Croatia / Administrative Court in Osijek / Us I-329/2024-10

TĆ v Croatian Health Insurance Fund
Deciding body type
National Court/Tribunal
Deciding body
Administrative Court in Osijek
Type
Decision
Decision date
25/03/2025
  • Croatia / Administrative Court in Osijek / Us I-329/2024-10

    Key facts of the case:

    The applicant is a Jehovah's Witness who has been diagnosed with a tumour, and who was indicated for surgery and claimed the right to receive treatment without the use of blood transfusions. The surgery at KBC Zagreb was not possible as the procedure could not be performed without blood and blood products replacement. The applicant independently identified two medical institutions in Hungary and Germany that offer surgery without blood transfusions and in 2023, submitted a request to KBC Zagreb's management to complete a form entitled "Request and proposal for referral for treatment abroad". The KBC Zagreb refused to fill out the form, as they considered that the operation could not be performed without a blood transfusion. As the form was not completed in all respects, and  it did not contain the signature of the competent doctor or the seal of the applicant's health institution, the Croatian Health Insurance Fund (hereinafter: Fund) rejected the applicant's request for referral for treatment abroad at the expense of mandatory health insurance funds, on the grounds that the application was incomplete or unclear. In 2024, the applicant paid for the operation at his own expense, which was performed at a hospital in Germany, without the use of blood products. In 2025, at the Administrative Court in Osijek, the applicant challenged the first instance decision of the  Fund ,on grounds of the violation of procedural rules, incorrect and incomplete determination of the factual situation, and incorrect application of substantive national and European law. The applicant invokes the right to freedom of thought, conscience and religion, and points out that he was prevented from submitting a fully completed form for referral for treatment abroad, even though he meets all the legal requirements for exercising that right. The Fund claimed that the conditions for approving the applicant's referral for treatment abroad were not met due to the lack of compliance with the formalities required  for the admissibility of the request, and additionally due to the fact that the applicant had decided not to accept standard treatment, as a result of which the recognition of the right to referral for treatment abroad had not been justified. 

    Key legal question raised by the court:

    Legality of the decision of the Croatian Health Insurance Fund rejecting the applicant's request for referral for treatment abroad, at the expense of the mandatory health insurance funds.

    Outcome of the court:

    The Administrative Court in Osijek concludes that there is excessive formality in the requirements set by the Croatian Health Insurance Fund to consider the request for exercising the right to cross-border health care. The court concluded that the refusal of the competent doctors to complete the form cannot be considered an omission on the part of the applicant and instructed the first-instance body to remedy the deficiencies in the form or to consider it correctly completed and continue the procedure by obtaining the findings, opinions and assessments of the medical commission. The court decided that, in relation to the competent medical committee, which is obliged to issue a finding, opinion and assessment on the justification of medical indications for approval of the request, it is necessary that it, without discriminatory effects in relation to the applicant, and taking into account the provisions of the Constitution of the Republic of Croatia, the ECHR and the EU Charter, in terms of the applicant's freedom of religion, decide on the need for treatment that is obviously not carried out in contractual health institutions in Croatia, and can be successfully carried out in other EU Member States and Third Countries. The court did not have expert medical knowledge regarding the medical indication for referring the applicant for treatment abroad, and could not resolve the administrative matter itself. The Administrative Court annulled the decision of the Croatian Health Insurance Fund, and referred the case back to the first-instance body for a new procedure, in which the first-instance body is obliged to act in accordance with the decision of the court.

  • Paragraphs referring to EU Charter

    12. The Administrative Court finds the plaintiff's reference to the cited provisions of Article 14 of the Constitution of the Republic of Croatia, Article 9, paragraphs 1 and 2 of the Convention, Article 10, paragraph 1 of the Charter and Article 21 of the Charter to be entirely correct.

    ...

    28. In relation to the competent medical commission of the competent regional office, which is obliged to issue a finding, opinion and assessment on the justification of medical indications for approval of the request, according to the Act and the Regulations, it is necessary that it, without discriminatory effects in relation to the plaintiff, and taking into account the cited provisions of the Constitution of the Republic of Croatia, the Convention and the EU Charter, in terms of the plaintiff's freedom of religion, decide on the need for treatment that is (obviously) not carried out in contractual health institutions in the Republic of Croatia, and can be successfully carried out in other EU Member States and Third Countries.

    ...

    30. The Administrative Court further considers that the applicable law in this administrative matter is the cited judgment of the Court of Justice of the EU, of 29 October 2020, C-243-19, EU:C:2020:872, which states: "Article 8(5) and (6)(d) of Directive 2011/24EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.”

  • Paragraphs referring to EU Charter (original language)

    12. Sud ocjenjuje potpuno pravilnim pozivanje tužitelja na citirane odredbe članka 14. Ustava RH, članka 9. stavak 1. i stavak 2. Konvencije, članka 10. stavak 1. Povelje i članka 21. Povelje.

    ...

    28. U odnosu na nadležno liječničko povjerenstvo nadležnog regionalnog ureda, koje je dužno donijeti nalaz, mišljenje i ocjenu o opravdanosti medicinskih indikacija za odobrenje zahtjeva, prema Zakonu i Pravilniku, potrebno je da isto, bez diskriminatornih učinaka u odnosu na tužitelja, a uvažavajući citirane odredbe Ustava Republike Hrvatske, Konvencije i Povelje EU, u smislu slobode vjeroispovijesti tužitelja, odluči o potrebi liječenja koja se (očigledno) ne provodi u ugovornim zdravstvenim ustanovama u Republici Hrvatskoj, a može se uspješno provesti u drugim državama članicama EU i trećim državama.

    ...

    30. Također, sud ocjenjuje da je u ovoj upravnoj stvari mjerodavno pravo i citirana presuda Suda EU, od 29. listopada 2020., C-243-19, EU:C:2020:872, u kojoj je navedeno: " Članak 8. stavak 5. i članak 8. stavak 6. točku (d) Direktive 2011/24/EU Europskog parlamenta i Vijeća od 9. ožujka 2011. o primjeni prava pacijenata u prekograničnoj zdravstvenoj skrbi, u vezi s člankom 21. stavkom 1. Povelje Europske unije o temeljnim pravima, treba tumačiti na način da im se protivi to da država članica čijem sustavu pacijent pripada pacijentu odbije izdati odobrenje iz članka 8. stavka 1. te direktive ako je u toj državi članici dostupno bolničko liječenje čija se medicinska učinkovitost ne dovodi u pitanje, ali se metoda liječenja koja se primjenjuje ne slaže s vjerskim uvjerenjima tog pacijenta, osim ako je to odbijanje objektivno opravdano legitimnim ciljem koji se odnosi na održavanje kapaciteta liječenja ili liječničke stručnosti i predstavlja prikladno i nužno sredstvo za postizanje tog cilja, što je na sudu koji je uputio zahtjev da provjeri."