OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 30 April 2020(1)
Case C‑243/19
A
v
Veselības ministrija
(Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Senate of the Supreme Court, Latvia))
(Reference for a preliminary ruling — Social security — Medical insurance — Regulation (EC) No 883/2004 — Article 20(2) — Authorisation to receive treatment outside the Member State of residence —Authorisation granted where the treatment is among benefits provided for by the legislation of Member State of residence and where person cannot be given such treatment within a time limit which is medically justifiable — Directive 2011/24/EU — Article 7 — Article 8(5) — Reimbursement of cross-border healthcare —Medical expenses incurred in another Member State — Refusal — Charter of Fundamental Rights of the European Union — Article 10(1) and Article 21(1) — Article 56 TFEU)
I. Introduction
1. The present request for a preliminary ruling concerns the interpretation of Article 56 TFEU, Article 10(1) (2) and Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (3) and Article 8(5) of 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. (4)
2. The questions posed in the present request for a preliminary ruling require the Court to assess the extent to which the Member States, when implementing Article 20(2) of Regulation No 883/2004 and Articles 7 and 8 of Directive 2011/24, must take personal patient choice into account in the context of the public provision of cross-border healthcare. Specifically, the Court must examine the extent to which — if at all — patient choice based on religious grounds must be accommodated in this context, not least having regard to the provisions of Article 10(1) of the Charter (5) (which provides that everyone has a right to freedom of religion) and Article 21(1) of the Charter (which prohibits discrimination on grounds of religion). (6) These questions arise in the following context.
3. The request has been made in proceedings between A, who is the father of a child, B, and the Veselības ministrija (‘the Ministry of Health’) of Latvia. B was born with a cardiovascular disease the treatment of which required surgery. This type of operation can be carried out in Latvia, but it necessarily involves a blood transfusion. In addition, the operation is among the treatments provided for by Latvian legislation in respect of its national health system. The referring court has thus stressed the fact that there is no medical reason why B could not undergo the operation in question in Latvia.
4. A is a Jehovah’s Witness and, for that reason, opposes blood transfusion, even where, as here, the operation in question amounts to life-saving and essential medical treatment for his young son, B. It appears that Jehovah’s Witnesses regard the prohibition on blood as a scriptural requirement in view of the admonition contained in Acts 15:29 requiring Christians to ‘abstain from meats offered to idols, and from blood, and from things strangled …’, but also as one which, when it arises, poses a practical test of faith.
5. One may say at the outset that a secular court such as this Court or the referring court cannot possibly choose in matters of this kind. A diversity of religious and philosophical views is the essence of freedom of thought, conscience and religion guaranteed by Article 10(1) of the Charter. The very words of this provision — reflecting as they do a deep-seated commitment which is also found in the constitutions of the Member States to the freedom of philosophical inquiry and religious freedom — presuppose that Member States cannot be prescriptive as to what shall be orthodox or conventional in this matter.
6. All of this means that the courts must be particularly prepared to protect a diversity of views in matters of conscience, religion and freedom of thought. This, accordingly, is the general background to the present proceedings. It is important to state, however, that the questions relating to Article 10(1) and Article 21(1) of the Charter at issue here are nonetheless presented in a somewhat diluted and less acute form than many previous cases which have come before the national courts involving Jehovah’s Witnesses. Many of these cases concerned the right of national courts to step in and order the administration of a blood transfusion to children where surgical intervention was necessary for life-saving purposes.
7. This issue does not arise so far as the present case is concerned because the life-saving operation was in fact, happily, performed on the child, albeit in Poland and not in Latvia. The operation, which was carried out in Poland in April 2017, did not actually require a blood transfusion and it was for that specific reason that B travelled to Poland.
8. The issue which is thus presented is a somewhat more prosaic one, namely, whether A is entitled to seek reimbursement from the Latvian National Health Service of some or all of the costs of the operation that was carried out Poland. To this end A requested the Latvian National Health Service to issue what is known as an ‘S2 form’ thereby authorising his son to benefit from certain healthcare scheduled in another Member State of the European Union, in a State of the European Economic Area (EEA) or in Switzerland in accordance with national legislation transposing, inter alia, Article 20(2) of Regulation No 883/2004. That authorisation would have ensured that the costs relating to the operation in question in Poland would have been borne by the Latvian State budget. The authorisation was, however, refused on the basis that the operation could have been performed in Latvia — although, unlike in Poland, this would have entailed the use of a blood transfusion — and that there were no medical grounds justifying carrying out the operation on B without a blood transfusion.
9. A considers that he has suffered indirect discrimination on grounds of religion as the majority of people and their children are able to benefit from the necessary health services without compromising their religious or moral convictions.
10. The Court is accordingly asked to assess whether such alleged indirect discrimination on grounds of religion may be legitimate and thus necessary and proportionate, not least having regard to the fact that adapting medical treatment in order to take account of such religious beliefs may create an additional burden on the overall healthcare budget.
11. The Court must examine, in particular, whether medical criteria are the only criteria that a Member State is obliged to take into account pursuant to Article 20(2) of Regulation No 883/2004 and Article 8(6)(d) of Directive 2011/24 or whether sincerely held religious beliefs must also be factored into the equation.
12. It is, however, first necessary to set out the relevant legislative and other provisions before considering these questions.
II. Legal framework
A. EU law
1. Regulation No 883/2004
13. Article 20 of Regulation No 883/2004, entitled ‘Travel with the purpose of receiving benefits in kind — authorisation to receive appropriate treatment outside the Member State of residence’, provides:
‘1. Unless otherwise provided for by this Regulation, an insured person travelling to another Member State with the purpose of receiving benefits in kind during the stay shall seek authorisation from the competent institution.
2. An insured person who is authorised by the competent institution to go to another Member State with the purpose of receiving the treatment appropriate to his/her condition shall receive 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 it applies, as though he/she were insured under the said legislation. The authorisation shall be accorded where the treatment in question is among the benefits provided for by the legislation in the Member State where the person concerned resides and where he/she cannot be given such treatment within a time limit which is medically justifiable, taking into account his/her current state of health and the probable course of his/her illness.
3. Paragraphs 1 and 2 shall apply mutatis mutandis to the members of the family of an insured person.
…’
2. Directive 2011/24
14. Article 7 of Directive 2011/24, entitled ‘General principles for reimbursement of costs’, states:
‘1. Without prejudice to Regulation (EC) No 883/2004 and subject to the provisions of Articles 8 and 9, the Member State of affiliation shall ensure the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation.
…
3. It is for the Member State of affiliation to determine, whether at a local, regional or national level, the healthcare for which an insured person is entitled to assumption of costs and the level of assumption of those costs, regardless of where the healthcare is provided.
4. The costs of cross-border healthcare shall be reimbursed or paid directly by the Member State of affiliation up to the level of costs that would have been assumed by the Member State of affiliation, had this healthcare been provided in its territory without exceeding the actual costs of healthcare received.
Where the full cost of cross-border healthcare exceeds the level of costs that would have been assumed had the healthcare been provided in its territory the Member State of affiliation may nevertheless decide to reimburse the full cost.
…
8. The Member State of affiliation shall not make the reimbursement of costs of cross-border healthcare subject to prior authorisation except in the cases set out in Article 8.
9. The Member State of affiliation may limit the application of the rules on reimbursement for cross-border healthcare based on overriding reasons of general interest, such as planning requirements relating to the aim of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources.
…’
15. Article 8 of Directive 2011/24, entitled ‘Healthcare that may be subject to prior authorisation’, states as follows:
‘1. The Member State of affiliation may provide for a system of prior authorisation for reimbursement of costs of cross-border healthcare, in accordance with this Article and Article 9. The system of prior authorisation, including the criteria and the application of those criteria, and individual decisions of refusal to grant prior authorisation, shall be restricted to what is necessary and proportionate to the objective to be achieved, and may not constitute a means of arbitrary discrimination or an unjustified obstacle to the free movement of patients.
2. Healthcare that may be subject to prior authorisation shall be limited to healthcare which:
(a) is made subject to planning requirements relating to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources and:
(i) involves overnight hospital accommodation of the patient in question for at least one night; or
(ii) requires use of highly specialised and cost-intensive medical infrastructure or medical equipment;
…
5. Without prejudice to points (a) to (c) of paragraph 6, the Member State of affiliation may not refuse to grant prior authorisation when the patient is entitled to the healthcare in question in accordance with Article 7, and when this healthcare cannot be provided on its territory within a time limit which is medically justifiable, based on an objective medical assessment of the patient’s medical condition, the history and probable course of the patient’s illness, the degree of the patient’s pain and/or the nature of the patient’s disability at the time when the request for authorisation was made or renewed.
6. The Member State of affiliation may refuse to grant prior authorisation for the following reasons:
…
(d) this healthcare can be provided on its territory within a time limit which is medically justifiable, taking into account the current state of health and the probable course of the illness of each patient concerned.’
B. Latvian law
16. Point 310 of the Ministru kabineta 2013. gada 17. decembra noteikumi Nr. 1529 ‘Veselības aprūpes organizēšanas un finansēšanas kārtība’ (Cabinet Regulation No 1529 of 17 December 2013 ‘Regulations on organising and funding the healthcare system’) (‘Regulation No 1529’) states:
‘310 The National Health Service shall issue the S2 form to a person that has the right to benefit from health services covered by the State budget, and who wishes to receive healthcare scheduled in another [EU] Member State, in the [EEA], or in Switzerland, if the following cumulative conditions are met:
310.1 the health services are covered by the State budget in accordance with the applicable rules to such care;
310.2 at the date of examination of the request, none of the healthcare providers mentioned in point 7 of these regulations can guarantee these health services and reasoned opinion to that effect has been obtained from the provider in question;
310.3 the care in question is necessary for the person to avoid irreversible deterioration to their vital functions or state of health, taking into account the state of health of the person at the time that they are examined and of the foreseeable course of the illness.’
17. Point 328 of Regulation No 1529 provides:
‘328 The [National Health] Service shall reimburse the expenses incurred by persons who are entitled to receive publicly funded healthcare in Latvia where those persons received healthcare in another [EU] Member State, a State which is part of the [EEA] or in the Swiss Confederation, and paid for that care out of their own funds;
328.1 In accordance with the provisions of Regulation No 883/2004 and Regulation [(EC)] No 987/2009 [of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (7)], as well as the conditions governing the expenses relating to the healthcare provided by the State in which those persons received the healthcare, and having regard to the information provided by the competent authority of the [EU] Member State or the State which is part of the [EEA] or the Swiss Confederation, in respect of the amount which is to be reimbursed to those persons, where:
…
328.1.2 The [National Health] Service has adopted a decision to issue an S2 form to those persons, however those persons have paid for that healthcare out of their own funds,
328.2 Having regard to the scale of fees for healthcare treatments, which was established at the time those persons received such treatments, or having regard to the extent of compensation for expenses in accordance with the legal framework relating to the purchase of medicine and medical equipment intended for hospital care, at the time that that medicine and medical equipment was acquired, where:
328.2.1 Those persons have received planned healthcare (including that which requires prior authorisation), without prejudice to the situation referred to in Point 328.1.2. of the present regulation and that treatment is among those paid for according to the procedure laid down in the present regulation out of public funds in the Republic of Latvia.
…’
III. The facts of the main proceedings and the reference for a preliminary ruling
18. The son (‘B’) of the applicant (‘A’) was born with a life-threatening cardiovascular disease which required surgery in order to prevent an irreversible deterioration of B’s health. It is undisputed that this operation was medically necessary. This particular form of surgery is available in Latvia and is included in the list of treatments which are covered by the Latvian State in respect of its public health service.
19. As I have already indicated, the issue arises because A is a Jehovah’s Witness and, for that reason, does not accept the use of blood transfusions. Given that in Latvia such an operation cannot be carried out without a blood transfusion, A requested the Nacionālais veselības dienests (‘the National Health Service’) to issue his son with an S2 form authorising medical treatment and the payment thereof in, inter alia, another Member State. By decision of 29 March 2016, the National Health Service refused to grant that authorisation. By decision of 15 July 2016, the Ministry of Health upheld that decision.
20. A brought an action before the Administratīvā rajona tiesa, Rīgas tiesu nams (District Administrative Court, Riga Section, Latvia) seeking a favourable administrative decision in respect of the right for his son to receive certain scheduled healthcare treatment. By judgment of 9 November 2016, that court dismissed A’s action.
21. On appeal, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) agreed with the reasoning of the court at first instance and, by judgment of 10 February 2017, dismissed the appeal. The court stated that the medical operation at issue is a treatment that is financed by the State budget and is necessary to avoid irreversible damage to the vital functions or the health of A’s son. The operation could be carried out in Latvia, but only by using a procedure which included a blood transfusion. A maintained that he is being discriminated against on the grounds that ‘the majority of people in society may benefit from medical care without renouncing their religious convictions’. Due to this fact, A contended that he is in a different situation to that of other patients.
22. The Administratīvā apgabaltiesa (Regional Administrative Court) found, first, that one of the cumulative requirements for the issuance of the S2 form had not been satisfied under Point 310.2 of Regulation No 1529. In that regard, the court noted that the fact that hospitals in Latvia use a method of treatment involving the transfusion of blood products and that A refuses such treatment does not mean that those hospitals cannot provide the healthcare specifically at issue.
23. Second, that court noted that, because the method of treatment must be based on medical criteria, the health service, by refusing to grant authorisation for treatment which is available in Latvia, had not restricted A’s right to choose in relation to receiving treatment of his son’s condition, and that the decision of the health service is not related to A’s religious beliefs. Prospective patients have a right to refuse a specific type of treatment and to choose an alternative; however in that case, the State is not obliged to pay for that alternative treatment.
24. Third, in order for a person to be reimbursed in accordance with the fees fixed in Latvia, it is necessary for the health service to issue prior authorisation, for which A did not apply. Thus A wrongly claims that it is not possible to receive reimbursement for treatment in a Polish healthcare institution, since an application for authorisation to the public authority in accordance with the procedure laid down was not submitted.
25. In the fourth place, freedom of religion is not an absolute right and thus, in certain circumstances, may be restricted. On the other hand, the present case concerns the freedom of religion of A and not that of his son, B. Moreover, the freedom of the parents to make important decisions on behalf of the child can be limited in order to protect the best interests of the child.
26. A lodged an appeal in cassation before the referring court. In that application A indicated that, in order to avoid damaging the child’s health, the operation was in fact performed in Poland on 22 April 2017.
27. A claims, inter alia, that the State must create a healthcare system which can be adapted to the personal circumstances of the patient, which includes taking into account the religious beliefs of the parents or guardians of a patient who is a minor. The treatment of patients must be ensured while fully taking into account the dignity of the patient, which includes his or her moral values and religious beliefs. However, according to A, the Administratīvā apgabaltiesa (Regional Administrative Court) analysed those beliefs only in respect of the parents’ right to choose the type of healthcare that their child receives. It did not consider whether, as a result, the parents are being implicitly forced by the authorities to renounce their religious beliefs. A considers that the prohibition on discrimination has been infringed, because the State has treated him and other patients –– who are in different circumstances and who do not need their method of treatment to be adapted –– in the same way.
28. The Ministry of Health agrees with the view of the National Health Service that in order for an S2 form to be issued, the interested party must fulfil a set of cumulative requirements: (i) there is a requirement that the healthcare treatment in question be paid for out of public funds; (ii) that that care is necessary in order to prevent an irreversible deterioration in vital functions; and (iii) that specific healthcare treatment is not available in Latvia. That provision, contained in both national legislation and Regulation No 883/2004, is mandatory and leaves no discretion to the authorities with regard to adopting an administrative act. Therefore, the final requirement has not been satisfied, because, in the present circumstances, the necessary treatment can be provided in Latvia, although A is opposed to a transfusion of blood components due to his religious beliefs. The Ministry of Health points out that, within the legal framework, there are certain reasonable limits placed on adapting healthcare treatments in order to ensure, as far as possible, a rational allocation of financial resources and to protect the interests of society as a whole in relation to the availability of quality healthcare in Latvia.
29. Furthermore, the Ministry of Health points out that there is no basis for applying the provisions of Directive 2011/24, because the applicant did not apply for prior authorisation in order to be reimbursed in accordance with the fees fixed in Latvia. Finally, the Ministry of Health notes that the considerations of the Court on cross-border healthcare have been summarised in Directive 2011/24, which, nevertheless, provides for the reimbursement of the costs of that treatment in accordance with the fees fixed in Latvia and not those of the State in which that treatment was received.
30. The referring court states that the application of the same rules to different situations is prohibited, since this is tantamount to indirect discrimination, except where that application is necessary to achieve a legitimate aim and if the measure is proportionate to the aim pursued. In the present circumstances, the aim of applying equal treatment or apparently neutral criteria may be to protect public health and the rights of others, that is to say, the necessity to maintain an adequate, balanced and permanent supply of quality hospital care in the national territory and the necessity to protect the financial stability of the social security system. According to the referring court, given that adapting treatment to religious beliefs may create an additional burden on the overall healthcare budget, this could constitute a legitimate aim.
31. With regard to the assessment of proportionality, the referring court points out that hospital care of patients is linked to significant costs and that the State has wide discretion, particularly with regard to the allocation of resources. However, in examining the principle of proportionality in the context of freedom of religion it is necessary to assess whether the right balance has been struck between the interests of the individual and society, even if that would result in additional costs for the State. Therefore, the referring court accepts that a Member State may refuse in accordance with Article 20(2) of Regulation No 883/2004, interpreted in the light of Article 21(1) of the Charter, to issue the authorisation in question where the hospital care, the medical effectiveness of which is not contested, available in the Member State of residence of the person concerned, is contrary to the religious beliefs of that person.
32. At the same time, the referring court expresses doubts as to whether the requirement of proportionality is reasonably met where none of the costs linked to the healthcare received by the person in a different Member State are reimbursed, where that person was unable to receive the necessary hospital care in his or her Member State of residence on account of his or her religious beliefs.
33. The referring court notes in that respect that Article 7(1) of Directive 2011/24 provides that, without prejudice to Regulation No 883/2004 and subject to the provisions of Articles 8 and 9 of that directive, that the Member State of affiliation must reimburse cross-border healthcare costs up to the level of costs that would have been covered in that Member State. Hospital treatment may however be subject to pre-authorisation pursuant to Article 8 of Directive 2011/24, which may be refused where equally effective treatment can be provided on its territory. The referring court observes that in accordance with Article 7(4) of Directive 2011/24, the costs involved must not be higher than those that would be incurred if the treatment were to be provided in Latvia. Moreover, recital 29 of Directive 2011/24 expressly provides that the assumption of such costs should not have any significant effect on the financing of the national healthcare systems. By contrast the negative consequences for patients who are refused reimbursement are perhaps disproportionately high.
34. In these circumstances the Augstākā tiesa (Senāts) (Senate of the Supreme Court, Latvia) stayed proceedings and referred the following questions to the Court for a preliminary ruling:
‘(1) Must Article 20(2) of Regulation [No 883/2004] in conjunction with Article 21(1) of the Charter …, be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of residence, even though the method of treatment used is contrary to that person’s religious beliefs?
(2) Must Article 56 [TFEU] and Article 8(5) of Directive [2011/24], in conjunction with Article 21(1) of the Charter …, be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 8(1) of that directive where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs?’
IV. Procedure before the Court
35. Written observations on the questions referred by the Augstākā tiesa (Senāts) (Senate of the Supreme Court) were lodged by A, the Ministry of Health, the Italian, Latvian and Polish Governments and by the European Commission.
36. At the hearing of the Court on 13 February 2020 A, the Ministry of Health, the Latvian and Polish Governments and the Commission submitted oral observations.
V. Analysis
A. Scope of request for a preliminary reference
37. What is at issue in the present case is the issuance of what is known as the S2 form to B in order that he may benefit from cross-border healthcare in another Member State. The issuance of that form would appear to be based, inter alia, on national provisions implementing Article 20(2) of Regulation No 883/2004 and Article 26 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (8) rather than on the provisions of Directive 2011/24 or, indeed, Article 56 TFEU. Given however that cross-border healthcare may also be reimbursed pursuant to Directive 2011/24, the referring court considered that it is also necessary to take that directive into account and the second question posed by that court refers, inter alia, to Article 56 TFEU and Article 8(5) of Directive 2011/24. (9)
38. The Ministry of Health and the Latvian and Polish Governments claim, however, that Directive 2011/24 is not relevant in the context of the present proceedings as A did not seek prior authorisation for cross-border healthcare for B in accordance with that directive. Moreover, at the hearing on 13 February 2020, it was also claimed that A had failed to seek reimbursement of the cross-border healthcare received by B within one year thereof as required by the national legislation transposing Directive 2011/24. In addition, following a number of questions put to the parties by the Court at the hearing, it would appear that the system of prior authorisation in accordance with national law transposing, inter alia, Article 8 of Directive 2011/24, was abolished with effect from 1 September 2018.
39. All of this would therefore seem to suggest that prior authorisation was a requirement for reimbursement of cross-border healthcare (10) under the national legislation transposing both Article 20(2) of Regulation No 883/2004 and Article 8 of Directive 2011/24 at the time of the relevant facts in the main proceedings. At the hearing, however, A stated that adequate information on the rules concerning the application of Article 8 of Directive 2011/24 and the requirement of prior authorisation was not available in Latvia at the relevant time. (11)
40. In my view, these matters are questions both of fact and of the application of national law and practice, which the referring court alone is competent to verify. It cannot, therefore, be said that the interpretation sought by the referring court in respect of its second question is necessarily hypothetical. (12)
41. It must also be noted that the applicability of Regulation No 883/2004 and, indeed, Directive 2011/24 (13) to the facts in the case at hand and the fact that national legislation may be in conformity with the provisions of that secondary legislation does not have the effect of removing that national legislation from the scope of the provisions of the TFEU and, by extension, the rules on freedom to provide services or indeed, in my view, from the provisions of the Charter. (14)
42. I therefore consider that all the provisions of EU law referred to in the questions posed by the referring court are of relevance to the case at hand. (15) The questions posed require an examination of the nature and scope of the requirement to obtain (prior) authorisation pursuant to Article 20(2) of Regulation No 883/2004 and Article 8 of Directive 2011/24 in order to be entitled to the reimbursement in the Member State of affiliation of all or part of the costs of cross-border hospital healthcare. The examination must be made, in particular, in the light of the right to freedom of religion referred to in Article 10(1) and freedom from discrimination on religious grounds referred to in Article 21(1) of the Charter.
43. It would appear from the request for a preliminary ruling that the refusal to issue the S2 form in respect of B’s treatment was based solely on the fact that the medical treatment in question could have been provided in Latvia. Other limitations on the right to cross-border healthcare that may be imposed on the right to receive reimbursement in the general interest are thus not relevant. (16)
1. Overview of the case-law of the Court on the freedom to provide services — Article 56 TFEU — cross-border healthcare — requirement of prior authorisation
44. It is settled case-law that 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. (17) The freedom to provide services includes the freedom for the recipients of services, including persons in need of medical treatment, to travel to another Member State in order to receive those services there. (18)
45. The Court has held that the requirement of prior authorisation in respect of treatment planned in another Member State to which responsibility for payment by the competent institution is made subject, in accordance with the rules governing cover in force in the Member State to which that institution belongs, constitutes, both for patients and service providers, an obstacle to the freedom to provide services, since such a system deters, or even prevents, those patients from approaching providers of medical services established in a Member State to obtain the treatment in question. (19)
46. Nonetheless, the Court has also held that although prior authorisation constitutes, for both patients and service providers, an obstacle to the freedom to provide services, Article 56 TFEU 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 or she is registered from being subject to a prior authorisation requirement. (20) The purposes of any such prior authorisation requirement may be said to be in order (i) not to risk seriously undermining the financial balance of a social security system, (ii) to maintain a balanced medical and hospital service open to all, (iii) to maintain treatment capacity or medical competence on national territory, and (iv) to enable planning in order to ensure that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned. (21)
47. In paragraph 44 of the judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581), the Court stated that although 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.
2. Rules laid down in Regulation No 883/2004 and Directive 2011/24
48. As I have already indicated, the present proceedings concern, inter alia, two legislative systems established under Union law pursuant to which an insured person can receive cross-border healthcare, namely, Article 20 of Regulation No 883/2004 and Articles 7 and 8 of Directive 2011/24. Despite the similarities, there are nevertheless important differences between these legislative schemes.
(a) Regulation No 883/2004
49. In accordance with Article 20(1) of Regulation No 883/2004, an insured person travelling to another Member State for medical treatment must (22) seek prior authorisation from the competent institution. Despite the imperative language used in that provision, the Court has stated that the sole purpose of Article 20(2) of Regulation No 883/2004 is to identify the circumstances in which the competent national institution is precluded from refusing authorisation sought on the basis of Article 20. (23) Thus the Court stated in paragraphs 53 of the judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581), that Article 20(2) of Regulation No 883/2004 lays down two cumulative conditions which, if satisfied, render mandatory the grant by the competent institution of the prior authorisation applied for on the basis of that article.
50. The first condition requires that the treatment in question be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides. (24) It is clear from the request for a preliminary ruling that the medical treatment in question in the main proceedings is among the list of treatments financed by the Latvian State budget. In that regard, it must be noted that there is nothing in the request for a preliminary ruling nor in the file before the Court which would tend to indicate that the Ministry of Health refused to reimburse the treatment in respect of B on the ground that that condition had not been satisfied. (25)
51. The referring court stated that what is in question is the second condition laid down in Article 20(2) of Regulation No 883/2004. That condition requires that the treatment which the insured person plans to undergo in a Member State other than the Member State of residence cannot be given within the time normally necessary for obtaining the treatment in question in the latter Member State, taking account of his or her current state of health and the probable course of his or her disease. (26)
52. In paragraphs 65 and 66 of the judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:58), the Court stated that authorisation cannot be refused when the first condition is met and the same or equally effective treatment cannot be given without undue delay in the Member State of residence of the insured person. 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 that person to carry out a professional activity, but also of his or her medical history. (27)
53. Where the two conditions in question are met, the insured person is entitled pursuant to Article 20(2) of Regulation No 883/2004 to reimbursement of the cost of treatment in accordance with the provisions of the legislation of the State in which the treatment was provided. 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 had hospital treatment been provided there, then pursuant to Article 56 TFEU, as interpreted by the Court, complementary reimbursement corresponding to the difference between those two amounts must, in addition, be made by the competent institution. (28)
54. In my view, the second condition imposed by Article 20(2) of Regulation No 883/2004 requires a patient to demonstrate that cross-border healthcare is necessary due to an impending medical need. The Member State of affiliation is thus required to issue the S2 form and bear the associated costs (29) as it cannot adequately meet the medical need in question in a timely manner despite the fact that it has committed to fulfil that need, as is evidenced by the fact that the first condition of Article 20(2) has been met. It may thus be said that the scheme envisaged by Regulation No 883/2004 is exclusively concerned with medical need and not, as such, with personal choice on the part of the patient in question.
55. It follows, therefore, that since the second condition specified in Regulation No 883/2004 is related purely to genuine medical need and does not involve any issue of personal choice (whether for religious reasons or otherwise), the decision of the Latvian authorities to refuse to issue the S2 form cannot, in principle and subject to the application of the Charter, be faulted by reference to this particular condition.
56. This, however, is not necessarily a determining factor so far as B’s claim for reimbursement of healthcare costs incurred in Poland is concerned, since it is next necessary to consider the position with regard to Directive 2011/24.
(b) Directive 2011/24
57. The general effect of Articles 7 and 8 of Directive 2011/24 is to both codify and elaborate upon the case-law of the Court on the reimbursement of the costs of cross-border healthcare with a view to providing greater legal certainty and transparency on the matter. (30)
58. Article 7(1) of Directive 2011/24 provides that the Member State of affiliation shall ensure that the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation.
59. In contrast with Article 20(2) of Regulation No 883/2004, the first subparagraph of Article 7(4) of Directive 2011/24 provides that the costs of cross-border healthcare costs are reimbursed or paid directly by the Member State of affiliation up to the level of costs that would have been assumed by that Member State, had the healthcare been provided in its territory without exceeding the actual costs of healthcare received. (31)
60. An insured person may thus seek reimbursement up to the level that would have been assumed by its Member State of affiliation of costs incurred in respect, for example, of a consultation with a general practitioner or dentist in another Member State provided the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation. (32)
61. Article 7(1) of Directive 2011/24 thus confirms that patients, in principle, have a real and effective choice of the Member State in which they may receive healthcare. It follows that, provided that the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation, they must be reimbursed as if that choice had been exercised in that Member State. In effect, patients have a right to receive cross-border healthcare and, in my view, their choices in this respect need not be exclusively motivated for medical reasons.
62. There is here a clear difference between the operation of Regulation No 883/2004 on the one hand and Directive 2011/24 on the other.
63. Thus, by virtue of the scheme envisaged by Directive 2011/24 a patient can go to a Member State other than the Member State of affiliation and receive healthcare for reasons for example of proximity or simple preference or, for that matter, for reasons of religious beliefs. (33) It is true, of course, that many patients may choose not to avail of cross-border healthcare for a variety of reasons. Many of these reasons are probably personal to the patient. They may elect, for example, to receive medical treatment in their home State for reasons of personal convenience or general familiarity with that medical system and its personnel.
64. Given, however, that reimbursement under Directive 2011/24 is limited to the sum that would be reimbursed in the Member State of affiliation, the Court has said that such factors may limit any financial impact on the social security system of a Member State and, for example, remove the requirement for prior authorisation in respect of care provided in foreign practitioners’ surgeries. (34)
65. Despite the open-ended nature of Article 7(1) of Directive 2011/24, Article 8(1) of that directive nonetheless envisages that a Member State of affiliation may (35) provide for a system of prior authorisation for reimbursement of the costs of certain cross-border healthcare, especially care involving overnight hospitalisation and care requiring the use of highly specialised equipment. (36) The limitations imposed must, however, in accordance with Article 8(1) of Directive 2011/24, be restricted to what is necessary and proportionate to the objective to be achieved. Any such restrictions may not constitute a means of arbitrary discrimination or an unjustified obstacle to the free movement of patients. It is clear from the very language of Article 8(1) of Directive 2011/24 that the system of prior authorisation — and thus the possibility of restricting access to cross-border healthcare — is exceptional in nature and must accordingly be interpreted in a restrictive manner.
66. In that regard, Article 8(2)(a) of Directive 2011/24 provides that healthcare that may be subject to prior authorisation shall be limited to healthcare which, inter alia, is made subject to planning requirements relating to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources and involves overnight hospital accommodation of the patient in question for at least one night or requires use of highly specialised and cost-intensive medical infrastructure or medical equipment. (37)
67. In any event, Article 8(5) of Directive 2011/24 provides, inter alia, that the Member State of affiliation may not refuse to grant prior authorisation when the patient is entitled to the healthcare in question in accordance with Article 7, and when this healthcare cannot be provided on its territory within a time limit which is medically justifiable. (38) Thus in accordance with Article 8(6)(d) of Directive 2011/24, the Member State of affiliation may refuse to grant prior authorisation where the healthcare can be provided on its territory within a time limit which is medically justifiable.
68. It follows, therefore, that Member States may incur different financial obligations depending on whether Article 20(2) of Regulation No 883/2004 or, alternatively, Articles 7 and 8 of Directive 2011/24, are in question. This is yet a further difference between the two legislative systems.
3. Application of Regulation No 883/2004, Directive 2011/24 and Article 10(1) and Article 20(1) of the Charter to the case at hand
69. As I have already observed, all parties agree that the operation which was performed on A’s son, B, was necessary in order to avoid an irreversible deterioration of his state of health. While there is no medical reason why B could not benefit from the treatment available in Latvia, as we have already seen A’s religious beliefs prevented B from receiving the healthcare in question. (39) The case in the main proceedings accordingly concerns the reimbursement by the Latvian Ministry of Health of the costs of the hospital healthcare received by B in Poland under Article 20(2) of Regulation No 883/2004 - given that the Ministry of Health refused to grant prior authorisation in respect of that healthcare by refusing to issue the S2 form - and also possibly under Articles 7 and 8 of Directive 2011/24. (40)
70. It must be recalled that in order for cross-border healthcare to be reimbursed, both Article 20(2) of Regulation No 883/2004 and Article 7(1) of Directive 2011/24 require that the healthcare in question be among the benefits provided by the Member State of affiliation. Given that this condition was fulfilled in the case of the operation performed on B, there is no question of requiring a Member State, in this case the Republic of Latvia, to pay for treatment that an insured person (in this instance, B) would not have been entitled to receive in the Member State of affiliation.
71. It follows therefore, that the question whether a Member State such as the Republic of Latvia might ever be required to assume, positive, and, perhaps, at times costly, additional financial obligations by providing healthcare that is not among the benefits provided by the Member State of affiliation in order to effectively guarantee a person’s right to practise their religion or otherwise not suffer discrimination on grounds of religion simply does not arise in the present case given that the first condition in Article 20(2) of Regulation No 883/2004 was, in any event, fulfilled.
72. As regards the second condition contained in Article 20(2) of Regulation No 883/2004 and the terms of Article 8(6)(d) of Directive 2011/24, these provisions, in effect, permit Member States to refuse to authorise or reimburse cross-border healthcare in the absence of impending medical necessity. I consider that the wording of those provisions is unambiguous and that the only criteria specifically contemplated are medical in nature.
73. It must be stressed, however, that in accordance with Article 51(1) of the Charter, the Member States must when they are implementing Union law respect the rights, observe the principles and promote the application of the provisions of the Charter, including Article 10(1) and Article 21(1). (41)
74. It would appear, subject to verification by the referring court, that the national rules at issue in the main proceedings — which are based, inter alia, on Article 20(2) of Regulation No 883/2004 and Article 8(6)(d) of Directive 2011/24 — concerning the requirement of impending medical necessity in order that the costs of B’s treatment in Poland be reimbursed do not directly hinder the practice of religion or give rise to direct discrimination on the basis of religion. These rules are perfectly neutral in that regard.
75. It is for the referring court to assess whether those national rules indirectly hinder the practice of religion or introduce a difference of treatment that is indirectly based on religion or belief.(42) It is clear, however, that the rules in question do not hinder in an unwarranted manner the practice of religion or amount to indirect discrimination if they are objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. (43)
76. This is ultimately a matter for the referring court to determine. (44) I consider, however, that the case-law of the Court on the need for prior authorisation and the free movement of medical services pursuant to Article 56 TFEU provides considerable guidance on the matter.
77. In that regard, it must be recalled that it is settled case-law (45) that Article 56 TFEU 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 or she is registered from being subject to prior authorisation (46) in order (i) not to risk seriously undermining the financial balance of a social security system, (ii) to maintain a balanced medical and hospital service open to all, (iii) to maintain treatment capacity or medical competence on national territory, and (iv) to enable planning in order to ensure that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned. (47)
(a) Absence of justification of refusal of (prior) authorisation based on organisational or structural reasons under both Article 20(1) and (2) of Regulation No 883/2004 and Article 8(2) and (6)(d) of Directive 2011/24
78. Leaving aside for a moment the first criterion, which is purely financial and relates to the cost of the provision of healthcare, the other criteria are, in my view, organisational or structural in nature and relate to the orderly and balanced provision of effective healthcare by the Member State of affiliation to all those insured. (48) The criteria in question are equally applicable in respect of the justification of prior authorisation for reimbursement and the reasons for refusal thereof contained in both Article 20(1) and (2) of Regulation No 883/2004 and Article 8(2) and (6)(d) of Directive 2011/24.
79. Given that the Republic of Latvia apparently abolished the requirement of prior authorisation in accordance with the national law transposing Article 8 of Directive 2011/24 on 1 September 2018, (49) it is at least open to question, subject to verification by the referring court, whether the refusal of the Ministry of Health to issue an S2 form (50) to B by decision of 29 March 2016 — less than 18 months earlier — could in fact be justified for organisational or structural reasons. (51)
80. In my view, if no organisational or structural reasons exist such as to justify a limitation on the free movement of healthcare services guaranteed by Article 56 TFEU, I consider that it is unlikely that similar criteria could justify a limitation on the right to practise one’s religion or not to suffer discrimination on grounds of religion guaranteed by the Charter save where such was likely to give rise to an increase in applications for cross-border healthcare based on religious grounds and where this would be capable of undermining in an appreciable manner the orderly and balanced provision of effective healthcare in Latvia.
81. In that regard, I would note that the Ministry of Health and the Latvian Government in their written pleadings before the Court primarily invoked the limited financial resources available in the Republic of Latvia for healthcare as a justification for the refusal of prior authorisation. Organisational or structural reasons did not, as such, feature as a justification for refusing to authorise cross-border healthcare in the absence of impending medical necessity.
(b) Justification of refusal of (prior) authorisation based on cost
82. Cost is an important factor so far as the present case is concerned. While freedom of religion is essential in a free society where differences of religious conviction and philosophical beliefs must, if at all possible, be accommodated and protected by the Member States, the grant of financial support from public monies for these purposes is another matter entirely. The most expansive guarantees of religious freedom — such as those contained in Article 10(1) of the Charter, Article 9 ECHR and, indeed, the national constitutions of the Member States — would not in themselves oblige those States to provide a system of financial support to enable individuals to practise their religious beliefs. No one would suggest, for example, that a Member State is obliged to provide transport to enable an aged and indigent adherent of a particular faith to attend church services, even if it might plausibly be demonstrated that he or she would otherwise be unable to discharge his or her religious obligations.
83. Cost is, accordingly, a factor which must necessarily be taken into consideration when assessing whether and to what extent religious beliefs must be accommodated in the complex equation of cross-border healthcare and the reimbursement of costs linked thereto.
(1) Regulation No 883/2004
84. On the question of cost, a clear distinction can be drawn between the requirement of prior authorisation for cross-border healthcare in accordance with Article 20(2) of Regulation No 883/2004 on the one hand and Article 8 of Directive 2011/24 on the other. The financial burden which may be incurred by the Member State of affiliation in respect of cross-border healthcare that has been authorised in accordance with Article 20(2) of Regulation No 883/2004 is potentially more onerous than that which would arise in the case of Articles 7 and 8 of Directive 2011/24.
85. By virtue of Article 20(2) of Regulation No 883/2004, the Member State of affiliation must bear the costs of that healthcare in the Member State of treatment, whereas in the case of Articles 7 and 8 of Directive 2011/24, the obligations of the Member State of affiliation are simply to discharge the costs which its public health system would have had to bear anyway had the treatment been carried out in that Member State.
86. If the referring court were to find upon examination of such financial factors that the Latvian healthcare system, in order to accommodate religious beliefs rather than impending medical need, (52) risked being put under strain thereby resulting in a potentially appreciable increase in costs to the detriment of the provision of healthcare to others, then such an accommodation of religious beliefs would neither be required nor proportionate.
87. In such circumstances, the failure to take religious beliefs into account under Article 20(2) of Regulation No 883/2004 would not in itself constitute an unwarranted hindrance of the right to practise religion or amount to indirect discrimination on grounds of religion. Rather, this would be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
88. I therefore consider that in such circumstances, Member States are not required to assume positive financial obligations which would be additional to those based on an existing medical need. (53)
89. It follows, in my view, that Article 20(2) of Regulation No 883/2004, in conjunction with Article 10(1) and Article 21(1) of the Charter, must be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs, where the refusal is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. In the absence of organisational or structural requirements relating to the orderly and balanced provision of effective healthcare by the Member State of affiliation, that Member State may refuse pursuant to the second condition provided by Article 20(2) of Regulation No 883/2004 to take religious beliefs into account, if it would potentially result in an appreciable increase in costs for the Member State of affiliation to the detriment of the provision of effective healthcare to others. This is a matter of fact which must be assessed by the referring court.
(2) Directive 2011/24
90. As regards the justification of the refusal to grant prior authorisation on the basis of the financial criterion, given that in accordance with Article 7(4) of Directive 2011/24, the Republic of Latvia (the Member State of affiliation), must ensure that the costs incurred by B, who received cross-border healthcare, are reimbursed up to the level of costs that would have been assumed by that Member State had the healthcare been received in its territory, it would appear, again subject to verification by the referring court, that there was no financial justification for refusing prior authorisation to B in accordance with Article 8 of Directive 2011/24. (54)
91. It may be recalled that both Article 7 and Article 8 of Directive 2011/24 are guided, in principle, by free choice (55) on the part of the person receiving cross-border healthcare. (56) To this extent, Directive 2011/24 is different from Article 20 of Regulation No 883/2004, save that, as we have seen, Article 8(6)(d) of that directive permits — but does not oblige — Member States to impose pre-authorisation requirements for organisational and structural reasons.
92. In the present case, given the apparent absence of any financial, organisation or structural reason for refusing to grant (prior) authorisation to B to receive cross-border healthcare pursuant to Directive 2011/24, that (prior) authorisation could not legitimately have been refused simply because the operation was available and could be provided by the Latvian public health system.
93. To find otherwise would mean that the question of patient choice, whether for reasons of religious beliefs or otherwise, would simply not arise for consideration. Yet given the apparent absence of any financial, organisation or structural reason for refusing to grant (prior) authorisation to B to receive cross-border healthcare pursuant to Articles 7 and 8 of Directive 2011/24 such a refusal would appear to be neither necessary in the general interest nor proportionate as required by Article 52(1) of the Charter.
94. In the present case there are a number of factual uncertainties relating to the question of whether A could have applied for (prior) authorisation for B’s treatment in Poland in accordance with the national provisions transposing Article 8 of Directive 2011/24 and whether a subsequent application for reimbursement would be out of time due to the lapse of the one-year time period referred to at the hearing.
95. If, however, an application had been made in the present case for prior authorisation pursuant to the system then in operation in Latvia prior to September 2018 as permitted by Article 8(6) of Directive 2011/24, then, having regard to the primacy of patient choice envisaged by that directive and the weighty reasons for that choice so far as the present case is concerned, it seems unlikely that the Latvian authorities could properly have declined to approve such an application.
96. In these circumstances, the referring court should approach the general question of reimbursement by asking itself whether the Latvian system permitted, whether in theory or in practice, late applications for authorisation for cross-border treatment under Directive 2011/24 which involved complex operations and overnight hospitals stays in another Member State.
97. If the answer to this is in the affirmative, then the referring court should annul the decision to refuse reimbursement in the light of the primacy of patient choice under Directive 2011/24 (and the weighty reasons for its exercise in the present case), unless that court is satisfied that in 2016 there were genuine administrative and organisational reasons in the present case such as would now justify the Latvian public health authorities’ refusal to accede to a late application of this kind.
98. I therefore consider that, in the absence of organisational or structural requirements relating to the orderly and balanced provision of effective healthcare by the Member State of affiliation, Article 56 TFEU, Article 8(2), (5) and (6)(d) of Directive 2011/24, in conjunction with Article 10(1) and Article 21(1) of the Charter must be interpreted as meaning that the Member State of affiliation may not refuse to grant the authorisation referred to in Article 8(1) of that directive where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, but the method of treatment used is contrary to that person’s sincerely held religious beliefs unless such conduct is likely to give rise to an increase in applications for cross-border healthcare based on religious grounds which would be capable of undermining in an appreciable manner the orderly and balanced provision of effective healthcare in that Member State. This is a matter of fact which must be assessed by the referring court.
VI. Conclusion
99. I would accordingly propose that the two questions referred by the Augstākā tiesa (Senāts) (Senate of the Supreme Court, Latvia) be answered as follows:
(1) Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems in conjunction with Article 10(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs, where the refusal is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. In the absence of organisational or structural requirements relating to the orderly and balanced provision of effective healthcare by the Member State of affiliation, that Member State may refuse pursuant to the second condition provided by Article 20(2) of Regulation No 883/2004 to take religious beliefs into account, if it would potentially result in an appreciable increase in costs for the Member State of affiliation to the detriment of the provision of effective healthcare to others. This is a matter of fact which must be assessed by the referring court.
(2) In the absence of organisational or structural requirements relating to the orderly and balanced provision of effective healthcare by the Member State of affiliation, Article 56 TFEU, Article 8(2), (5) and (6)(d) of 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, in conjunction with Article 10(1) and Article 21(1) of the Charter of Fundamental Rights must be interpreted as meaning that the Member State of affiliation may not refuse to grant the authorisation referred to in Article 8(1) of that directive where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, but the method of treatment used is contrary to that person’s sincerely held religious beliefs unless such conduct is likely to give rise to an increase in applications for cross-border healthcare based on religious grounds which would be capable of undermining in an appreciable manner the orderly and balanced provision of effective healthcare in that Member State. This is a matter of fact which must be assessed by the referring court.