(Reference for a preliminary ruling from the Sozialgericht Stuttgart)

(Social security – Reimbursement of medical expenses incurred in another Member State – Article 34 of Regulation (EEC) No 574/72 – Health insurance fund applying a simplified full reimbursement procedure for bills for small amounts)

Summary of the Judgment

Social security for migrant workers – Health insurance – Reimbursement by the competent Member State of medical expenses incurred in another Member State – Application of the rates in effect in the Member State of residence – Article 34 of Regulation No 574/72 – Practice of a health insurance fund whereby medical expenses not exceeding a certain amount are reimbursed in full – Whether permissible

(Council Regulation No 574/72, Art. 34)

In the absence of completion of the formalities giving entitlement, during a stay in a Member State other than the competent State, to receive the benefits in kind provided by the institution of the place of stay on behalf of the competent institution, Article 34 of Regulation No 574/72 enables persons covered by social insurance to obtain from the competent State reimbursement of expenses incurred during that stay at the rates administered by the institution of the place of stay. That provision is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed a certain amount. The fact that that reimbursement is in full suffices to ensure that the reimbursement received by the person covered by social insurance is at least equivalent to, if not higher than, what that person would have received had reimbursement been made in the circumstances provided for in that provision.

(see paras 24, 27, operative part)

JUDGMENT OF THE COURT (Sixth Chamber) 14 October 2004 (1)

(Social security – Reimbursement of medical expenses incurred in another Member State – Article 34 of Regulation (EEC) No 574/72 – Health insurance fund applying a simplified full reimbursement procedure for bills for small amounts)

In Case C-193/03, REFERENCE to the Court under Article 234 EC from the Sozialgericht Stuttgart (Germany), made by decision of 19 March 2003, received at the Court on 9 May 2003, in the proceedings

Bundesrepublik Deutschland,

THE COURT (Sixth Chamber),

composed of: A. Borg Barthet (Rapporteur), President of the Chamber, J.-P. Puissochet and S. von Bahr, Judges,

Advocate General: M. Poiares Maduro, Registrar: R. Grass,

having regard to the written procedure, after considering the observations submitted on behalf of:

– the Bundesrepublik Deutschland, represented by the Bundesversicherungsamt, by K. Schmidt, acting as Agent,

– the Commission of the European Communities, by D. Martin and H. Kreppel, 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 Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999 (OJ 1999 L 164, p. 1) (‘Regulation No 574/72’).

The reference for a preliminary ruling concerns the interpretation of Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999 (OJ 1999 L 164, p. 1) (‘Regulation No 574/72’).

The reference was made in proceedings between the Betriebskrankenkasse der Robert Bosch GmbH (‘R. Bosch’) and the Bundesversicherungsamt (‘the BVA’) concerning the decision by the latter to require R. Bosch to end a practice by which it reimbursed fully medical expenses of up to DEM 200 incurred in other Member States.

Legal framework

Community 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.

(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)]

…

(29) 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

It is in that context that the Sozialgericht Stuttgart decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does Article 34 of Regulation (EEC) No 574/72 preclude, in the application of Paragraph 13(3) of the SGB V, a practice of flat-rate reimbursement by an insurance institution of medical treatment incurred in another Member State, in line with similar provisions regarding small amounts?’

The question referred for a preliminary ruling

15

As stated in paragraph 9 of this judgment, the disputed practice criticised in the decision at issue in the main proceedings consists of reimbursing in full medical costs incurred by insured persons during a stay in another Member State when those costs do not exceed DEM 200.

16

It follows that, by its question, the national court is asking essentially whether Article 34 of Regulation No 574/72 is to be interpreted as precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.

17

In order to answer the question thus reformulated, it is appropriate to note that, as evidenced by Article 34(1), the reimbursement scheme established by Article 34 of Regulation No 574/72 applies when the formalities provided for in Articles 20(1) and (4), 21, 23 and 31 of that regulation could not be completed during the stay in another Member State.

18

It should also be borne in mind that completion of those formalities should normally enable the insured persons, when staying in a Member State other than the competent State, to receive the benefits in kind provided by the institution of the place of stay on behalf of the competent institution, in accordance with the provisions of the legislation applied by the latter, as if they were members meeting the requirements of Articles 22 and 31 of Regulation No 1408/71.

Moreover, as the Court has already held, the rights conferred by those provisions are intended to facilitate the free movement of persons covered by social insurance (see Case C-368/98 Vanbraekel and Others [2001] ECR I-5363, paragraph 32; Case C-326/00 IKA [2003] ECR I-1703, paragraphs 38 and 51; and Case C-56/01 Inizan [2003] ECR I-0000, paragraph 21).

The same is true of the reimbursement scheme established by Article 34 of Regulation No 574/72, which, since it is intended to apply only in the alternative when the benefits in kind guaranteed by Articles 22 and 31 of Regulation No 1408/71 could not be procured because the formalities provided for could not be completed, is aimed at ensuring that the entitlement to reimbursement of health care costs established by those provisions cannot be made contingent on purely formal requirements.

21

The Court has stated with respect to Article 22 of Regulation No 1408/71, furthermore, that that provision is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States, at the rates in force in the competent State, of costs incurred in connection with treatment provided in another Member State where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the rates applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided (see, inter alia, Vanbraekel, cited above, paragraph 36).

22

The same approach should be adopted with respect to a provision which, like Article 34 of Regulation No 574/72 and as alluded to in paragraph 20 of this judgment, is intended only to introduce an alternative form of reimbursement, to be applied when a person covered by social insurance could obtain only benefits in kind provided directly by the institution of the place of stay on behalf of the competent institution in accordance with Article 22(1)(a)(i) or Article 31 of Regulation No 1408/71.

23

In this case, as stated in paragraph 9 of this judgment, the disputed practice consists of awarding, on the basis of national law, full reimbursement of medical costs incurred by the member during a stay in another Member State, when the amount of those costs does not exceed DEM 200.

24

In those circumstances, it is clear that the fact that that reimbursement is in full suffices to ensure that the reimbursement received by the person covered by social insurance is at least equivalent to, if not higher than, what that person would have received had reimbursement been made in the circumstances provided for in Article 34 of Regulation No 574/72.

25

It follows that that provision does not preclude a practice which, like the disputed practice, ensures full reimbursement of medical costs incurred by the person covered by social insurance.

26

The question whether or not such a practice may be based on the applicable national rules does not fall within the Court’s jurisdiction to assess.

27

It follows from all the foregoing that the answer to the question should be that Article 34 of Regulation No 574/72 is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.

Costs

28

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

On those grounds, the Court (Sixth Chamber) rules as follows:

Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999, is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.

Signatures.

1 – Language of the case: German.