Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa.
Date: 2010-10-05
25. In that regard, it must be borne in mind, firstly, that the existence of a rule of national procedure such as that applicable in the case in the main proceedings 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 in the present case, as to the interpretation of European Union law.
26. It is settled case-law that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of European Union law, or consideration of their validity, which are necessary for the resolution of the case (see, to that effect, Case 166/73 Rheinmühlen-Düsseldorf  [1974] ECR 33, paragraph 3; Case C‑348/89 Mecanarte  [1991] ECR I‑3277, paragraph 44; Case C‑261/95 Palmisani  [1997] ECR I‑4025, paragraph 20; Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 88; and Joined Cases C‑188/10 Melki and Abdeli  [2010] ECR I‑0000, paragraph 41). National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (see, to that effect, Melki and Abdeli , paragraphs 52 and 57).
27. The Court has thus concluded that a rule of national law, pursuant to which courts that are not adjudicating at final instance are bound by legal rulings of a higher court, cannot take away from those courts the discretion to refer to the Court questions of interpretation of the point of European Union law concerned by such legal rulings. The Court has held that a court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to European Union law, to refer to the Court questions which concern it (see, to that effect, Rheinmühlen-Düsseldorf , paragraphs 4 and 5; Cartesio , paragraph 94; Case C‑378/08 ERG and Others  [2010] ECR I‑0000, paragraph 32; and Melki and Abdeli , paragraph 42).
28. However, it must be pointed out that the possibility thus given to the national court by the second paragraph of Article 267 TFEU of asking the Court for a preliminary ruling before, if necessary, disapplying directions from a higher court which prove to be contrary to European Union law cannot be transformed into an obligation (see, to that effect, Case C‑555/07 Kücükdeveci  [2010] ECR I‑0000, paragraphs 54 and 55).
29. Secondly, it must be borne in mind that it is settled case-law that 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 (see, inter alia, Case 29/68 Milch-, Fett- und Eierkontor  [1969] ECR 165, paragraph 3; Case 52/76 Benedetti  v Munari  [1977] ECR 163, paragraph 26; order in Case 69/85 Wünsche Handelsgesellschaft  [1986] ECR 947, paragraph 13; and Case C‑446/98 Fazenda Pública  [2000] ECR I‑11435, paragraph 49).
30. It follows from those considerations that the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of the higher court if it considers, having regard to that interpretation, that they are not consistent with European Union law.
31. In addition, it is appropriate to point out that, in accordance with settled case-law, a national court which is 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, that is to say, in the present case, the national procedural rule set out in paragraph 24 of this judgment, 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, to that effect, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 24, and Case C‑314/08 Filipiak  [2009] ECR I‑0000, paragraph 81).
32. In the light of the foregoing, the answer to the third question is that European Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being 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.
The questions regarding the interpretation of Articles 49 EC and 22 of Regulation No 1408/71
35. The national court, recalling that Mr Elchinov had treatment in Germany before he had received NZOK’s response to his request for authorisation, asks whether an insured person can seek reimbursement in respect of hospital treatment given in a Member State other than that in which he resides without having first obtained authorisation from the competent institution, where his state of health so required, or whether obtaining the treatment without such prior authorisation entails the insured person losing his right to seek reimbursement of its cost. Pointing out that Article 36 of the Law on sickness insurance permits reimbursement for treatment given in another Member State only if the insured person has obtained prior authorisation for that treatment, it asks whether that provision is consistent with Articles 49 EC and 22 of Regulation No 1408/71.
36. In that regard, firstly, it should be noted that, according to settled case-law, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services, including situations where care is provided in a hospital environment (see, to that effect, Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 86 and the case-law cited, and Case C‑211/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 47 and the case-law cited).
37. It has also been held that the freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to go to another Member State in order to receive those services there ( Watts , paragraph 87 and the case-law cited, and Commission  v Spain , paragraphs 48 to 50 and the case-law cited).
38. The applicability of Article 22 of Regulation No 1408/71 to the situation in this case does not mean that provisions on the freedom to provide services and, in the circumstances, Article 49 EC, cannot apply at the same time. On the one hand, the fact that national legislation may possibly be in conformity with a provision of secondary legislation, in this case Article 22 of Regulation No 1408/71, does not have the effect of removing that legislation from the scope of the provisions of the EC Treaty (see, to that effect, Watts , paragraphs 46 and 47, and Commission  v Spain , paragraph 45).
39. On the other hand, the purpose of Article 22(1)(c)(i) of Regulation No 1408/71 is to confer a right to the benefits in kind provided, on behalf of the competent institution, by the institution of the place where the insured person is staying, in accordance with the provisions of the legislation of the Member State in which the benefits are provided as if the person concerned were registered with that institution (see, to that effect, Case C‑120/95 Decker  [1998] ECR I‑1831, paragraphs 28 and 29; Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraphs 26 and 27; Case C‑368/98 Vanbraekel and Others  [2001] ECR I‑5363, paragraphs 32 and 36; Case C‑56/01 Inizan [2003] ECR I‑12403, paragraphs 19 and 20; and Watts , paragraph 48). The sole purpose of the second subparagraph of Article 22(2) of Regulation No 1408/71 is to identify the circumstances in which the competent national institution is precluded from refusing authorisation sought on the basis of Article 22(1)(c) (see, to that effect, Vanbraekel and Others , paragraph 31).
40. Secondly, it must also be borne in mind that, as submitted by the Governments which have submitted observations in the present case, it is established that European Union law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. The fact nevertheless remains that, when exercising that power, Member States must comply with European Union law and, in particular, with the provisions on the freedom to provide services which prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector (see in particular, to that effect, Watts , paragraph 92 and the case-law cited; Case C‑444/05 Stamatelaki  [2007] ECR I‑3185, paragraph 23; and Commission  v Spain , paragraph 53).
41. Although prior authorisation, such as that required by Article 36 of the Law on sickness insurance, constitutes, for both patients and service providers, an obstacle to the freedom to provide services (see, to that effect, Kohll , paragraph 35; Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraph 69; Case C‑385/99 Müller-Fauré and van Riet  [2003] ECR I‑4509, paragraph 44; and Watts , paragraph 98), the Court has nevertheless held that Article 49 EC does not in principle preclude the right of a patient to receive hospital treatment in another Member State at the expense of the system with which he is registered from being subject to prior authorisation ( Smits and Peerbooms , paragraph 82, and Watts , paragraph 113).
42. The Court has held that it cannot be excluded that the possible risk of seriously undermining the financial balance of a social security system may constitute an overriding reason in the public interest capable of justifying an obstacle to the freedom to provide services. The Court has likewise acknowledged that the objective of maintaining a balanced medical and hospital service open to all may also fall within the derogations on grounds of public health under Article 46 EC in so far as it contributes to the attainment of a high level of health protection. It has also held that Article 46 EC permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, and even the survival of the population (see, to that effect, Kohll , paragraphs 41, 50 and 51; Smits and Peerbooms , paragraphs 72 to 74; Müller-Fauré and van Riet , paragraphs 67 and 73; and Watts , paragraphs 103 to 105).
43. The Court has also 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 ( Smits and Peerbooms , paragraphs 76 to 79, and Watts , paragraphs 108 and 109).
44. Thirdly, it must also be borne in mind that, although European Union law does not preclude, in principle, a system of prior authorisation, it is nevertheless necessary that the conditions attached to the grant of such authorisation must be justified in the light of the imperatives mentioned above, that they do not exceed what is objectively necessary for that purpose and that the same result cannot be achieved by less restrictive rules. Such a system must, in addition, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see, to that effect, Smits and Peerbooms , paragraphs 82 and 90; Müller-Fauré and van Riet , paragraphs 83 to 85; and Watts , paragraphs 114 to 116).
45. In the present case, it is clear that 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, like Mr Elchinov, 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.
48. In addition, with regard to the application of Article 22(1)(c) of Regulation No 1408/71, the Court held, in paragraph 34 of Vanbraekel and Others , that, where the request of an insured person for authorisation on the basis of that provision has been refused by the competent institution and it is subsequently established, either by the competent institution itself or by a court decision, that that refusal was unjustified, that person is entitled to be reimbursed directly by the competent institution in an amount equivalent to that which it would ordinarily have borne if authorisation had been properly granted at the outset.
50. With regard to the legislation at issue in the case in the main proceedings, as the Advocate General observed, in essence, in points 49 and 50 of his Opinion, Article 36 of the Law on sickness insurance is ambiguous. In any event, it is for the national court to assess, in the light of the guidance given in the present judgment, whether that article is consistent with Articles 49 EC and 22 of Regulation No 1408/71 as interpreted by the Court and, in so far as the said Article 36 may be subject to a number of interpretations, to interpret it in a way which accords with European Union law (see, to that effect, Melki and Abdeli , paragraph 50 and the case-law cited).
51. In the light of all the foregoing, the answer to the fifth question is that Articles 49 EC and 22 of Regulation No 1408/71 preclude legislation of a Member State which is interpreted as excluding, in all cases, reimbursement in respect of hospital treatment given in another Member State without prior authorisation.
The first, second and fourth questions, concerning the conditions set out in the second subparagraph of Article 22(2) of Regulation No 1408/71
53. 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) (see, to that effect, Inizan , paragraph 41, and Watts , paragraph 55).
54. 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, whereas the second condition requires that the treatment which the latter plans to undergo in a Member State other than that on the territory of which he resides cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of his disease ( Inizan , paragraphs 42 and 44, and Watts , paragraphs 56 and 57).
58. Thus, it has already been held that 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 (see, to that effect, Smits and Peerbooms , paragraph 87).
65. The Court has already held that the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation to which that provision refers cannot be refused when it appears that the first condition set out therein is met and that the same or equally effective treatment cannot be given without undue delay in the Member State of residence of the insured person (see, to that effect, Inizan , paragraphs 45, 59 and 60, and Watts , paragraphs 59 to 61).
66. The Court has pointed out in that regard that, in order to determine whether treatment which is equally effective for the patient can be obtained without undue delay 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 , paragraph 46, and Watts , paragraph 62).
77. 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 (see, to that effect, Vanbraekel and Others , paragraph 32).
78. If the amount of the reimbursement of the expenses incurred for hospital treatment provided in a Member State other than that of residence, resulting from the rules in force in that State, 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, pursuant to Article 49 EC, as interpreted by the Court, complementary reimbursement corresponding to the difference between those two amounts must, in addition, be made by the competent institution (see, to that effect, Vanbraekel and Others , paragraphs 38 to 52, and Commission  v Spain , paragraphs 56 and 57).
79. The Court has stated that where, under the legislation of the competent Member State, hospital treatment provided under the national health service is to be free of charge, and where the legislation of the Member State in which a patient registered with that service was or should have been authorised to receive hospital treatment at the expense of that service does not provide for the reimbursement in full of the cost of that treatment, the competent institution must reimburse that patient the difference (if any) between the cost, objectively quantified, of equivalent treatment in a hospital covered by the service in question up to the total amount invoiced for the treatment provided in the host Member State and the amount which the institution of the latter Member State is required to reimburse under Article 22(1)(c)(i) of Regulation No 1408/71 on behalf of the competent institution pursuant to the legislation of that Member State ( Watts , paragraph 143).
80. It is appropriate to add, as the Advocate General observed in point 85 of his Opinion, that where insured persons receive hospital treatment in a Member State other than that of residence without applying for authorisation under Article 22(1)(c)(i) of Regulation No 1408/71, they can claim reimbursement of the cost of the treatment given to them, on the basis of Article 49 EC, only within the limits of the cover provided by the sickness insurance scheme to which they are affiliated (see, to that effect, Müller-Fauré and van Riet , paragraphs 98 and 106). The same applies where a refusal to issue the prior authorisation required under Article 22 is justified.