Case C-268/13, Petru

Reimbursement of medical expenses incurred in another Member State cannot be refused where a lack of basic medical supplies and infrastructure makes it impossible to receive hospital treatment in good time

>> Under Regulation (EEC) No 1408/71, a worker may be authorised to travel to another Member State to receive treatment appropriate to his condition, in order to receive the services needed in the same way as if he were insured under the health insurance scheme of that Member State. It is his Member State of residence, however, that reimburses the expenses incurred, that Member State may not refuse authorisation where the treatment required is among the benefits normally provided for under its legislation and where, given the worker’s state of health and the probable course of his disease, the treatment cannot be provided in good time in his Member State.

Ms Petru was a Romanian national who suffered from a serious cardiovascular disease. Her condition required her to be admitted to a specialist establishment in TimiÈ™oara, Romania (pictured).  During her time in that establishment, Ms Petru found that there was a lack of medication and basic medical supplies, and that the number of beds was insufficient. In view, also, of the complexity of the surgical procedure that she would have to undergo, Ms Petru decided to have her operation in Germany and applied to her health insurance authority to cover the costs of that surgery. The application was refused on the grounds that there was no indication in the general practitioner’s report that the healthcare service sought could not be provided in Romania within a reasonable length of time. Since the cost of the surgery amounted in total to approximately €18 000, Ms Petru applied to the Romanian authorities for reimbursement of that amount. The referring court asked whether the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation could not be refused where it was because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned could not be provided in good time in the insured person’s Member State of residence.

The Court first of all stressed that the second subparagraph of Article 22(2) of Regulation No 1408/71 laid down two conditions which, if both were satisfied, rendered mandatory the grant by the competent institution of the prior authorisation applied for on the basis of Article 22(1)(c)(i). The first condition required the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resided. The second condition required that the treatment which the latter planned to receive in a Member State other than that of residence could not be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, account being taken of his current state of health and the probable course of his disease (see  Elchinov, C‑173/09, EU:C:2010:581, paras 53 and 54). 

As regards the second condition, with which the question in the present case was concerned, the Court reiterated that the authorisation required could not be refused if the same or equally effective treatment could not be given in good time in the Member State of residence of the person concerned. The Court stressed that  in order to determine whether treatment which was equally effective for the patient can be obtained in due time in the Member State of residence, the competent institution was 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 was 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. (see Inizan, C 56/01, EU:C:2003:578, paras. 45 and 60; and Watts, C‑372/04, EU:C:2006:325,  on which I wrote this post).

The Court held that one of the circumstances that the competent institution was required to take into account might, in a specific case, be the lack of medication and basic medical supplies and infrastructure, such as that alleged in the main proceedings.  Clearly, however, such a lack of medication and of medical supplies and infrastructure could, in the same way as the lack of specific equipment or particular expertise, made it impossible for the same or equally effective treatment to be provided in good time in the Member State of residence. The question whether that was indeed impossible had, according to the Court, be determined, first, by reference to all the hospital establishments in the Member State of residence that are capable of providing the treatment in question and, second, by reference to the period within which the treatment could be obtained in good time. 

The Court concluded that the second subparagraph of Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that the authorisation necessary under Article 22(1)(c)(i) of that regulation could not be refused where it is because of a lack of medication and basic medical supplies and infrastructure that the hospital treatment concerned could not be provided in good time in the insured person’s Member State of residence. The question whether that was impossible must be determined by reference to all the hospital establishments in that Member State that were capable of providing the treatment in question and by reference to the period within which the treatment could be obtained in good time.  The Court held if the facts alleged by Ms Petru concerning the lack of medication and basic medical supplies and infrastructure at the Institutul de Boli Cardiovasculare in TimiÈ™oara were established, it would be for the referring court to determine whether that treatment could have been carried out within three months in another hospital establishment in Romania.