Opinion of the Advocate General — ECLI:EU:C:2021:325
Date: 2021-04-22
Language of the case: Dutch
Subject matter: Approximation of laws;Public health;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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: 
26 August 2019 
Referring court: 
Centrale Raad van Beroep (Netherlands) 
Date of the decision to refer: 
22 August 2019 
Applicant: 
Y 
Defendant: 
CAK 
  
Subject of the action in the main proceedings 
The action in the main proceedings concerns a claim for reimbursement of the 
costs of medical treatment which a pensioner from the Netherlands, but who lives 
in Belgium, has undergone in Germany.  
Subject and legal basis of the request for a preliminary ruling 
At issue in the present request under Article 267 TFEU is whether pensioners 
established outside the Netherlands who, under Article 24 of Regulation 
No 883/2004, are entitled to benefits in kind at the expense of the Netherlands, 
may rely on Directive 2011/24.  
Questions referred 
1. Must Directive 2011/24/EU be interpreted as meaning that persons referred to 
in Article 24 of Regulation (EC) No 883/2004, who receive benefits in their 
country of residence at the expense of the Netherlands but who are not insured in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-636/19 
 
2  
the Netherlands under the statutory health insurance scheme can rely directly on 
that directive for the reimbursement of costs of care provided?  
If not, 
2. Does it follow from Article 56 TFEU that, in a case such as the present one, not 
granting reimbursement for care provided in a Member State other than the 
country of residence or the country providing the pension is an unjustified 
obstacle to the free movement of services?  
Provisions of EU law cited 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems (OJ 2004 L 166, 
p. 1), in particular, Article 1(c), Article 19(1), Article 20(1) and (2), Article 27(1), 
Article 27(3) to (5).  
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 (OJ 2009 L 284, 
p. 42), in particular, Article 25(1) to (3), Article 26(1) and (2). 
Decision No S1 of 12 June 2009 concerning the European Health Insurance Card 
(OJ 2010 C 106, p. 23).  
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 (OJ 2011 
L 88, p. 45), in particular, Article 3(b)(i), Article 3(c)(i), Article 7(1), Article 8(1) 
and (2). 
Treaty on the Functioning of the European Union, Article 56. 
Provisions of national law cited 
None 
Brief summary of the facts and the procedure in the main proceedings 
1 In 2015, when the facts relating to the main proceedings occurred, the applicant 
was resident in Belgium and in receipt of an old-age pension from the 
Netherlands. Under Article 24 of Regulation No 883/2004, she was entitled to 
medical care in Belgium at the expense of the Netherlands. To that end, she paid 
health insurance contributions in the Netherlands.  
CAK 
 
3 
2 Following a consultation with a general practitioner in Belgium and a medical 
examination in the Netherlands, the applicant wished to have a second opinion 
carried out in a German hospital.  
3 The applicant’s husband contacted the defendant CAK in relation to that medical 
treatment in Germany. CAK is a Netherlands administrative body that implements 
many arrangements in the medical field, including the reimbursement of medical 
expenses incurred by ‘contractually insured persons’. That term refers to persons 
not insured in the Netherlands who 1) live in a country with which the 
Netherlands has a medical care agreement (EU/EEA countries and certain other 
countries) and 2) receive a pension or benefit from the Netherlands. Those people 
pay health insurance contributions to CAK and can then register with a health 
insurance company in their country of residence.  
4 CAK pointed out to the applicant in the present case that, for medical care outside 
Belgium or the Netherlands, CAK’s consent must first be sought by the Belgian 
health insurance company with which she has registered. CAK will only 
reimburse the costs of treatment after prior authorisation has been sought.  
5 Meanwhile, it was determined in the Netherlands that the applicant was suffering 
from breast cancer. Without the consent having been given, the second opinion 
took place in Germany. That second opinion showed that the applicant’s illness 
was even more serious than had been determined in the Netherlands. On 20 March 
2015, the applicant underwent breast surgery in Germany, followed by further 
treatment, including radiotherapy, in the months from April to June.  
6 In the meantime, on 19 March 2015, CAK had received a request for authorisation 
for the second opinion from the applicant’s Belgian health insurance company. 
That was refused because authorisation could not be given retroactively. 
Authorisation was never sought for the remainder of the treatment. CAK therefore 
refused to reimburse the total costs of the treatment of EUR 16 853.13. The 
applicant’s objection to that decision was rejected, as was the applicant’s appeal to 
the rechtbank Amsterdam (District Court, Amsterdam; ‘the Rechtbank’). The 
applicant then appealed to the Centrale Raad van Beroep (Higher Social Security 
and Civil Service Court).  
Main submissions of the parties to the main proceedings 
7 According to the applicant, apart from the second opinion, the treatment in 
Germany constituted ‘benefits in kind which become necessary on medical 
grounds during their stay’ within the meaning of Article 19(1) of Regulation 
No 883/2004. It concerned an unplanned emergency operation that had to be 
performed once it had become clear how serious her form of breast cancer was. 
The medical situation was so urgent that she could not reasonably be expected to 
return to the Netherlands or Belgium for treatment. She could similarly not be 
expected to seek prior authorisation in that stressful situation. As she was already 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-636/19 
 
4  
in Germany for the second opinion, she was entitled, under the aforementioned 
article, to the provision of that care.  
8 In addition, she relied on Directive 2011/24 (‘the Patients’ Directive’). Under 
Article 8(2)(a)(ii) thereof, in the case of treatments which do not involve 
overnight hospital accommodation of the patient for at least one night, prior 
authorisation may be required only if it concerns care which ‘requires use of 
highly specialised and cost-intensive medical infrastructure or medical 
equipment’. The post-operative treatments, such as the radiotherapy that took 
place between 14 April and 24 June 2015, are not covered by that provision, with 
the result that no prior authorisation could be required.  
9 According to CAK, there was no question of benefits in kind which became 
necessary on medical grounds during the stay in Germany. Following the second 
opinion, the applicant still had the opportunity to seek prior authorisation for the 
treatment in Germany that took place only a week later. The fact that the applicant 
found herself in a stressful situation in no way changes that. Moreover, she knew 
that prior authorisation was required.  
10 According to CAK, the Patients’ Directive does not apply to the applicant. She is 
not an insured person for the purposes of Article 3(b) of that directive, because 
she does not meet the conditions which, according to the Netherlands legislation, 
are required for entitlement to benefits. Apart from that, the radiotherapy must be 
regarded as healthcare that is subject to planning requirements as referred to in 
Article 8(2)(a)(ii) of the Patients’ Directive. That means that prior authorisation 
may also be required for the radiotherapy.  
Brief summary of the reasons for the referral 
11 The referring court considers that two interrelated issues are involved in the case 
in the main proceedings. First, the question is whether, under Regulation 
No 883/2004, prior authorisation may be required for medical treatment in 
Germany. It is important in that respect whether the care was planned or 
unplanned. Second, the applicant relied on the Patients’ Directive. Under that 
directive, some of the applicant’s treatments may not be covered by the 
authorisation requirement at all. The question, however, is whether that Patients’ 
Directive applies to the applicant. The latter point lies at the heart of the reference 
for a preliminary ruling.  
12 Like CAK and the Rechtbank, the referring court takes the view that there was no 
question of unplanned care which required reimbursement by CAK without prior 
authorisation under Article 19(1) of Regulation No 883/2004. The applicant 
initially stayed in Germany only in connection with the second opinion. She 
therefore did not have to terminate her stay in Germany prematurely in order to 
receive treatment in Belgium or the Netherlands. Moreover, the lapse of a week 
between the second opinion and the first operation is not indicative of a very 
urgent situation. The medical treatments for which reimbursement has been 
CAK 
 
5 
sought in this case are therefore covered by planned care as referred to in 
Article 20 of Regulation No 883/2004 for which the permission referred to therein 
may be required.  
13 Under Article 8(2)(a) of the Patients’ Directive, however, in the case of cross-
border care, prior authorisation may be required only in a limited number of cases 
for care subject to planning requirements. That applies only to care which 
involves overnight hospital accommodation of the patient for at least one night or 
care which requires use of highly specialised and cost-intensive medical 
infrastructure or equipment.  
14 CAK argues that the Patients’ Directive does not apply to contractually insured 
persons who receive care outside the State of residence and/or the State providing 
the pension. It is apparent from Article 3(b)(i) of the Patients’ Directive that that 
directive applies only to ‘insured persons’ as defined in Article 1(c) of Regulation 
No 883/2004. According to CAK, those are persons who are insured under a 
national statutory health insurance system. Contractually insured persons who are 
entitled to benefits under Regulation No 883/2004 are not covered by it. 
15 According to the referring court, the question whether the applicant falls within 
the personal scope of the Patients’ Directive cannot be answered without 
reasonable doubt. It is unclear how the term ‘insured person’ as defined in 
Article 1(c) of Regulation No 883/2004 must be interpreted. In the case of medical 
benefits such as those at issue here, the term ‘insured person’ in the latter 
provision means ‘any person satisfying the conditions required under the 
legislation of the Member State competent under Title II to have the right to 
benefits, taking into account the provisions of this Regulation’.  
16 As the Court of Justice of the European Union (‘the Court of Justice’) has 
repeatedly confirmed in its case-law, special rules of jurisdiction are laid down in 
Chapter 1 of Title III of Regulation No 883/2004 which, in certain cases, deviate 
from the general allocation rules in Title II, for the purpose of determining which 
institution must provide the services referred to in the relevant articles and which 
legislation applies (for example, the judgment of 14 October 2010, Van Delft and 
Others, C-345/09, EU:C:2010:610, paragraphs 38 and 48). The starting point is 
that insured persons, pensioners and their family members can receive medical 
care in their Member State of residence. That Member State provides the care in 
accordance with its own legislation. The costs of that medical care are borne by 
the competent Member State.  
17 Chapter 1 of Title III of Regulation No 883/2004 contains provisions relating to 
insured persons in Section 1 and provisions relating to pensioners in Section 2. A 
distinction has therefore been made in that regulation between insured persons and 
pensioners, albeit that certain articles relating to insured persons have been 
declared to apply mutatis mutandis to pensioners. In that regard, reference can be 
made to Article 27(3) thereof, which stipulates that Article 20 of that regulation, 
which contains the authorisation requirement at issue here, applies mutatis 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-636/19 
 
6  
mutandis to a pensioner and his family members. It is not entirely clear to the 
referring court whether the intention of that analogous application is to equate 
pensioners with insured persons as is at issue here. If so, the term ‘insured person’ 
in Article 1(c) of Regulation No 883/2004 should also include a pensioner as 
referred to in Title III, Chapter 1, Section 2.  
18 The referring court also doubts, in another respect, the correctness of CAK’s 
assertion that the term ‘insured person’ can apply only to persons who are insured 
for medical expenses under Netherlands law. To that end, it refers to the case-law 
of the Court of Justice (for example, the aforementioned judgment in Van Delft 
and Others and the judgment of 4 June 2015, Fischer-Lintjens, EU:C:2015:359, 
C-543/13) in which a contractually insured person such as the applicant is 
designated an ‘insured person’ (Dutch: ‘sociaal verzekerde’). On that basis, it 
could be assumed that the term ‘insured person’ in Regulation No 883/2004 has a 
broader meaning than just a person who is insured under national law.  
19 The definition of ‘Member State of affiliation’ in Article 3(c)(i) of the Patients’ 
Directive also supports a broader interpretation than that advocated by CAK. It 
stipulates that the Member State of affiliation for persons referred to in 
Article 3(b)(i) is the Member State that, in accordance with Regulation 
No 883/2004 and Regulation No 987/2009, is competent to grant to the insured 
person a prior authorisation to receive appropriate treatment outside the Member 
State of residence. Article 7 of the Patients’ Directive also seems to indicate that 
the directive applies also to pensioners who are contractually insured persons.  
20 More generally, the referring court, unlike CAK, sees no clear justification for the 
exclusion of contractually insured persons from the Patients’ Directive. The aim 
of the directive is, after all, to remove obstacles to the provision of cross-border 
healthcare as much as possible and thus to facilitate the free movement of patients 
within the European Union. To that end, a system has been set up in the directive 
for the reimbursement of medical expenses based on the principles of freedom of 
movement and building on the principles derived from the judgments of the Court 
of Justice. In various judgments, the Court of Justice has recognised the right to 
reimbursement, by the statutory social security system under which patients are 
insured, of the costs of healthcare provided in another Member State. Moreover, 
the freedom to provide services implies the freedom of recipients of services, 
including those in need of medical treatment, to go to another Member State for 
that purpose.  
21 It is apparent from recital 29 of the Patients’ Directive that it is the intention also 
for patients who seek healthcare in another Member State in circumstances other 
than those provided for in Regulation No 883/2004 to be able to benefit from the 
principles of free movement of patients, services and goods in accordance with the 
TFEU and with that directive. Recital 30 thereof states that the two systems 
should be ‘coherent’ for patients. Either the directive should apply, or Regulations 
No 883/2004 and No 987/2009 should apply. According to the referring court, the 
CAK 
 
7 
directive cannot have been intended to deprive retired contractually insured 
persons of protection for cross-border healthcare.  
22 Moreover, as far as the referring court is aware, the case-law of the Court of 
Justice, in the context of the free movement of cross-border healthcare services, 
relates to persons who were actually insured in the Member State of affiliation, 
but it is not convinced that that case-law must remain inapplicable to retired 
contractually insured persons.  
23 According to the referring court, if the Court of Justice recognises the correctness 
of that assessment, and the Patients’ Directive therefore does apply, the 
radiotherapy and subsequent treatment are then not subject to the authorisation 
requirement. It takes the view that Article 8(2)(a) of the Patients’ Directive does 
not apply to such care.  
24 To the extent that the Court of Justice considers the applicant not to fall within the 
personal scope of the Patients’ Directive, the question arises whether Article 56 
TFEU, inter alia in the light of the principle of proportionality, precludes the 
obstacle that a contractually insured person may encounter when receiving cross-
border healthcare outside the State of residence and the State providing the 
pension. The question also arises as to whether that article precludes the obstacle 
that service providers may encounter when providing cross-border care to 
contractually insured persons. The obstacle encountered by the applicant is a 
direct consequence of the fact that she settled outside the Netherlands with a 
Netherlands pension and that the Netherlands, as the country providing the 
pension, does not grant reimbursement to contractually insured persons for cross-
border healthcare outside the State of residence and the State providing the 
pension in the case of care for which no admission to the hospital is required, 
unless authorisation has been granted. Persons who are insured for medical 
expenses under national law in the Netherlands do often receive reimbursement 
for such cross-border care, depending on the specific policy conditions of the 
various insurers.  
25 According to the referring court, there is no justification for the obstacle 
described. It has been neither argued nor proved that the obstacle is necessary to 
guarantee the financial equilibrium of the Netherlands healthcare system. The 
applicant pays a contribution to the Netherlands for the care that she is entitled to 
receive as a contractually insured person. Had the care been received in the 
Netherlands, it would also have been reimbursed. Furthermore, there would have 
been costs related to her treatment for the Netherlands State had she received the 
same care in Belgium.