CAK (Cross-border healthcare - Concept of 'insured person' - Judgment) [2021] EUECJ C-636/19 (28 October 2021)

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(Reference for a preliminary ruling – Cross-border healthcare – Concept of ‘insured person’ – Regulation (EC) No 883/2004 – Article 1(c) – Article 2 – Article 24 – Right to the benefits in kind provided by the Member State of residence at the expense of the Member State responsible for paying the pension – Directive 2011/24/EU – Article 3(b)(i) – Article 7 – Reimbursement of the costs of healthcare received in a Member State other than the Member State of residence and the Member State responsible for paying the pension – Conditions)

REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), made by decision of 22 August 2019, received at the Court on 26 August 2019, in the proceedings

composed of K. Jürimäe, President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin and N. Piçarra (Rapporteur), Judges,

– the Netherlands Government, by M.K. Bulterman and M.H.S. Gijzen, acting as Agents,

– the European Commission, initially by D. Martin, L. Malferrari, M. van Beek and A. Szmytkowska, and subsequently by D. Martin, L. Malferrari, P. Vanden Heede and A. Szmytkowska, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 April 2021,

1 This request for a preliminary ruling concerns the interpretation of the combined provisions of Article 3(b)(i) and Article 7(1) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (OJ 2011 L 88, p. 45), Article 1(c) and Articles 2 and 24 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43) (‘Regulation No 883/2004’), as well as the interpretation of Article 56 TFEU.

2 The request has been made in proceedings between Y and Centraal Administratie Kantoor (Central Administration Office, Netherlands; ‘CAK’) concerning the latter’s refusal to reimburse Y for the costs relating to healthcare which she received in a Member State other than that of her residence and that responsible for paying her old-age pension.

‘(3) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [(OJ 1971 L 149, p. 2)] has been amended and updated on numerous occasions in order to take into account not only developments at Community level, including judgments of the Court of Justice [of the European Union], but also changes in legislation at national level. Such factors have played their part in making the Community coordination rules complex and lengthy. Replacing, while modernising and simplifying, these rules is therefore essential to achieve the aim of the free movement of persons.

(20) In the field of sickness, maternity and equivalent paternity benefits, insured persons, as well as the members of their families, living or staying in a Member State other than the competent Member State, should be afforded protection.

(22) The specific position of pension claimants and pensioners and the members of their families makes it necessary to have provisions governing sickness insurance adapted to this situation.’

(c) “insured person”, in relation to the social security branches covered by Title III, Chapters 1 and 3, means any person satisfying the conditions required under the legislation of the Member State competent under Title II to have the right to benefits, taking into account the provisions of this Regulation;

(l) “legislation” means, in respect of each Member State, laws, regulations and other statutory provisions and all other implementing measures relating to the social security branches covered by Article 3(1);

(i) the institution with which the person concerned is insured at the time of the application for benefit;

(ii) the institution from which the person concerned is or would be entitled to benefits if he/she or a member or members of his/her family resided in the Member State in which the institution is situated;

(s) “competent Member State” means the Member State in which the competent institution is situated;

(i) for the purposes of Title III, Chapter 1 (sickness, maternity and equivalent paternity benefits), benefits in kind provided for under the legislation of a Member State which are intended to supply, make available, pay directly or reimburse the cost of medical care and products and services ancillary to that care. This includes long-term care benefits in kind;

5 Article 2 of that regulation, headed ‘Persons covered’, provides, in paragraph 1 thereof:

‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.’

6 Article 3 of the same regulation, headed ‘Matters covered’, provides, in paragraph 1 thereof:

‘This Regulation shall apply to all legislation concerning the following branches of social security:

7 Headed ‘General rules’, Article 11 of Regulation No 883/2004 is contained within Title II ‘Determination of the legislation applicable’ thereof. That article provides, in paragraph 3 thereof:

(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.’

‘A person who receives a pension or pensions under the legislation of one or more Member States and who resides in another Member State may at his/her request be exempted from application of the legislation of the latter State provided that he/she is not subject to that legislation on account of pursuing an activity as an employed or self-employed person.’

9 Article 24 of that regulation, headed ‘No right to benefits in kind under the legislation of the Member State of residence’, provides:

‘1. A person who receives a pension or pensions under the legislation of one or more Member States and who is not entitled to benefits in kind under the legislation of the Member State of residence shall nevertheless receive such benefits for himself/herself and the members of his/her family, in so far as he/she would be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of his/her pensions, if he/she resided in that Member State. The benefits in kind shall be provided at the expense of the institution referred to in paragraph 2 by the institution of the place of residence, as though the person concerned were entitled to a pension and benefits in kind under the legislation of that Member State.

2. In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution as determined in accordance with the following rules:

(a) where the pensioner is entitled to benefits in kind under the legislation of a single Member State, the cost shall be borne by the competent institution of that Member State;

(b) where the pensioner is entitled to benefits in kind under the legislation of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the person has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits, the cost shall be borne by the institution applying the legislation to which the pensioner was last subject.’

10 Article 27 of the same regulation, headed ‘Stay of the pensioner or the members of his/her family in a Member State other than the Member State in which they reside – stay in the competent Member State – authorisation for appropriate treatment outside the Member State of residence’, provides, in paragraph 3 thereof:

‘Article 20 shall apply mutatis mutandis to a pensioner and/or the members of his/her family who are staying in a Member State other than the one in which they reside with the purpose of receiving there the treatment appropriate to their condition.’

11 Article 31 of Regulation No 883/2004, headed ‘General provision’, included in Section 3 of Chapter 1 thereof, is worded as follows:

‘Articles 23 to 30 shall not apply to a pensioner … who [is] entitled to benefits under the legislation of a Member State on the basis of an activity as an employed or self-employed person. In such a case, the person concerned shall be subject, for the purposes of this Chapter, to Articles 17 to 21.’

‘(29) It is appropriate to require that also patients who seek healthcare in another Member State in other circumstances than those provided for in Regulation [No 883/2004] should be able to benefit from the principles of free movement of patients, services and goods in accordance with the TFEU and with this Directive. Patients should enjoy a guarantee of assumption of the costs of that healthcare at least at the level as would be provided for the same healthcare, had it been provided in the Member State of affiliation. This should fully respect the responsibility of the Member States to determine the extent of the sickness cover available to their citizens and prevent any significant effect on the financing of the national healthcare systems.

(30 For patients, therefore, the two systems should be coherent; either this Directive applies or the Union regulations on the coordination of social security systems apply.’

(i) persons, including members of their families and their survivors, who are covered by Article 2 of Regulation [No 883/2004] and who are insured persons within the meaning of Article 1(c) of that Regulation; …

(i) for persons referred to in point (b)(i), the Member State that is competent to grant to the insured person a prior authorisation to receive appropriate treatment outside the Member State of residence according to Regulations [No 883/2004] and (EC) No 987/2009 [of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1)];

14 Article 7 of that directive, headed ‘General principles for reimbursement of costs’, provides, in paragraphs 1 and 2 thereof:

‘1. Without prejudice to Regulation [No 883/2004] and subject to the provisions of Articles 8 and 9, the Member State of affiliation shall ensure the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation.

(a) if a Member State is listed in Annex IV to Regulation [No 883/2004 ] and in compliance with that Regulation has recognised the rights to sickness benefits for pensioners and the members of their families, being resident in a different Member State, it shall provide them healthcare under this Directive at its own expense when they stay on its territory, in accordance with its legislation, as though the persons concerned were residents in the Member State listed in that Annex;

15 Article 8 of the same directive, headed ‘Healthcare that may be subject to prior authorisation’, provides, in paragraphs 1 and 2 thereof:

‘1. The Member State of affiliation may provide for a system of prior authorisation for reimbursement of costs of cross-border healthcare, in accordance with this Article and Article 9. The system of prior authorisation, including the criteria and the application of those criteria, and individual decisions of refusal to grant prior authorisation, shall be restricted to what is necessary and proportionate to the objective to be achieved, and may not constitute a means of arbitrary discrimination or an unjustified obstacle to the free movement of patients.

2. Healthcare that may be subject to prior authorisation shall be limited to healthcare which:

(a) is made subject to planning requirements relating to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources and:

(ii) requires use of highly specialised and cost-intensive medical infrastructure or medical equipment;

16 Article 9 of Directive 2011/24, headed ‘Administrative procedures regarding cross-border healthcare’, is worded as follows:

‘1. The Member State of affiliation shall ensure that administrative procedures regarding the use of cross-border healthcare and reimbursement of costs of healthcare incurred in another Member State are based on objective, non-discriminatory criteria which are necessary and proportionate to the objective to be achieved.

2. Any administrative procedure of the kind referred to in paragraph 1 shall be easily accessible and information relating to such a procedure shall be made publicly available at the appropriate level. Such a procedure shall be capable of ensuring that requests are dealt with objectively and impartially.

3. Member States shall set out reasonable periods of time within which requests for cross-border healthcare must be dealt with and make them public in advance. When considering a request for cross-border healthcare, Member States shall take into account:

4. Member States shall ensure that individual decisions regarding the use of cross-border healthcare and reimbursement of costs of healthcare incurred in another Member State are properly reasoned and subject, on a case-by-case basis, to review and are capable of being challenged in judicial proceedings, which include provision for interim measures.

5. This Directive is without prejudice to Member States’ right to offer patients a voluntary system of prior notification whereby, in return for such notification, the patient receives a written confirmation of the amount to be reimbursed on the basis of an estimate. This estimate shall take into account the patient’s clinical case, specifying the medical procedures likely to apply.

Member States may choose to apply the mechanisms of financial compensation between the competent institutions as provided for by Regulation [No 883/2004]. Where a Member State of affiliation does not apply such mechanisms, it shall ensure that patients receive reimbursement without undue delay.’

17 Article 69 of the Zorgverzekeringswet (Law on Healthcare Insurance, Stb. 2005, No 358), in the version in force between 1 April 2014 and 1 January 2017 (Stb. 2013, No 578), provides:

‘1. Persons living abroad who, by the application of a regulation of the Council of the European Communities or the application of such a regulation pursuant to the Agreement on the European Economic Area or to a treaty on social security, when they are in need of healthcare have a right to healthcare or to the reimbursement of the costs thereof, as provided in the legislation on healthcare insurance of their country of residence, must report to the [CAK] unless they are obliged to take out healthcare insurance under this law.

2. The persons referred to in paragraphs 1, 14 and 15 are obliged to pay a contribution to be determined by ministerial regulation. A portion of that contribution, to be determined by that regulation, shall be regarded as a healthcare insurance premium for the purposes of the application of the Wet op de zorgtoeslag [(Law on Healthcare Allowances)].

4. The [CAK] shall be responsible for implementing paragraphs 1, 14 and 15 and the international rules mentioned therein and for adopting decisions on the levy and collection of the contributions referred to in paragraphs 2 and 3.

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 Y is a Netherlands national who resides in Belgium and receives an old-age pension from the Kingdom of the Netherlands under the Algemene Ouderdomswet (General Law on Old Age) of 31 May 1956 (Stb. 1956, No 281). At the time of the facts in the main proceedings, Y was entitled, under Article 24 of Regulation No 883/2004, to the healthcare benefits provided for by the legislation of her State of residence, at the expense of the Kingdom of the Netherlands, to which she was required to pay a contribution, in accordance with Article 69 of the Law on Healthcare Insurance. However, as a non-resident recipient in the Kingdom of the Netherlands of a pension payable by that Member State, Y was not covered by the Netherlands compulsory healthcare insurance scheme and was exempt from the related contributions.

19 On 6 March 2015, following a consultation with a general practitioner in Belgium, Y underwent a radiological examination at Academisch Ziekenhuis Maastricht (Maastricht University Hospital, Netherlands), then, on 8 March 2015, a magnetic resonance imaging (MRI) scan.

20 On 9 and 11 March 2015, Y’s spouse contacted the CAK by telephone concerning medical treatment which she was planning to receive in Germany. The CAK drew his attention to the fact that that treatment was subject to an authorisation procedure.

21 On 12 March 2015, following examinations carried out at Maastricht University Hospital, Y was diagnosed with stage 2 cancer. A course of treatment was then proposed to her.

22 On 13 March 2015, Y requested a second medical opinion from Franziskus Hospital Harderberg, located in Osnabrück (Germany), for which she had applied for prior authorisation from the CAK. During that consultation, she was diagnosed with stage 3 cancer.

23 On 20 March 2015, Y underwent breast surgery in that hospital and, on 25 March 2015, her lymph nodes were removed. Subsequently, between 14 April and 24 June 2015, Y received post-operative treatments in that hospital, including radiotherapy. No request for prior authorisation was submitted to the CAK in respect of those operations and treatments.

24 On 19 March 2015, the Belgian sickness insurance fund to which Y belonged applied to the CAK for a posteriori authorisation in respect of the medical treatments received following the consultation of 13 March 2015 at Franziskus Hospital Harderberg.

25 On 1 May 2015, the CAK refused that authorisation on the ground that it could have been granted only if Y had requested it before receiving those treatments, which she had not done.

26 On 1 July 2015, however, Y applied to the CAK for reimbursement of the costs relating to the said treatments, totalling EUR 16 853.13, submitting the corresponding invoices.

27 By decision of 20 July 2015, the CAK refused that application on the ground that Y had travelled to Germany in order to receive ‘scheduled treatment’, referred to in the combined provisions of Article 20 of Regulation No 883/2004 and Article 26 of Regulation No 987/2009, for which Y had not requested prior authorisation.

28 By decision of 4 January 2016, Y’s objection to the decision of 20 July 2015 was rejected by the CAK.

29 The action brought by Y against that decision before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) was also dismissed. That court held, in essence, that the preliminary interview, hospital stay and treatment received in Germany, with a space of one week between each one, justified the conclusion that that healthcare had not been provided in a situation of extreme urgency relating to the state of Y’s health. According to that court, the CAK was entitled to classify the medical treatment provided to Y in Germany as ‘scheduled treatment’, for which no authorisation had been previously granted, and, consequently, to refuse reimbursement of the related medical costs.

30 Y lodged an appeal against that judgment before the referring court, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands). She submits, first, that the surgical operations performed on 20 and 25 March 2015 in the German hospital had to be regarded, owing to their urgent and unexpected nature from a medical perspective, as ‘non-scheduled’ treatment, within the meaning of the combined provisions of Article 19 of Regulation No 883/2004 and Article 26 of Regulation No 987/2009, reimbursement of which was not subject to prior authorisation. Second, Y submits that the costs of the post-operative treatments, including radiotherapy, which were also provided in Germany between 14 April and 24 June 2015, were not subject to prior authorisation under Article 8 of Directive 2011/24, either.

31 The referring court takes the view that the CAK was not required to reimburse the costs incurred by Y in Germany, on the ground that she had not requested the prior authorisation referred to in Article 20(1) of Regulation No 883/2004, a provision which applies, mutatis mutandis, to pensioners such as Y, by virtue of Article 27(3) of that regulation. While acknowledging that it was not necessary to determine whether the mere absence of a request for prior authorisation on the part of Y was sufficient for the CAK to be able to refuse reimbursement of those costs, the referring court states that, even if such authorisation had been requested in good time, it could have been refused by the CAK, on the basis of a statement from the Belgian sickness insurance fund, submitted in the course of the procedure before that court, certifying that the same treatment could have been provided to Y in Belgium within the same time frame as in Germany.

32 However, the referring court asks whether, as Y claims, the person in receipt of a pension may nevertheless rely on the provisions of Directive 2011/24 in order to secure reimbursement, in whole or in part, of the costs of the post-operative care, including radiotherapy, received in Germany, which, in its view, is not subject to authorisation, in accordance with Article 8(2)(a)(ii) of that directive. That court thus seeks to ascertain whether Y, a person in receipt of a pension not affiliated to a compulsory national sickness insurance scheme, falls within the scope ratione personae of Directive 2011/24 as an ‘insured person’ within the meaning of Article 3(b)(i) thereof.

33 Should the Court find that Y does not fall within the scope ratione personae of Directive 2011/24, the referring court asks whether Article 56 TFEU precludes the Member State responsible for paying Y’s pension from refusing to reimburse her, without her having obtained prior authorisation, the costs of out-patient healthcare received outside that Member State and the State of residence, as an unjustified obstacle to the freedom to provide services guaranteed by that provision.

34 It is in those circumstances that the Centrale Raad van Beroep (Higher Social Security and Civil Service Court) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Must Directive [2011/24] be interpreted as meaning that persons referred to in Article 24 of Regulation [No 883/2004], who receive benefits in their country of residence at the expense of the Netherlands but who are not insured in the Netherlands under the statutory health insurance scheme can rely directly on that directive for the reimbursement of costs of care provided?

(2) Does it follow from Article 56 TFEU that, in a case such as the present one, not granting reimbursement for care provided in a Member State other than the country of residence or the country providing the pension is an unjustified obstacle to the free movement of services?’

35 By its first question, the referring court asks, in essence, whether Article 3(b)(i) and Article 7(1) of Directive 2011/24, read in combination with Article 1(c) and Article 2 of Regulation No 883/2004, must be interpreted as meaning that a person in receipt of a pension under the legislation of a Member State, who has a right, under Article 24 of that regulation, to the benefits in kind provided by the Member State of his or her residence at the expense of the Member State responsible for paying his or her pension, must be regarded as an ‘insured person’, within the meaning of Article 7(1) of that directive, who is able to obtain reimbursement of the costs of the healthcare that he or she has received in a third Member State, without being affiliated to the compulsory sickness insurance scheme of the Member State responsible for paying his or her pension.

36 Article 7(1) of Directive 2011/24 provides that, without prejudice to Regulation No 883/2004 and subject to the provisions of Articles 8 and 9 of that directive, the Member State of affiliation is to ensure the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation.

37 The concept of ‘insured person’ in Article 3(b)(i) of Directive 2011/24 refers to ‘persons … who are covered by Article 2 of Regulation [No 883/2004] and who are insured persons within the meaning of Article 1(c) of that Regulation’. That concept is therefore defined by reference to those two provisions of Regulation No 883/2004, with a view in particular to ensuring coherence between that regulation and Directive 2011/24, as recital 30 thereof states. Since Article 3(b)(i) of Directive 2011/24 refers cumulatively to the two abovementioned provisions of Regulation No 883/2004, in order for a person to be classified as an ‘insured person’ within the meaning of that directive, he or she must fulfil all the conditions set by those provisions.

38 First, Article 2 of Regulation No 883/2004, which defines the persons covered by that regulation, provides, in paragraph 1 thereof, that the regulation is to ‘apply to nationals of a Member State … who are or have been subject to the legislation of one or more Member States’. Second, under Article 1(c) of Regulation No 883/2004, ‘insured person’, in relation to the social security branches covered by Title III, Chapter 1, concerning sickness, maternity and equivalent paternity benefits, and Chapter 3, concerning death grants, of that regulation, means any person satisfying the conditions required under the legislation of the Member State competent under Title II of that regulation to have the right to those benefits, taking into account the other relevant provisions thereof.

39 As regards, first, determining whether a person in Y’s situation, who receives an old-age pension under the legislation of the Member State of which she is a national, resides in another Member State and, under Article 24(1) of Regulation No 883/2004, is entitled to the benefits in kind provided by the Member State of residence at the expense of the Member State responsible for paying for his or her pension, must be regarded as being ‘subject to the legislation of [a] Member [State]’, within the meaning of Article 2(1) of that regulation, it should be considered, as the Advocate General did in point 45 of his Opinion, that such a person, on account of the mere fact that he or she receives that old-age pension, is subject to the legislation of a Member State, within the meaning of that provision, namely the legislation of the Member State responsible for paying his or her pension. The same is true of the fact that that person is liable, under the legislation of the Member State responsible for paying his or her pension, to pay a contribution to cover the healthcare benefits provided for in Article 24(1) of that regulation.

40 As regards, second, determining whether a person in Y’s situation is covered by the concept of ‘insured person’ within the meaning of Article 1(c) of Regulation No 883/2004, it is, on the one hand, common ground that the healthcare benefits at issue in the main proceedings are among the social security branches referred to in Title III, Chapter 1, of that regulation. On the other hand, it is necessary to determine whether such a person satisfies the conditions required under the legislation of the competent Member State to have the right to those benefits.

41 In that regard, it is apparent from the combined provisions of Article 11(3)(e) and Article 16(2) of Regulation No 883/2004 that, if a person in receipt of a pension provided under the legislation of one or more Member States who resides in another Member State must normally be subject to the legislation of the Member State of residence, that pensioner may at his or her request nevertheless be exempted from application of that legislation, unless he or she is subject to that legislation on account of pursuing an activity as an employed or self-employed person.

42 Where such an exemption is requested by the pensioner, the institution which must bear the cost of the benefits in kind to which that pensioner is entitled under Article 24(1) of Regulation No 883/2004 is determined in accordance with the rules set out in paragraph 2 of that article. The Member State to which that institution is subject is therefore the competent Member State under Title II of that regulation.

43 In the case at hand, it is common ground that Y is subject to the legislation of the Kingdom of the Netherlands, as the competent Member State under Title II of Regulation No 883/2004.

44 The question, therefore, is whether a person in Y’s situation satisfies the conditions required by that legislation, ‘taking into account the provisions of [that] Regulation’, to have the right to the benefits provided for in Article 24(1) thereof.

45 In order to answer that question, it must be pointed out that the concept of ‘legislation’ referred to in that provision is defined, in the first subparagraph of Article 1(l) of Regulation No 883/2004, as referring, in respect of each Member State, to ‘laws, regulations and other statutory provisions and all other implementing measures relating to the social security branches covered by Article 3(1)’ of that regulation.

46 The argument of the Netherlands Government, however – that a person in receipt of a pension under the legislation of one Member State who resides in another Member State and who is entitled to benefits in kind provided by the latter Member State at the expense of the former, under Article 24(1) of Regulation No 883/2004, is not an ‘insured person’ within the meaning of Article 1(c) of that regulation on the ground that that pensioner does not have compulsory sickness insurance in the Member State responsible for paying his or her pension – is based on a restrictive interpretation of that latter provision, which does not take into account the entitlement to benefits in kind conferred on that pensioner directly by Article 24(1) of Regulation No 883/2004, an interpretation which amounts to laying down a condition which is not apparent from the wording of Article 1(c) of Regulation No 883/2004 and which therefore infringes the provisions of that regulation.

47 In any event, while it is not for the Court to verify those conditions, it should be noted, as the Advocate General did in point 50 of his Opinion, that it is clear from the information before the Court that the conditions required under Netherlands legislation to have the right to those benefits in kind in the territory of the Kingdom of the Netherlands are, in essence, the same as the conditions laid down in Article 24 of Regulation No 883/2004. That article makes entitlement to the benefits in kind it provides for subject to three conditions. First, the person concerned must receive a pension or pensions under the legislation of one or more Member States, second, he or she must not be entitled to benefits in kind under the legislation of the State of residence, and, third, he or she should be entitled to those benefits under the legislation of the State responsible for paying the pension if he or she resided there. As the Netherlands Government has confirmed, no other condition is required under Netherlands legislation in order to qualify for benefits in kind under Article 24 of that regulation.

48 It follows that the concept of ‘insured person’, within the meaning of Article 1(c) of Regulation No 883/2004, also covers a person in receipt of a pension under the legislation of a Member State who is entitled, under Article 24 of that regulation, to the benefits in kind provided by his or her Member State of residence at the expense of the Member State responsible for paying his or her pension, even if he or she does not have compulsory sickness insurance in that latter Member State.

49 That interpretation is not called into question by the argument of the Netherlands Government that the provisions of Title III, Chapters 1 and 3 of Regulation No 883/2004 draw a clear distinction between those which apply, on the one hand, to ‘insured persons’ and, on the other hand, to ‘pensioners’, a concept which, unlike the former, is not defined by that regulation, such that those two categories of person are mutually exclusive. Thus, a person in receipt of a pension under the legislation of a Member State, who is entitled, under Article 24(1) of that regulation, to the benefits in kind provided by the Member State of residence at the expense of the Member State responsible for paying his or her pension, does not fall within the concept of ‘insured person’, within the meaning of Article 1(c) of that regulation, as is confirmed by the fact that Article 24(1) is contained in Section 2, relating to pensioners and members of their families, of Chapter 1 of Title III of the same regulation.

50 First, that argument is contradicted by the wording of Article 1(c) of Regulation No 883/2004, which refers to ‘any person’. That concept therefore excludes any distinction between the various categories of persons falling within the scope ratione personae of that regulation, provided that such a person satisfies the conditions set by the legislation of the competent Member State to be able to claim healthcare benefits payable by the latter, ‘taking into account the provisions of [that] Regulation’.

51 Second, the interpretation of Article 1(c) of Regulation No 883/2004 referred to in paragraph 48 of the present judgment is supported by the objective pursued by that regulation, which, as is apparent from recital 3 thereof, seeks to replace, while modernising and simplifying, the rules for coordination of national social security systems, which the numerous amendments made to Regulation No 1408/71 have played their part in making complex and lengthy.

52 The concept of ‘insured person’, within the meaning of Regulation No 883/2004, is the result of that desire for simplification and includes, in a general and exhaustive manner, nationals of Member States, stateless persons and refugees residing in a Member State who are or who have been subject to the legislation of one or more Member States, as well as the members of their families and their survivors. All such persons, provided that they satisfy the conditions required under the legislation of the competent Member State to have the right to benefits, within the meaning of Article 1(c) of that regulation, are covered, as the Advocate General stated in point 56 of his Opinion, by the concept of ‘insured person’ provided for by that provision, for the purposes of the application of the provisions of Title III, Chapters 1 and 3, of that regulation.

53 Although, within Title III, Chapter 1, of Regulation No 883/2004, the provisions applicable, on the one hand, to ‘insured persons and members of their families, except pensioners and members of their families’ and, on the other hand, to ‘pensioners and members of their families’ appear in two separate sections of that chapter, that systematisation is intended only to ‘[afford] protection’ to ‘insured persons, as well as the members of their families, living or staying in a Member State other than the competent Member State’, as follows from a joint reading of recitals 20 and 22 of that regulation. In view of ‘the specific position of … pensioners and the members of their families’, it is a question of providing for special ‘provisions governing sickness insurance adapted to this situation’, rather than two separate and mutually exclusive categories of person.

54 Thus, Title III, Chapter 1, Section 2, of Regulation No 883/2004 includes provisions adapted to the needs of pensioners and the members of their families who are in a special situation, due, inter alia, to the fact that those pensioners reside, like Y, in a Member State other than that which is responsible for paying their pension, a situation to which the general provisions of Section 1 of that chapter are not, as such, applicable. The provisions of Title III, Chapter 1, Section 2, of Regulation No 883/2004 therefore constitute, as the Advocate General observed in point 61 of his Opinion, a lex specialis in relation to those of Title III, Chapter 1, Section 1, of that regulation, which constitute the lex generalis.

55 The complementary nature of the provisions of Title III, Chapter 1, Section 2, of Regulation No 883/2004 – applicable to ‘pensioners and members of their families’ – in relation to those of Section 1 of that chapter – applicable to ‘insured persons and members of their families, except pensioners and members of their families’ – is confirmed by Article 31 of that regulation, according to which Articles 23 to 30, included in that Section 2, are not to apply to a pensioner who is entitled to benefits under the legislation of a Member State on the basis of an activity as an employed or self-employed person. In that case, the right of such a person concerned to those benefits, referred to in Chapter 1 of Title III of that regulation, is governed by Articles 17 to 21 thereof, included in Section 1 of that Chapter 1.

56 Third, the interpretation of the concept of ‘insured person’, within the meaning of Article 1(c) of Regulation No 883/2004, adopted in paragraph 50 of the present judgment, is also supported by several provisions of Directive 2011/24.

57 On the one hand, the concept of ‘Member State of affiliation’, referred to in Article 7(1) of that directive, is defined, for the persons referred to in Article 3(b)(i) thereof, in point (c) of that latter article, as referring to ‘the Member State that is competent to grant to the insured person a prior authorisation to receive appropriate treatment outside the Member State of residence according to Regulations [No 883/2004] and [No 987/2009]’. Notwithstanding its wording, that concept does not require, as the referring court has rightly noted, ‘affiliation’ to the compulsory sickness insurance scheme of a Member State.

58 On the other hand, under Article 7(2)(a) of Directive 2011/24, if a Member State is listed in Annex IV to Regulation No 883/2004 and in compliance with that regulation has recognised the rights to sickness benefits for pensioners and the members of their families, being resident in a different Member State, it is to provide them healthcare under that directive, at its own expense, when they stay on its territory, in accordance with its legislation, as though the persons concerned were residents in that territory. By thus extending, for the benefit of ‘pensioners … resident in a different Member State’, the right to reimbursement of the costs of cross-border healthcare which they have incurred in the Member State responsible for paying their pension, where that Member State is mentioned in Annex IV to Regulation No 883/2004, even if those pensioners are not insured under the compulsory sickness insurance scheme of that Member State, Directive 2011/24 includes the said pensioners within the concept of ‘insured person’ within the meaning of Article 3(b)(i) of that directive.

59 It should be added that the Netherlands Government stated, in its reply to a question put by the Court, that the Kingdom of the Netherlands has not made use of the option, provided for in Article 8 of Directive 2011/24, of establishing a system of prior authorisation for reimbursement of costs of cross-border healthcare. Therefore, in the present case and subject to the checks which it is for the referring court to carry out in that respect, Y cannot be deprived of reimbursement of the costs of the cross-border healthcare which she received in Germany, in accordance with the provisions of Directive 2011/24, on the ground that she had not obtained prior authorisation for that treatment.

60 Finally, as regards the question whether a person in Y’s situation may rely on Article 7(1) of Directive 2011/24, it has repeatedly been held by the Court that provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals against a Member State and all the organs of its administration, as well as against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between individuals. Organisations or bodies that are required, by a public body, to perform a task in the public interest and have been given, for that purpose, special powers may also be treated as comparable to the State (judgment of 19 December 2019, Pensions-Sicherungs-Verein, C‑168/18, EU:C:2019:1128, paragraph 48 and the case-law cited).

61 Article 7(1) of Directive 2011/24, by requiring Member States to ensure that the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question forms part of the benefits to which the insured person has a right in the Member State of affiliation, contains a clear, precise and unconditional obligation imposed on Member States, intended to confer rights on individuals, such that they are able to rely directly on that provision before a national court.

62 In the light of all the foregoing considerations, the answer to the first question is that Article 3(b)(i) and Article 7(1) of Directive 2011/24, read in combination with Article 1(c) and Article 2 of Regulation No 883/2004, must be interpreted as meaning that the person in receipt of a pension under the legislation of a Member State, who has a right, under Article 24 of that regulation, to the benefits in kind provided by the Member State of his or her residence at the expense of the Member State responsible for paying his or her pension, must be regarded as an ‘insured person’, within the meaning of Article 7(1) of that directive, who is able to obtain reimbursement the costs of the cross-border healthcare that he or she has received in a third Member State, without being affiliated to the compulsory sickness insurance scheme of the Member State responsible for paying his or her pension.

63 In the light of the answer given to the first question, there is no need to answer the second question.

64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 3(b)(i) and Article 7(1) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in combination with Article 1(c) and Article 2 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, must be interpreted as meaning that the person in receipt of a pension under the legislation of a Member State, who has a right, under Article 24 of that regulation, as amended, to the benefits in kind provided by the Member State of his or her residence at the expense of the Member State responsible for paying his or her pension, must be regarded as an ‘insured person’, within the meaning of Article 7(1) of that directive, who is able to obtain reimbursement of the costs of the cross-border healthcare that he or she has received in a third Member State, without being affiliated to the compulsory sickness insurance scheme of the Member State responsible for paying his or her pension.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CAK (Cross-border healthcare - Concept of 'insured person' - Judgment) [2021] EUECJ C-636/19 (28 October 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C63619.html Cite as: ECLI:EU:C:2021:885, EU:C:2021:885, [2021] EUECJ C-636/19

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