Keywords
Summary

Keywords

1. Social security for migrant workers — Sickness insurance — Entitlement to benefits in the event of a stay outside the competent Member State — Pensioners staying outside their Member State of residence — Provisions applicable — (Council Regulation No 1408/71, Arts 22(1)(a) and 31)

2. Social security for migrant workers — Sickness insurance — Entitlement to benefits in the event of a stay outside the competent Member State — Pensioners staying outside their Member State of residence — Entitlement to benefits in kind — Conditions — (Council Regulation No 1408/71, Art. 31)

3. Social security for migrant workers — Sickness insurance — Entitlement to benefits in the event of a stay outside the competent Member State — Pensioners staying outside their Member State of Residence — Obligation of cooperation on the institution of the place of stay and that of the place of residence — (Art. 10 EC; Council Regulation No 1408/71, Art. 84)

4. Social security for migrant workers — Sickness insurance — Entitlement to benefits in the event of a stay outside the competent Member State — Pensioners staying outside their Member State of residence — Refusal wrongly interposed by the institution of the place of stay — Obligations resulting for the institution of the place of residence — (Council Regulations No 1408/71, Art. 31, and No 574/72, Art. 31)

Summary

1. Pensioners fall within the provisions of Regulation No 1408/71 on "workers" , by virtue of being affiliated to a social security scheme, only if they are not the subject of special provisions laid down regarding them, such as those laid down by Articles 27 to 33 of that regulation. It follows that Article 22(1)(a) of Regulation No 1408/71 does not apply to pensioners staying in a Member State other than their State of residence, and cannot inspire the interpretation of Article 31 of that regulation. An interpretation harmonising the systems established by the above two provisions would disregard the differences in their wording and the fact that the Community legislature thought fit to enact a specific provision for the category of insured persons consisting of pensioners and members of their families. The Community legislature's decision not to model the system applicable to non-working pensioners on that applicable to employed and self-employed persons may be explained by a desire to promote effective mobility of that category of insured persons, taking into account certain characteristics which typify them, such as a potentially greater vulnerability and dependence in health terms and an increased freedom from commitments permitting more frequent stays in other Member States.

see paras 32-35, 38

2. Article 31 of Regulation No 1408/71 governs the entitlement to benefits in kind of pensioners and members of their families where those benefits become necessary during a stay in a Member State other than the State in which they reside. The entitlement conferred by that provision is not subject to the condition that the treatment in question corresponds to an immediate medical necessity or to the condition that the treatment has become necessary because of a sudden illness. Moreover, Article 31 does not provide for a system of authorisation with respect to the provision of the benefits in kind which it guarantees to pensioners and members of their families staying in a Member State other than the State in which they reside. It follows that a Member State cannot make the provision of the benefits in kind guaranteed by Article 31 of Regulation No 1408/71 to pensioners staying in a Member State other than the State in which they reside subject either to any authorisation procedure whatever or to the requirement that the illness which necessitated the treatment in question manifested itself suddenly during that stay, making that treatment immediately necessary.

see paras 26, 40-43, operative part 1-2

3. The provision and funding of the benefits in kind referred to in Article 31 of Regulation No 1408/71 must normally take place in accordance with the provisions of that article in conjunction with Article 36 of that regulation and Article 31 and 93 of Regulation No 574/72. The institutions of the place of stay and the place of residence jointly assume the task of applying those provisions and must, in accordance with Article 10 EC and Article 84 of Regulation No 1408/71, cooperate in order to ensure that those provisions are applied correctly and, consequently, that the rights conferred on pensioners and members of their families by Article 31 of Regulation No 1408/71 with a view to facilitating the freedom of movement of those insured persons are fully respected. It follows that, where the institution of the place of residence receives from the institution of the place of stay a request to issue a Form E 112 even though it has previously issued its insured person with a Form E 111, it must ascertain whether the apparent refusal to provide the benefits in kind under Article 31 of Regulation No 1408/71 is well founded. If it is persuaded that that is not the case, it must inform the institution of the place of stay of this, and the latter is obliged to reconsider whether its position is well founded, and if necessary to modify it.

see paras 51-52, operative part 3

4. A refusal by the institution of the place of stay to apply Article 31 of Regulation No 1408/71 and its requirement for production of a Form E 112 cannot be equated to a failure to carry out a formality provided for in Article 31 of Regulation No 574/72, so that the provisions of Article 34 of the latter regulation do not apply in such a case. In the presence of such a refusal and such a requirement, it is for the competent institution of the place of residence which has previously issued its insured person with a Form E 111 to contribute to facilitating the correct application of Article 31 of Regulation No 1408/71. Accordingly, where it appears that the institution of the place of stay has wrongly refused to give effect to that provision and the institution of the place of residence, on being advised of that refusal, has declined to contribute, as it is obliged to, to facilitating the correct application of that provision, it is for the latter institution, without prejudice to the possible liability of the institution of the place of stay, to reimburse directly to the insured person the cost of the treatment he has to bear, so as to guarantee him a level of funding equivalent to that which he would have enjoyed had the provisions of that article been complied with. Moreover, as such reimbursement takes the place in such a case of the benefits in kind which Article 31 of Regulation No 1408/71 guarantees to pensioners, a Member State cannot make the reimbursement conditional on any authorisation procedure, or on the requirement that the illness which necessitated the treatment in question manifested itself suddenly during the stay in another Member State, making the provision of that treatment immediately necessary.

see paras 59-62, operative part 4-5