# C_2010328EN.01000601.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/6 |
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4.12.2010

EN

Official Journal of the European Union

C 328/6

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Judgment of the Court (Grand Chamber) of 5 October 2010 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa

(Case C-173/09) (1)

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(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)

2010/C 328/09

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Parties to the main proceedings

Applicant: Georgi Ivanov Elchinov

Applicant:

Defendant: Natsionalna zdravnoosiguritelna kasa

Defendant:

Re:

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Art. 49 of the EC Treaty and Art. 22(1)(c) and (2), second para., of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) — Sickness insurance — National institution for sickness expenses refusing authorisation (Form E 112) for obtaining more effective medical treatment in a Member State other than that in which the insured patient is resident — Presumption of a necessary connection between that financing and the existence of that type of treatment in national territory — Meaning of ‘treatment which cannot be provided to the person concerned in the Member State of residence’ — Rules for authorisation of financing and system applicable to the repayment of costs incurred — Duty of a lower national court to comply with instructions on interpretation from a higher court which it considers contrary to Community law

Operative part of the judgment

Operative part of the judgment

| 1. | 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. |
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1.

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.

| 2. | 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 and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, preclude a rule of a Member State which is interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation. |
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2.

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 and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, preclude a rule of a Member State which is interpreted as excluding, in all cases, payment for hospital treatment given in another Member State without prior authorisation.

| 3. | With regard to medical treatment which cannot be given in the Member State on 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, where 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 |
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3.

With regard to medical treatment which cannot be given in the Member State on 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:

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if, where 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. |
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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, in the application of that provision, that the hospital treatment which cannot be given in the Member State on whose territory the insured person resides is not included in the benefits for which reimbursement is provided for by the legislation of that State or, conversely, that the hospital treatment included in those benefits can be given in that Member State.

| 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, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution. |
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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, complementary reimbursement corresponding to the difference between those two amounts must in addition be made by the competent institution.

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(1)  OJ C 180, 1.8.2009.

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