subject always to appellate procedures under national law.

Whilst the availability of alternative appropriate treatment for the same condition justifies refusal of the authorization, the degree of efficacy of the proposed treatment is also a relevant consideration which the competent institution may take into account on the advice of the worker's own doctors.

Furthermore, refusal of the authorization may be justified if all the appropriate treatments available in the competent Sute have not been attempted. Further, in view of the difficulties entailed by subjective judgment in this sphere, the reference to ‘treatment appropriate’ to the worker's condition should be interpreted as referring to treatment accepted as appropriate to that condition generally and not only appropriate in the particular case of the person concerned.

On the basis of those considerations the reply to Question (e) should be that the words ‘the treatment in question’ do not refer to a specific treatment but rather mean treatment appropriate to the relevant condition.

Furthermore, if Article 22 (2) of the regulation were interpreted as requiring the competent institution to accept liability for the cost of providing treatment which is not provided for by the national law of the Member Sute in question, the scope of those provisions would be distorted since they would have the effect of creating an independent social security law of the Community instead of merely co-ordinating the social security laws of the Member States.

Question (f):

It follows from the foregoing considerations that the reply to this question should be to the effect that the obligation to grant the authorization does not have the effect of creating for the worker an independent Community right to appropriate treatment in another Member Sute if such treatment is available within the territory of the Member Sute in which the worker resides or if the treatment concerned is one for which it is not the policy of the social security law of that Member Sute to make provision.

The Commission of the European Communities makes an initial statement to the effen that it has grave doubts whether Article 22 of Regulation No 1408/71 is at all relevant to the main action.

Article 22 in fan forms part of Section 2 of Chapter I of Title III of the regulation, which is devoted to ‘Workers and members of their families’. If Mrs Pierik must be considered as a ‘worker’ within the meaning of Article 1 (a) (i) of the regulation it none the less remains that the concept of ‘worker’ appearing in the abovementioned Section 2 must be strictly interpreted, that is to say to mean an ‘active worker’.

Since a very clear distinction is drawn between the various provisions in terms of classes of persons the provisions applicable to the present case are accordingly those of Section 5 (‘Pensioners and members of their family’) of the same chapter, in particular Article 31 the scope of which is moreover narrower than that of Article 22 since, although it also covers the ‘stay’ and ‘residence’, it nevertheless does not include going to another Member Sute with the specific aim of following a course of medical treatment there.

Moreover the Commission wonders what purpose is served in the present case by the questions submitted. Article 22 and perhaps Article 31 of the regulation do not amount to a system governing the way in which the institutions of the Member Sute in which the worker is insured must proceed amongst themselves in obtaining a refund of costs which they have incurred or benefits in kind which they have supplied. Thus Article 22 of the regulation does not affect the main case.

Finally, the Commission maintains that, even on the supposition that the person concerned could be considered as a worker within the meaning of Section 2 of Chapter 1, Article 22 was not correctly applied either by the insured person herself, who failed to obtain the necessary authorization referred to in paragraph (1) (c) of the article, or by the insurance institutions. The trade association in fact refunded the costs of the person concerned direct to her whilst, in accordance with Article 22 (1) (c) (i) benefits in kind provided on behalf of the competent institution of the place of stay are to be provided ‘on behalf of’ the competent institution and the costs thereby entailed are thus refunded.

The Commission accordingly condudes that the main case is governed entirely by the domestic law of the Netherlands and suggests that the Court of Justice should sute this view in its judgment.

The Commission then proceeds to consider the questions submitted by the Centrale Raad Van Beroep, observing in particular as follows;

Question (a):

The beginning of Article 22 (1) contains no such restriction as that indicated by the Centrale Raad. The purpose of Article 22, which is to enable the worker to obtain medical treatment which is not available on the territory of the Member Sute where he resides, would be seriously jeopardized by an interpretation restricting the scope of that provision to benefits in kind provided by the institution to which the worker is affiliated. In fact Article 22 would then apply only to treatment available in the country of the insured person but which could only be provided to a limited degree because of restricted hospital capacity making it necessary to resort to facilities in other Member States.

Question (b):

If the competent institution has issued the authorization the benefits in kind provided by the institution of the place of stay must be refunded.

Question (c):

The reply to this question may be based on the scope and purpose of Article 22 (1) (c) (i) of Regulation No 1408/71, having regard in particular to Anide 1 (o) and (p) of the same regulation. The purpose of Article 22 (1) (c) (i) must be in particular to enable the person concerned to apply to an institution in his place of stay or residence in order to obtain certain benefits in kind which, if he had remained in his own country, would have been refunded by the institution to which he is affiliated. It accordingly follows that the institution of the place of stay or residence is the institution competent to refund corresponding benefits in kind.

In this instance the question submitted is furthermore resolved by Annex 3 to Regulation No 574/72.

Question (d):

The important point in Article 22 (1) (c) (i) is not so much to establish whether the institution of the place of stay or residence provides the benefit in kind more or less frequently as to establish whether it can provide the benefit. Since, in view of the refund which is effected by the competent institution, the institution of the place of stay or residence does not incur any pecuniary loss, it is inconceivable that the competent institution should issue the authorization and permit the person concerned to leave and that then the institution of the place of stay or residence should still have the right to refuse the benefits in kind.

Question (e):

The words “the treatment in question” must be interpreted as referring to the treatment to be followed by the person concerned in a specific instance. If, as in the present case, medical experts take the view that the condition in question could be treated by the administration of medicaments rather than by hydrotherapy (for which there are no appropriate establishments in the Netherlands) the authorization could accordingly be refused. On the other hand it is imperative that there should be no power to refuse the authorization in the case of an emergency operation which, although it can be carried out in the insured person's country, cannot be performed at short notice.

Question (f):

Since the considerations set out concerning Question (a) also apply to Question (f) the reply to the latter should be in the affirmative, subject to the reservation that it should be stated that Regulation No 1408/71 has created for the worker an independent Community right to certain benefits.

Having regard to the above observations the Commission suggests that the reply to the questions submitted should be as follows:

Article 22 of Regulation No 1408/71 applies to active workers and to members of their families. The provision creates for such persons specific rights to benefits in kind and to cash benefits and establishes a system of reimbursements between institutions of the various Member States.
The article does not make provision for any system of reimbursement between the institutions of a single Member Sute.
Article 22 (1) (c) (i) of Regulation No 1408/71 creates for the relevant persons independent rights which may exceed the benefits to which such persons are entitled pursuant to the provisions of the legislation applied by the competent institution to which they are affiliated, in particular because benefits in kind to which such persons are entitled are provided in accordance with the legislation administered by the institution of the place of stay or residence.
The above-mentioned provision must be interpreted to mean that if the competent institution has issued the authorization provided for therein the institution of the place of stay or residence must unconditionally reimburse the competent institution for the benefits in kind therein referred to even if, in accordance with the legislation applicable to the institution of the place of stay or residence, it is possible to refuse the relevant benefits in kind to persons other than those referred to in Regulation No 1408/71.
The “institution of the place of stay or residence” within the meaning of Article 22 (1) (c) (i) must be understood to mean the institutions mentioned in Annex 3 to Regulation (EEC) No 574/72 of the Council of 21 March 1972.
“The treatment in question” within the meaning of the second subparagraph of Article 22 (2) must be understood to mean “treatment appropriate to the disease or illness”.”

Oral procedure

The Vereniging van Nederlandse Ziekenfondsen, the Government of the United Kingdom, represented by H. Knorpel, and the Commission of the European Communities presented oral argument at the hearing on 16 February 1978.

In the course of that hearing the Vereniging van Nederlandse Ziekenfondsen expressed the view inter alia that the problem whether Article 22 of Regulation No 1408/71 is applicable is relevant in the present case.

The Government of the United Kingdom observed in particular that the question of the applicability to the present case of the said article is a matter exclusively for the national court.

It further observed that it is important in the present case to provide the national court with an appropriate criterion for delimiting the respective fields of application of Articles 22 and 31 of Regulation No 1408/71.

The Commission for its part stated that it had not intended to confer upon the workers referred to in Article 22 of the regulation a right capable of resulting in preferential treatment.

The Advocate General delivered his opinion at the hearing on 22 February 1978.

Decision

The Centrale Raad van Beroep by a letter from its President of 28 September 1977 which reached the Court on 30 September 1977 has submitted to the Court of Justice pursuant to Article 177 of the EEC Treaty questions on the interpretation of certain provisions of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition, 1971 (II), p. 416).

These questions were submitted within the framework of a dispute concerning the refusal of the competent Netherlands social security institution to refund to a worker residing in the Netherlands and entitled to invalidity benefit in pursuance of Netherlands legislation the costs incurred in a course of hydrotherapy in the Federal Republic of Germany.

The above-mentioned social security institution based its refusal on the Wet op Arbeidsongeschiktheidsverzekering (Law on insurance against incapacity for work) in accordance with which measures intended to maintain, reestablish or improve capacity for work shall be accorded to a person entitled to invalidity benefits only in so far as they are not included amongst the benefits in kind governed by certain provisions of Netherlands social security legislation.

The Commission in its observations expressed doubts regarding the relevance and utility in the present case of the questions submitted since it considered that Article 22 of Reguladon No 1408/71 does not relate to the matter before the national court.

It suggested that the Court of Justice should make a statement to this effect in its decision.

Article 177 of the Treaty, which is based on a clear separation of functions between national courts and the Court of Justice, does not permit the latter to pass judgment on the relevance of the questions submitted.

Accordingly the question whether the provisions or concepts of Community law whose interpretation is. requested are in fact applicable to the case in question lies outside the jurisdiction of the Court or Justice and falls within the jurisdiction of the national court.

In the first question the national court asks whether the words ‘who satisfies the conditions of the legislation of the competent State for entitlement to benefits’ at the beginning of Article 22 (1) of Reguladon No 1408/71 are intended to determine the persons who in principle are eligible for benefits or whether they are intended to limit its scope to those benefits included in the national benefits in kind provided for under the legislation of the competent State.

The national court also requests the Court of Justice to clarify the meaning and scope of the words ‘treatment in question’, contained in the abovementioned provision, in order to establish in particular whether those words refer to specific treatment which is given only in the territory of the State in which the person concerned stays or which at least is not given in the territory of the State in which he resides or whether, more generally, they refer to the appropriate treatment of the illness or disease.

The Court is further asked whether ‘benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence’ are those to which ‘a right exists in the country of residence’ or those which the competent institution may provide.

The national court further asks whether the obligation to issue the authorization referred to in the second subparagraph of Article 22 (2) also covers cases in which the relevant treatment does not appear in the list of national benefits in kind.

Since all these questions are related it is appropriate to consider them together.

The reference in the first sentence of Article 22 (1) to Article 18 concerning the aggregation of insurance periods for the purposes of the acquisition of the right to benefits shows that that sentence is solely concerned to establish the class of persons to whom Article 22 applies by laying down a general condition for its application to which the following subparagraphs (a), (b) and (c) add specific conditions.

Within the context of the general objectives of the Treaty Article 22 of the regulation constitutes one of the measures intended to permit a worker who is a national of one of the Member States of the Community, without regard to the national institution to which he is affiliated or the place of his residence, to receive benefits in kind provided in any other Member Sute.

It is clear from the words ‘treatment appropriate to his condition’ contained in Article 22 (1) (c) that the benefits in kind for which the worker is authorized in accordance with this provision to go to another Member State cover all treatment calculated to be effective for the sickness or disease from which the person concerned suffers.

In those circumstances it is of little importance whether the benefit in kind which the worker requires can be provided on the territory of the Member State where he resides since the mere fact that that benefit corresponds to treatment more appropriate to the state of health of the person concerned is decisive for the purpose of issuing the authorization referred to in the above-mentioned paragraph (1) (c).

Whilst the worker's right to receive benefits in kind provided in another Member State is subject pursuant to the said paragraph to an authorization, the power of the competent institution to refuse the authorization is nevertheless limited by the requirement laid down by the regulation that the worker should be guaranteed the opportunity of receiving treatment appropriate to his state of health provided in any Member State, whatever the place of his residence or the Member State to which the social security institution to which he is affiliated belongs.

The provision in the second subparagraph of Article 22 (2) that the authorization ‘may not be refused where the treatment in question cannot be provided for the person concerned within the territory of the Member State in which he resides’ means that the authorization may similarly not be refused in cases in which the treatment provided in the Member State of residence is less effective than that which the person concerned can receive in another Member State.

For those reasons the reply to the question submitted must be that 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.

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.

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.

The duty 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 Sute is more effective than that which the person concerned can receive in the Member Sute where he resides and those in which the treatment in question cannot be provided on the territory of the latter Sute.

The Court is further asked whether the words ‘on behalf of the competent institution’ in Article 22 (1) (c) (i) must be interpreted as meaning that if the competent institution has given the authorization referred to in the first part of Article 22 (1) (c) the benefits provided by the institution of the place of stay must be refunded to it without further condition.

Article 36 of Regulation No 1408/71 which forms part of Chapter 1 of Tide III, as also does Article 22, provides that benefits in kind provided by the competent institution of a Member Sute on behalf of the institution of another Member Sute ‘shall be fully refunded’ without prejudice to the provisions concerning former frontier workers.

Furthermore, Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 (Official Journal, English Special Edition 1972 (I) p. 159) states in Article 93 (1) that the amount of benefits provided under Article 22 of the regulation ‘shall be refunded by the competent institution to the institution which provided the said benefits as shown in the accounts of that institution’.

The reply must accordingly be that 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.

Finally, the national court wishes to establish the institution of the place of stay or residence which in pursuance of Article 22 (1) (c) (i) provides the benefits in kind on behalf of the competent institution.

Implementing Regulation No 574/72, as amended by Regulation No 873/73 of the Council of 26 March 1973 (Official Journal 1973, No L 86), lists in Annex 3 the institutions of the place of residence and of stay of each Member Sute for the purposes of provisions of Regulation No 1408/71 including the provisions of Article 22.

The reply must therefore be that 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 Sute 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.

Costs

The costs incurred by the Government of the Netherlands, the Government of the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

As these proceedings are, in so far as the parties to the main action are concerned, in the nature of 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 questions submitted to it by the Centrale Raad van Beroep, by a letter of 28 September 1977, hereby rules:

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.
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.
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.
The duty 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.
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.
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 Sute 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.

Kutscher

Sørensen

Bosco

Donner

Mertens de Wilmars

Pescatore

Mackenzie Stuart

O'Keeffe

Touffait

Delivered in open court in Luxembourg on 16 March 1978.

A. Van Houtte

Registrar

H. Kutscher

President