A v Veselības ministrija.
Date: 2020-10-29
22


At the outset, it must be borne in mind that, according to recitals 4 and 45 of Regulation No 883/2004, the purpose of that regulation is to coordinate Member States’ social security systems in order to guarantee that the right to free movement of persons can be exercised effectively. That regulation modernised and simplified the rules contained in 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 (OJ 1997 L 28, p. 1), while retaining the same objective as the latter (judgment of 6 June 2019, V, C‑33/18, EU:C:2019:470, paragraph 41).
24


The purpose of the first sentence of Article 20(2) of Regulation No 883/2004 is to confer a right to the benefits in kind provided, on behalf of the competent institution, by the institution of the place of stay, in accordance with the provisions of the legislation of the Member State in which the benefits are provided as if the person concerned was covered by that latter institution. Insured persons are thus granted rights which they would not otherwise have since, as they involve reimbursement by the institution of the place of stay in accordance with the legislation administered by it, those rights cannot by definition be guaranteed to those persons under the legislation of the competent Member State alone (see, to that effect, judgment of 23 October 2003, Inizan, C‑56/01, EU:C:2003:578, paragraph 22). In accordance with that regulation, insured persons thus benefit from rights which are not conferred on them by the free movement of services, as enshrined in Article 56 TFEU and given specific expression to by Directive 2011/24 in the area of healthcare.
25


The sole purpose of the second sentence of Article 20(2) of Regulation No 883/2004 is to identify the circumstances in which the competent institution is precluded from refusing the authorisation sought on the basis of Article 20(1) (see, to that effect, judgment of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 39 and the case-law cited). That second sentence of Article 20(2) 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 20(1). The first condition requires that the treatment in question must 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 or her current state of health and the probable course of his or her illness (see, to that effect, judgment of 9 October 2014, Petru, C‑268/13, EU:C:2014:2271, paragraph 30).
28


In that regard, 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 (judgment of 9 October 2014, Petru, C‑268/13, EU:C:2014:2271, paragraph 31 and the case-law cited).
29


In order to assess whether such a treatment exists, the Court has stated that the competent institution is required to have regard to all the circumstances of each specific case, taking due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, the degree of pain or the nature of the patient’s disability, but also of his or her medical history (see, to that effect, judgments of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraph 62; of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 66; and of 9 October 2014, Petru, C‑268/13, EU:C:2014:2271, paragraph 32).
34


That being so, when the insured person’s Member State of residence refuses to grant the prior authorisation provided for in Article 20(1) of Regulation No 883/2004, that Member State implements EU law, within the meaning of Article 51(1) of the Charter, and it is therefore required to respect the fundamental rights guaranteed by the Charter, including in particular those enshrined in Article 21 (judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 42 and the case-law cited).
35


In that regard, it should be borne in mind that the principle of equal treatment is a general principle of EU law enshrined in Article 20 of the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression (judgments of 22 May 2014, Glatzel, C‑356/12, EU:C:2014:350, paragraph 43, and of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 29).
36


Furthermore, the prohibition of all discrimination based on religion or belief is mandatory as a general principle of EU law. That prohibition, which is laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76, and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 76).
37


According to the settled case-law of the Court, that general principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, whether the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 55).
38


Accordingly, it is for the referring court to ascertain, in the first place, whether the refusal to grant the applicant the prior authorisation provided for in Article 20(1) of Regulation No 883/2004 establishes a difference in treatment based on religion. If that is the case, its task is then to examine, in the second place, whether that difference in treatment is based on an objective and reasonable criterion. However, the Court, giving a preliminary ruling on a reference, has jurisdiction, in the light of the information in the file, to give clarifications to guide the referring court in giving judgment in the main proceedings (judgment of 2 December 2009, Aventis Pasteur, C‑358/08, EU:C:2009:744, paragraph 50).
46


The Court has, in particular, pointed out that the number of hospitals, their geographical distribution, the mode of their organisation and the facilities with which they are provided, and even the nature of the medical services which they are able to offer, are all matters for which planning, generally designed to satisfy various needs, must be possible. For one thing, such planning seeks to ensure that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned. For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage would be all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for healthcare are not unlimited, whatever the mode of funding applied (judgments of 12 July 2001, Smits and Peerbooms, C‑157/99, EU:C:2001:404, paragraphs 76 to 79; of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraphs 108 and 109; and of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 43).
47


Consequently, it cannot be excluded that the possible risk of seriously undermining the financial balance of a social security system may constitute a legitimate objective capable of justifying a difference in treatment based on religion. The objective of maintaining a balanced medical and hospital service open to all may also fall within the derogations on grounds of public health in so far as it contributes to the attainment of a high level of health protection (see, by analogy, in the area of freedom to provide services, judgment of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 42 and the case-law cited).
48


As noted in paragraph 24 above, the insured person who has obtained the prior authorisation provided for in Article 20(1) of Regulation No 883/2004 must in principle, for the period fixed by the competent institution, enjoy the benefits in kind provided on behalf of that competent institution by the institution of the Member State of stay, in accordance with the provisions of the legislation that institution administers, as if the insured person were insured with it. The Court has found, in that regard, that the right thus conferred on the insured person consequently means that the cost of the treatment given is initially borne by the institution of the Member State of stay, in accordance with the legislation it administers, and the competent institution is subsequently to reimburse the institution of the Member State of stay under the conditions laid down in Article 35 of Regulation No 883/2004 (see, to that effect, judgment of 12 April 2005, Keller, C‑145/03, EU:C:2005:211, paragraphs 65 and 66). Under that provision, the benefits in kind provided by the institution of a Member State on behalf of the institution of another Member State are, in accordance with the chapter to which the provision belongs, to be refunded in full.
50


As the referring court rightly acknowledged, such additional costs would be difficult to foresee if, in order to avoid a difference in treatment based on religion, the competent institution were obliged to take account of the insured person’s religious beliefs when implementing Article 20 of Regulation No 883/2004, as such beliefs fall within the ‘forum internum’ of that person and are, by their very nature, subjective (see, to that effect, judgment of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 58 and the case-law cited).
53


As regards the necessity for the legislation at issue in the main proceedings, it must be borne in mind that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, Member States should be allowed a measure of discretion (judgment of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 118 and the case-law cited).
58


In that regard, it should be reiterated that 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, to that effect, judgments of 5 December 2006, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25; of 19 June 2012, Chartered Institute of Patent Attorneys, C‑307/10, EU:C:2012:361, paragraph 32; and of 9 October 2014, Petru, C‑268/13, EU:C:2014:2271, paragraph 23).
82


Indeed, there is no reason which seriously justifies different interpretations depending on whether the context is Article 20(2) of Regulation No 883/2004 or Article 8(5) and (6)(d) of Directive 2011/24, since in both cases the question is whether the hospital treatment required by the patient’s medical condition can be provided on the territory of his or her Member State of residence within an acceptable time which ensures its usefulness and efficacy (see, by analogy, judgment of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraph 60).