Opinion of the Advocate General — ECLI:EU:C:2020:325
Date: 2020-04-30
Language of the case: Latvian
Subject matter: Approximation of laws;Public health;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Latvia

Summary C-243/19 — 1 
In Case C-243/19, 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
20 March 2019 
Referring court:  
Augstākā tiesa (Senāts) (Supreme Court, Latvia) 
Date of the decision to refer:  
8 March 2019 
Applicant:  
A 
Defendant:  
Veselības ministrija 
  
Subject matter of the action in the main proceedings 
Action brought against the refusal to grant a favourable administrative decision 
(authorisation) in respect of receiving planned healthcare in a different Member 
State of the European Union. 
Subject-matter and legal basis of the request for a preliminary ruling 
In accordance with Article 267 TFEU, the referring court seeks a ruling on the 
interpretation of Article 20(2) of Regulation (EC) No 883/2004, Article 56 TFEU 
and Article 8(5) of Directive 2011/24/EU, in order to ascertain whether, for the 
purposes of determining the availability of healthcare, factors which are unrelated 
to medical issues, such as the freedom of religion, must also be taken into account. 
Questions referred for a preliminary ruling 
Must Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament 
and of the Council of 29 April 2004 on the coordination of social security 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-243/19 
 
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systems, in conjunction with Article 21(1) of the Charter of Fundamental Rights 
of the European Union, be interpreted as meaning that a Member State may refuse 
to grant the authorisation referred to in Article 20(1) of that regulation where 
hospital care, the medical effectiveness of which is not contested, is available in 
the person’s Member State of residence, even though the method of treatment 
used is contrary to that person’s religious beliefs? 
Must Article 56 of the Treaty on the Functioning of the European Union and 
Article 8(5) of Directive 2011/24/EU of the European Parliament and of the 
Council of 9 March 2011 on the application of patients' rights in cross-border 
healthcare, in conjunction with Article 21(1) of the Charter of Fundamental Rights 
of the European Union, be interpreted as meaning that a Member State may refuse 
to grant the authorisation referred to in Article 8(1) of that directive where 
hospital care, the medical effectiveness of which is not contested, is available in 
the person’s Member State of affiliation, even though the method of treatment 
used is contrary to that person’s religious beliefs? 
Provisions of EU law relied on 
Articles 56 and 57 TFEU, 
Article 20 Regulation (EC) No 883/2004 of the European Parliament and of the 
Council of 29 April 2004 on the coordination of social security systems,  
Articles 7 and 8 of Directive 2011/24/EU of the European Parliament and of the 
Council of 9 March 2011 on the application of patients' rights in cross-border 
healthcare, 
Article 10(1) and Article 21(1) of the Charter of Fundamental Rights of the 
European Union. 
Case-law cited 
Court of Justice of the European Union 
Judgments of 5 October 2010, Elchinov, C-173/09, EU:C:2010:581, 
paragraphs 43, 65 and 66; of 23 October 2003, Inizan, C-56/01, EU:C:2003:578, 
paragraphs 45, 46, 59 and 60; of 9 October 2014, Petru, C-268/13, 
EU:C:2014:2271; of 14 March 2017, Achbita, C-157/15, EU:C:2017:203, 
paragraph 28, and Bougnaoui and ADDH, C-188/15, EU:C:2017:204, 
paragraph 30; of 9 March 2017, Milkova, C-406/15, EU:C:2017:198, 
paragraph 55; of 3 October 2000, Ferlini, C-411/98, EU:C:2000:530, 
paragraphs 57 to 59; of 12 July 2001, Smits and Peerbooms, C-157/99, 
EU:C:2001:404, paragraph 105; of 13 May 2003, Müller-Fauré and van Riet, 
C-385/99, EU:C:2003:270, paragraphs 73 and 74; of 12 November 1996, United 
Kingdom v Council, C-84/94, [EU:C:1996:431], paragraph 58; of 13 June 2017, 
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Florescu and Others, C-258/14, EU:C:2017:448, paragraph 57; of 19 April 2007, 
Stamatelaki, C-444/05, EU:C:2007:231, paragraph 34, and of 11 June 2015, 
Berlington Hungary and Others, C-98/14, EU:C:2015:386, paragraph 34. 
European Court of Human Rights 
Judgments of 1 July 2014, S.A.S. v. France, No 43835/11, paragraphs 124 and 
161; of 15 January 2013, Eweida and Others v. The United Kingdom, 
No 48420/10, paragraph 79; of 20 May 2014, McDonald v. The United Kingdom, 
No 4241/12, paragraph 54; of 16 March 2010, Carson and Others v. The United 
Kingdom, No 42184/05, paragraph 61; decision of 4 January 2005, Pentiacova 
and Others v. Moldova, No 14462/03; judgments of 7 December 2010, Jakóbski v. 
Poland, No 18429/06, paragraphs 47 and 50, and of 17 December 2013, Vartic v. 
Romania (No 2), No 14150/08, paragraphs 45 and 48. 
Provisions of national law relied on 
Articles 91 and 111 of the Latvijas Republikas Satversme (Constitution of the 
Republic of Latvia), 
Point 293(2), Point 310 (corresponds in substance to Article 20(2) of Regulation 
No 883/2004), Point 323(2), Point 324(2) and Point 328 of the Ministru kabineta 
2013. gada 17. decembra noteikumi Nr. 1529 ‘Veselības aprūpes organizēšanas un 
finansēšanas kārtība’ (Cabinet Regulation No 1529 of 17 December 2013 
‘Regulations on organising and funding the healthcare system’: 
Point 328 of Regulation No 1529: 
‘328. The [National Health] Service shall reimburse the expenses incurred by 
persons who are entitled to receive publicly funded healthcare in Latvia where 
those persons received healthcare in another European Union Member State, a 
State which is part of the European Economic Area or in the Swiss Confederation, 
and paid for that care out of their own funds; 
328.1. In accordance with the provisions of Regulation No 883/2004 and 
Regulation No 987/2009, as well as the conditions governing the expenses relating 
to the healthcare provided by the State in which those persons received the 
healthcare, and having regard to the information provided by the competent 
authority of the European Union Member State or the State which is part of the 
European Economic Area or the Swiss Confederation, in respect of the amount 
which is to be reimbursed to those persons, where: 
… 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-243/19 
 
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328.1.2.  The [National Health] Service has adopted a decision to issue an S2 
form to those persons, however those persons have paid for that healthcare out of 
their own funds, 
328.2. Having regard to the scale of fees for healthcare treatments, which was 
established at the time those persons received such treatments, or having regard to 
the extent of compensation for expenses in accordance with the legal framework 
relating to the purchase of medicine and medical equipment intended for hospital 
care, at the time that that medicine and medical equipment was acquired, where:  
328.2.1. Those persons have received planned healthcare (including that 
which requires prior authorisation), without prejudice to the situation referred to in 
Point 328.1.2. of the present regulation and having regard to the procedure laid 
down in the present regulation, and that treatment is among those paid for out of 
public funds in the Republic of Latvia. 
 
…’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant’s son suffers from a congenital cardiovascular disease for which he 
was required to undergo a medical procedure that involves having a blood 
transfusion. The applicant refused to consent to that procedure because it was 
contrary to his religious beliefs as a Jehovah’s Witness. 
2 Given that a version of this procedure which does not involve having a blood 
transfusion is not available in Latvia, the applicant requested the National Health 
Service to grant him an S2 form (‘Certificate confirming the right to receive 
healthcare’), which ensures that a person has the right to receive some planned 
healthcare treatments in another European Union Member State, a State of the 
European Economic Area or in Switzerland. 
3 By decision of 29 March 2016, the National Health Service refused to grant that 
authorisation. By decision of 15 July 2016 of the Veselības ministrija (Ministry of 
Health, Latvia), that decision was upheld. 
4 The applicant brought an action seeking a favourable administrative decision in 
respect of the right for his son to receive some planned healthcare treatments. By 
judgment of 9 November 2016, the Administratīvā rajona tiesa (District 
Administrative Court) dismissed the applicant’s action. 
5 On appeal, the Administratīvā apgabaltiesa (Regional Administrative Court) 
agreed with the reasoning of the court at first instance and, by judgment of 
10 February 2017, dismissed the appeal. 
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6 In the first place, it found that one of the cumulative requirements for the 
submission of the S2 form had not been satisfied, namely, it had not been shown 
that the healthcare treatment in question is not available in Latvia. In the second 
place, it pointed out that, because the method of treatment must be based on 
medical criteria, the National Health Service, by refusing to grant authorisation for 
treatment which is available in Latvia, has not restricted the applicant’s right to 
choose in relation to receiving a healthcare treatment, and that the decision of the 
National Health Service is not related to the applicant’s religious beliefs. That is to 
say, the patient has the right to refuse a specific type of treatment and to choose an 
alternative, but in that case, the State is not required to pay for that alternative 
treatment. In the third place, in order for a person to be reimbursed in accordance 
with the fees fixed in Latvia, it is necessary for the National Health Service to 
issue prior authorisation, which the applicant did not apply for. In the fourth place, 
freedom of religion is not an absolute right and thus, in certain circumstances, 
may be restricted. On the other hand, the present case concerns the freedom of 
religion of the applicant and not that of his son; meanwhile the freedom of the 
parents to make important decisions on behalf of the child can be limited in order 
to protect the best interests of the child. 
7 The applicant lodged an appeal in cassation before the referring court. 
8 The applicant pointed out in his application that, in order to avoid damaging the 
child’s health, the operation was performed in Poland on 22 April 2017.  
Main arguments of the parties in the main proceedings 
9 The applicant claims that the Administratīvā apgabaltiesa erred in finding that a 
person who requests that healthcare be adapted to their personal circumstances 
loses their right for that care to be paid for out of public funds. That is to say, the 
State must create a healthcare system which can be adapted to the personal 
circumstances of the patient, which includes taking into account the religious 
beliefs of the parents or guardians of a patient who is a minor.  
10 The treatment of patients must be ensured while taking into account the dignity of 
the patient in its entirety, which includes his moral values and religious beliefs. 
However, the Administratīvā apgabaltiesa only analysed those beliefs in respect of 
the parents’ right to choose the type of healthcare that their child receives. It did 
not consider whether, as a result, the parents are being implicitly forced by the 
authorities to renounce their religious beliefs. 
11 In the applicant’s view, the prohibition on discrimination has been infringed, 
because the State has treated the applicant and other patients –– who are in 
different circumstances and who do not need their method of treatment to be 
adapted –– in the same way. 
12 The applicant points out that neither the Ministry of Health, nor any other 
authority has argued that the rights of the applicant’s child have been infringed. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-243/19 
 
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Consequently, the applicant argues that there was no basis for applying the 
provisions of international conventions in the present case. On the other hand, EU 
treaties and the case-law of the Court of Justice were not applied, thus a request 
for a preliminary ruling should be made. 
13 The Ministry of Health agrees with the view of the National Health Service that in 
order for a S2 form to be issued the interested party must fulfil a set of cumulative 
requirements: (i) there is a requirement that the healthcare treatment in question be 
paid for out of public funds; (ii) that care is necessary in order to prevent an 
irreversible deterioration in vital functions and; (iii) that healthcare treatment is 
not available in Latvia. That provision, contained in both national legislation and 
Regulation No 883/2004, is mandatory and leaves no discretion to the authorities 
with regard to adopting an administrative act. Therefore, the final requirement has 
not been satisfied, because, in the present circumstances, the necessary treatment 
can be provided in Latvia, although the applicant is opposed to a transfusion of 
blood components due to his religious beliefs.  
14 The Ministry of Health points out that, within the legal framework, there are 
certain reasonable limits placed on adapting healthcare treatments in order to 
ensure, as far as possible, a rational allocation of financial resources and to protect 
the interests of society as a whole in relation to the availability of quality 
healthcare in Latvia.  
15 Furthermore, the Ministry of Health points out that there is no basis for applying 
the provisions of Directive 2011/24/EU, because the applicant did not apply for 
prior authorisation in order to be reimbursed according to the fees fixed in Latvia. 
16 Finally, the Ministry of Health notes that the considerations of the Court of Justice 
on cross-border healthcare have been summarised in Directive 2011/24, which, 
nevertheless, provides for the reimbursement of the costs of that treatment 
according to the fees fixed in Latvia and not those of the State in which that 
treatment was received. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
17 Given that the applicant’s son has already received treatment, the applicant could 
apply for the reimbursement of the healthcare expenses paid out of his own funds, 
if it is found that the authority erred in refusing to issue an S2 form.  
18 Given that the S2 form is issued where the aforementioned cumulative 
requirements are fulfilled, in the present case it is necessary to clarify the scope of 
Article 20(2) of Regulation 883/2004 and to assess whether, in the present case, 
the requirements of that provision have been met. 
19 In the present case, the dispute concerns the second criterion and whether it has 
been fulfilled, namely, whether such healthcare can be provided in Latvia, within 
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a time limit which is medically justifiable, taking into account the medical 
condition of the applicant’s son at that time and the probable course of his illness. 
20 According to the settled case-law of the Court of Justice, that authorisation cannot 
be refused where the first criterion listed in that provision has been fulfilled and 
where the same or equally effective treatment cannot be obtained without undue 
delay in the Member State of residence of the person concerned. 
21 The referring court expresses doubts about the wording ‘treatment which is 
equally effective for the patient can be obtained without undue delay in the 
patient’s Member State of residence’ and whether ‘all the circumstances’ –– 
which, according to the settled case-law of the Court, must be taken into account 
for the purposes of examining each specific case –– include religious beliefs. 
22 Freedom of religion does not, in itself, require a Member State to adapt and pay 
for healthcare while taking into account the religious beliefs of each person. 
However, the Member State does have the obligation to provide culturally 
acceptable healthcare treatments. In turn, where religious beliefs are not taken into 
account in that assessment, the person in question, in choosing treatment which 
corresponds with his religious beliefs, is required to cover the resulting costs 
himself, which amounts to unfavourable treatment of him. Thus, that raises the 
question of whether such circumstances lead to discrimination on the grounds of 
religion. 
23 According to the settled case-law of both the European Court of Human Rights 
and the Court of Justice of the European Union, application of the same rules to 
different situations is prohibited, since this is tantamount to indirect 
discrimination, except where that application is necessary to achieve a legitimate 
aim and if the measure is proportionate to the aim pursued. 
24 In the present circumstances, the aim of applying equal treatment or apparently 
neutral criteria may be to protect public health and the rights of others, that is to 
say, the necessity to maintain an adequate, balanced and permanent supply of 
quality hospital care in the national territory and the necessity to protect the 
financial stability of the social security system. According to the referring court, 
given that adapting treatment to religious beliefs may create an additional burden 
on the overall healthcare budget, this could constitute a legitimate aim in 
accordance with the case-law of the Court of Justice of the European Union. 
25 With regard to the assessment of proportionality the referring court points out that, 
on the one hand, hospital care of patients is linked to significant costs and, 
according to the settled case-law of the European Court of Human Rights and the 
Court of Justice of the European Union, the State has wide discretion, particularly 
with regard to the allocation of resources, but that, on the other hand, in 
examining the principle of proportionality in the context of the freedom of religion 
it is necessary to assess whether the right balance has been struck between the 
interests of the individual and society, even if that would result in additional costs 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-243/19 
 
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for the State. Therefore, the referring court raises the possibility that a Member 
State may refuse to issue the authorisation in question where the hospital care, the 
medical effectiveness of which is not contested, which is available in the Member 
State of residence of the person concerned, is contrary to the religious beliefs of 
that person. 
26 At the same time, the referring court expresses doubts as to whether the 
requirement of proportionality is reasonably met where no costs linked to the 
healthcare received by the person in a different Member State of the European 
Union are reimbursed at all, where that person was unable to receive the necessary 
hospital care in his Member State of residence on account of his religious beliefs. 
27 That is to say, taking into account that under the provisions of national legislation 
prior authorisation is needed for the provision of planned hospital care in the form 
of cardiovascular surgery and that, in that respect, Article 7(1) of Directive 
2011/24 provides that, without prejudice to Regulation No 883/2004 and subject 
to the provisions of Articles 8 and 9 of that directive, the Member State of 
affiliation is to ensure that the healthcare costs are reimbursed according to the 
fees of that Member State, the referring court has doubts about whether it must be 
held that that amounts to the person being able to receive the necessary treatment 
in the territory of the Member State of affiliation within a time limit which is 
medically justifiable even if the method of treatment available in that Member 
State is contrary to the religious beliefs of that person.