Published on 2 May 2023

FOURTH SECTION

Application no. 56630/22 Nicolae ARJOCU against Romania lodged on 28 November 2022 communicated on 13 April 2023

SUBJECT MATTER OF THE CASE

The application concerns the refusal of the national authorities and courts to grant reimbursement of the cost of cross-border urgent medical care that the applicant benefited from in Austria to treat cancer, to which he claims he was entitled in the framework of the European Union (EU) law.

The applicant, who lives in Romania, was diagnosed with a larynx malign tumour in November 2018. He alleges that the medical treatment proposed to him in Romania by the national specialised medical institute in Bucharest was to remove his vocal cord, as well as part of his larynx, which would have resulted in his mutilation, leaving him with a permanent handicap, namely the incapacity to speak, as well as being fed through a tube for the rest of his life. The applicant decided to ask for a second medical opinion and found a less invasive treatment at a clinic in Austria that he followed in January 2019, with good results, only the tumour being removed.

Before going for the medical treatment in Austria, he requested a prior authorisation, namely, to be issued the so-called “E112 form” necessary to benefit from cross-border medical assistance according to the EU law but could not obtain it in due time. Therefore, he paid the entire cost of the treatment and hospitalisation at the clinic in Austria which amounted to EUR 15,000. After his return to Romania, he lodged a request to the regional health insurance house (CAS Gorj), submitting also all the medical documents and invoices, to be reimbursed the cost of the medical assistance he received in Austria, but he was refused. He then lodged a claim before the national courts. By a final judgement of 28 June 2022 (delivered on 29 July 2022) of the Craiova Court of Appeal, his claim was dismissed as ill-founded, on ground that the applicant had not obtained the prior authorisation of the competent national authorities to receive medical assistance in another EU Member State, as he had not been granted the E112 form and he did not prove that an efficient treatment for his medical condition was not available in Romania.

In a separate opinion to the final judgement of 28 June 2022, one of the judges participating in the 3-judge judicial formation considered that the applicant’s claim was well founded and that he was entitled to reimbursement of the health costs incurred in another EU Member State, also considering the case-law of the Court of Justice of the European Union (C-538/19, CJEU judgement of 6 October 2021, TS and Others v Casa Naţională de Asigurări de Sănătate and Casa de Asigurări de Sănătate Constanţa ).

Invoking Articles 2 and 6 of the Convention, and in substance, Article 1 of Protocol No. 1 to the Convention, the applicant complains that the national authorities failed to comply with their positive obligations under Article 2 and infringed his right to a fair trial by arbitrarily ignoring the EU law and CJUE case-law applicable to his claim of reimbursement of health-care costs incurred with the medical treatment undergone in Austria, while the defendant party did not adduce the proof of existence of an equivalent less ‑ invasive treatment available in Romania.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant’s claim that, according to EU law, he was entitled to the reimbursement of the costs of the cross-border urgent medical care from which he benefitted in Austria, did the applicant have a “possession” for the purposes of Article 1 of Protocol No. 1?

2. If so, has the applicant been deprived of his possessions within the meaning of Article 1 of Protocol No. 1? Did that deprivation impose an excessive individual burden on the applicant (see mutatis mutandis, Bélané Nagy v. Hungary [GC], no. 53080/13, §§ 72-127, 13 December 2016 and Beeler v. Switzerland [GC], no. 78630/12, § 57, 11 October 2022)?