On 15 July 2021, the Court of Justice of the European Union („CJEU") delivered a Judgment in Case C-535/19, stating that citizens of the European Union („the EU") should be included in the public health insurance system of the Member State in which they are residing legally, but the host State has the right to set certain conditions for the inclusion of economically inactive citizens in the same system.
The request was made in the course of a dispute between A – a natural person, and the Ministry of Health of the Republic of Latvia regarding the refusal of the latter to include A in the public health insurance system and to issue him a European Health Insurance Card.
Following the reference for a preliminary ruling, the CJEU has interpreted Articles from Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems („Regulation No 883/2004“), Directive 2004/38/EC of the European Parliament of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States („Directive 2004/38/EC“).
At the end of 2015, the Italian citizen A left Italy and settled in Latvia to join his wife, a Latvian citizen, and their two minor children with Latvian and Italian citizenship. Before leaving, A notified the competent Italian authorities of his movement to Latvia. He was therefore included in the register of Italian nationals living abroad. As such, he can no longer benefit from healthcare in Italy, the costs of which are covered by the healthcare system financed by that Member State.
On 22 January 2016, A asked the Latvian National Health Service to enlist him in the register of healthcare recipients and to issue him a European Health Insurance Card. However, the registration was refused because A does not fall into any of the categories of recipients of state-funded healthcare specified in the Latvian Healthcare Act, as he is neither employed nor self-employed in Latvia, but resides there on the basis of a registration certificate of a Union citizen. Consequently, he can receive healthcare only in return for payment.
The decisions of the administrative health authorities in Latvia were appealed by A. Both courts rejected his appeal, considering that the difference in treatment between A, who resides legally in Latvia on the one hand, and economically inactive Latvian citizens on the other could be justified by the legitimate aim of protecting public finances and is proportionate.
The Supreme Court of Latvia considered that the issues under discussion fall within the competence of the CJEU and sent the reference for a preliminary ruling with the following questions, which were reformulated by the Court in the final judgment:
„1) Must publicly funded health care be regarded as being included in „sickness benefits” within the meaning of Art. 3(1)(a) of Regulation No 883/2004?
2) Whether Art. 4 and Art. 11(3)(e) of Regulation No 883/2004 and Art. 7(1)(b) and Art. 24 of Directive 2004/38 must be interpreted as precluding national legislation which excludes from the right to be affiliated to the public sickness insurance system of the host Member State, in order to receive medical care financed by that State, economically inactive Union citizens, who are nationals of another Member State and who fall, by virtue of Art. 11(3)(e) of that regulation, within the scope of the legislation of the host Member State and who are exercising their right of residence in the territory of that State under Art. 7(1)(b) of that directive.“
With regard to the first question, the CJEU noted that the scope of Regulation No 883/2004 and the benefits excluded from it are based mainly on the elements specific to each benefit, namely its ultimate purpose and the conditions for its grant, and not on whether a benefit qualifies under national law as a social security benefit (1).
Thus, according to the settled case-law of the Court, a benefit can be regarded as social security in so far as, on the one hand, it is granted to recipients without any individual and discretionary assessment of the person's needs on the basis of the legally defined position and provided that it relates to one of the risks explicitly listed in Art. 3, para. 1 of Regulation No 883/2004. These two conditions are cumulative (2).
The first condition is met where the benefit is granted in the light of objective criteria which give rise to the right to receive the benefit in question, without the competent authority being able to take into account other personal circumstances (3). According to the second condition, the benefit in question must relate to one of the risks explicitly listed in Art. 3, para. 1 of Regulation No 883/2004. It should be recalled that point (a) of that provision explicitly mentions „sickness benefits”.
„Sickness benefits“ are aimed primarily at the recovery of the patient (4), providing the services necessary in view of his condition (5), and therefore cover the risk associated with a particular disease condition (6). On the contrary, the benefit falls within the concept of „social and medical assistance”, excluded from the scope of Regulation No 883/2004 under Art. 3(5)(a), where its provision depends on an individual assessment of the personal needs of the person wishing to receive it (7).
The CJEU held that both cumulative conditions defining a social security benefit are met in the main proceedings.
Giving an affirmative answer to the first question, the CJEU reformulated the other five initially asked by the referring court, focusing on the question whether it would be permitted for a national law to exclude a person's right to insurance under the public health insurance system in the host Member State, and their right to benefit from health services financed by that State, where that person is economically inactive and a national of another Member State but resides in the territory of the host Member State.
Firstly, Art. 11(3)(e) of Regulation No 883/2004 contains a „conflict of law rule”, the purpose of which is to determine the national legislation applicable to the receipt of social security benefits, including sickness benefits, to which all persons may be entitled, including economically inactive persons (8). It follows that, in principle, the latter fall within the legislation of the Member State of residence.
However, in determining the conditions for the existence of the right to be included in a social security scheme, Member States are required to comply with the provisions of Union law in force. In particular, the conflict of law rules provided in Regulation No 883/2004 are imperatively imposed on Member States and therefore, they are not in a position to determine the extent to which their own law or the law of another Member State is applicable (9). It follows that, under its national law, a Member State cannot refuse to include in its public health insurance system a citizen of the Union who, pursuant to Art. 11(3)(e) of Regulation No 883/2004 falls within the scope of the legislation of that Member State.
Nonetheless, as it is noted by the referring court, A is an economically inactive citizen of the Union. Pursuant to Art. 7(1)(b) of Directive 2004/38, Member States may require citizens of the Union who are nationals of another Member State and wish to receive the right to reside in their territory for more than three months without pursuing an economic activity to have full health insurance cover for themselves and their family members in the host Member State, as well as sufficient resources not to become a burden on the social assistance system of that Member State during their period of residence (10).
Thus, it follows from Art. 7(1)(b) of Directive 2004/38, that throughout the period of residence in the territory of the host Member State for more than three months and up to five years, the economically inactive Union citizen must in particular have for themselves and their family members full health insurance coverage so that they do not become an unacceptable burden on the public finances of that Member State. The CJEU establishes that the host Member State may provide that access to the public health insurance system will not be entirely free of charge and has the right to impose certain conditions aimed at preventing the economically inactive citizen from becoming an unacceptable burden. Such conditions may be, for example, the conclusion or continuation of private insurance providing full health coverage by the said Union citizen, or the payment by the same citizen of a contribution to the public health insurance system of that Member State. In that context, however, the host Member State must ensure that the principle of proportionality is complied with and that it is therefore not unduly difficult for the same citizen of the Union to fulfil those conditions.
(1) Judgment of 16 September 2015, Commission v Slovakia, C-433/13, para. 70 and of 25 July 2018, A (Assistance for a disabled person), C-679/16, para. 31
(2) Judgment of 25 July 2018, C-679/16, paras. 32 and 33
(3) Judgment of 25 July 2018, C-679/16, para. 34
(4) Judgment of 16 November 1972, Heinze, С-14/72, para. 8
(5) Judgment of 8 July 2004, Gaumain-Cerri and Barth, C-502/01 and C-31/02, para. 21
(6) Judgment of 21 July 2011, Stewart, C-503/09, para. 37 and of 5 March 2020, Pensionsversicherungsanstalt (Rehabilitation benefit), C-135/19, para. 32
(7) Judgment of 16 July 1992, Hughes, C-78/91, para. 17
(8) Judgments of 14 June 2016, Commission v United Kingdom, C-308/14, para. 63 and of 8 May 2019, Inspecteur van de Belastingdienst, C-631/17, paras. 35 and 40
(9) Judgments of 25 October 2018, Waltopia, C-451/17, para. 48 and of 5 March 2020, Pensionsversicherungsanstalt (Rehabilitation benefit), C-135/19, para. 43
(10) Judgment of 19 September 2013, Brey, C-140/12, para. 47