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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Leichtle (Freedom to provide services) [2004] EUECJ C-8/02 (18 March 2004) URL: http://www.bailii.org/eu/cases/EUECJ/2004/C802.html Cite as: [2004] EUECJ C-8/02, [2004] EUECJ C-8/2, [2006] 3 CMLR 4, [2004] ECR I-2641 |
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JUDGMENT OF THE COURT (Fifth Chamber)
18 March 2004
(1)
(Freedom to provide services - Sickness insurance scheme for civil servants - Health cure taken in another Member State - Expenditure on board, lodging, travel, visitors' tax and a final medical report - Conditions for reimbursement - Prior declaration of eligibility for assistance - Criteria - Justification)
In Case C-8/02, REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Sigmaringen (Germany) for a preliminary ruling in the proceedings pending before that court between Ludwig Leichtleand
Bundesanstalt für Arbeit, on the interpretation of Articles 49 EC and 50 EC,THE COURT (Fifth Chamber),
after considering the written observations submitted on behalf of:
- the Spanish Government, by L. Fraguas Gadea, acting as Agent, - the United Kingdom Government, by P. Ormond, acting as Agent, and S. Moore, Barrister, - the Commission of the European Communities, by H. Michard and C. Schmidt, acting as Agents,having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 10 July 2003,
gives the following
'... (2) The following expenditure shall satisfy the conditions for the grant of assistance in respect of a health cure: 1. the expenditure provided for in Paragraph 6(1)(1) to (3), 2. expenditure incurred on board and lodging for a maximum of 23 calendar days, including days of travel, up to an amount of DEM 30 per day; ... 3. the expenditure provided for in Paragraph 6(1)(9), 4. expenditure incurred in respect of visitors' tax ..., 5. expenditure incurred in connection with the final medical report. (3) The expenditure referred to in Paragraph 8(2)(2) to (5) shall be eligible for assistance only if: 1. according to a report drawn up by a medical officer or a medical consultant, the health cure is necessary to restore or maintain fitness for work following serious illness or, in the case of considerable chronic pain, balneotherapy or climotherapy treatment is absolutely necessary and cannot be replaced by other forms of treatment offering the same prospects of success, in particular by treatment at the official's place of residence or posting within the meaning of the Bundesumzugskostengesetz (German Federal Law on Removal Costs); 2. the authority responsible for determining the amount of the assistance has first recognised such eligibility. That recognition shall be valid only where treatment is commenced within four months of notification of the decision;
...
(6) For the purposes of this provision, "health cure" shall mean a cure taken under medical supervision, according to a cure plan, and at a health spa listed in the Register of Health Spas; the accommodation must be at the health spa and tied to that location.''(1) Expenditure incurred outside the Federal Republic of Germany shall be eligible for assistance only where it constitutes expenditure provided for in Paragraphs 6 and 9 to 12 and only in so far as it would have been incurred in the Federal Republic of Germany and eligible for assistance up to the permitted amount had the treatment been taken at the place of residence of the person concerned. (2) ... (3) Expenditure referred to in Paragraph 8(2)(2) to (5) which is incurred in respect of a health cure outside the Federal Republic of Germany shall be eligible for assistance, by way of exception, only where: 1. it is established in a report drawn up by a medical officer or medical consultant that the health cure is absolutely necessary outside the Federal Republic of Germany on account of the greatly increased prospects of success, and 2. the health spa is listed in the Register of Health Spas, and 3. the other requirements laid down in Paragraph 8 are met. Expenditure under Paragraph 8(2)(1) and 8(2)(3) to (5) shall be eligible for assistance without being restricted to the costs incurred in the Federal Republic of Germany. (4) ...'
'1. Are Articles 49 EC and 50 EC to be interpreted as precluding rules of national law (in this case Paragraph 13(3) of the BhV) under which the costs of a health cure taken in another Member State are reimbursable only where it is absolutely essential that the cure be taken outside the Federal Republic of Germany because it thus offers greatly increased prospects of success, where that is established in a report drawn up by a medical officer or a medical consultant and where the spa concerned is listed in the Register of Spas? 2. Are Articles 49 EC and 50 EC to be interpreted as precluding rules of national law (in this case point 3 in the first sentence of Paragraph 13(3) of the BhV, read in conjunction with Paragraph 8(3)(2) thereof) under which advance recognition of a health cure is precluded where the person concerned does not await the conclusion of the application procedure or of any subsequent court proceedings before commencing the cure and where the only matter in dispute is whether those rules are correct not to recognise a health cure taken in another Member State of the European Union as eligible for assistance?'
- Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors' tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only where it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State. - Articles 49 EC and 50 EC are to be interpreted as meaning that they do not in principle preclude rules of a Member State, such as those at issue in the main proceedings, under which expenditure incurred on board, lodging, travel, visitors' tax and the making of a final medical report in connection with a health cure, whether taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned. Second question
On those grounds,
THE COURT (Fifth Chamber)
in answer to the questions referred to it by the Verwaltungsgericht Sigmaringen by order of 28 November 2001, hereby rules: 1) Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors' tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only provided it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State. 2) Articles 49 EC and 50 EC are to be interpreted as meaning that they do not in principle preclude rules of a Member State, such as those at issue in the main proceedings, under which expenditure incurred on board, lodging, travel, visitors' tax and the making of a final medical report in connection with a health cure, whether taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned. Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which the reimbursement of expenditure incurred on board, lodging, travel, visitors' tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.
Timmermans |
La Pergola |
von Bahr |
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: German.