Advocate General Hogan has delivered his Opinion in A v Veselības ministrija [2020] ECJ C‑243/19, on a request from the Supreme Court of Latvia for a preliminary ruling by the CJEU on the extent to which a National Health Service is obliged to accommodate the religious objections to particular forms of medical treatment – in this case, blood transfusion. Specifically, the issue was the extent to which — if at all — patient choice based on religious grounds attracted the protection of Article 10(1) and Article 21(1) of the Charter ­– which together provide for freedom of religion and prohibit discrimination on grounds of religion) [2].

The request was for a preliminary ruling on the interpretation of Article 56 TFEU, Article 10(1) 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 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 [1]. The issue was 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 [2].

A’s son, B, was born with a cardiovascular disease which required surgery. The operation can be carried out in Latvia and is covered by the Latvian National Health Service, so there was no medical reason why B could not have had the operation in Latvia [3]. However, A is a Jehovah’s Witness who opposes blood transfusion, even during an essential, life-saving operation for his son [4]. In the event, the operation was carried out in 2017 – but in Poland rather than in Latvia, because the Polish surgeons were able to perform the operation without transfusing the child [7].

The question on which the referral was made was whether A was entitled to seek reimbursement from the Latvian National Health Service of some or all of the costs of the operation carried out Poland. He requested the Latvian National Health Service to issue what is known as an ‘S2 form’ authorising his son to benefit from certain healthcare scheduled in another Member State of the European Union, the EEA or in Switzerland, in accordance with Article 20(2) of Regulation No 883/2004 – which would have meant that the Latvian authorities would have paid for the operation in Poland. But authorisation was refused, on the basis that the operation could have been performed in Latvia — although, unlike in Poland, it would have entailed a blood transfusion — and that there were no medical grounds justifying operating on B without a transfusion [8]. A argued that he had suffered indirect discrimination on grounds of religion, because the majority of people and their children were able to benefit from the necessary health services without compromising their religious or moral convictions [9].

The Court was therefore asked to assess whether the alleged indirect discrimination on grounds of religion may be legitimate and thus necessary and proportionate, not least because adapting medical treatment in order to take account of religious beliefs might create an additional burden on the overall healthcare budget [10], as follows.

“(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?” [34].

Advocate General Hogan concluded as follows:

“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” [98].

He proposed that the Court should answer the questions referred by the Supreme Court of Latvia as follows [99]:

“(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.”

[With thanks to Nieuwsbrief Rechtspraak Europa no. 5 (2020)]