Opinion of the Advocate General — ECLI:EU:C:2010:336
Date: 2010-06-10
Language of the case: Bulgarian
Subject matter: Freedom to provide services;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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)