Opinion of the Advocate General — ECLI:EU:C:2014:2023
Date: 2014-06-19
Language of the case: Romanian
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Romania

summary of the subject-matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based; and also a statement of the reasons which have prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings. 23 Since questions concerning EU law enjoy a presumption of relevance, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:75, paragraph 25 and The Chartered Institute of Patent Attorneys, C‑307/10, EU:C:2012:361, paragraph 32). 24 That is not the position in the present case. 25 First, as regards the facts of the main action, the order for reference sets out, under the heading ‘Application initiating proceedings’, Ms Petru’s allegations and, under the heading ‘Facts’, the factual matters summarised in paragraphs 9 to 11 above. Thus, although the referring court does not, in that order, rule on the evidence adduced by the parties to establish or to refute those allegations and, accordingly, does not make a finding, at this stage of the proceedings, as to the lack of medication and basic medical supplies and infrastructure underpinning the question referred, it explains, at the very least, the facts upon which that question is based. 26 Second, as regards the reasons that have led the referring court to inquire about the interpretation of the second subparagraph of Article 22(2) of Regulation No 1408/71, it is clear from the order for reference that, since the parties to the main proceedings disagree as to the interpretation of that provision, the referring court inquires whether the second subparagraph of Article 22(2) of Regulation No 1408/71 applies where it is because of a lack of medication and basic medical supplies and infrastructure that the requisite treatment cannot be provided in the Member State of residence; and also that the referring court considers that the judgment to be given in the main proceedings depends on the answer to be given to that question. 27 Consequently, the interpretation sought is not obviously unrelated to the facts of the main action or its purpose and the question raised is not hypothetical, but relates to the facts in dispute between the parties to the main proceedings, which it is for the referring court to determine. Furthermore, the Court has before it the material necessary to give a useful answer to the question submitted to it. 28 It follows that the request for a preliminary ruling is admissible. Substance 29 By its question, the referring court asks, in essence, whether the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation cannot be refused where it is because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned cannot be provided in good time in the insured person’s Member State of residence. 30 It must be observed that the second subparagraph of Article 22(2) of Regulation No 1408/71 lays down two conditions which, if both are satisfied, render mandatory the grant by the competent institution of the prior authorisation applied for on the basis of Article 22(1)(c)(i). The first condition requires the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides. The second condition requires that the treatment which the latter plans to receive in a Member State other than that of residence cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, account being taken of his current state of health and the probable course of his disease (see, to that effect, Elchinov, C‑173/09, EU:C:2010:581, paragraphs 53 and 54, and case-law cited). 31 As regards the second condition, with which the question in the present case is concerned, the Court has held that the authorisation required cannot be refused if the same or equally effective treatment cannot be given in good time in the Member State of residence of the person concerned (see, to that effect, Inizan, C 56/01, EU:C:2003:578, paragraphs 45 and 60; Watts, C‑372/04, EU:C:2006:325, paragraph 61, and Elchinov, EU:C:2010:581, paragraph 65). 32 In that regard, the Court has pointed out that, in order to determine whether treatment which is equally effective for the patient can be obtained in due time in the Member State of residence, the competent institution is required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history (Inizan, EU:C:2003:578, paragraph 46; Watts, EU:C:2006:325, paragraph 62, and Elchinov, EU:C:2010:581, paragraph 66). 33 One of the circumstances that the competent institution is required to take into account may, in a specific case, be the lack of medication and basic medical supplies and infrastructure, such as that alleged in the main proceedings. As the Advocate General observes in point 25 of his Opinion, the second subparagraph of Article 22(2) of Regulation No 1408/71 does not distinguish between the different reasons for which a particular treatment cannot be provided in good time. Clearly, however, such a lack of medication and of medical supplies and infrastructure can, in the same way as the lack of specific equipment or particular expertise, make it impossible for the same or equally effective treatment to be provided in good time in the Member State of residence. 34 However, as the Romanian and United Kingdom Governments and the European Commission have argued, it follows from the case-law cited in paragraph 31 above that the question whether that is indeed impossible must be determined, first, by reference to all the hospital establishments in the Member State of residence that are capable of providing the treatment in question and, second, by reference to the period within which the treatment could be obtained in good time. 35 As regards the main proceedings, the Romanian Government observes that Ms Petru had the right to approach any other medical establishment in Romania with the equipment necessary to carry out the treatment that she needed. That government also points out — as do the respondents in the main proceedings — that the general practitioner’s report indicates that the treatment needed to be carried out within a period of three months. Accordingly, if the facts alleged by Ms Petru concerning the lack of medication and basic medical supplies and infrastructure at the Institutul de Boli Cardiovasculare in Timișoara are established, it will be for the referring court to determine whether that treatment could have been carried out within three months in another hospital establishment in Romania. 36 In the light of the foregoing considerations, the answer to the question referred is that the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation cannot be refused where it is because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned cannot be provided in good time in the insured person’s Member State of residence. The question whether that is impossible must be determined by reference to all the hospital establishments in that Member State that are capable of providing the treatment in question and by reference to the period within which the treatment could be obtained in good time. Costs 37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Third Chamber) hereby rules: The second subparagraph of Article 22(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of 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 592/2008 of the European Parliament and of the Council of 17 June 2008, must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation cannot be refused where it is because of a lack of medication and basic medical supplies and infrastructure that the hospital care concerned cannot be provided in good time in the insured person’s Member State of residence. The question whether that is impossible must be determined by reference to all the hospital establishments in that Member State that are capable of providing the treatment in question and by reference to the period within which the treatment could be obtained in good time. [Signatures] * Language of the case: Romanian.