Judgment;Summary — ECLI:EU:C:2021:809
Date: 2021-10-06
Language of the case: Romanian
Court formation: Fourth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-538/19 — 1 
Case C-538/19 
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:  
10 July 2019 
Referring court:  
Curtea de Apel Constanța (Romania) 
Date of the decision to refer:  
4 July 2019 
Applicants/appellants:  
TS 
UT 
VU 
Defendants/respondents:  
Casa Națională de Asigurări de Sănătate 
Casa de Asigurări de Sănătate Constanța 
  
Subject-matter of the main proceedings 
Appeal lodged by the applicants TS, UT and VU, heirs at law of ZY, against the 
civil judgment of 24 October 2018 of the Tribunalul Constanța (Regional Court, 
Constanța, Romania), which dismissed as unfounded their application for a 
declaration that the Casa Națională de Asigurări de Sănătate (National health 
insurance agency; a national-level public institution, having legal personality, for 
the health insurance scheme) and the Casa de Asigurări de Sănătate Constanța 
(Health insurance agency of Constanța, Romania) are required to pay jointly and 
severally EUR 85 000, which constitutes the value of the medical treatment given 
to ZY abroad 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-538/19 
 
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Subject-matter and legal basis of the reference 
An interpretation of Article 56 TFEU and Article 20(1) and (2) of Regulation 
No 883/2004 is requested pursuant to Article 267 TFEU 
Questions referred 
1. May the situation be treated as an emergency, as described in paragraph 45 
of the judgment in Case C-173/09 (Elchinov), or does it constitute a case in which 
it is objectively impossible to seek the authorisation required under Article 20(1) 
and (2) of Regulation (EC) No 883/2004, which may justify a claim for full 
reimbursement of the expenses incurred in obtaining appropriate medical 
treatment (hospital treatment) in a Member State other than that in which the 
insured person resides, where the therapeutic treatment to which the latter 
consented was prescribed only by a doctor of a Member State other than the State 
in which the insured person resides, given that the diagnosis and the need to 
administer the treatment as a matter of urgency were confirmed by a doctor 
belonging to the health insurance scheme of the Member State of residence but 
who recommended a different therapeutic treatment from that to which the insured 
person consented, for reasons which may be deemed appropriate on the part of the 
latter, and which has at least the same degree of effectiveness but the advantage of 
not creating a disability? 
2. If the answer to the first question is in the affirmative, where the insured 
person, having been given a diagnosis and recommended a therapeutic treatment 
by a doctor within the health insurance scheme of the Member State of residence, 
which, for reasons which may be deemed appropriate, that person does not accept, 
goes to another Member State to seek a second medical opinion, that opinion 
being that a different therapeutic treatment should be administered, which has at 
least the same degree of effectiveness but the advantage of not creating a 
disability, and the insured person accepts that treatment, which satisfies the 
requirements laid down in the second sentence of Article 20(2) of Regulation (EC) 
No 883/2004, is that person also required, in order to be eligible for 
reimbursement of the costs incurred as a result of the latter therapeutic treatment, 
to seek the authorisation referred to in Article 20(1) of that regulation? 
3. Do Articles 56 TFEU and 20(1) and (2) of Regulation (EC) No 883/2004 
preclude national legislation which, first, makes authorisation by the competent 
institution to receive appropriate medical treatment (hospital treatment) in a 
Member State other than that of residence conditional on the drawing up of a 
medical report only by a doctor who practices within the health insurance scheme 
of the Member State of residence, on the recommendation of the head physician of 
the competent institution of that State, also where the therapeutic treatment to 
which the insured person consented, for reasons which may be deemed 
appropriate, given that it has the advantage of not creating a disability, is 
prescribed only by a doctor of another Member State, by way of a second medical 
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opinion, and, second, does not guarantee, under accessible and predictable 
procedure, actual analysis, from a medical perspective, within the health insurance 
scheme of the Member State of residence, of the possibility of applying the second 
medical opinion given in another Member State? 
4. If the answer to the first and third question is in the affirmative, is the 
insured person, or his heirs respectively, entitled, subject to fulfilment of the two 
requirements laid down in the second sentence of Article 20(2) of Regulation (EC) 
883/2004, to obtain from the competent institution of the State in which the 
insured person resides full reimbursement of the expenses incurred as a result of 
therapeutic treatment received in another Member State? 
Provisions of EU law relied on 
Article 56 TFEU  
Article 20(1) and (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 systems 
Article 26(1) of Regulation (EC) No 987/2009 of the European Parliament and of 
the Council of 16 September 2009 laying down the procedure for implementing 
Regulation (EC) No 883/2004 on the coordination of social security systems  
Judgment of 5 October 2010, Elchinov (C-173/09, EU:C:2010:581), 
paragraphs 45, 51, 73 and 66 
Provisions of national law relied on 
Article 276 of Legea nr. 95/2006 privind reforma în domeniul sănătății (Law 
No 95 of 2006 on reform of the healthcare sector), under which the Casa 
Națională de Asigurări de Sănătate is a public institution charged with 
administering and managing the social health insurance scheme and the ‘case de 
asigurări’ (health insurance agencies) are public institutions subordinated to the 
Casa Naționale de Asigurări de Sănătate. 
Articles 39 to 46 of the Norme metodologice privind utilizarea în cadrul 
sistemului de asigurări sociale de sănătate din România a formularelor emise în 
aplicarea Regulamentului (CEE) nr. 1408/71 al Consiliului, precum și a 
Regulamentului (CEE) nr. 574/72 (implementing provisions relating to the use in 
Romania’s social health insurance scheme of the forms issued pursuant to Council 
Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72), approved by 
Ordinul Președintelui Casei Naționale de Asigurări de Sănătate nr. 592/2008 
(order No 592/2008 of the President of Casa Naționale de Asigurări de Sănătate), 
which provide, in essence, that for the issue of an E 112 form it is necessary to 
draw up a medical file including, inter alia, a medical report showing the 
diagnosis and the medical recommendation in order to receive treatment. In this 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-538/19 
 
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regard, Article 45(4) of the above implementing provisions provides that ‘the 
medical report shall be drawn up by a doctor in a university teaching hospital or, 
where appropriate, a provincial (județean) hospital which has a contractual 
relationship with a Romanian health insurance agency (casa de asigurări de 
sănătate)’. 
Article 8 of the Normele metodologice privind rambursarea și recuperarea 
cheltuielilor reprezentând asistența medicală acordată în baza documentelor 
internaționale cu prevederi în domeniul sănătății la care România este parte 
(implementing provisions relating to the reimbursement and recovery of expenses 
covering medical assistance provided under international agreements containing 
health-related provisions, to which Romania is party), approved by Ordinul 
Președintelui Casei Națională de Asigurări de Sănătate nr. 729/2009 (order 
No 729/2009 of the President of the Casa Naționale de Asigurări de Sănătate) 
(‘the provisions on reimbursement’), which provides, in essence, that medical 
expenses incurred abroad without the prior approval of the health insurance 
agency are to be reimbursed at the tariff rates applied under the Romanian social 
health insurance scheme. 
Succinct presentation of the facts and the main proceedings 
1 The applicants TS, UT and VU, are the lawful heirs (the surviving wife and two 
children respectively) of the late ZY, who died on 12 July 2014. The latter resided 
in Romania and was insured under the Romanian public health insurance scheme, 
which is managed by the two defendants. 
2 Following admission to the Spital Clinic Județean de Urgență Constanța 
(Provincial emergency hospital, Constanța) from 22 to 27 March 2013, ZY was 
diagnosed, on 28 March 2013, with invasive squamous cell carcinoma of the 
tongue dorsum. 
3 The treating physician in the Romanian public health insurance scheme 
recommended that the patient undergo emergency surgical treatment consisting in 
the surgical removal of two thirds of the tongue. Wishing to have a second 
medical opinion, ZY went to Austria, where, following admission to a clinic in 
Vienna from 10 to 14 April 2013, he had his diagnosis of ‘locally advanced cancer 
of the tongue’ confirmed and was advised that ‘given the advanced state of the 
tumour, surgery will not be effective, so chemotherapy is recommended, for 
which admission is necessary’.  
4 Opting for the treatment prescribed by that second medical opinion, ZY went to an 
interview with the defendant Casa de Asigurări de Sănătate Constanța to obtain an 
E 112 form so that that institution would cover the monetary value of the 
treatment to be received in Vienna. The Casa de Asigurări de Sănătate Constanța 
pointed out to ZY that if it agreed to cover the cost of the medical services, it 
would apply Article 8 of the implementing provisions relating to reimbursement, 
and more specifically, that it would guarantee reimbursement of the medical 
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expenses at the tariff rates applied under the Romanian social health insurance 
scheme since the patient was to go to another Member State to avail himself of 
medical services for which he had not obtained prior approval from the health 
insurance agency (casa de asigurări de sănătate). According to the applicants, on 
that occasion ZY was requested to submit a medical opinion to the effect that the 
insured person could not receive treatment in Romania. 
5 After undergoing examinations/analyses and medical treatment consisting of 
radiotherapy, chemotherapy and immunotherapy in Austria, ZY requested, under 
administrative proceedings, by applications of 24 September 2013 and 4 June 
2014, that the Casa de Asigurări de Sănătate Constanța reimburse his medical 
expenses, submitting invoices and proof of payment, which have not been 
challenged by the defendants/respondents. 
6 On 21 September 2016, the applicants brought an action before the Tribunalul 
Constanța against the defendants, seeking a declaration that the latter are required 
to pay jointly and severally EUR 85 000, which constitutes the value of the 
medical treatment received by ZY abroad. The defendants claimed that the action 
should be dismissed, arguing that, although the time limit for issuing an E 112 is 
short, namely five working days, ZY decided to obtain medical services abroad 
and ZY went to Austria for therapeutic purposes, as requested and planned by 
him, which justifies the application of Article 8 of the implementing provisions 
relating to reimbursement. 
7 In the proceedings at first instance, proof was provided in the form of a medical 
expert’s report and the expert’s report drawn up by the Serviciu Județean de 
Medicină Legală Constanța (provincial medical experts’ service, Constanța) set 
out the following conclusions: ‘1. On the basis of the medical documents 
submitted in the case file, the severity [of] ZY's illness … can be regarded as 
serious; 2. In view of the advanced stage of the tumour and the invasion of the 
adjacent areas, a medical decision, confirmed by the patient’s acceptance, was 
absolutely necessary in order to respect his autonomy, as a basic principle of the 
doctor-patient relationship. The choice of therapeutic treatment must also be 
supported in accordance with the surgical and oncological propaedeutics of each 
individual country, as they do not take a uniform approach; 3. The therapeutic 
method to which the patient consented and which he received (radiotherapy, 
chemotherapy, and immunotherapy), whilst rejecting the surgical treatment 
recommended by the Romanian doctors, and which was administered by the 
medical establishments in (…) Vienna, is therapeutic in nature, with the advantage 
of preserving both the normal anatomy of the area concerned and the 
physiological function of the tongue, and can be deemed ‘appropriate and 
effective’, since, in the present case, the results of the treatments are not 
predictable. According to data in specialist publications, the survival rate in cases 
of neoplasms of the tongue with locoregional disseminations is less than 30% over 
a period of five years or less’. 
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8 In the course of the proceedings at first instance, the Casa de Asigurări de 
Sănătate Constanța, applying Article 8 of the implementing provisions relating to 
reimbursement, paid the applicant TS, on 14 November 2016, [RON] 38 370.70 
(equivalent, on the date of payment, to EUR 8 235.82), which constitutes the 
amount of the expenditure relating to the examinations/analyses and medical 
treatment which the applicants’ predecessor in title, ZY, received in Austria, 
calculated in accordance with the tariff rates applied under the Romanian public 
social health insurance scheme. From the point of view of the 
appellants/applicants, who are seeking full reimbursement of the expenses 
incurred as a result of the medical treatment provided in August and whose claims 
are not based on Article 8 of the implementing provisions relating to 
reimbursement, payment of the abovementioned amount constituted only part 
payment of the amount claimed in the proceedings. 
9 On 24 October 2018, the Tribunalul Constanța dismissed the action as unfounded, 
ruling that the applicants are entitled to reimbursement, not in full but in the 
amount established in accordance with national legislation. 
10 The applicants/appellants lodged an appeal against the decision of the Tribunalul 
Constanța with the referring court, the Curtea de Apel Constanța (Court of 
Appeal, Constanța, Romania), claiming that it was not possible to apply for and 
obtain prior authorisation for medical treatment in Austria since that treatment 
was prescribed only by Austrian doctors, given that that treatment, unlike the 
treatment prescribed by the treating physician belonging to the Romanian public 
social health insurance scheme, has the advantage of not creating a disability. 
The essential arguments of the parties to the main proceedings 
11 In the grounds of appeal, TS, UT and VU argued that the judgment at first 
instance is contrary to the decisions of the Court of Justice of the European Union 
in the cases of Elchinov and Luca. In the view of the appellants, the E 112 form 
could have been obtained only on the basis of a recommendation of the Romanian 
social health insurance scheme, for surgical treatment, and not on the basis of a 
different medical recommendation from another Member State. Thus, in respect of 
the same diagnosis, the patient underwent abroad a treatment different from that 
prescribed by the Romanian doctors, which was the diametric opposite of the 
latter as a medical approach and deemed appropriate and effective by medical 
experts. 
12 Taking the view that in this case the issue as to the applicability of Article 20 of 
Regulation (EC) No 883/2004, as interpreted by the Court of Justice in its 
judgment of 5 October 2010, Elchinov (C-173/09), constitutes the essence of the 
substance of the applicants’ claims, the referring court suggested to the parties, of 
its own motion, that it is necessary to make a reference to the Court of Justice for 
a preliminary ruling. The applicants/appellants expressed their agreement to such 
a reference. The defendants/respondents, however, consider that it is not necessary 
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to refer the matter to the Court of Justice since Article 20 of Regulation (EC) 
No 883/2004 is not, in their view, applicable in this case. 
Succinct presentation of the reasons for the reference 
13 With reference to the judgment of the Court of Justice in Elchinov, which was 
invoked by the applicants/appellants in support of their position, according to 
which the insured person is entitled to reimbursement of costs in full if the two 
requirements laid down in the second sentence of Article 20(2) of Regulation No 
883/2004 are satisfied and if it was not possible, for objective reasons, to request 
prior authorisation from the competent institution, the referring court notes that it 
is common ground between the parties that the first requirement is satisfied and 
thus the treatment at issue is among the benefits provided for in the legislation of 
the Member State in which the person concerned resides. 
14 However, it is disputed as to whether the second requirement is satisfied, that is to 
say whether the person in question could not have received that treatment within a 
medically justified time limit, given his current state of health and the probable 
course of his disease, and in this regard the defendants/respondents maintain that 
the medical treatment which ZY received in Austria could also have been 
provided in Romania in good time. 
15 In analysing that second requirement, the referring court notes that at 
paragraph 45 of its judgment in Elchinov the Court of Justice acknowledged, as 
regards the objective reasons which prevented prior authorisation being applied 
for and obtained, circumstances relating to a person’s state of health and the need 
to receive urgent treatment in hospital. In the present dispute, it is clear from the 
medical expert’s report submitted to the court of first instance that the diagnosis 
was serious and medical treatment was urgently needed at the time of the 
diagnosis. 
16 However, the reason why ZY did not obtain prior authorisation was neither 
because it was impossible to take the necessary administrative steps required by 
the Casa de Asigurări de Sănătate Constanța, nor the fact that the latter had 
delayed the authorisation procedure. ZY was unable to obtain prior authorisation 
because the treatment at issue, consisting of radiotherapy, chemotherapy and 
immunotherapy, which he wanted to receive, was not prescribed by the treating 
physician belonging to the Romanian public social health insurance scheme who 
made the initial diagnosis, but by Austrian doctors, by way of a second medical 
opinion given in the light of that diagnosis. 
17 ZY was entitled to make that choice, and thus reject the treatment recommended 
by the Romanian treating physician, given that the latter would give rise to a 
disability resulting from the removal of a considerable part of the tongue, whilst 
the treatment prescribed in Austria maintained both the normal anatomy of the 
area concerned and the physiological functioning of the tongue. That right to 
choose is also confirmed in paragraph 66 of the judgment in Elchinov. 
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18 The referring court draws attention to a statement in the medical expert’s report 
that ‘the choice of therapeutic treatment must also be supported in accordance 
with the surgical and oncological propaedeutics of each individual country as they 
do not take a uniform approach’. 
19 Thus, there may be differences in the understanding of medical science between 
the Member States which lead to different treatments being administered for the 
same diagnoses. The reasons for these medical differences between the Member 
States may be cultural (at scientific level), but also economic. 
20 According the medical expert’s report submitted in the proceedings at first 
instance, both treatments were appropriate and effective. The difference in 
medical approach is not, however, the result of a mere difference of medical 
opinion but, as was noted in the medical expert’s report, follows from the nature 
of surgical and oncological propaedeutics, which are not uniform and vary from 
country to country. 
21 Although ZY was entitled to choose the treatment prescribed in Austria, national 
legislation did not allow him to obtain prior authorisation for that treatment 
because the treatment in question had not been prescribed by a doctor belonging 
to the Romanian public social health insurance scheme. 
22 Consequently, the insured person would appear to be, in those circumstances, a 
prisoner of his country’s propaedeutic approach, since medical science differs 
depending on the Member State in which it is applied. The referring court doubts 
that this factual premiss, which presupposes that medical science recognises 
internal borders within the European Union, genuinely forms the basis for 
coordination of the Member States’ social security schemes and, respectively, 
freedom to provide services. 
23 The Curtea de Apel Constanța therefore doubts whether the differences in medical 
opinion can operate as a form of restriction on freedom to provide services, given 
that this fundamental freedom has been recognised precisely so that those enjoyed 
that freedom can have access to better quality services. 
24 Consequently, in this case it is necessary for the Court of Justice to interpret EU 
law to ascertain the compatibility with that law of national legislation under which 
a medical report is to be drawn up by a doctor in an university teaching hospital 
or, where appropriate, a provincial hospital which has a contractual relationship 
with a Romanian health insurance agency, without there being any provision for 
the possibility of relying, in the prior authorisation procedure, on a second medical 
opinion given to the Romanian insured person in another Member State.