Case C-173/09

Georgi Ivanov Elchinov

Natsionalna zdravnoosiguritelna kasa

(Reference for a preliminary ruling from the

Administrativen sad Sofia-grad)

(Social security – Freedom to provide services – Sickness insurance – Hospital treatment provided in another Member State – Prior authorisation – Conditions of application of the second subparagraph of Article 22(2) of Regulation (EEC) No 1408/71 – Methods of reimbursement to the insured person of hospital expenses incurred in another Member State – Obligation on a lower court to comply with the directions of a higher court)

Summary of the Judgment

1. European Union law – Primacy – Contrary national law – Benefits in kind provided in another Member State – Automatic inapplicability of existing provisions – Obligation to comply with the directions of a higher court inconsistent with Union law – Not permissible

(Art. 267 TFEU)

2. Social security for migrant workers – Sickness insurance – Benefits in kind provided in another Member State

(Art. 49 EC, Council Regulation No 1408/71, Art. 22(2), second subpara.)

3. Social security for migrant workers – Sickness insurance – Benefits in kind provided in another Member State

(Council Regulation No 1408/71, Arts 22(1)(c)(i, and (2), second subpara.)

4. Social security for migrant workers – Sickness insurance – Benefits in kind provided in another Member State

(Council Regulation No 1408/71, Art. 22(1)(c)(i))

1. It runs counter to European Union law for a national court, called upon to decide a case referred back to it by a higher court hearing an appeal, to be bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law.

Firstly, the existence of a rule of national procedure under which national courts not ruling at final instance are bound by the findings made by a higher court cannot call into question the discretion of national courts not ruling at final instance to make a reference to the Court for a preliminary ruling where they have doubts as to the interpretation of European Union law.

Secondly, a judgment in which the Court gives a preliminary ruling is binding on the national court, as regards the interpretation or the validity of the acts of the European Union institutions in question, for the purposes of the decision to be given in the main proceedings.

In addition, a national court called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of that national provision by legislative or other constitutional means.

(see paras 25, 29, 31-32, operative part 1)

2. Articles 49 EC and 22 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, preclude a rule of a Member State interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation.

Although European Union law does not preclude, in principle, a system of prior authorisation, it is nevertheless necessary for the conditions attached to the grant of such authorisation to be justified in the light of the objective of guaranteeing, in the Member State concerned, that there is a balanced range of hospital treatment sufficiently and permanently accessible, that costs are controlled and that, so far as possible, any waste of financial, technical and human resources is avoided. Those conditions must not exceed what is objectively necessary for that purpose and it must not be possible to achieve the same result by less restrictive rules. Such a system must, in addition, be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily.

A national rule excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation deprives the insured person who, for reasons relating to his state of health or to the need to receive urgent treatment in a hospital, was prevented from applying for such authorisation or was not able to wait for the answer of the competent institution, of reimbursement from that institution in respect of such treatment, even though all other conditions for such reimbursement to be made are met. Reimbursement in respect of such treatment is not likely to compromise achievement of the objectives of hospital planning, or seriously to undermine the financial balance of the social security system. It does not affect the maintenance of a balanced hospital service accessible to all, or that of treatment capacity and medical competence on national territory. Consequently, such legislation is not justified by such imperatives and, in any event, does not satisfy the requirement of proportionality. Thus, it constitutes an unjustified restriction of the freedom to provide services.

(see paras 43-47, 51, operative part 2)

3. With regard to medical treatment which cannot be given in the Member State in whose territory the insured person resides, the second subparagraph of Article 22(2) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that that authorisation required under Article 22(1)(c)(i) cannot be refused:

- if, when the list of benefits for which the national legislation provides does not expressly and precisely specify the treatment method applied but defines types of treatment reimbursed by the competent institution, it is established, applying the usual principles of interpretation and on the basis of objective and non-discriminatory criteria, taking into consideration all the relevant medical factors and the available scientific data, that the treatment method in question corresponds to types of treatment included in that list, and

- if no alternative treatment which is equally effective can be given without undue delay in the Member State on whose territory the insured person resides.

That article precludes the national bodies called upon to rule on an application for prior authorisation from presuming, when applying that provision, that the hospital treatment which cannot be given in the Member State in which the insured person resides is not included in the list of benefits for which reimbursement is provided for in the legislation of that State or, conversely, that the hospital treatment included in those benefits can be given in that Member State.

With regard to the first condition laid down in the second subparagraph of Article 22(2) of Regulation No 1408/71, it is not, in principle, incompatible with European Union law for a Member State to establish exhaustive lists of the medical benefits reimbursed under its social security scheme and that that right cannot, in principle, have the effect of requiring a Member State to extend such lists of medical benefits. It is only those national bodies called upon to rule on an application for authorisation to receive treatment in a Member State other than that in whose territory the insured person resides that can determine whether that treatment is included in such a list. Nevertheless, the fact remains that, since the Member States are required not to disregard European Union law in the exercise of their powers, it must be ensured that the second subparagraph of Article 22(2) of Regulation No 1408/71 is applied in accordance with that law. If the treatment method applied corresponds to benefits provided for by the legislation of the Member State of residence, prior authorisation cannot be refused on the ground that that method is not used in that Member State.

Furthermore, although the fact that the treatment proposed in another Member State is not carried out in the Member State of residence of the insured person does not imply, per se, that the second condition set out in the second subparagraph of Article 22(2) of Regulation No 1408/71 is met, clearly that must be the case where no treatment having the same degree of effectiveness can be given without undue delay.

Lastly, it follows from this interpretation that a decision on an application for authorisation required under Article 22(1)(c)(i) of Regulation No 1408/71 cannot be based on a presumption that, if the hospital treatment cannot be given in the competent Member State, it may be presumed that that treatment is not included in the medical treatment reimbursed under the national social security system and, conversely, if such treatment is reimbursed under that system, it may be presumed that it can be given in that Member State.

(see paras 58, 60-62, 64, 68-69, 73, operative part 3)

4. Where it is established that a refusal to issue the authorisation required under Article 22(1)(c)(i) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, was unjustified, when the hospital treatment has been completed and the related expenses incurred by the insured person, the national court must oblige the competent institution, in accordance with national procedural rules, to reimburse that insured person in the amount which it would ordinarily have paid if authorisation had been properly granted.

That amount is equal to that determined in accordance with the provisions of the legislation to which the institution of the Member State on whose territory the hospital treatment was given is subject. If that amount is less than that which would have resulted from application of the legislation in force in the Member State of residence if hospital treatment had been provided there, a further reimbursement corresponding to the difference between those two amounts, up to the amount of the expenses actually incurred, must in addition be made by the competent institution.

(see paras 77-78, 81, operative part 4)

JUDGMENT OF THE COURT (Grand Chamber)

5 October 2010 (*)

In Case C‑173/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Administrativen sad Sofia-grad (Bulgaria), made by decision of 28 April 2009, received at the Court on 14 May 2009, in the proceedings

Georgi Ivanov Elchinov

Natsionalna zdravnoosiguritelna kasa,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and R. Silva de Lapuerta, Presidents of Chambers, A. Rosas, K. Schiemann, P. Kūris (Rapporteur), J.-J. Kasel, M. Safjan, D. Šváby and M. Berger, Judges,

Advocate General: P. Cruz Villalón,

Registrar: R. Grass,

after considering the observations submitted on behalf of:

– Mr Elchinov, by L. Panayotova, advokat,

– the Bulgarian Government, by T. Ivanov and E. Petranova, acting as Agents,

– the Czech Government, by M. Smolek, acting as Agent,

– the Greek Government, by K. Georgiadis, I. Bakopoulos and S. Vodina, acting as Agents,

– the Spanish Government, by J. M. Rodríguez Cárcamo, acting as Agent,

– the Polish Government, by M. Dowgielewicz, acting as Agent,

– the Finnish Government, by A. Guimaraes-Purokoski, acting as Agent,

– the United Kingdom Government, by S. Ossowski, acting as Agent,

– the Commission of the European Communities, by S. Petrova, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 10 June 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 49 EC and 22 of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) (‘Regulation No 1408/71’).

2 The reference has been made in proceedings between Mr Elchinov and the Natsionalna zdravnoosiguritelna kasa (national social security fund, ‘NZOK’) concerning its refusal to authorise him to receive hospital treatment in Germany.

Legal context

European Union legislation

3 Article 22 of Regulation No 1408/71, entitled ‘Stay outside the competent State – Return to or transfer of residence to another Member State during sickness or maternity – Need to go to another Member State in order to receive appropriate treatment’, provides:

‘1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

…

(c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition, shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay … in accordance with the provisions of the legislation which it administers, as though he were insured with it, the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State,

…

2. …

The authorisation required under paragraph 1(c) may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.

…’

4 Article 36(1) of Regulation No 1408/71 provides:

‘Benefits in kind provided in accordance with the provisions of this chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.’

5 On the basis of Article 2(1) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition, 1972 (I), p. 159), the Administrative Commission on Social Security for Migrant Workers, set up pursuant to Article 80 of Regulation No 1408/71, adopted a model for the certificate necessary for the application of Article 22(1)(c)(i) of that regulation, that is to say, form ‘E 112’.

National legislation

6 Under Article 224 of the Bulgarian Code of Administrative Procedure:

‘The directions of the Supreme Administrative Court on the interpretation and the application of the law are mandatory for the subsequent examination of the case’.

7 Under Article 81(1) of the Law on health (DV No 70 of 10 August 2004):

‘Every Bulgarian citizen has the right of access to health care on the terms and in accordance with the conditions laid down in the present law and by the Law on sickness insurance.’

8 By virtue of Article 33 of the Law on sickness insurance (DV No 70 of 19 June 1998), all Bulgarian citizens who are not also citizens of another State are compulsorily covered by NZOK.

9 Article 35 of that law provides that insured persons are entitled to obtain the document required for the exercise of their sickness insurance rights in compliance with the rules on the coordination of social security schemes.

10 Article 36(1) of that law provides:

‘Persons insured under the compulsory scheme shall be entitled to obtain reimbursement in part or in full of expenses incurred for medical treatment abroad only if they have obtained prior authorisation to that end from NZOK.’

11 The types of healthcare benefits covered by NZOK are listed in Article 45 of the Law on sickness insurance, paragraph 2 of which provides that the basic package of healthcare benefits is to be determined by a decree of the Minister for Health. On that basis, that Minister adopted Decree No 40 of 24 November 2004 on the determination of the package of basic healthcare benefits guaranteed by the NZOK budget (DV No 88, 2006), the single article of which states that that basic package is to include those benefits the type and range of which are set out in Annexes 1 to 10 to that Decree. Annex 5 thereto, entitled ‘List of clinical treatments’, refers, under number 136, to ‘other operations on the eyeball’ and, under number 258, to ‘high-technology radiotherapy for oncological and non-oncological conditions’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 Mr Elchinov, a Bulgarian citizen covered by NZOK, suffers from a serious illness, on account of which he asked that fund, on 9 March 2007, to issue form E 112 with a view to his undergoing advanced treatment in a specialist clinic in Berlin (Germany), since such treatment was not available in Bulgaria.

13 Given his state of health, however, Mr Elchinov was admitted to hospital in Germany on 15 March 2007 and was treated there before receiving NZOK’s answer.

14 By decision of 18 April 2007, taken after the opinion of the Minister of Health had been obtained, the director of NZOK refused to give Mr Elchinov the authorisation sought, on the ground, inter alia, that the conditions for grant of such authorisation laid down in the Article 22 of Regulation No 1408/71 were not met, since that treatment, in the director’s view, was not one of the benefits provided for by the Bulgarian legislation and reimbursed by NZOK.

15 Mr Elchinov appealed against that decision to the Administrativen sad Sofia-grad (Administrative Court of Sofia). An expert medical opinion obtained during the proceedings confirmed that the treatment in question was an advanced therapy which was not yet available in Bulgaria.

16 By judgment of 13 August 2007, the Administrativen sad Sofia-grad annulled that decision, taking the view that the conditions for grant of authorisation laid down by Article 22(2) of Regulation No 1408/71 were met in the present case. That court found, inter alia, that the treatment in question did not exist in Bulgaria, but corresponded to the services numbered 136 and 258 in the list of clinical treatments.

17 NZOK appealed against that judgment before the Varchoven administrativen Sad (Supreme Administrative Court), which, by judgment of 4 April 2008, set aside the judgment and referred the case back to a different chamber of the lower court. The Varchoven administrativen Sad held that the finding of the court at first instance that the treatment received by Mr Elchinov fell within the services numbered 136 and 258 in the list of clinical treatments was incorrect. In addition it pointed out that if the specific treatment for which the issue of form E 112 had been applied for was reimbursable by NZOK, it had to be presumed that such treatment could be given in a Bulgarian healthcare institution, so that the lower court should have ruled on whether such treatment could be given in such an institution within a period which would not endanger the state of health of the person concerned.

18 In the course of re-examination of the case by the Administrativen sad Sofia-grad, a fresh medical report confirmed that treatment such as that given to Mr Elchinov in Germany was not available in Bulgaria.

19 In those circumstances, the Administrativen sad Sofia-grad decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is the second subparagraph of Article 22(2) of … Regulation … No 1408/71 … to be interpreted as meaning that, where it is impossible to give in a Bulgarian healthcare institution the specific treatment that has been the subject of an application for the issue of form E 112, it is to be assumed that this treatment is not financed from the budget of [NZOK] or the Ministry of Health or, conversely, where such treatment is financed from the budget of NZOK or the Ministry of Health it is to be assumed that it can be given in a Bulgarian healthcare institution?

2. Is the phrase “the treatment in question cannot be provided for the person concerned within the territory of the Member State in which he resides” in the second paragraph of Article 22(2) of Regulation … No 1408/71 to be interpreted as encompassing cases in which the treatment that is given in the territory of the Member State in which the insured person resides is much less effective and more radical than the treatment that is given in another Member State, or does it encompass only those cases in which the person concerned cannot be treated without undue delay?

3. Having regard to the principle of procedural autonomy: is the national court obliged to take account of binding directions given to it by a higher court when its decision is set aside and the case referred back for reconsideration if there is reason to assume that such directions are inconsistent with Community law?

4. If the particular treatment concerned cannot be given on the territory of the Member State in which the person with medical insurance resides is it then sufficient, in order for that Member State to be obliged to issue authorisation for treatment in another Member State under Article 22(1)(c) of Regulation … No 1408/71, for the type of treatment concerned to be included within the benefits provided for under the legislation of the first mentioned Member State even if that legislation does not expressly stipulate the specific method of treatment?

5. Are Article 49 EC and Article 22 of Regulation … No 1408/71 inconsistent with a national provision such as Article 36(1) of the Law on health insurance, according to which persons insured under the compulsory scheme have the right to receive in part or in full [reimbursement of] the value of the expenses for medical care abroad only if they have received a preliminary permit?

6. Must the national court oblige the competent institution of the State in which the patient has medical insurance to issue the document for treatment abroad (form E 112) if it considers the refusal to issue such a document to be unlawful, where the application for the issue of the document has been lodged before the treatment was carried out abroad and the treatment has been completed by the date on which the court decision is pronounced?

7. If the aforementioned question should be answered in the affirmative and the court should consider the refusal of authorisation for treatment abroad to be unlawful how is the person with medical insurance to be reimbursed the costs of his treatment:

(a) directly by the State in which he is insured or by the State in which the treatment has been given, following submission of authorisation for treatment abroad?

(b) to what extent, if the range of benefits that are provided for under the legislation of the Member State where he resides should differ from the range of benefits provided for under the legislation of the Member State in which the treatment is given, in the light of Article 49 EC, which prohibits restrictions on freedom to provide services?’

The questions referred

20 It is appropriate to answer the third question first, before examining the other six questions, which relate to the interpretation of Articles 49 EC and 22 of Regulation No 1408/71.

The third question

21 It is apparent from the order for reference that the Administrativen sad Sofia-grad has doubts as to the interpretation of Articles 49 EC and 22 of Regulation No 1408/71 and, in particular, with regard to the interpretation of Article 22 adopted by the Varchoven administrativen sad in its judgement of 4 April 2008. While making a reference to the Court for a preliminary ruling on the interpretation of the abovementioned provisions, the national court questions whether the court dealing with the substance of the case is bound by the legal rulings of a higher court, if there is reason to assume that such rulings are inconsistent with European Union law.

22 The national court states that, pursuant to Article 224 of the Bulgarian Code of administrative procedure, directions given by the Varchoven administrativen sad on the interpretation and application of the law are binding on the Administrativen sad Sofia-grad on re-examination of the case by that court. It also notes that European Union law observes the principle of the procedural autonomy of the Member States.

23 Although the question which it refers to the Court does not appear to exclude the possibility that a national court might consider adjudicating without making a preliminary reference, departing from legal rulings given in the same case by the higher national court, which it regards as inconsistent with European Union law, it must be noted that that is not the situation in the present case, since the national court has made a reference for a preliminary ruling to the Court seeking clarification of the doubts which it has as to the correct interpretation of European Union law.

24 Accordingly, by its third question, the national court asks whether European Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law.

25 In that regard, it must be borne in mind, firstly, that the existence of a rule of national procedure such as that applicable in the case in the main proceedings cannot call into question the discretion of national courts not ruling at final instance to make a reference to the Court for a preliminary ruling where they have doubts, as in the present case, as to the interpretation of Europe