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Case C-490/09: Action brought on 30 November 2009 — Commission of the European Communities v Grand-Duchy of Luxembourg
ECLI:EU:UNKNOWN:62009CN0490
62009CN0490
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13.2.2010
EN
Official Journal of the European Union
C 37/21
(Case C-490/09)
2010/C 37/24
Language of the case: French
Parties
Applicant: Commission of the European Communities (represented by: G. Rozet and E. Traversa, acting as Agents)
Defendant: Grand-Duchy of Luxembourg
Form of order sought
—Declare that, by maintaining in force, in their current wording, Paragraph 24 of the Social Security Code which precludes the reimbursement of the costs of medical analyses carried out in another Member State by providing for those analyses to be reimbursed only by a paying third party, and Article 12 of the statutes of the Union des Caisses de Maladie (Union of Sickness funds) which subjects the reimbursement of medical analyses carried out in another Member State to full compliance with the dispensing conditions provided for by Luxembourg national conventions, the Grand-Duchy of Luxembourg has to fulfil its obligations under Article [49] EC Treaty;
—order the Grand-Duchy of Luxembourg to pay the costs.
Pleas in law and main arguments
By its action, the European Commission claims that by maintaining in force the laws which preclude the reimbursement of medical analyses and medical laboratory tests carried out in other Member States, or which subject such reimbursement to full compliance with the dispensing conditions provided for by Luxembourg legislation, the defendant infringed the principle of the freedom to provide services set out in Article 49 EC.
The applicant observes, by way of example, that the national authorities reimburse the costs of analysis and testing only where they are carried out within a separate laboratory which fully complies with the provisions of Luxembourg law. However, in certain Member States, such analyses are not carried out in a laboratory, but by the doctors themselves.
According to the Commission, the restrictions at issue cannot be justified by an overriding requirement in the general interest and neither do they represent an essential and proportionate measure to achieve the aim of the protection of public health.