Latvia / Senate of the Supreme Court / SKA-18/2020

A v Veselības ministrija (Ministry of Health)
Deciding body type
National Court/Tribunal
Deciding body
Senate of the Supreme Court - Department of Administrative Law
Type
Decision
Decision date
27/11/2020
ECLI (European case law identifier)
ECLI:LV:AT:2020:1127.A420281216.5.S

Charte des droits fondamentaux de l'Union européenne

  • Latvia / Senate of the Supreme Court / SKA-18/2020

    Key facts of the case:

    The applicant’s son, a minor who suffers from a congenital heart defect, had to have open-heart surgery.

    The applicant, who is affiliated to the healthcare system in Latvia, refused to consent to the use of a blood transfusion during the operation, on the ground that he was a Jehovah’s Witness. As the operation in question is not available in Latvia without the use of a blood transfusion, the applicant requested, in order for his son to have the operation in Poland, that the Nacionālais veselības dienests (National Health Service, Latvia) (‘the health service’) issue an S2 form for his son; that form authorises a person to receive certain types of scheduled healthcare, in particular, in a Member State of the European Union other than the State of affiliation. By decision of 29 March 2016, the health service refused to issue that form. By decision of 15 July 2016, the Ministry of Health upheld the health service’s decision, on the grounds that the operation at issue could be carried out in Latvia and that a person’s medical situation and physical limitations alone must be taken into consideration for issuing the form.

    The applicant brought an action before the administratīvā rajona tiesa (District Administrative Court, Latvia) in order to obtain a favourable administrative measure for his son recognising the right to receive scheduled healthcare. By judgment of 9 November 2016, that court dismissed the action.

    On appeal, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) upheld that judgment, by judgment of 10 February 2017, on the ground that the cumulative conditions laid down in point 310 of Regulation No 1529 had to be fulfilled in order for the S2 form to be issued. That court found that the medical procedure at issue in the main proceedings, treatment which is publicly funded in Latvia, was indeed necessary to avoid the irreversible deterioration of the vital functions or health of the applicant’s son. However, at the time the request to issue the S2 form was under consideration, the hospital had confirmed that that procedure could be carried out in Latvia. Furthermore, that court found that it was not possible to infer from the applicant’s refusal of such a transfusion that the hospital concerned was unable to provide the medical procedure in question and it concluded that one of the conditions required for the issue of the S2 form was not fulfilled.

    The applicant brought cassation claim on a point of law before Augstākās Tiesas Senāta Administratīvo lietu departaments (Senate of the Supreme Court Department of Administrative Law) , arguing, in particular, that he is a victim of discrimination since the vast majority of those affiliated to the healthcare system were able to receive the healthcare at issue without having to give up their religious beliefs. The Ministry of Health argued that that appeal is unfounded on the ground that the rule set out in point 310 of Regulation No 1529 is mandatory and does not provide for a discretionary power for the competent authority when it adopts an administrative act. That rule has to be read in conjunction with point 312.2 of that regulation, from which it is apparent that only clear medical justifications are decisive. The Ministry of Health argued that the applicant, in essence, asks for criteria to be taken into account which the legislature did not provide for. It states that the national regulations provide for reasonable limitations, which ensure, as far as possible, a rational allocation of financial resources and which protect the interests of society as a whole in relation to the availability of quality healthcare in Latvia.

    The applicant’s son had heart surgery in Poland on 22 April 2017.

    Augstākās Tiesas Senāta Administratīvo lietu departaments (Senate of the Supreme Court Department of Administrative Law) were uncertain whether the Latvian health authorities were entitled to refuse to issue the S2 form permitting that treatment on the basis of solely medical criteria or whether they were also required in that regard to take account of A’s religious beliefs.

    In those circumstances the Augstākā tiesa (Senāts) (Supreme Court, Latvia) on 20 March 2019 decided to stay the proceedings and to refer questions to the CJEU for a preliminary ruling.

     

    Key legal questions raised by the Court:

    (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?

     

    Outcome of the case:

    On 29 October 2020 the CJEU delivered decision in case C-243/19 A v. Veselības Ministrija (Ministry of Health) providing following answers to the question referred to by Augstākās Tiesas Senāta Administratīvo lietu departaments (Senate of the Supreme Court Department of Administrative Law):

    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, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the insured person’s Member State of residence from refusing to grant that person the authorisation provided for in Article 20(1) of that regulation, 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 person’s religious beliefs.

    2. Article 8(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, 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.

    Following given interpretation by the CJEU on 27 November 2020  Augstākās Tiesas Senāta Administratīvo lietu departaments (Senate of the Supreme Court Department of Administrative Law) adopted the decision abolishing the decision of the Administratīvā apgabaltiesa (Regional Administrative Court) adopted on 10 February 2017.

    On the basis of the decision of the CJEU Augstākās Tiesas Senāta Administratīvo lietu departaments (Senate of the Supreme Court Department of Administrative Law) found that the court of appeals (Administratīvā apgabaltiesa (Regional Administrative Court)) has failed properly assessing following aspects of the case:

    1) application of the principle of non-discrimination as provided by Article 21 of the CFREU (existence of discrimination on the grounds of religious belief) in conjunction with rights provided by Article 20 of Regulation 883/2004;

    2) application of an obligation of prior authorization for the receipt of health care in other EU Member State as provided by national law also in relation to the system of reimbursement of health care services under Directive 2011/24, in particular, if respective national legal regulation is applicable for the purposes of Regulation 883/2004, it does not mean that respective national legal regulation is applicable in relation to the rights provided by Directive 2011/24;

    3) if, however, the court of appeals will find that an obligation of prior authorization for the receipt of health care in other EU Member State as provided by national law is also applicable in relation to the system of reimbursement of health care services under Directive 2011/24, then the court of appeals must assess if such requirement is compatible with Directive 2011/24

    4) if the court of appeals will find that an obligation of prior authorization for the receipt of health care in other EU Member State as provided by national law is also applicable in relation to the system of reimbursement of health care services under Directive 2011/24, then the court of appeals must assess if such requirement as an implementing measure of Article 8(1) of Directive 2011/24 is proportionate in relation to the legitimate aim which has to be attained (maintenance of treatment capacity or medical competence)

    5) if the court of appeals will find that an obligation of prior authorization for the receipt of health care in other EU Member State as provided by national law is also applicable in relation to the system of reimbursement of helath care services under Directive 2011/24 and this requirement is proportionate, then the court of appeals must assess if refusal of reimbursement under prior authorization system in case of applicant complies with the principle of non-discrimination. 
     

  • Paragraphs referring to EU Charter

    As already indicated before, the CJEU, in reply to the questions referred by the Senate, decided that Article 20(2) of Regulation 883/2004 read in conjunction with Article 21(1) of the CFREU (prohibiting discrimination on the grounds of religion), must be interpreted as allowing to a member state refusing a permission as provided by Article 20(1) of the said regulation, where hospital care, medical effectiveness of which is not contested, is available in that Member State, but the method of treatment used is contrary to that person’s religious beliefs.

  • Paragraphs referring to EU Charter (original language)

    Kā jau tika norādīts, Eiropas Savienības Tiesa, atbildot uz Senāta uzdotajiemprejudiciālajiemjautājumiem, nosprieda, ka Regulas Nr. 883/2004 20.panta 2.punkts, lasot to kopsakarā ar Eiropas Savienības Pamattiesību hartas 21.panta 1.punktu (kas aizliedz diskrimināciju reliģijas dēļ), ir jāinterpretē tādējādi, ka dalībvalsts drīkst atteikt šīs regulas 20.panta 1.punktā minēto atļauju, ja šajā dalībvalstī ir pieejama stacionārā ārstēšana, par kuras medicīnisko efektivitāti nav šaubu, taču izmantotāārstēšanas metode neatbilst personas reliģiskajai pārliecībai.