62023CJ0489_RES
Case C‑489/23
AF
v
Guvernul României and Others
(Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie)
Judgment of the Court (Fourth Chamber) of 4 September 2025
(Reference for a preliminary ruling – Social security – Health insurance – Article 56 TFEU – Freedom to provide services – Regulation (EC) No 883/2004 – Article 20(1) and (2) – Medical treatment received in a Member State other than the insured person’s Member State of residence – Directive 2011/24/EU – Article 7(7) – Assumption of the costs of treatment incurred by the insured person – Reimbursement – National legislation making reimbursement of those costs conditional upon the completion of a medical assessment, carried out exclusively by a health professional belonging to the public health insurance system of the insured person’s Member State of residence, which has given rise to the issuing, by that health professional, of a document authorising the hospitalisation of that insured person – Significant limitation of the reimbursement of the costs of cross-border healthcare)
Public health – Cross-border healthcare – Directive 2011/24 – Reimbursement of the costs of cross-border healthcare – Conditions – Medical assessment carried out exclusively by a health professional belonging to the public health insurance system of the Member State of affiliation – Issuing, by that health professional, of a document authorising the hospitalisation of the insured person – Unjustified and disproportionate obstacle to the freedom to provide services – Not permissible
(Art. 56 TFEU; European Parliament and Council Directive 2011/24, Art. 7(7))
(see paragraphs 32-56, operative part 1)
Public health – Cross-border healthcare – Relationship between Directive 2011/24 and Regulation No 883/2004 – Combined application of both acts to the same instance of healthcare provision precluded
(European Parliament and Council Regulation No 883/2004; European Parliament and Council Directive 2011/24)
(see paragraphs 60-62)
Social security – Coordination of social security systems – Sickness insurance – Benefits in kind provided in another Member State – Scheduled treatment received in a Member State other than the Member State of residence of the insured person – No prior authorisation – Significant limitation of the reimbursement of the costs of cross-border healthcare – Whether permissible – Conditions – Exceptions – Insured person prevented from applying for such an authorisation or from waiting for the decision on the application – Impediment relating to the person’s state of health or to the need to receive urgent treatment
(Art. 56 TFEU; European Parliament and Council Regulation No 883/2004, Art. 20(1) and (2))
(see paragraphs 66-76, operative part 2)
Résumé
Hearing a request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), the Court of Justice specifies the conditions and arrangements for the reimbursement of the costs of cross-border healthcare incurred by an insured person under Directive 2011/24 (
1
) and Regulation No 883/2004. (
2
)
In March 2018, AF, a Romanian resident affiliated with the national public health insurance system, was diagnosed with adenocarcinoma of the prostate at a private medical establishment in Romania. In view of the benefits for the patient’s health and subsequent recovery, the recommended treatment consisted of an operation carried out with the assistance of a surgical robot, which AF decided to undergo in Germany, at a specialist clinic devoted exclusively to the pathology in question.
However, the request which he submitted after the operation, seeking reimbursement of the costs of the healthcare received in Germany, was refused by the Romanian health insurance fund on the ground, inter alia, that it was not accompanied by a document authorising his hospitalisation. Such a document should, according to the requirements of Romanian law, have been drawn up by a health professional belonging to the Romanian public health insurance system before the beginning of the provision of scheduled treatment.
After his action against the decision of the health insurance fund was dismissed by the Curtea de Apel Târgu Mureș (Court of Appeal, Târgu Mureș, Romania), AF brought an appeal before the referring court. Having doubts as to whether the Romanian rules governing the reimbursement of the costs of cross-border medical services are compatible with EU law, that court has decided to make a reference to the Court of Justice for a preliminary ruling.
Findings of the Court
Carrying out a literal, contextual and teleological interpretation of Article 7(7) of Directive 2011/24, the Court notes, in the first place, that that provision does not preclude – subject to the limits laid down thereby – a Member State of affiliation from requiring, for the purposes of the reimbursement of the costs of cross-border healthcare, an insured person to have undergone a medical assessment, carried out by a health professional belonging to the public health system or health insurance system of that Member State, which has given rise to the issuing, by that health professional, of a document authorising the hospitalisation of that insured person.
In that regard, the Member States have a broad discretion to determine the arrangements and conditions for reimbursing the costs of cross-border healthcare services, so that they may provide that such services are to be subject to certain conditions, as long as those conditions are not discriminatory and do not constitute an unjustified obstacle to the freedom to provide services guaranteed by Article 56 TFEU. However, in examining the limits thus laid down by Article 7(7) of Directive 2011/24, the Court finds that, by making reimbursement of the costs of cross-border healthcare services subject to the completion of a medical assessment by a health professional belonging to the Romanian public health insurance system and to the obtaining, from that health professional, of a document authorising hospitalisation, the Romanian legislation is capable of having a deterrent effect on the use of cross-border healthcare services and thus constitutes an obstacle to the freedom to provide services for the purposes of Article 56 TFEU. In that regard, the Court notes that, in the context of cross-border hospital treatment, more often than not, such an assessment will be carried out and such a document will normally be drawn up by a health professional operating in the Member State where the healthcare is to be provided.
That obstacle cannot be justified by the general objective pursued by the Romanian legislation of preserving the financial stability of the social security system. Indeed, the health system of the Member State of affiliation is not liable to be faced with a risk of additional costs linked to the assumption of the costs of cross-border healthcare, in view of the twofold limit which Directive 2011/24 places on the reimbursement of those costs. First, that reimbursement is to be calculated on the basis of the rates applicable to healthcare in the Member State of affiliation, and, second, it is not to exceed the actual costs of the healthcare received if the cost of the care provided in the host Member State is lower than that of the care provided in the Member State of affiliation.
Furthermore, even if it cannot be ruled out that the condition laid down by the Romanian legislation enables (i) costs to be controlled and (ii) any waste of financial resources resulting from, inter alia, needless hospitalisations prescribed by health professionals belonging to the private health system who would not be constrained by a need to control public spending to be avoided as far as possible, such a condition does not appear, in any event, to be in line with the principle of proportionality. Indeed, less restrictive measures could have been provided for by the Romanian legislature, such as the implementation of a procedure for accepting equivalent medical certificates or reports, accompanied by review of the apparent accuracy of the diagnosis and the relevance of the proposed treatment.
In the second place, the Court examines whether the application of a calculation method which significantly limits the amount of reimbursement of the costs of cross-border healthcare as compared with the costs actually incurred in the Member State where that healthcare was provided where the prior authorisation required under Regulation No 883/2004 has not been obtained is compatible with Article 20 of that regulation, read in the light of Article 56 TFEU regarding the free movement of services.
As regards, as a preliminary point, the relationship between Directive 2011/24 and Regulation No 883/2004, the Court specifies that, for the sake of consistency, those two acts cannot be applied in combination. Where the patient is entitled to cross-border healthcare under both Directive 2011/24 and Regulation No 883/2004, and the application of that regulation is more advantageous to the patient, the patient’s attention should be drawn to this by the Member State of affiliation. As assessing the question of the applicability of Regulation No 883/2004 is thus an assessment of a factual nature, it is for the referring court to verify whether that regulation is applicable in the present case.
That being said, in order to provide the referring court with an answer which will be of use to it, the Court goes on to interpret Regulation No 883/2004.
Under Article 20(1) and (2) of that regulation, an insured person travelling to a Member State other than his or her Member State of residence with the purpose of receiving benefits in kind during his or her stay must seek authorisation from the competent institution. Once authorisation has been received, the insured person is to receive the benefits in kind provided by the institution of the place of stay, in accordance with the provisions of the legislation that institution applies, as though he or she were insured under that legislation.
However, as the applicability of Article 20 of Regulation No 883/2004 to a given situation does not mean that provisions on the freedom to provide services cannot apply to that situation at the same time, the Court interprets that article in the light of Article 56 TFEU and of the case-law relating thereto. In that regard, it recalls that, where an insured person has received cross-border healthcare without having sought and obtained the prior authorisation required for that purpose or where the refusal to issue that authorisation was well founded, the insured person is entitled to reimbursement of the costs of that healthcare only within the limits of the cover provided by the health insurance scheme with which he or she is affiliated. The amount of reimbursement of those costs may be fixed by the Member State of affiliation at a level lower than that of the costs actually incurred by that insured person, provided that the method for calculating that amount is based on objective, non-discriminatory and transparent criteria.
Nevertheless, if, for reasons relating to his or her state of health or to the need to receive urgent treatment in a hospital, that person was prevented from applying for such a prior authorisation or was not able to wait for the decision of the competent institution on the application for authorisation submitted, he or she is entitled to obtain reimbursement of an amount equivalent to that which would ordinarily have been assumed by the competent institution had there been such an authorisation.
(
1
)	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).
(
2
)	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, and corrigendum OJ 2004 L 200, p. 1).