Important legal notice

61999C0157

European Court reports 2001 Page I-05473

Opinion of the Advocate-General

3. Under Article 5(1) of the ZFW, persons falling within its scope must register with a sickness insurance fund active in the municipality in which they are resident; the fund is required to register such persons as insured persons. It is a system which provides only for health-care benefits in kind. Insured persons are therefore entitled not to the reimbursement of whatever sickness costs they may incur, but to the provision of free health care.

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A sickness insurance fund may authorise an insured person claiming entitlement to a benefit to apply to a person or establishment outside the Netherlands in those cases in which the sickness insurance fund shall determine that such action is necessary for the health care of the insured person.

Such agreements do not, however, provide for the financing of health care, which, in the case of treatment provided in the Netherlands, is governed by the Wet tarieven gezondheidszorg (Law on the financing of health care); in the case of treatment provided abroad, sickness funds are free to negotiate with medical practitioners and health-care institutions.

Sickness funds have extensive freedom in concluding agreements with both medical practitioners and health-care institutions. They are, nonetheless, subject to two restrictions: a fund must, if so requested by a health-care institution situated in the region in which the fund is active or regularly used by the local population, enter into an agreement with that institution; and funds must conclude agreements only with medical practitioners qualified to administer the treatment in question and with authorised health-care institutions.

Provided that the normality criterion is satisfied, it must then be considered whether the authorisation can be granted pursuant to Article 9(4) of the ZFW in conjunction with Article 1 of the regulation on medical care abroad under the compulsory sickness insurance scheme. The criterion in that respect is whether the medical treatment is necessary for the health care of the person concerned, regard being had to whether, in view of the treatment methods available in the Netherlands, the treatment provided abroad is necessary from a medical point of view.

II. The facts of the dispute between Mrs Geraets-Smits and Stichting Ziekenfonds

3. On 5 September 1996, Mrs Geraets-Smits (the plaintiff in the first case), who was born on 6 June 1928 and has suffered from Parkinson's disease for many years, applied to Stichting Ziekenfonds (the defendant institution) for reimbursement of a payment she had made to the Elena Clinic in Kassel (Germany), which specialises in the specific and multi-disciplinary treatment of Parkinson's disease. Patients are admitted for between three and six weeks, during which time they are examined and treated with a view to achieving the optimal administration of medication. At the clinic, patients also receive physiotherapy and ergotherapy treatments, together with socio-psychological care.

III. The facts of the dispute between Mr Peerbooms and Stichting CZ Groep Zorgverzekeringen

That clinic offers a special intensive neuro-stimulation therapy which, in the Netherlands, is used only experimentally at one rehabilitation centre in Tilburg and at another in Utrecht. The plaintiff was not admitted to either clinic because, for the purposes of that experiment, the two centres do not accept patients over twenty-five years of age. He was therefore due to be transferred to the rehabilitation centre in Hoensbroeck, where the therapy in question is not used. He was in fact admitted to the clinic in Innsbruck on 22 February 1997, in a vegetative state. After undergoing the special therapy, he emerged from the coma and regained full consciousness. On 20 June 1997, he was discharged and transferred to the rehabilitation clinic in Hoensbroeck in order to continue his convalescence.

10. In order to resolve the two disputes, the Arrondissementsrechtbank, Roermond, referred the following questions to the Court of Justice for a preliminary ruling:

(b) What is the answer to Question 1(a) where the authorisation referred to therein is refused, or does not apply, because the relevant treatment in the other Member State is not regarded "as normal in professional circles" and thus is deemed not to constitute a benefit within the meaning of Article 8 of the legislation on sickness insurance funds (ZFW)? Does it make any difference in that connection whether regard is had solely to the conceptions of Netherlands professional circles and whether national or international scientific yardsticks are applied and, if so, in what respect? Is it also relevant whether the relevant treatment is reimbursed under the social security system provided for under the law of that other Member State?

(c) What is the answer to Question 1(a) where the treatment abroad is deemed to be normal and therefore to constitute a benefit but the requisite authorisation is refused on the ground that timely and adequate care can be obtained from a contracted Netherlands care provider and treatment abroad is therefore not necessary for the health care of the person concerned?

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"Services" shall in particular include:

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(d) activities of the professions.

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3. Article 22 of Regulation No 1408/71, which governs, inter alia, the need for an employed or self-employed person, or a member of his family, to go to another Member State in order to receive appropriate treatment, provides, so far as is relevant here:

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(c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition,

shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State;

The authorisation required under paragraph 1(c) may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resided and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.

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7.As to restrictive effects, the Court held that, while the Luxembourg rules did not deprive insured persons of the possibility of approaching a provider of services established in another Member State, they did make reimbursement of the costs incurred in that State subject to prior authorisation, while reimbursement of those incurred in the State of insurance was not subject to authorisation. It therefore decided that such rules deterred insured persons from approaching providers of medical services established in another Member State and therefore constituted for them and their patients a barrier to freedom to provide services.

8.Several grounds were put forward by way of justification for the rules in question, namely maintenance of the financial balance of the social security system and protection of public health, which included the need to guarantee the quality of medical services and the aim of providing a balanced medical and hospital service open to everyone.

9.With regard to the first ground, the Court held that, since the financial burden on the Luxembourg social security institution was the same whether an insured person approached a Luxembourg orthodontist or one established in another Member State, reimbursement of the costs of dental treatment provided in other Member States at the rate applied in the State of insurance had no significant effect on the financing of the social security system.

10.As regards the protection of public health, the Court pointed out in paragraphs 45 and 46 of its judgment that, while Member States may limit freedom to provide services on grounds of public health, that right does not permit them to exclude the public health sector, as a sector of economic activity and from the point of view of freedom to provide services, from the scope of the fundamental principle of freedom of movement. In any event, since the conditions for taking up and pursuing the profession of doctor and dentist have been the subject of several coordinating and harmonising directives, the Court held that doctors and dentists established in other Member States must be afforded all guarantees equivalent to those accorded to doctors and dentists established on national territory, for the purposes of freedom to provide services, and that rules such as those applicable in Luxembourg could not be justified on grounds of public health in order to protect the quality of medical services provided in other Member States.

The Court went on to accept that the objective of maintaining a balanced medical and hospital service open to all, while intrinsically linked to the method of financing the social security system, may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC), since it contributes to the attainment of a high level of health protection. It stated in this respect that Article 56 permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of a treatment facility or medical service on national territory is essential for the public health and even the survival of the population.

As it had not been shown that the rules were necessary in order to attain those two objectives, the Court held that they were not justified on grounds of public health.

VII. The proceedings before the Court of Justice

11.Most of the commentators who have written about the judgments in Decker and Kohll have given a positive assessment of the Court's findings, which are consistent with the reasoning underpinning its case-law in relation to the free movement of goods and services. However, those two judgments have left many questions unanswered, since they did not determine whether or not that case-law is also applicable to health care provided in hospitals, or whether its scope is confined to social security systems, like that in Luxembourg, under which the cost of hospital and medical care received by a patient is either paid on his behalf or reimbursed to him in full or in part, or, on the other hand, extends to systems which, like that in the Netherlands, are organised in such a way as to provide insured persons with health care in kind. That is the very question which the Court must answer when it gives judgment in the present case.

12.In addition to Stichting CZ Groep Zorgverzekeringen, the sickness fund against which Mr Peerbooms brought proceedings before the Arrondissementsrechtbank, Roermond, and the Commission, 10 of the 15 Member States have submitted written observations in these proceedings, within the time-limit laid down for that purpose in Article 20 of the EC Statute of the Court of Justice: Belgium, Denmark, Germany, France, Ireland, Netherlands, Portugal, Finland, Sweden and the United Kingdom. To these must be added two States belonging to the European Economic Area: Iceland and Norway. This is clear proof of the expectations which have been raised by this case and the interest with which the Courts decision is awaited.

13.At the hearing on 4 April 2000, the representatives of the two sickness funds which are defendants in the main proceedings, the agents for the Governments of Denmark, Germany, France, Ireland, the Netherlands, Austria, Finland, Sweden, the United Kingdom, and Iceland respectively, and the agent for the Commission presented oral argument.

14.Stichting Ziekenfonds VGZ, the fund against which Mrs Geraets-Smits brought proceedings, considers that Member States are free to organise their social security systems and that the provisions of the Treaty cannot prevent such a system from operating on the basis of agreements concluded by sickness funds with medical practitioners and health-care institutions entitling them alone to provide health care to insured persons. On that premiss, the restrictions inherent in a system such as the Netherlands compulsory sickness insurance scheme, which provides only benefits in kind, are likewise incapable of being incompatible with the Treaty.

In the event that the Court finds otherwise, it submits that the conditions for granting authorisation to consult a non-contracted health-care provider are not discriminatory, and points to the differences between the compulsory sickness insurance scheme in the Netherlands and that in Luxembourg as support for the assertion that Kohll cannot be applied to the Netherlands scheme.

15.The sickness fund against which Mr Peerbooms has brought proceedings submits that health care under the Netherlands legislation is organised in the form of a range of benefits comprising only those considered normal in professional circles and based on treatments of proven scientific benefit, and that it is irrelevant for present purposes whether or not a benefit not considered normal in the Netherlands is covered by sickness insurance in another Member State. The agreements which sickness funds conclude with medical practitioners and health-care institutions govern the cost and quality of the care and ensure that the financial balance of the system is maintained by fixing a budgetary framework, limiting facilities and providing financing, which is governed by law. It states that the decisive factor in authorising an insured person to go abroad to receive treatment is no longer whether that treatment can be provided in good time in the Netherlands, but whether it can be provided by a medical practitioner or health-care institution with whom or which the fund has entered into an agreement, irrespective of the State in which they are established. Health care from a provider not having an agreement with the sickness fund, on the other hand, is still subject to prior authorisation.

The defendant institution points out that several experiments of cross-border health care involving both hospital and out-patient treatment have been launched in the Euregio Rhin/Waal and Euregio Meuse/Rhin regions, without any great flow of patients into Belgium or Germany having been observed.

16.I am not going to set out the views expressed by each Member State in its observations separately; I shall merely summarise them, since they are largely the same.

Judging from their observations, the Member States appear to fall into two major groups in terms of their views. Those in the first group, namely Belgium, France and Austria, consider that the health care provided under a public social security scheme is a service within the meaning of Article 60 of the Treaty. Those in the second group, however, which comprises Germany, Ireland, the Netherlands, the United Kingdom, Denmark, Sweden, Finland and Iceland, take the view that health care under a social security system organised in the form of benefits in kind does not constitute a service within the meaning of Article 60. Portugal and Norway have expressed no views on this point.

The division of opinion among the Member States ends here, since they all agree that the requirement of prior authorisation from the institution of the State of insurance in order to receive care in another Member State, although constituting a barrier to freedom to provide services, is justified.

17.At the end of the written procedure, the Court asked the Netherlands Government whether it had amended its national legislation in order to bring it into line with the case-law established in the aforementioned judgments in Decker and Kohll. It states in its reply that that case-law does not require any reform of the ZFW as regards the conclusion of agreements between funds, on the one hand, and medical practitioners and health-care institutions on the other. It adds that several projects had been introduced to develop the provision of cross-border health-care before the events material to Geraets-Smits and Peerbooms took place, although the judgments cited have been instrumental in increasing the number of agreements concluded with health-care institutions established in other Member States.

At the hearing, Stichting Ziekenfonds VGZ informed the Court that it had begun negotiations with medical practitioners and health-care institutions in other Member States with a view to concluding agreements on the provision of health care for those insured with it. Stichting CZ Groep Zorgverzekeringen stated, for its part, that it had already concluded similar agreements with both medical practitioners and health-care institutions situated in Belgium and Germany.

18.The Commission submits that, in principle, the criteria of what is normal in professional circles and whether the treatment is necessary, as employed by the Netherlands legislation, are both consistent with Article 22 of Regulation No 1408/71, and that, when applying the first, a Member State has a broad discretion in deciding which benefits are covered by a particular social security scheme. In practice, however, those two criteria must be applied in a manner compatible with Community law.

In its view, there is some evidence in the Netherlands legislation that the conditions for granting authorisation to receive health care abroad differ from those laid down for treatment in the Netherlands, and that the requirement of authorisation could therefore constitute a specific barrier to the freedom to provide services.

VIII. Analysis of the questions referred to the Court

19.By the questions referred, which, in my opinion, must be examined together, the Netherlands court wishes to ascertain whether Articles 59 and 60 of the EC Treaty preclude social security legislation such as that at issue in the main proceedings which, by way of agreements concluded by sickness insurance funds with medical practitioners and health-care institutions, organises a system of benefits in kind which requires insured persons who need to consult a non-contracted practitioner or institution, whether situated on national territory or abroad, to obtain authorisation from their fund before they can receive the benefits to which they are entitled.

20.In order to answer the question thus recast, it is appropriate, first of all, to determine whether the medical and hospital care available under the Netherlands sickness insurance scheme falls within the scope of the freedom to provide services. Put simply, the issue is whether the benefits to which insured persons are entitled under the ZFW are services for the purposes of Article 60.

In paragraph II.3 of its order for reference, the Arrondissementsrechtbank says that it is proceeding from the premiss that the treatments which the plaintiffs in the main proceedings received in Germany and Austria are services within the meaning of Article 60 of the Treaty. I do not have sufficient information to form an opinion on this point. However, I do not consider this to be a decisive factor in answering the questions raised. If those treatments are services within the meaning of Article 60, the freedom of both patients to go to another Member State as recipients of services and to receive them has not been restricted. Nor, indeed, do they complain of having received worse treatment than the nationals of those States. None the less, in so far as they rely on Article 60 of the Treaty in order to request that their insurer bear the costs incurred, I consider it essential to ascertain whether their legal relationship with the insurer entitles them to receive services within the meaning of the Treaty.

21.I should like to make it clear that the analysis that follows relates specifically to health care provided solely in the form of benefits in kind by a social security scheme such as that at issue, under which insured persons have no entitlement to reimbursement of the costs incurred in obtaining care. I consider it necessary to make this preliminary clarification in order to avoid any confusion, since the Court of Justice has on several occasions firmly held that certain medical benefits are to be regarded as services for the purposes of Article 60 of the Treaty, and that persons who move to another Member State in order to receive medical care are recipients of services.

Examples of that rule can be found, moreover, in paragraph 29 of the judgment in Kohll, which concerned treatment provided by an orthodontist, in the judgment in Society for the Protection of Unborn Children Ireland, where it was held that medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty, and in the judgment in Luisi and Carbone, where it was held that freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments, and that persons receiving medical treatment are to be regarded as recipients of services.

In all those examples, the Court was at pains to point out either that the benefit had been provided for remuneration, as in the first case cited, or, as in the second, that termination of pregnancy is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity. In the third case, an Italian national had been fined for having exported currency in excess of the amount authorised by the national foreign-exchange-control legislation in order, inter alia, to receive medical treatment in Germany.

22.Under Article 60 of the Treaty, services are to be regarded as services where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. Such services are to include, in particular, the activities of independent professionals, and, as the Court has held, the special nature of certain of those services is not capable of removing them from the ambit of the rules on freedom of movement

There is no doubt that medicine has traditionally been practised by independent professionals, although nowadays this is not always the case since, in some Member States, many doctors are employed by the national social security system, while others combine such employment with private medical practice.

23.The Court has consistently held that Community law does not detract from the powers of the Member States to organise their social security systems.

24.In exercising those powers, the Netherlands has organised a compulsory sickness insurance scheme which covers all persons whose income does not exceed a certain amount and which is managed by sickness funds with separate legal personality. It is financed from the contributions paid by insured persons and employers, and an annual payment made by the State, from the public purse, to the general sickness insurance fund. The sickness insurance funds are responsible for concluding with medical practitioners and specialist institutions agreements for the provision of health care to the persons registered with them.

25.Unlike the situation in Kohll with respect to the social security scheme in Luxembourg, where insured persons have complete freedom to choose their general practitioner and specialist, but are required to pay the cost of the service they receive, after which the sickness fund reimburses part of that cost to them or, in the case of hospital care, pays the institution directly on their behalf, health care under the Netherlands compulsory sickness scheme is free for insured persons. In order to obtain the health-care benefits they require, however, insured persons must use one of the medical practitioners or health-care institutions with whom or which their fund has concluded an agreement because, if they decide to use non-contracted providers, they are required to pay any costs they incur, without entitlement to reimbursement.

26.That fundamental difference causes me to question whether the treatment provided by medical practitioners and health-care institutions in such circumstances may be regarded as a service within the meaning of Article 60 of the Treaty, in view of the fact that the person for whom the service is provided does not receive it in return for remuneration.

27.The Court of Justice has of course made it clear, in its judgment in Bond van Adverteerders, that Article 60 of the Treaty does not require the service to be paid for by those for whom it is performed.

I think, however, that, in the case of the social security scheme under consideration, it is not simply the case that what an insured person does not pay for a medical procedure is paid to the medical practitioner or health-care institution in question by a third party (in this instance, the sickness fund).

28.In practice, it seems that, in order to calculate how much sickness funds contribute to hospitals, it is necessary first of all to determine the budget for each hospital in order to establish the permissible costs, and then to ascertain the supplementary charges and the attendance charge, that is to say the charge for each day a patient is accommodated in hospital, although that charge does not reflect the real cost of accommodation. The charges are intended to finance the budget of each health-care institution; the budget is adjusted year on year, so that, if income exceeds expenditure, the attendance charge for the following year will be reduced and, if expenditure has exceeded income, it will be increased.

29.The charges which sickness funds agree each year with medical practitioners differ according to the specialism concerned and do not consist of a separate payment per medical procedure. They are calculated by means of an arithmetical formula whereby amount A, representing average income, is added to amount B, representing the average cost of running a practice, the sum of which is divided by a factor representing the workload (on the basis, for example, of 2 350 patients a year, in the case of a general practitioner, and however many deliveries a year, in the case of a midwife). That calculation means that, for the year 2000, a general practitioner will receive from the sickness insurance fund with which he has concluded a health-care agreement the amount - known as a subscription charge - of NLG 133 for every insured person who has chosen to be treated at his surgery, irrespective of the number of patients he actually sees, and regardless of the fact that some may need to be seen more often than others and some may not need to be seen at all at any time during the year.

30.Under that system of compulsory sickness insurance, the funds operate by concluding with health-care institutions and independent medical practitioners agreements in which they determine in advance the extent and quality of the benefits to be provided, and the financial contribution the fund will make, which, for practitioners, consists in the payment of a fixed flat-rate amount, and, for each hospital, in the payment of an attendance charge, which is intended to finance the institution rather than to cover the real cost of hospital accommodation.

Viewed from that angle, it is very much like the systems operated in certain Member States where the social security institutions have their own resources and staff which they engage directly for a pre-set number of hours and a given salary. To my mind, it is clearly different from other systems, such as that in Luxembourg, the subject-matter of Kohll, which I have already described. Under the Luxembourg system, as indeed the Court confirmed, the relationship between the insured person and the practitioner is characterised by a provision of services within the meaning of Article 60 of the Treaty, but I am also convinced that there is no such provision of services under the system I am considering here, since the element of remuneration required by Article 60 of the Treaty is lacking.

31. The position is similar in the case of national education systems, in connection with which the Court has had occasion to express its views on the principle of freedom to provide services. In Humbel, for example, the Court held that, under the first paragraph of Article 60 of the EEC Treaty, only services normally provided for remuneration are to be services within the meaning of the Treaty, and that, even though the concept of remuneration is not expressly defined in Articles 59 et seq. of the Treaty, its legal scope may be deduced from the provisions of the second paragraph of Article 60 of the Treaty, the essential characteristic of remuneration being the fact that it constitutes consideration for the service in question, the amount of which is agreed upon between the provider and the recipient of the service. The Court pointed out that that characteristic is absent in the case of courses provided under the national education system, since, first of all, the State, in establishing and maintaining such a system, is not seeking to engage in gainful activity but is fulfilling its duties towards its own population in the social, cultural and educational fields, and, secondly, the system in question is, as a general rule, funded from the public purse and not by pupils or their parents.

In Wirth, it held those findings to be equally applicable to courses provided in establishments of higher education financed largely from public funds. It emphasised, however, that, whilst most higher education establishments are financed in this way, some are nevertheless financed essentially out of private funds, in particular by students or their parents, and seek to be commercially profitable. When courses are given in such establishments, they become services within the meaning of Article 60 of the Treaty since they offer a service in return for remuneration.

32. The Court had occasion to express its views on the classification of social security institutions in the context of competition law in its judgment in Poucet and Pistre, where, after reiterating that, in that context, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed, it held that sickness insurance funds and the organisations involved in the management of the public social security system fulfil an exclusively social function, since that activity is based on the principle of national solidarity and is entirely non-profit-making, and the benefits paid are statutory benefits bearing no relation to the amount of the contributions.

33. In the light of the characteristics of the Netherlands compulsory sickness insurance scheme which I have described, I take the view that the health-care benefits in kind which it provides to insured persons lack the element of remuneration and are not therefore services within the meaning of Article 60 of the EC Treaty.

If those benefits do not constitute services, the answer to be given to the Arrondissementsrechtbank, Roermond, would have to be that Article 59 of the Treaty does not preclude the sickness funds of a Member State from requiring persons registered with them to seek authorisation in order to be able to receive health-care benefits from an institution with which they have not concluded an agreement, whether or not that institution is situated in that or another Member State.

34. None the less, in case the Court should not share my views, and considers that the benefits in question are services within the meaning of Article 60 of the Treaty, I shall now examine the restrictive effects which the requirement to obtain prior authorisation from the sickness fund may have on the freedom to provide services.

35. Does the fact that Article 9(4) of the ZFW, in conjunction with Article 1 of the regulation on health care abroad, makes the possibility of approaching a non-contracted medical practitioner or health-care institution situated abroad subject to prior authorisation from the insurer constitute a restriction on the freedom to provide services?

I shall take account in my reasoning of the doubts raised by the Arrondissementsrechtbank in Question 1(b) and (c), that is to say whether the criterion of what is regarded as normal in professional circles has any bearing in deciding whether a particular health-care benefit is covered by the insurance scheme in question, whether it makes any difference that the same benefit is covered by a social security scheme in another Member State, and whether the criterion of the necessity of the treatment applies where the benefit is covered by the scheme but authorisation to go abroad in order to receive health care is denied because adequate care can be provided by a medical practitioner or health care institution in the Netherlands.

36. It is my view that, worded thus, the question must be answered in the affirmative. After all, in practice, the obligation to request and obtain such authorisation constitutes a restriction on the freedom to provide services, since it makes it more difficult and less attractive for insured persons to go to another Member State to receive health care.

37. The Court has held in that respect that, with a view to the achievement of a single market and in order to permit the attainment of its objectives, Article 59 of the Treaty precludes the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. Although the Netherlands legislation at issue does not deprive insured persons of their entitlement to benefits in another Member State, it does require authorisation, which is subject to very restrictive conditions. It may therefore deter them from approaching providers of medical services established in another Member State and constitutes for them and their patients a barrier to the freedom to provide services.

38. The question is whether or not that barrier is justified in the light of the Courts case-law.

39. The obligation to abolish restrictions on freedom to provide services was interpreted by the Court of Justice as prohibiting all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a Member State other than that in which the service is to be provided. The principle of equal treatment, of which Article 59 of the Treaty is a specific expression, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.

40. The Court of Justice has held in this regard that national rules which are not applicable to services without distinction as regards their origin and which are therefore discriminatory are compatible with Community law only if they can be brought within the scope of an express derogation. Article 66 of the EC Treaty (now Article 55 EC) provides that Articles 55 to 58, which appear in the chapter on the right of establishment, are to apply to freedom to provide services. Article 56 lays down as exceptions to both those freedoms measures contained in provisions of national law prescribing special treatment for foreign nationals on grounds of public policy, public security and public health. Economic aims cannot constitute grounds of public policy within the meaning of Article 56 of the Treaty.

41. The wording of the order from the Arrondissementsrechtbank suggests to me that it regards the application of the criteria of what is normal in professional circles and the necessity of the treatment both by the Netherlands sickness funds, when processing applications for health care abroad, and by the case-law of the Centrale Raad van Beroep, as discriminatory by reason of the place where the provider of services is established.

42. The Commission, for its part, submits that the first criterion favours medical practitioners and health-care institutions established in the Netherlands in that it takes into account only national medical opinion. It is a neutral criterion which is applied to national and foreign providers of services without distinction but which, in practice, is prejudicial to those in other Member States. The second criterion, it contends, is applied differently depending on whether the non-contracted health-care provider to be consulted is situated in the Netherlands or abroad, since, under the national legislation, before a non-contracted institution abroad is used, a check must be made to see whether any non-contracted institution in the Netherlands can offer the care in question. For that reason, it constitutes technical discrimination by reason of the place of establishment.

In the Commissions view, the requirement of prior authorisation combines both those criteria but is characterised predominantly by the technical discrimination inherent in the second. It therefore proposes that the prior authorisation requirement should be regarded as a technically discriminatory measure which can be justified only as a derogation under Article 56 of the EC Treaty, namely on grounds of public policy, public security or public health.

43. I do not agree with that assessment. The criterion of what is normal in professional circles, which is determined on objective medical grounds and without regard to the place where the treatment is provided, is used to decide which benefits are covered by the compulsory sickness insurance scheme. Although that decision is taken with reference only to national medical opinion, the impact of foreign expertise, as imparted through the contributions to medical science made by specialists from other States at international conferences and in specialist literature, must not be underestimated.

Furthermore, in deciding which benefits are to be covered by the sickness insurance scheme, regard is had not only to what is technically possible in medicine, but also to what is financially viable. Accordingly, the benefits covered, what they include and the treatments available for certain conditions differ considerably from one Member State to another, as the two cases pending before the Arrondissementsrechtbank have shown. The decentralisation of national social security institutions which previously operated at national level also leads to variations dictated by the funds available to one regional body as compared with another. For those reasons, a particular treatment which is not covered by a sickness insurance scheme cannot become one of the benefits available under it simply because someone has managed to obtain it from a non-contracted provider, whether locally or abroad.

44. The Court has held that Community law does not detract from the powers of the Member States to organise their social security systems, and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine, first, the conditions governing the right or duty to be insured with a social security scheme and, second, the conditions for entitlement to benefits, provided that there is no discrimination in that regard between nationals of the host State and nationals of the other Member States.

I consider that the criterion of what is normal in professional circles used by sickness funds in deciding which benefits are covered by compulsory sickness insurance is not discriminatory, since it does not mean that only benefits available in the Netherlands are included, and it is not prejudicial, either to a greater extent or in all cases, to providers of services established in other Member States. In any event, Community law as it stands at present cannot oblige a Member State to include in the cover provided by a compulsory sickness insurance scheme all the benefits and treatments covered by the sickness insurance schemes of the other Member States.

For the same reasons, I consider it irrelevant for present purposes that a benefit is covered by the sickness insurance scheme in one Member State but excluded from cover in another.

45. As regards the criterion of the necessity of the treatment for the insured person, I do not infer from Article 9(4) of the ZFW, read in conjunction with Article 1 of the regulation on medical care abroad under the compulsory sickness insurance scheme, as the Commission does, that it is applied differently depending on whether a course of treatment regarded as a benefit is to be followed in a non-contracted establishment in the Netherlands or abroad. In both cases, the sole condition is that such treatment be authorised by the sickness fund.

It should be emphasised, however, that the national court's uncertainty concerns a different situation, namely that of an insured person who is not authorised to go abroad for treatment regarded as a benefit because there is a contracted medical practitioner capable of administering that treatment in time in the Netherlands. That uncertainty will cease to apply if the Court finds that health care under the compulsory sickness insurance scheme in the Netherlands does not constitute a service within the meaning of Article 60 of the Treaty. However, in case it should find otherwise, I shall address this question in the context of my thoughts on the justification for the requirement of prior authorisation.

46. As I see it, in requiring that an insured person obtain authorisation from his fund, the Netherlands legislation on compulsory sickness insurance does not discriminate between recipients of services on grounds of nationality, since it applies to all persons wishing to go to another Member State; furthermore, in differentiating only between contracted and non-contracted providers, regardless of whether they are established in the Netherlands or abroad, it does not discriminate between insured persons by reason of the origin of the benefit either.

47. The national court seems unconvinced that there is no discrimination inasmuch as it finds that the agreements in question are largely concluded with institutions established in the Netherlands.

It should be added that, in the light of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, and of the fact that the Netherlands Government states in paragraph 56 of its written observations that a health-care institution authorised to operate in another Member State is automatically authorised to enter into an agreement with sickness funds in the Netherlands, there appears to be no statutory bar precluding funds from concluding such agreements with medical practitioners and health-care institutions in other Member States. The fact that, for reasons of common sense and in order to make it easier for persons registered with them to receive care when they are ill, sickness funds seek to conclude such agreements with providers whose facilities are closest at hand is a separate issue. Indeed, the conclusion of agreements with medical practitioners and health-care institutions situated in regions of Belgium and Germany bordering on the Netherlands has been prompted by that very concern, without causing any major linguistic problems.

48. To resume my examination of the authorisation requirement, in relation to which the rules do not formally draw any distinction regarding medical practitioners from other Member States, I should point out that, according to the Court, Article 59 requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services.

(1) are justified by overriding reasons relating to the general interest and are applied to all persons or undertakings pursuing those activities in the territory of the State in question, in so far as that interest is not safeguarded by the provisions to which the Community national is subject in the Member State where he is established;

(2) are necessary to ensure that the objective they pursue is attained; and

(3) do not go beyond what is necessary to attain that objective.

51. Over the years, the Court has developed case-law relating specifically to overriding reasons in the general interest. I can state, by way of examples which are not intended to be exhaustive, that it has recognised as such: the protection of intellectual property; the need to protect recipients of services, which may justify providers of services being subject to the professional rules of conduct of the host Member State; the social protection of workers; consumer protection; fair trading; a cultural policy consisting in the maintenance of a national radio and television system which secures pluralism; safeguarding the sound administration of justice; safeguarding the cohesion of a tax system; maintaining the good reputation of the national financial sector; conservation of the national historical and artistic heritage; proper appreciation of a country's archaeological, historical and artistic assets and the widest possible dissemination of knowledge of the artistic and cultural heritage of a country; and the risk of serious impairment of the financial equilibrium of the social security system.

52. The overriding reasons in the general interest relied on by the defendant institutions are, in summary, as follows:

- maintaining the infrastructure and the financial equilibrium of the system of agreements in such a way as to keep the costs, volume and quality of care under control;

- making health care accessible to everyone;

- ensuring an adequate number of doctors, facilities and hospital beds by striking a balance which avoids both waiting lists (which result in a restriction on access to health care) and the wasting of financial resources (which are very limited in the health sector), the achievement of which requires the regulation of access to hospitals;

- limiting the number of patients who go abroad for treatment and to avoid a large influx of foreign patients, on account of the disruption this would create in the use of hospital facilities.

The Member States which have intervened in these proceedings cite, as overriding reasons in the general interest justifying maintenance of the authorisation requirement, in addition to those already referred to, the need for insurance funds to be able to control costs; respect for the power of each State to establish health-care priorities on the basis of the resources available to it and the needs of its population; and respect for the principle of equality among insured persons, a breach of which would be detrimental to more disadvantaged patients, for whom travel to another Member State would inevitably involve cost concerns.

53. All the foregoing reasons can be reduced to three, namely, maintaining the financial equilibrium of the compulsory sickness insurance scheme, providing a balanced medical and hospital service open to everyone without distinction, and ensuring the availability of the requisite health care and medical skills within national territory.

54. Those three reasons have already been examined by the Court in Kohll, where it held that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying the requirement that an insured person obtain authorisation to receive care abroad. As regards the need to provide a balanced medical and hospital service open to all insured persons without distinction, and the purpose of ensuring an adequate treatment facilities and medical service on national territory, the Court held that they could be linked to the derogations on grounds of public health under Article 56 of the Treaty, which permit Member States to restrict the freedom to provide medical and hospital services.

55.What is in dispute is not, therefore, whether those three reasons are valid justifications for a barrier to freedom to provide services such as the authorisation requirement at issue, where, as in this case, it is applied without distinction to national providers and to providers established abroad, but whether that requirement is necessary in order to ensure that the objectives it pursues are attained and whether it complies with the principle of proportionality.

56.I shall attempt to dispel those doubts. Under schemes such as that in this case, which provide insured persons with benefits in kind, the sickness funds manage their budget by concluding with medical practitioners and health-care institutions agreements which lay down the benefits contracted for, the services that will be available and the financial contribution which the funds undertake to make. Provision is thus made in advance for the financing of all the health care insured persons may need in the course of a year, whether as out-patients or in hospital, in order to ensure that the funds do not in principle have to bear any additional expenditure.

It is my view that, in those circumstances, the requirement of authorisation constitutes not only a necessary and proportionate means of attaining the objective of maintaining the financial equilibrium of the system, but also the only means available to sickness funds for controlling payments to a non-contracted provider for health care which they have already paid the contracted providers to dispense, since this represents an additional financial burden. It seems clear to me that, under a social security system where health-care resources, practitioners and institutions are pre-established, sickness funds must be able to expect that, barring rare exceptions subject to their consent, any health care which insured persons require will actually be provided by the practitioners and institutions contracted, regardless of whether they are situated on national territory or abroad.

57.I should like to add that, under a system of benefits in kind such as that at issue, the distinction drawn by Advocate General Tesauro in point 59 of his Opinion in Decker and Kohll between benefits provided by independent practitioners and those provided in hospitals, does not apply. As I see it, the use by insured persons of non-contracted providers represents an additional financial burden for the fund in every case. I therefore consider that the requirement of prior authorisation is justified.

58.I believe that both the objective of providing a balanced medical and hospital service open to everyone and the objective of maintaining essential treatment facilities and medical service on national territory, apart from being intrinsically linked to the method of financing the system, can be brought within the ambit of the public health grounds which, under Article 56, are capable of justifying a restriction on freedom to provide services, as the Court held in paragraphs 50 and 51 of its judgment in Kohll. In contrast to Kohll, however, in the present case it has been demonstrated that, because of the structure of the Netherlands compulsory sickness insurance scheme, which is based on prior comprehensive agreements with medical practitioners and health-care institutions regarding technical resources, hospital facilities and manpower, the authorisation requirement is justified for the purpose of ensuring that funds are alerted to any additional health-care needs that arise, so that the imbalances detected can be corrected.

59.The foregoing considerations support the inference that a sickness fund can legitimately deny an insured person authorisation to receive non-contracted health care abroad, on the ground that the care necessary can be afforded to him by a practitioner or an institution on national territory with whom or which it has entered into an agreement.

D.The application of Article 22 of Regulation No 1408/71

60.Despite the fact that the national court has not raised the matter of the interpretation of Article 22(1)(c)(i) and the second paragraph of Article 22(2) of Regulation No 1408/71, it nonetheless merits a few lines. As will be recalled, that provision confers on a worker insured in one Member State who is authorised by the competent institution to go to another Member State to receive health care the right to enjoy the benefits he requires at the expense of the competent institution, in accordance with the provisions of the legislation of the State in which the benefits are provided. Authorisation may not be denied where the treatment is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment in that State within the time normally necessary because of his current state of health and the probable course of the disease.

61.The provision regulates the specific case of an insured person who goes to another Member State to receive, in accordance with the legislation of that State, treatment paid for by the competent institution. This situation is clearly different from that at issue in Kohll, where the insured person received treatment in another Member State but was reimbursed by the competent institution only at the rate applied in the State of insurance.

I should like to add in this respect that I find it regrettable that the competent institutions of the Member States apply that provision so restrictively and grant so few authorisations each year, when it could, under their control, provide an invaluable means of reducing the long waiting lists with which patients in some Member States have to contend. Patients could thus obtain health care in another Member State by invoking Article 22 of Regulation 1408/71, or by relying directly on Decker and Kohll, without having to run the risk, on return to their State of residence, of being denied reimbursement.

3. The practice of clinico-social tourism, whereby patients, usually of sound financial means, seek better medical treatment abroad, is an age-old phenomenon which pre-dates the creation of the European Union. In 1911, the German writer Thomas Mann and his wife, who was ill, booked themselves into a sanatorium in Davos, Switzerland. Contact with the patients who had come from all over the world to find a cure in this remote mountain-top establishment provided the inspiration for his masterpiece Der Zauberberg (The Magic Mountain) (1924), which centres around the fraught search for ideal health care. This clinico-social tourism is a further reason why the competent institutions should be more flexible when authorising persons insured with them to go to another Member State for treatment, in such a way that the principle of equal treatment for insured persons as regards access to the highest possible level of medical care can be maintained without the financial equilibrium of the respective systems being jeopardised.

IX.Conclusion

(1)The health-care benefits in kind which a compulsory sickness insurance scheme such as that in the Netherlands grants to the persons insured with it do not incorporate any remunerative element and do not therefore constitute services within the meaning of Article 60 of the EC Treaty (now Article 50 EC). Accordingly, Articles 59 (now, after amendment, Article 49 EC) and 60 of the Treaty do not preclude sickness funds from requiring persons registered with them to seek authorisation in order to be able to receive benefits from a practitioner or an institution with whom or which they have not entered into a health-care agreement.

(2)If, on the other hand, the proposition is accepted that such benefits are services within the meaning of Article 60 of the Treaty, the requirement of authorisation would, in practice, constitute a barrier to freedom to provide services, but would have to be regarded as a necessary and proportionate means of maintaining the financial equilibrium of the system in order to provide a balanced medical and hospital service open to everyone, and to ensure the availability of the necessary treatment facilities and medical service within national territory.