Mrs DESCAMPS none the less went ahead with the operation in April 1990. She brought an action against her sickness insurance fund before the Belgian courts for reimbursement of the costs incurred on the basis of the tariffs applied in Belgium (FRF 49 935.44) and not those applied in France (FRF 38 608.89).

In December 1994, a report by a medical expert designated by the Cour du travail de Mons confirmed that the surgery was not currently performed in Belgium and that the restoration of Mrs DESCAMPS's health did indeed necessitate hospital treatment abroad. As Mrs DESCAMPS had died in the course of the proceedings, her heirs, Mr VANBRAEKEL and her children, pursued the action.

The Cour du travail de Mons has asked the Court of Justice of the European Communities whether, once it has been established that hospital treatment in another Member State should have been authorised, reimbursement of the costs of hospital treatment must be made in accordance with the scheme of the State of the competent institution (here the Belgian institution) or in accordance with that organised by the State on whose territory the hospital treatment has taken place (in the present case the French scheme).

Last, the Court has been asked about the rules on assumption of costs to be followed when the authorisation provided for in the Community rules to obtain hospital treatment in another Member State has been obtained, by declaration of a court where appropriate.

The Court recalls that the Community rules established a system which ensures that a person covered by social insurance who is authorised to receive medical benefits in kind in a Member State other than the State in which he is insured enjoys in the Member State in which the treatment is provided conditions as favourable as those enjoyed by insured persons covered by the legislation of that State. The Court therefore considers that the applicable rules on assumption of costs are those applied in the State in which treatment is provided.

The costs of benefits in kind are borne, in principle, by the institutions of the State in which the treatment is provided and are subsequently refunded by the institution with which the person concerned is insured.

The Court rules that where the costs were not assumed owing to an unjustified refusal to grant authorisation by the institution with which the person concerned is insured, the latter institution must guarantee directly to the person concerned reimbursement of an amount equivalent to that which it would ordinarily have assumed if authorisation had been properly granted.

Taking the view that medical activities do indeed fall within the scope of the rules on freedom to provide services, the Court also considers that national legislation must guarantee that an insured person who has been authorised to receive hospital treatment abroad receives a level of payment comparable to that which he would have received if he had received hospital treatment in his own Member State.

In those circumstances, the Court considers that the principle of freedom to provide services defined in the Treaty precludes rules which prevent additional reimbursement corresponding to the difference between the lower tariff of reimbursement of the State of stay in which the hospital treatment was carried out and the more favourable tariff laid down in the social insurance scheme of the State of registration.

Although the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier to the principle of freedom to provide services, in the Court's view there is no reason to consider that payment of the additional reimbursement in question would entail an additional financial burden for the sickness insurance scheme of the State in which the person concerned was originally insured capable of preventing the maintenance of treatment capacity or medical competence on national territory.

Unofficial document for media use only; not binding on the Court of Justice. Available in all languages. For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 15.00 hrs today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731