(Reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen)

(Freedom to provide services – Sickness insurance scheme for civil servants – Health cure taken in another Member State – Expenditure on board, lodging, travel, visitors’ tax and a final medical report – Conditions for reimbursement – Prior declaration of eligibility for assistance – Criteria – Justification)

Summary of the Judgment

Freedom to provide services – Restrictions – National legislation relating to the reimbursement of expenditure in connection with a health cure taken in another Member State – Requirement to obtain prior recognition of eligibility – Granted only if the treatment is absolutely necessary owing to the greatly increased prospects of success in the other Member State – Not permissible – Grant precluded if the cure is commenced before the conclusion of the court proceedings brought against the decision of refusal – Not permissible – Grant conditional upon the health spa concerned being listed in the Register of Health Spas – Whether permissible – Conditions

(Arts 49 EC and 50 EC)

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only where it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State.

Those provisions preclude also the application of national rules under which the reimbursement of such expenditure is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

Articles 49 EC and 50 EC are, on the other hand, to be interpreted as meaning that they do not in principle preclude rules of a Member State under which reimbursement of such expenditure, whether the health cure is taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.

(see paras 51, 59, operative part 1-3)

JUDGMENT OF THE COURT (Fifth Chamber) 18 March 2004 (1)

(Freedom to provide services – Sickness insurance scheme for civil servants – Health cure taken in another Member State – Expenditure on board, lodging, travel, visitors’ tax and a final medical report – Conditions for reimbursement – Prior declaration of eligibility for assistance – Criteria – Justification)

In Case C-8/02,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Sigmaringen (Germany) for a preliminary ruling in the proceedings pending before that court between

Bundesanstalt für Arbeit,

on the interpretation of Articles 49 EC and 50 EC,

THE COURT (Fifth Chamber),

composed of: C.W.A. Timmermans, acting for the President of the Fifth Chamber, A. La Pergola (Rapporteur) and S. von Bahr, Judges,

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

– Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

– An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

– Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

– the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

In support of his action, Mr Leichtle maintains that Paragraph 13(3) of the BhV infringes Articles 49 EC and 50 EC, as it has the effect that access to cures provided in other Member States is rendered practically impossible for those concerned; and the barrier to the freedom to provide services thus created cannot be justified by the need to maintain treatment capacity or essential medical capacity on national territory.

13The Bundesanstalt counters that a complete opening‑up of access to European cure establishments would endanger the financial equilibrium, the medical and hospital competence and the medical standards of the system of German cure establishments.

14The Bundesanstalt further contends that Mr Leichtle has no legal interest in bringing proceedings. It states that the expenditure relating to strictly medical treatment received by Mr Leichtle at Ischia, amounting to EUR 239.10, was recognised as eligible for assistance up to an amount of EUR 154.41, so that the only question remaining in dispute is the eligibility of the related costs of EUR 326.72 and EUR 1 124.84 in respect of travel and accommodation. Mr Leichtle cannot in any event claim reimbursement of those costs, since he took the cure without the mandatory condition of prior recognition of eligibility for assistance having been satisfied.

15The Verwaltungsgericht Sigmaringen states that it is not disputed between the parties that the medical conditions laid down in Paragraph 8(3)(1) of the BhV are met, namely that the cure taken by Mr Leichtle was necessary and could not be replaced by other forms of treatment at his place of residence which offered the same prospects of success.

16According to the Verwaltungsgericht Sigmaringen, it is likewise established that application of the criterion laid down in Paragraph 13(3)(1) of the BhV must, in this case, lead to a refusal of recognition of eligibility for assistance, since Germany has spas, particularly at Bad Steben or Bad Münster am Stein, capable of providing alternative cures equivalent to that taken by Mr Leichtle in Italy.

17It follows that the outcome of the main action depends principally on whether that provision is correct to subject the grant of assistance towards certain expenditure relating to health cures taken in other Member States to restrictive conditions distinct from those which apply where the cure takes place on national territory, or whether Articles 49 EC and 50 EC preclude its doing so.

18The Verwaltungsgericht Sigmaringen considers, first of all, that it may be inferred from the Court’s case‑law, and in particular from Case C‑158/96 Kohll [1998] ECR I‑1931 and Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, that Paragraph 13(3)(1) of the BhV constitutes, both for the official concerned and for service providers established in other Member States, a barrier to the freedom to provide medical services.

19Admittedly, the BhV’s provisions do not preclude the grant of assistance in respect of the strictly medical services provided in the course of a cure taken in another Member State, the amount of the assistance in such a situation being limited, as is apparent from Paragraphs 13(1), 8(2)(1) and 8(3) of the BhV, to that which would have been paid if the treatment had been provided in Germany. However, the fact that assistance in respect of board, lodging, travel costs, visitors’ tax and the final medical report associated with a cure taken outside Germany is granted only where the person concerned has obtained prior recognition of eligibility, which is given only on the very restrictive conditions laid down in Paragraph 13(3)(1) of the BhV, has the practical effect of preventing the official from taking such a cure. In fact, those cost factors should not be considered in isolation from the strictly medical services to which they are inevitably incidental, since a health cure by its nature takes time and requires that the patient travel to and stay at the place in question, and is thus comparable to in-patient treatment in hospital.

20The Verwaltungsgericht Sigmaringen therefore asks whether or not the regime provided for in Paragraph 13(3)(1) of the BhV can be justified in the light of the rules of the Treaty.

21It considers, in that regard, that the judgment in Smits and Peerbooms, cited above, does not in itself provide the solution to the questions raised in this case, since, unlike the national system at issue in that case, the BhV do not guarantee benefits in kind to officials, nor do they plan, by means for example of contractual arrangements, a system of social insurance cover which needs to be protected by the restrictions provided for in the BhV.

22The Verwaltungsgericht Sigmaringen also questions the relevance of the Bundesanstalt’s argument that the complete opening‑up of access to European cure establishments would entail a real danger to the financial equilibrium and the medical and hospital competence of the system of German cure establishments. It points out, in particular, that in Smits and Peerbooms, cited above, the Court decided particularly that it could not be accepted that priority be given to national hospital establishments with which the insured’s sickness insurance fund had not concluded an agreement, to the detriment of hospital establishments in other Member States.

23If the Court interprets Articles 49 EC and 50 EC as meaning that they preclude the special condition imposed by Paragraph 13(3)(1) of the BhV, the Verwaltungsgericht Sigmaringen is of the view that where a cure which has been shown to be medically necessary is available and where the only issue is whether the national provisions which determine whether assistance will be granted comply with Community law, the person concerned cannot be required to obtain prior recognition of eligibility for assistance, including by bringing proceedings before the competent court, before taking the proposed health cure. According to the Verwaltungsgericht Sigmaringen, that would amount to depriving the person concerned of any real possibility of taking such a cure in another Member State and therefore of taking advantage of the Community rules on freedom to provide services. Since he would be unable for medical reasons to delay the cure pending the outcome of the administrative and judicial procedures, he would be obliged to take a cure in Germany.

24According to the Verwaltungsgericht Sigmaringen, it follows that the Bundesanstalt’s argument that Mr Leichtle’s claim must be declared inadmissible, on the ground that he took the cure in question without having first obtained recognition that the associated expenditure was eligible for assistance, must be rejected.

25Noting that even though the case‑law of the Bundesverwaltungsgericht (Federal Administrative Court, Germany) contains some indications which appear to support the interpretation thus advocated, there is no settled national case‑law on the question, the Verwaltungsgericht Sigmaringen seeks to ascertain whether that interpretation may be imposed by Community law.

26It was in those circumstances that that court decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Are Articles 49 EC and 50 EC to be interpreted as precluding rules of national law (in this case Paragraph 13(3) of the BhV) under which the costs of a health cure taken in another Member State are reimbursable only where it is absolutely essential that the cure be taken outside the Federal Republic of Germany because it thus offers greatly increased prospects of success, where that is established in a report drawn up by a medical officer or a medical consultant and where the spa concerned is listed in the Register of Spas?

The questions for the Court

First question

27By its first question, the national court is asking, in essence, whether Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which the reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional, first, on the obtaining of prior recognition of eligibility, which is given only provided that it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary because of the greatly increased prospects of success in that other Member State, and, secondly, on the spa concerned being listed in the Register of Health Spas.

28In order to answer that question, it must be noted as a preliminary point that, according to settled case‑law, medical activities fall within the scope of Article 50 EC, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see, among others, Case C‑368/98 Vanbraekel and Others [2001] ECR I-5363, paragraph 41; Smits and Peerbooms, cited above, paragraph 53; and Case C‑385/99 Müller‑Fauré and Van Riet [2003] ECR I-4509, paragraph 38).

29Moreover, although it is not disputed that Community law does not detract from the power 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 the conditions on which social security benefits are granted, it is nevertheless the case that, when exercising that power, the Member States must comply with Community law (see, among others, Smits and Peerbooms, paragraphs 44 to 46, and Müller-Fauré and Van Riet, cited above, paragraph 100, and the case-law cited there).

30Accordingly, the Court has ruled in particular that Article 49 EC precludes the application of any national rule making reimbursement of medical costs incurred in another Member State subject to a system of prior authorisation where it is apparent that such a system deters, or prevents, insured persons from approaching providers of medical services established in Member States other than the State of insurance, save where the barrier to the freedom to provide services to which it gives rise is justifiable under one of the derogations allowed by the EC Treaty (see, to that effect, Kohll, paragraphs 33 to 36; Smits and Peerbooms, paragraphs 62, 69 and 71; and Müller‑Fauré and Van Riet, paragraphs 44 and 45).

31As regards this case, the question referred to the Court admittedly does not concern the reimbursement of expenditure relating to the actual treatment provided in the course of a health cure taken in another Member State, since that expenditure has, in this instance, already been reimbursed in accordance with the provisions of the BhV.

32It is nevertheless the case, however, that the fact that a Member State’s rules subject the reimbursement of the other expenditure incurred in respect of such a cure to conditions different from those applicable to cures taken in that Member State is capable of deterring those covered by social insurance from approaching providers of medical services established in Member States other than that in which they are insured.

33As the national court observes, expenditure in connection with board and lodging can be regarded as forming an integral part of the health cure itself. In that regard, it is clear from Paragraph 8(6) of the BhV that assistance granted on the basis of that legislation cannot be used for cures other than those carried out under medical supervision and in accordance with a cure plan in a health spa, while the accommodation must be at the spa and tied to it. Just as hospital treatment may involve a stay in hospital, a health cure administered for therapeutic purposes may well, by its nature, include a stay at a spa.

34The medical report drawn up at the end of the cure falls squarely within the scope of medical activity.

35Although travel costs and any visitors’ tax are not medical in character, and are not as a rule paid to health care providers, they none the less appear to be inextricably linked to the cure itself, since, as previously stated, the patient is required to travel to and stay at the spa.

36It follows that any conditions governing reimbursement of those various items of expenditure by a scheme such as the BhV are indeed capable of having a direct influence on the choice of the place of the cure and, therefore, on the selection of a health cure centre capable of providing services of that type.

37The Verwaltungsgericht Sigmaringen therefore asks whether or not the regime provided for in Paragraph 13(3)(1) of the BhV can be justified in the light of the rules of the Treaty.

As regards, first, the actual principle of the requirement for prior recognition of eligibility for assistance of expenditure on board, lodging, travel, visitors’ tax and the making of a final medical report, and leaving aside the conditions on which such recognition may be obtained, it is appropriate to note that it follows from Paragraphs 8(3) and 13(3) of the BhV that that principle applies in respect of the expenditure occasioned by a health cure taken either inside or outside Germany. It follows that that requirement does not, as such, have the effect of making the provision of services between Member States, in this case the services offered by cure centres in other Member States, more difficult than the provision of services purely within one Member State, namely those offered by cure centres in Germany (see, to that effect, Case C‑381/93 Commission v France [1994] ECR I‑5145, paragraph 17; Kohll, paragraph 33; and Smits and Peerbooms, paragraph 61).

As regards, secondly, the conditions to which the BhV subject the recognition of eligibility for assistance of expenditure on board, lodging, travel, visitors’ tax and the making of the final medical report, incurred in respect of a health cure undergone outside Germany, it follows from Paragraph 8(3) in conjunction with Paragraph 13(3) of the BhV that there are two such conditions.

The first condition requires either that a report drawn up by a medical officer or a medical consultant establishes that the cure is necessary in order to restore or maintain the official’s fitness for work following serious illness or that, in the case of considerable chronic pain, balneotherapy or climotherapy treatment is absolutely necessary and cannot be replaced by other forms of treatment offering the same prospects of success, in particular by treatment at the official’s place of residence or posting.

In that regard, it must be held that such requirements, which, as is clear from Paragraphs 8(3)(1) and 13(3)(3) of the BhV, apply without distinction to expenditure occasioned in respect of health cures undergone inside or outside Germany, do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see, to that effect, the case‑law cited in paragraph 37 of this judgment).

The second condition, laid down in Paragraph 13(3)(1) of the BhV, applies, by contrast, only to expenditure occasioned in respect of a health cure taken in a Member State other than Germany, since it specifically implies that, in order for that expenditure to be recognised as eligible for assistance, it must be established in a report drawn up by a medical officer or medical consultant that the health cure is absolutely necessary owing to the greatly increased prospects of success outside the Federal Republic of Germany.

As is clear from the case‑law referred to in paragraph 30 of this judgment, such a condition, which, by its very nature, has the effect of deterring officials covered by the BhV from approaching health cure centres established in other Member States, cannot be accepted unless the barrier to freedom to provide services resulting therefrom is justifiable in the light of the Treaty.

It is settled case-law that it is necessary, in that regard, where justification is based on an exception laid down in the Treaty or indeed on an overriding general-interest reason, to ensure that the measures taken in that respect do not exceed what is objectively necessary for that purpose and that the same result could not be achieved by less restrictive rules (see Müller‑Fauré and Van Riet, cited above, paragraph 68 and the case‑law cited there).

As is clear from the order for reference, the Bundesanstalt maintains, with reference to a letter from the Federal Interior Ministry, that a complete opening‑up of access to European cure establishments would involve a real danger to the financial equilibrium and the competence of the medical and hospital resources of the system of German cure establishments. The Spanish Government likewise submits, in its written observations, that the disputed condition is justified in the light of the need to maintain financial equilibrium in respect of health cures and to ensure the maintenance of treatment capacity and of medical competence in that sector in Germany.

However, the reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State.

In that regard, it must be held that neither the file transmitted to the Court by the referring court nor the observations submitted to the Court contain clear material substantiating the argument that Paragraph 13(3)(1) of the BhV is necessary in order to maintain treatment capacity or medical competence essential for the protection of public health (see, to similar effect, Müller‑Fauré and Van Riet, paragraph 70).

As regards the justification based on the need to avoid a risk of serious harm to the financial equilibrium of the social security system, no clear argument has been put before the Court in support of the assertion that Paragraph 13(3)(1) of the BhV is necessary for such purposes (see, to similar effect, Müller‑Fauré and Van Riet, paragraph 93).

Moreover, it should be borne in mind that it is for the Member States alone to determine the extent of the sickness cover available to insured persons (Müller‑Fauré and Van Riet, paragraph 98). It follows that nothing precludes the amount up to which expenditure on board, lodging, travel, visitors’ tax and the making of a final medical report, incurred in respect of a health cure taken in another Member State being limited to the amounts up to which such expenditure would have been recognised as eligible for assistance if a cure which was available and afforded equivalent therapeutic effectiveness had been taken in Germany. Indeed, such a limitation, which, as the Commission submitted, can be justified by the consideration that the costs to be borne by the State must be limited to what is necessary for medical purposes, is based on an objective, non‑discriminatory and transparent criterion (Müller‑Fauré and Van Riet, paragraph 107).

As regards, thirdly, the condition in Paragraph 13(3)(2) of the BhV that the health spa concerned must be listed in the Register of Health Spas, it must be observed that such a requirement which, as the Advocate General stated in point 34 of his Opinion, is probably intended to ensure that the spas concerned are in a position to provide the treatment deemed necessary, is also laid down as regards reimbursement of expenditure incurred in respect of health cures taken in Germany, as is clear from Paragraph 8(6) of the BhV. It follows that such a requirement does not appear, a priori and in principle, to be such as to have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see the case‑law cited in paragraph 37 of this judgment).

It is, however, for the national court to determine, particularly in the light of the conditions to which the registration of health spas in such a Register of Health Spas may be subject, whether that registration requirement is or is not such as to give rise to the effect described in paragraph 49 of this judgment and to satisfy itself that those conditions are objective.

In view of all the foregoing considerations, the answer to the first question must be that:

–Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only where it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State.

–Articles 49 EC and 50 EC are to be interpreted as meaning that they do not in principle preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure, whether taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.

Second question

By its second question, the national court is asking whether Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the procedure for obtaining prior recognition of eligibility for assistance provided for in those rules or of any subsequent court proceedings before commencing the cure in question.

It is appropriate to observe as a preliminary point that it is clear from the order for reference that when Mr Leichtle went to Ischia in order to take the cure the Bundesanstalt had already rejected his application for recognition of eligibility for assistance in respect of the cure and that Mr Leichtle had already commenced proceedings for annulment of that decision before the national court.

It is thus sufficient, for the purposes of giving the national court the guidance which the resolution of the main proceedings requires, to indicate whether Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against a decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

In that regard, it must be observed that, ruling on a somewhat similar problem, the Court has previously held, as regards the prior authorisation to receive health care provided in another Member State referred to in Article 22(1)(c) of 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, in the version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), that both the practical effect and the spirit of that provision required that if the request of an insured person for authorisation on the basis of that provision has been refused by the competent institution and it is subsequently established by a court decision that that refusal was unfounded, that person is entitled to be reimbursed directly by the competent institution by an amount equivalent to that which it would ordinarily have borne if authorisation had been properly granted in the first place (Vanbraekel and Others, cited above, paragraph 34).

As the Commission correctly submitted, a similar approach should be adopted in this case.

Indeed, as the national court, the Commission and the Advocate General in point 39 of his Opinion pointed out, in the absence of acceptance that the judicial finding of infringement of Articles 49 EC and 50 EC by the contested decision of the Bundesanstalt may retroactively justify the assumption of responsibility for the expenditure in question, the practical effect of those Community provisions would be jeopardised, since in most cases patients cannot await the result of court proceedings before receiving the treatment which their state of health requires and are therefore obliged to abandon the idea of going to another Member State in order to be treated there.

In the light, particularly, of the information in the order for reference and reproduced in paragraph 25 of this judgment, it must be pointed out, in addition, that, as follows from consistent case‑law, in the face of directly applicable Treaty provisions, such as Article 49 EC, it is for the national court, to the full extent of its discretion under national law, to interpret and apply domestic law in conformity with the requirements of Community law and, where this is not possible, to disapply any incompatible domestic provisions (Case 157/86 Murphy and Others [1988] ECR 673, paragraph 11, and Case C‑200/91 Coloroll Pension Trustees [1994] ECR I‑4389, paragraph 29).

In view of the foregoing, the answer to the second question must be that Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which the reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

Costs

The costs incurred by Spanish and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. 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.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht Sigmaringen by order of 28 November 2001, hereby rules:

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only provided it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State.

Articles 49 EC and 50 EC are to be interpreted as meaning that they do not in principle preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure, whether taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which the reimbursement of expenditure incurred on board, lodging, travel, visitors’ tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

Delivered in open court in Luxembourg on 18 March 2004.

Registrar

President

ECLI:EU:C:2025:140

Language of the case: German.