{ "attribution": { "source": "legal.exploreworldai.com", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-145-03", "cite_as": "NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-145-03)", "license": "https://legal.exploreworldai.com/revision", "version": "legal-2026-10-13", "fingerprint": "ewai:eu:a03983", "proof": "sha256:058b4e349807beaa796dae83a36dca2f12aa3e0eee7765def2b94dd091c96aca", "jurisdiction": "eu", "lang": "en", "publisher": "NovaCopilot by ExploreWorld Legal", "terms": "https://legal.exploreworldai.com/om" }, "brand_source": "Source: NovaCopilot", "item": { "schema_version": "1.0.0", "id": "eu:c-145-03", "jurisdiction": "eu", "lang": "en", "brand_source": "Source: NovaCopilot", "brand": { "product": "NovaCopilot", "platform": "ExploreWorldAI", "infrastructure": "ExploreWorld Legal", "infrastructure_url": "legal.exploreworldai.com", "legal_entity": "Valkiv Ventures AB", "permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "Case C-145/03", "paragraphs": [] }, { "title": "Heirs of Annette Keller", "paragraphs": [ "para_3" ] }, { "title": "Instituto Nacional de la Seguridad Social (INSS)", "paragraphs": [ "para_5" ] }, { "title": "Instituto Nacional de Gestión Sanitaria (Ingesa)", "paragraphs": [] }, { "title": "(Reference for a preliminary ruling from the Juzgado de lo Social nº 20 de Madrid)", "paragraphs": [ "para_8" ] }, { "title": "Opinion of Advocate General Geelhoed delivered on 13 January 2005", "paragraphs": [ "para_10" ] }, { "title": "Summary of the Judgment", "paragraphs": [ "para_12" ] }, { "title": "(Art. 234 EC; Statute of the Court of Justice, Art. 23)", "paragraphs": [ "para_14" ] }, { "title": "(Art. 234 EC)", "paragraphs": [ "para_16" ] }, { "title": "(Council Regulations Nos 1408/71 and 574/72)", "paragraphs": [ "para_18" ] }, { "title": "(Council Regulation No 1408/71, Art. 22(1)(a)(i) and (c)(i))", "paragraphs": [ "para_20" ] }, { "title": "(Council Regulation No 1408/71, Art. 22(1)(c)(i))", "paragraphs": [ "para_22" ] }, { "title": "(Council Regulation No 1408/71, Arts 22(1)(a)(i) and (c)(i) and 36)", "paragraphs": [ "para_24", "para_25" ] }, { "title": "(see paras 29-30)", "paragraphs": [ "para_27" ] }, { "title": "(see para. 33)", "paragraphs": [ "para_29" ] }, { "title": "(see para. 38)", "paragraphs": [ "para_31", "para_32" ] }, { "title": "(see paras 50, 53-54, 56-57, 63, operative part 1)", "paragraphs": [ "para_34" ] }, { "title": "(see paras 60, 63, operative part 1)", "paragraphs": [ "para_36", "para_37" ] }, { "title": "(see paras 67, 69-70, operative part 2)", "paragraphs": [] }, { "title": "JUDGMENT OF THE COURT (Grand Chamber)", "paragraphs": [] }, { "title": "12 April 2005 ( * )", "paragraphs": [ "para_41", "para_42", "para_43" ] }, { "title": "Heirs of Annette Keller", "paragraphs": [ "para_45", "para_46", "para_47", "para_48", "para_49", "para_50", "para_51", "para_52", "para_53", "para_54", "para_55", "para_56", "para_57", "para_58", "para_59", "para_60", "para_61" ] }, { "title": "Judgment", "paragraphs": [ "para_63", "para_64" ] }, { "title": "Legal context", "paragraphs": [] }, { "title": "Community legislation", "paragraphs": [ "para_67", "para_68", "para_69", "para_70", "para_71", "para_72", "para_73", "para_74", "para_75", "para_76", "para_77", "para_78", "para_79" ] }, { "title": "2. …", "paragraphs": [ "para_81" ] }, { "title": "6 Article 36 of Regulation No 1408/71 provides:", "paragraphs": [ "para_83", "para_84", "para_85", "para_86" ] }, { "title": "7 Article 22 of Regulation No 574/72 lays down in paragraphs 1 and 3:", "paragraphs": [ "para_88", "para_89", "para_90", "para_91" ] }, { "title": "Spanish legislation", "paragraphs": [ "para_93", "para_94", "para_95", "para_96", "para_97" ] }, { "title": "German legislation", "paragraphs": [ "para_99", "para_100" ] }, { "title": "The main proceedings and the questions referred for a preliminary ruling", "paragraphs": [ "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108", "para_109", "para_110", "para_111", "para_112", "para_113", "para_114", "para_115", "para_116", "para_117", "para_118", "para_119" ] }, { "title": "The questions referred for a preliminary ruling", "paragraphs": [] }, { "title": "Admissibility", "paragraphs": [ "para_122", "para_123", "para_124", "para_125", "para_126", "para_127", "para_128", "para_129", "para_130", "para_131", "para_132", "para_133", "para_134" ] }, { "title": "Substance", "paragraphs": [] }, { "title": "Preliminary considerations", "paragraphs": [ "para_137", "para_138" ] }, { "title": "The first question", "paragraphs": [ "para_140", "para_141", "para_142", "para_143", "para_144", "para_145", "para_146", "para_147", "para_148", "para_149", "para_150", "para_151", "para_152", "para_153", "para_154", "para_155", "para_156", "para_157", "para_158", "para_159" ] }, { "title": "63 In the light of the foregoing, the first question should be answered as follows:", "paragraphs": [ "para_161", "para_162" ] }, { "title": "The second question", "paragraphs": [ "para_164", "para_165", "para_166", "para_167", "para_168", "para_169" ] }, { "title": "70 In the light of the foregoing, the answer to the second question should be:", "paragraphs": [ "para_171", "para_172", "para_173" ] }, { "title": "Costs", "paragraphs": [ "para_175" ] }, { "title": "On those grounds, the Court (Grand Chamber) rules as follows:", "paragraphs": [ "para_177", "para_178", "para_179", "para_180", "para_181", "para_182" ] } ], "paragraphs": [ { "text": "Case C-145/03", "paragraph_id": "para_1" }, { "text": "Heirs of Annette Keller", "paragraph_id": "para_2" }, { "text": "v", "paragraph_id": "para_3" }, { "text": "Instituto Nacional de la Seguridad Social (INSS)", "paragraph_id": "para_4" }, { "text": "and", "paragraph_id": "para_5" }, { "text": "Instituto Nacional de Gestión Sanitaria (Ingesa)", "paragraph_id": "para_6" }, { "text": "(Reference for a preliminary ruling from the Juzgado de lo Social nº 20 de Madrid)", "paragraph_id": "para_7" }, { "text": "(Social security — Articles 3 and 22 of Regulation No 1408/71 — Article 22 of Regulation No 574/72 — Hospital treatment in a Member State other than the competent Member State — Need for urgent treatment of vital importance — Transfer of the insured person to a hospital institution in a non-member country — Scope of forms E 111 and E 112)", "paragraph_id": "para_8" }, { "text": "Opinion of Advocate General Geelhoed delivered on 13 January 2005", "paragraph_id": "para_9" }, { "text": "Judgment of the Court (Grand Chamber), 12 April 2005.", "paragraph_id": "para_10" }, { "text": "Summary of the Judgment", "paragraph_id": "para_11" }, { "text": "1. Preliminary rulings — Admissibility — Need to provide the Court with sufficient information on the factual and legislative\n context", "paragraph_id": "para_12" }, { "text": "(Art. 234 EC; Statute of the Court of Justice, Art. 23)", "paragraph_id": "para_13" }, { "text": "2. Preliminary rulings — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Determination and assessment\n of the facts of the dispute — Need for a preliminary ruling and relevance of the questions raised — Assessment by the national\n court", "paragraph_id": "para_14" }, { "text": "(Art. 234 EC)", "paragraph_id": "para_15" }, { "text": "3. Social security for migrant workers — Community legislation — Scope — Treatment provided outside Community territory — No\n effect — Criterion of applicability — Person concerned affiliated to a social security scheme of a Member State", "paragraph_id": "para_16" }, { "text": "(Council Regulations Nos 1408/71 and 574/72)", "paragraph_id": "para_17" }, { "text": "4. Social security for migrant workers –– Sickness insurance — Worker staying in a Member State other than the competent State\n — Issue by the competent institution of a Form E 111 or E 112 — Compulsory recognition, except in the case of abuse, of the\n medical findings and decisions of doctors authorised by the institution of the Member State of stay concerning urgent treatment", "paragraph_id": "para_18" }, { "text": "(Council Regulation No 1408/71, Art. 22(1)(a)(i) and (c)(i))", "paragraph_id": "para_19" }, { "text": "5. Social security for migrant workers — Sickness insurance — Worker staying in a Member State other than the competent State\n — Issue by the competent institution of a Form E 111 or E 112 — Medical findings of doctors authorised by the institution\n of the Member State of stay showing that treatment …", "paragraph_id": "para_20" }, { "text": "(Council Regulation No 1408/71, Art. 22(1)(c)(i))", "paragraph_id": "para_21" }, { "text": "6. Social security for migrant workers — Sickness insurance — Worker staying in a Member State other than the competent State\n — Issue by the competent institution of a Form E 111 or E 112 — Medical findings of doctors authorised by the institution\n of the Member State of stay showing that treatment …", "paragraph_id": "para_22" }, { "text": "(Council Regulation No 1408/71, Arts 22(1)(a)(i) and (c)(i) and 36)", "paragraph_id": "para_23" }, { "text": "1. The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that\n the national court should define the factual and legislative context of the questions it is asking or, at the very least,\n explain the factual circumstances on which those questions are based.", "paragraph_id": "para_24" }, { "text": "The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments\n of the Member States and the interested parties the opportunity to submit observations pursuant to Article 23 of the Statute\n of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under\n that provision only the orders for reference are notified to the interested parties.", "paragraph_id": "para_25" }, { "text": "(see paras 29-30)", "paragraph_id": "para_26" }, { "text": "2. In proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the\n Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for\n the national court before which the dispute has be …", "paragraph_id": "para_27" }, { "text": "(see para. 33)", "paragraph_id": "para_28" }, { "text": "3. The mere fact that medical treatment was given outside Community territory is not enough to exclude the application of Regulations\n Nos 1408/71 and 574/72, as amended and updated by Regulation No 2001/83, since the decisive criterion for their applicability\n is that the insured person concerned is affiliated to a social security scheme of a Member State.", "paragraph_id": "para_29" }, { "text": "(see para. 38)", "paragraph_id": "para_30" }, { "text": "4. Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71 and Article 22(1) and (3) of Regulation No 574/72, both as amended\n and updated by Regulation No 2001/83, must be interpreted as meaning that, where the competent institution has consented,\n by issuing a Form E 111 or Form E 112, to one of i …", "paragraph_id": "para_31" }, { "text": "In such circumstances, the competent institution is not entitled to require the person concerned to return to the competent\n Member State for a medical examination there or have him examined in the Member State of stay, nor to subject the above findings\n and decisions to its approval.", "paragraph_id": "para_32" }, { "text": "(see paras 50, 53-54, 56-57, 63, operative part 1)", "paragraph_id": "para_33" }, { "text": "5. Where it turns out, in the course of the medical treatment undergone by an insured person in the territory of a Member State\n other than the competent Member State which he has been authorised by the competent institution to go to for medical purposes,\n that the pathology with which he is diagnos …", "paragraph_id": "para_34" }, { "text": "(see paras 60, 63, operative part 1)", "paragraph_id": "para_35" }, { "text": "6. Where doctors authorised by the institution of the Member State of stay have for reasons of vital urgency and in the light\n of current medical knowledge chosen to transfer the insured person to a hospital establishment in a non-member country, Article\n 22(1)(a)(i) and (c)(i) of Regulation No 1408 …", "paragraph_id": "para_36" }, { "text": "Where the cost of the treatment provided in an establishment in a non-member country has not been assumed by the institution\n of the Member State of stay, but it is established that the person concerned would have been entitled to have the cost borne\n and the treatment is among the benefits provided …", "paragraph_id": "para_37" }, { "text": "(see paras 67, 69-70, operative part 2)", "paragraph_id": "para_38" }, { "text": "JUDGMENT OF THE COURT (Grand Chamber)", "paragraph_id": "para_39" }, { "text": "12 April 2005 ( * )", "paragraph_id": "para_40" }, { "text": "(Social security – Articles 3 and 22 of Regulation No 1408/71 – Article 22 of Regulation No 574/72 – Hospital treatment in a Member State other than the competent Member State – Need for vital urgent treatment – Transfer of the insured person to a hospital institution in a non-member country – Scope of forms E 111 and E 112)", "paragraph_id": "para_41" }, { "text": "In Case C‑145/03,", "paragraph_id": "para_42" }, { "text": "REFERENCE for a preliminary ruling under Article 234 EC, made by the Juzgado de lo Social n° 20 de Madrid (Spain), by decision\n of 6 November 2001, received at the Court on 31 March 2003, in the proceedings", "paragraph_id": "para_43" }, { "text": "Heirs of Annette Keller", "paragraph_id": "para_44" }, { "text": "v", "paragraph_id": "para_45" }, { "text": "Instituto Nacional de la Seguridad Social (INSS),", "paragraph_id": "para_46" }, { "text": "Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud),", "paragraph_id": "para_47" }, { "text": "THE COURT (Grand Chamber),", "paragraph_id": "para_48" }, { "text": "composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R. Silva de Lapuerta, K. Lenaerts (Rapporteur) and\n A. Borg Barthet, Presidents of Chambers, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, E. Juhász, G. Arestis and M. Ilešič,\n Judges,", "paragraph_id": "para_49" }, { "text": "Advocate General: L.A. Geelhoed,", "paragraph_id": "para_50" }, { "text": "Registrar: H. von Holstein, Deputy Registrar,", "paragraph_id": "para_51" }, { "text": "having regard to the written procedure and further to the hearing on 9 November 2004,", "paragraph_id": "para_52" }, { "text": "after considering the observations submitted on behalf of:", "paragraph_id": "para_53" }, { "text": "– the heirs of Annette Keller, by C. Fernández Álvarez and A. Pedrajas Moreno, abogados,", "paragraph_id": "para_54" }, { "text": "– Instituto Nacional de Gestión Sanitaria (Ingesa) and Instituto Nacional de la Seguridad Social (INSS), by A.R. Trillo García,\n A. Llorente Álvarez and F. Sánchez-Toril y Riballo, abogados,", "paragraph_id": "para_55" }, { "text": "– the Belgian Government, by A. Snoecx and E. Dominkovits, acting as Agents,", "paragraph_id": "para_56" }, { "text": "– the Spanish Government, by E. Braquehais Conesa, acting as Agent,", "paragraph_id": "para_57" }, { "text": "– the Netherlands Government, by H. Sevenster, S. Terstal, C. Wissels and N. Bel, acting as Agents,", "paragraph_id": "para_58" }, { "text": "– the Commission of the European Communities, by H. Michard, I. Martínez del Peral and D. Martin, acting as Agents,", "paragraph_id": "para_59" }, { "text": "after hearing the Opinion of the Advocate General at the sitting on 13 January 2005,", "paragraph_id": "para_60" }, { "text": "gives the following", "paragraph_id": "para_61" }, { "text": "Judgment", "paragraph_id": "para_62" }, { "text": "1 This reference for a preliminary ruling concerns the interpretation of Articles 3, 19 and 22 of Council Regulation (EEC) No\n 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to\n members of their families moving within the Commu …", "paragraph_id": "para_63" }, { "text": "2 The reference was made in the course of proceedings between the heirs of Ms Keller, who succeeded her in the course of the\n main proceedings, and Instituto Nacional de la Seguridad Social (INSS) and Instituto Nacional de Gestión Sanitaria (Ingesa)\n (‘the defendants in the main proceedings’). The d …", "paragraph_id": "para_64" }, { "text": "Legal context", "paragraph_id": "para_65" }, { "text": "Community legislation", "paragraph_id": "para_66" }, { "text": "3 Under Article 3(1) of Regulation No 1408/71, ‘[s]ubject to the special provisions of this Regulation, persons resident in\n the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy\n the same benefits under the legislation of any Member State as the nationals of the State’.", "paragraph_id": "para_67" }, { "text": "4 Article 19 of that regulation, entitled ‘Residence in a Member State other than the competent State – General rules’, states:", "paragraph_id": "para_68" }, { "text": "‘1. An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies\n the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of\n the provisions of Article 18, shall receive in the State in which he is resident:", "paragraph_id": "para_69" }, { "text": "(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance\n with the provisions of the legislation administered by that institution as though he were insured with it;", "paragraph_id": "para_70" }, { "text": "…’", "paragraph_id": "para_71" }, { "text": "5 Article 22 of Regulation No 1408/71, entitled ‘Stay outside the competent State – Return to or transfer of residence to another\n Member State during sickness or maternity – Need to go to another Member State in order to receive appropriate treatment’,\n lays down in paragraphs 1 and 2:", "paragraph_id": "para_72" }, { "text": "‘1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement\n to benefits, taking account where appropriate of the provisions of Article 18, and:", "paragraph_id": "para_73" }, { "text": "(a) whose condition necessitates immediate benefits during a stay in the territory of another Member State; or", "paragraph_id": "para_74" }, { "text": "…", "paragraph_id": "para_75" }, { "text": "(c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment\n appropriate to his condition,", "paragraph_id": "para_76" }, { "text": "shall be entitled:", "paragraph_id": "para_77" }, { "text": "(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay … in accordance\n with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during\n which benefits are provided shall be governed, however, by the legislation of the competent State;", "paragraph_id": "para_78" }, { "text": "…", "paragraph_id": "para_79" }, { "text": "2. …", "paragraph_id": "para_80" }, { "text": "The authorisation required under paragraph 1(c) may not be refused where the treatment in question is among the benefits provided\n for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such\n treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking\n account of his current state of health and the probable course of the disease.’", "paragraph_id": "para_81" }, { "text": "6 Article 36 of Regulation No 1408/71 provides:", "paragraph_id": "para_82" }, { "text": "‘1. Without prejudice to the provisions of Article 32, benefits in kind provided in accordance with the provisions of this chapter\n by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.", "paragraph_id": "para_83" }, { "text": "2. The refunds referred to in paragraph 1 shall be determined and made in accordance with the procedure provided for by the implementing\n Regulation referred to in Article 98, either on production of proof of actual expenditure or on the basis of lump-sum payments.", "paragraph_id": "para_84" }, { "text": "In the latter case, the lump-sum payments shall be such as to ensure that the refund is as close as possible to actual expenditure.", "paragraph_id": "para_85" }, { "text": "3. Two or more Member States, or the competent authorities of those States, may provide for other methods of reimbursement or\n may waive all reimbursement between institutions under their jurisdiction.’", "paragraph_id": "para_86" }, { "text": "7 Article 22 of Regulation No 574/72 lays down in paragraphs 1 and 3:", "paragraph_id": "para_87" }, { "text": "‘1. In order to receive benefits in kind under Article 22(1)(b)(i) of [Regulation No 1408/71], an employed or self-employed person\n shall submit to the institution of the place of residence a certified statement testifying that he is entitled to continue\n receiving the said benefits. The certified s …", "paragraph_id": "para_88" }, { "text": "…", "paragraph_id": "para_89" }, { "text": "3. Paragraphs 1 and 2 shall apply by analogy in respect of the provisions of benefits in kind in the case referred to in Article\n 22(1)(c)(i) of the Regulation.’", "paragraph_id": "para_90" }, { "text": "8 As is apparent from Decision No 153 (94/604/EC) of the Administrative Commission of the European Communities on social security\n for migrant workers of 7 October 1993 on the model forms necessary for the application of Regulations (EEC) No 1408/71 and\n (EEC) No 574/72 (E 001, E 103 to E 127) (OJ 1 …", "paragraph_id": "para_91" }, { "text": "Spanish legislation", "paragraph_id": "para_92" }, { "text": "9 In the version in force at the material time, Article 102(3) of the Ley General de la Seguridad Social (General Law on Social\n Security) provided that ‘[t]he institutions responsible for providing medical treatment shall not be responsible for costs\n which may be incurred where the beneficiary has recourse to medical institutions other than those proposed to him, except\n in cases provided for by the legislation’.", "paragraph_id": "para_93" }, { "text": "10 Paragraphs 1 and 4 of Article 18, headed ‘Medical treatment provided by institutions outside the social security system’,\n of Decree No 2766/67 of 16 November 1967, as amended by Decree No 2575/73 of 14 September 1973 (‘Decree No 2766/67’), provide:", "paragraph_id": "para_94" }, { "text": "‘1. Where the beneficiary, on his own initiative or that of a member of his family, has recourse to institutions other than those\n made available to him, the institutions responsible for providing medical treatment shall not assume responsibility for costs\n which may have been incurred, except in the cases provided for in paragraphs 3 and 4 of this article.", "paragraph_id": "para_95" }, { "text": "…", "paragraph_id": "para_96" }, { "text": "4. Where recourse to medical institutions other than those made available by the social security system is the result of the\n need for vital urgent treatment, the beneficiary may make to the institution responsible for providing him with medical care\n a request for reimbursement of the costs incurred, which will be granted if it is established, in the light of the results\n of the investigation carried out in that respect, that reimbursement is justified.’", "paragraph_id": "para_97" }, { "text": "German legislation", "paragraph_id": "para_98" }, { "text": "11 Paragraph 18(1) of Book V of the Sozialgesetzbuch – Gesetzliche Krankenversicherung (Code of Social Security – Statutory sickness\n insurance), in the version in force at the material time, provided:", "paragraph_id": "para_99" }, { "text": "‘If treatment of an illness in accordance with the generally recognised state of medical knowledge is only possible abroad,\n the sickness fund may assume responsibility for all or part of the costs of the necessary treatment …’", "paragraph_id": "para_100" }, { "text": "The main proceedings and the questions referred for a preliminary ruling", "paragraph_id": "para_101" }, { "text": "12 Ms Keller, of German nationality, was resident in Spain at the material time, and was affiliated to that Member State’s general\n social security scheme.", "paragraph_id": "para_102" }, { "text": "13 As she intended to go to Germany for family reasons, Ms Keller asked Insalud to issue a Form E 111, which was given to her\n before departure, for the period from 15 September to 15 October 1994.", "paragraph_id": "para_103" }, { "text": "14 During that stay, Ms Keller was admitted to the Gummersbach District Hospital (Germany), which is attached to the Cologne\n University Clinic. She was then diagnosed with a malignant tumour of the nose, the nasal cavity, the eye socket and the base\n of the skull, with ramification in the intercranial space, sufficiently serious to be likely to cause the patient’s death\n at any time.", "paragraph_id": "para_104" }, { "text": "15 Wishing to be able to continue receiving in Germany the medical treatment necessitated by the condition affecting her, Ms\n Keller requested Insalud to issue a Form E 112. As appears from an internal memorandum of that body of 23 February 1995, that\n form was issued to her, on the ground that in v …", "paragraph_id": "para_105" }, { "text": "16 Following numerous examinations and a thorough analysis of the various possibilities of treatment available, the doctors of\n the Cologne University Clinic considered that, in view of its extremely delicate nature and the special expertise it required,\n the surgical operation which was immediately …", "paragraph_id": "para_106" }, { "text": "17 The doctors of the Cologne University Clinic thereupon transferred Ms Keller to the Zurich University Clinic, where during\n a stay in hospital from 10 to 25 November 1994 she underwent surgery, the results of which were considered satisfactory. Following\n that operation Ms Keller had to undergo radiotherapy from 15 December 1994 to 22 February 1995. The total cost of the treatment\n amounted to CHF 87 030 and was paid in full by Ms Keller.", "paragraph_id": "para_107" }, { "text": "18 On 26 April 1995 Ms Keller sought reimbursement of that sum from Insalud.", "paragraph_id": "para_108" }, { "text": "19 Her application was refused by a decision of Insalud of 10 August 1995. In reliance on Article 102 of the Ley General de la\n Seguridad Social and Article 18(1) of Decree No 2766/67, Insalud stated, in support of its decision, that reimbursement of\n the costs of medical treatment provided in a non-member country required express prior authorisation on its part.", "paragraph_id": "para_109" }, { "text": "20 Ms Keller’s objection against that decision was rejected by Insalud on 7 December 1995.", "paragraph_id": "para_110" }, { "text": "21 On 3 May 1999 Ms Keller again applied for reimbursement of the costs of her hospital treatment in Switzerland. That application\n was refused by a decision of the health inspectorate of Insalud of 26 July 1999, on the ground that ‘… although the illness\n was serious, it did not have the character …", "paragraph_id": "para_111" }, { "text": "22 Ms Keller brought proceedings against that decision in the Juzgado de lo Social n° 20 de Madrid (Social Court No 20, Madrid).\n Following an application by Insalud of 2 November 2000, the action was extended to Instituto Nacional de la Seguridad Social,\n on the ground that that institution would have to reimburse the costs at issue in the main proceedings if the action were\n successful.", "paragraph_id": "para_112" }, { "text": "23 Ms Keller died on 30 October 2001. Her heirs carried on the main proceedings.", "paragraph_id": "para_113" }, { "text": "24 The Juzgado de lo Social n° 20 de Madrid is uncertain, first, as to whether the competent Spanish institution is bound by\n the diagnosis and choice of treatment of the doctors authorised by the German institution concerned.", "paragraph_id": "para_114" }, { "text": "25 That court is uncertain, second, whether, having regard to the principle of equal treatment set out in Articles 3, 19 and\n 22 of Regulation No 1408/71, there is an obligation to reimburse the costs of Ms Keller’s hospital treatment in the Zurich\n University Clinic, in view of the fact that it was …", "paragraph_id": "para_115" }, { "text": "26 In this respect, the national court refers to two certificates issued in the year 2000 by AOK Rheinland, to which Ms Keller\n was affiliated as from 15 March 1996. The first certificate, dated 4 May 2000 and included in the case-file, shows that the\n costs of the operation and the post-operative t …", "paragraph_id": "para_116" }, { "text": "27 In those circumstances, the Juzgado de lo Social n° 20 de Madrid decided to stay the proceedings and to refer the following\n questions to the Court for a preliminary ruling:", "paragraph_id": "para_117" }, { "text": "‘1. Are Form E 111 and in particular Form E 112, the issue of which is provided for in Articles 22(1)(c) of Regulation No 1408/71\n and Article 22(1) and (3) of Regulation No 574/72, binding on the competent institution which issues them (in this case the\n Spanish social security) as regards the diag …", "paragraph_id": "para_118" }, { "text": "2. Is the principle of equal treatment laid down in Article 3 of Regulation No 408/71, which provides that workers are to “...\n enjoy the same benefits under the legislation of any Member State as the nationals of that State”, in conjunction with Articles\n 19(1)(a) and 22(1)(i) of that regulation, w …", "paragraph_id": "para_119" }, { "text": "The questions referred for a preliminary ruling", "paragraph_id": "para_120" }, { "text": "Admissibility", "paragraph_id": "para_121" }, { "text": "28 First, the defendants in the main proceedings point to contradictions in the order for reference between the account of the\n facts in the order and the wording of the first question. They submit that those contradictions make it difficult to understand\n that question and consequently make it less easy to draft relevant written observations and less easy for the Court to provide\n the national court with an answer which will be of use to it.", "paragraph_id": "para_122" }, { "text": "29 On this point, it must be recalled that, according to settled case-law, the need to provide an interpretation of Community\n law which will be of use to the national court makes it necessary that the national court should define the factual and legislative\n context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are\n based (see, inter alia, Case C‑72/03 Carbonati Apuani [2004] ECR I‑0000, paragraph 10).", "paragraph_id": "para_123" }, { "text": "30 The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments\n of the Member States and the interested parties the opportunity to submit observations pursuant to Article 23 of the Statute\n of the Court of Justice. It is the Co …", "paragraph_id": "para_124" }, { "text": "31 In the present case, the order for reference makes it possible – as is shown by the content of the observations submitted\n by the parties to the main proceedings and the Governments of the Member States – to assess the relevance and the scope of\n the national court’s first question. By that quest …", "paragraph_id": "para_125" }, { "text": "32 Second, the Spanish Government submits that, contrary to what is stated in the order for reference, Ms Keller’s admission\n to the Zurich University Clinic resulted not from a decision to transfer her taken by the doctors of the Cologne University\n Clinic but from a personal initiative on the part …", "paragraph_id": "para_126" }, { "text": "33 In this regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions\n between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national\n court. Similarly, it is solely for the nat …", "paragraph_id": "para_127" }, { "text": "34 In the present case, as is apparent from the account of the facts in the order for reference, the national court considered\n that Ms Keller’s admission to the Zurich University Clinic followed from a decision of the doctors of the Cologne University\n Clinic taken after several examinations and a …", "paragraph_id": "para_128" }, { "text": "35 As to the statement by Ms Keller produced by the Spanish Government in support of its assertions, in which she confirmed that\n she was leaving the Gummersbach Hospital voluntarily, on her own initiative and against the advice of the German doctors,\n it relates not to her departure for Switzerland …", "paragraph_id": "para_129" }, { "text": "36 The Spanish Government’s argument that the request for a preliminary ruling is purely hypothetical must therefore be rejected.", "paragraph_id": "para_130" }, { "text": "37 Third, the defendants in the main proceedings and the Spanish Government submit that Regulations No 1408/71 and No 574/72\n cannot apply to the present case because the medical treatment at issue in the main proceedings was provided in Switzerland.\n The outcome of the main proceedings does not therefore depend on the interpretation of Community law, but is a matter exclusively\n for national law.", "paragraph_id": "para_131" }, { "text": "38 It must be observed on this point, however, that the mere fact that the treatment was given outside Community territory is\n not enough to exclude the application of those regulations, since the decisive criterion for their applicability is that the\n insured person concerned is affiliated to a soc …", "paragraph_id": "para_132" }, { "text": "39 In the present case, Ms Keller was affiliated at the material time to the Spanish social security scheme and was the holder\n of forms issued by Insalud under Article 22 of Regulation No 1408/71. The applicability in the main proceedings of Regulations\n Nos 1408/71 and 574/72 is therefore beyond doubt.", "paragraph_id": "para_133" }, { "text": "40 Whether the issue of a Form E 111 or E 112 by the competent institution means that that institution is required to bear the\n costs of medical treatment provided to the insured person in a non-member country depends on the proper interpretation of\n the provisions of Community law which are the subject of the questions referred by the national court.", "paragraph_id": "para_134" }, { "text": "Substance", "paragraph_id": "para_135" }, { "text": "Preliminary considerations", "paragraph_id": "para_136" }, { "text": "41 The context of the questions which have been referred is national legislation under which the insured person is entitled to\n reimbursement of the costs of medical treatment received, without prior consultation of bodies within the national health\n system, from bodies outside that system, where it is shown that that treatment met an urgent vital need.", "paragraph_id": "para_137" }, { "text": "42 Before answering the questions, it should be observed that, although the order for reference refers to the institution of\n the ‘place of residence’ to designate the German social security institution and the doctors authorised by that institution,\n it is common ground that at the material time Ms …", "paragraph_id": "para_138" }, { "text": "The first question", "paragraph_id": "para_139" }, { "text": "43 By its first question, the national court essentially asks whether the issue by the competent institution of a Form E 111,\n necessary for the application of Article 22(1)(a)(i) of Regulation No 1408/71, or a Form E 112, necessary for the application\n of Article 22(1)(c)(i) of that regulation, mea …", "paragraph_id": "para_140" }, { "text": "44 To answer that question, reference should be made, as the Advocate General suggests in points 15 to 17 of his Opinion, to\n the objective pursued by Article 22 of Regulation No 1408/71 and the function of Forms E 111 and E 112 in the system established\n by that article.", "paragraph_id": "para_141" }, { "text": "45 In the context of the general objectives of the EC Treaty, Article 22 of Regulation No 1408/71 is one of a number of measures\n designed to allow a worker from one Member State to enjoy, under the conditions which it specifies, benefits in kind in the\n other Member States, whatever the national institution to which he is affiliated and whatever the place of his residence (Case\n C‑156/01 Van der Duin and ANOZ Zorgverzekeringen [2003] ECR I‑7045, paragraph 50).", "paragraph_id": "para_142" }, { "text": "46 By guaranteeing that a person covered by social insurance under the legislation of one Member State whose state of health\n makes medical services immediately necessary during a stay in another Member State, or who has been authorised by the competent\n institution to go to another Member State to …", "paragraph_id": "para_143" }, { "text": "47 As the Netherlands Government observes in its written observations, the achievement of the objective pursued by Article 22(1)(a)(i)\n and (c)(i) of Regulation No 1408/71 is based on a sharing of responsibilities between the competent institution and the institution\n of the Member State of stay.", "paragraph_id": "para_144" }, { "text": "48 The very wording of Article 22 of Regulation No 1408/71 shows, on the one hand, that it is for the competent institution to\n decide, in the case covered by paragraph 1(c) of that article, on the grant of authorisation for the insured person to go\n to another Member State for medical purposes, to …", "paragraph_id": "para_145" }, { "text": "49 In this context, Forms E 111 and E 112 are intended to assure the institution of the Member State of stay and the doctors\n authorised by that institution that the holders of those forms are entitled to receive in that Member State, during the period\n specified in the form, treatment whose cost will be borne by the competent institution.", "paragraph_id": "para_146" }, { "text": "50 It follows from that rule of sharing of responsibilities, in correlation with the Community measures relating to the mutual\n recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of medicine (see, in\n this respect, Case C‑120/95 Decker [1998] ECR I …", "paragraph_id": "para_147" }, { "text": "51 In the case referred to in Article 22(1)(a) of Regulation No 1408/71, the doctors established in the Member State of stay\n are clearly best placed to assess the state of health of the person concerned and the immediate treatment required by that\n state. In the case provided for in Article 22(1)(c …", "paragraph_id": "para_148" }, { "text": "52 It must be recalled in this respect that, as the Court has held in the field of the freedom to provide services, doctors established\n in other Member States must be regarded as providing the same guarantees of professional competence as doctors established\n within the country (see Kohll , paragraph 48).", "paragraph_id": "para_149" }, { "text": "53 Accordingly, where the competent institution, by issuing a Form E 111 or Form E 112, has agreed that one of its insured persons\n is to receive medical treatment outside the competent Member State, it is bound by the findings relating to the need for urgent\n vital treatment made by the doctors aut …", "paragraph_id": "para_150" }, { "text": "54 Similarly, the competent institution is bound by the choice of treatment made by those doctors on the basis of their findings\n and in accordance with the current state of medical knowledge, including where that choice is to transfer the person concerned\n to another State to be given the urgent treatment necessitated by his condition which it is not possible for the doctors in\n the Member State of stay to provide.", "paragraph_id": "para_151" }, { "text": "55 As the Advocate General observes in point 23 of his Opinion, it is of no importance for determining whether the competent\n institution is bound by such findings and decisions that the State to which those doctors have decided to transfer the patient\n is not a member of the European Union, since t …", "paragraph_id": "para_152" }, { "text": "56 In those circumstances, and as the defendants in the main proceedings themselves conceded in their written observations, the\n person concerned, covered by a Form E 111 or E 112, cannot be required to return to the competent Member State to undergo\n a medical examination there, when doctors authorised by the institution of the Member State of stay consider that his state\n of health requires urgent vitally necessary treatment (see, to that effect, Rindone , paragraph 21).", "paragraph_id": "para_153" }, { "text": "57 Moreover, it cannot be argued, as the defendants in the main proceedings do, that the findings made and decisions on treatment\n taken by doctors authorised by the institution of the Member State of stay must be subject to the approval of the competent\n institution. Such an argument would amount t …", "paragraph_id": "para_154" }, { "text": "58 It is significant in this respect, as Ms Keller observed in the main proceedings and the Netherlands Government did in its\n written observations, that while, in order to obtain benefits in kind such as the payment of a pension in accordance with\n Article 22(1)(a)(ii) of Regulation No 1408/71, an …", "paragraph_id": "para_155" }, { "text": "59 The Spanish Government submits that, since the authorisation referred to in Article 22(1)(c) of Regulation No 1408/71 is intended\n to allow the person concerned to go to another Member State ‘to receive there’ the treatment appropriate to his condition,\n the right conferred by point (c)(i) of tha …", "paragraph_id": "para_156" }, { "text": "60 However, where it turns out, in the course of the treatment undergone by the insured person in the territory of the Member\n State which he has been authorised by the competent institution to go to for medical purposes, that the condition with which\n he is diagnosed necessitates urgent treatment o …", "paragraph_id": "para_157" }, { "text": "61 The defendants in the main proceedings submit that the objective of planning and organising the provision of hospital care\n would be endangered if insured persons were allowed to have free access to health services in any State, including non-member\n countries.", "paragraph_id": "para_158" }, { "text": "62 While the Court has indeed held that such an objective may be justification for the assumption by the competent institution\n of the costs of hospital treatment received outside the competent Member State being subject to prior authorisation by that\n institution (see Case C‑157/99 Smits and Peerbo …", "paragraph_id": "para_159" }, { "text": "63 In the light of the foregoing, the first question should be answered as follows:", "paragraph_id": "para_160" }, { "text": "– Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71 and Article 22(1) and (3) of Regulation No 574/72 must be interpreted\n as meaning that, where the competent institution has consented, by issuing a Form E 111 or Form E 112, to one of its insured\n persons receiving medical treatment in a Memb …", "paragraph_id": "para_161" }, { "text": "– In such circumstances, the competent institution is not entitled to require the person concerned to return to the competent\n Member State in order to undergo a medical examination there or to have him examined in the Member State of stay, nor to make\n the above findings and decisions subject to its approval.", "paragraph_id": "para_162" }, { "text": "The second question", "paragraph_id": "para_163" }, { "text": "64 By its second question, the national court essentially asks the Court to determine the conditions and arrangements for assumption\n of the costs linked to medical treatment received in a non-member country in circumstances such as those mentioned in the\n preceding paragraph.", "paragraph_id": "para_164" }, { "text": "65 It should be recalled that, according to Article 22(1)(i) of Regulation No 1408/71, an insured person who is in one of the\n situations referred to in points (a) and (c) of that paragraph must in principle, for the period fixed by the competent institution,\n enjoy the benefits in kind provided on …", "paragraph_id": "para_165" }, { "text": "66 The right thus conferred on the insured person consequently means that the cost of the treatment given is initially borne\n by the institution of the Member State of stay, in accordance with the legislation it administers, and the competent institution\n is subsequently to reimburse the institution …", "paragraph_id": "para_166" }, { "text": "67 Where doctors authorised by the institution of the Member State of stay have for reasons of vital urgency and in the light\n of current medical knowledge chosen to transfer the insured person to a hospital establishment in a non-member country, Article\n 22(1)(a)(i) and (c)(i) of Regulation No 1408 …", "paragraph_id": "para_167" }, { "text": "68 As to the argument of the defendants in the main proceedings concerning the need to control social security expenditure, it\n must be observed that the fact that the medical treatment is provided outside the Member State of stay does not put the competent\n institution in a different situation from …", "paragraph_id": "para_168" }, { "text": "69 It should also be added that both the effectiveness and the spirit of the Community provisions at issue require the conclusion\n that, where it is established that the person concerned would have been entitled to have the cost of medical treatment received\n in a non-member country borne by the ins …", "paragraph_id": "para_169" }, { "text": "70 In the light of the foregoing, the answer to the second question should be:", "paragraph_id": "para_170" }, { "text": "– Where doctors authorised by the institution of the Member State of stay have for reasons of vital urgency and in the light\n of current medical knowledge chosen to transfer the insured person to a hospital establishment in a non-member country, Article\n 22(1)(a)(i) and (c)(i) of Regulation No 1408/ …", "paragraph_id": "para_171" }, { "text": "– Where the cost of the treatment provided in an establishment in a non-member country has not been assumed by the institution\n of the Member State of stay, but it is established that the person concerned was entitled to have the cost borne and the treatment\n is among the benefits provided for by th …", "paragraph_id": "para_172" }, { "text": "71 In those circumstances, there is no need to answer the request for a preliminary ruling in so far as it relates to the interpretation\n of Article 3 of Regulation No 1408/71.", "paragraph_id": "para_173" }, { "text": "Costs", "paragraph_id": "para_174" }, { "text": "72 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,\n the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs\n of those parties, are not recoverable.", "paragraph_id": "para_175" }, { "text": "On those grounds, the Court (Grand Chamber) rules as follows:", "paragraph_id": "para_176" }, { "text": "1. Article 22(1)(a)(i) and (c)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security\n schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Article\n 22(1) and (3) of Council Regulation (EEC) No …", "paragraph_id": "para_177" }, { "text": "In such circumstances, the competent institution is not entitled to require the person concerned to return to the competent\n Member State in order to undergo a medical examination there or to have him examined in the Member State of stay, nor to make\n the above findings and decisions subject to its approval.", "paragraph_id": "para_178" }, { "text": "2. 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