C-22/86

RINDONE v ALLGEMEINE ORTSKRANKENKASSE BAD URACH-MÜNSINGEN

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 22 January 1987 *

Mr President, migrant workers, which is one of the foun­ Members of the Court, dations of the Community. Article 51 requires the Council to adopt such measures in the field of social security as are In the context of the proceedings pending necessary to provide freedom of movement before the Bundessozialgericht [Federal for workers by securing, inter alia, payment Social Court] between Giuseppe Rindone of benefits for persons resident in the terri­ and the Allgemeine Ortskrankenkasse Bad tories of Member States. The aim of Articles Urach, that court has referred to the Court 48 to 51 would not be attained if, as a of Justice a number of questions concerning consequence of the existence of their right the interpretation to be given to the to freedom of movement, workers were to provisions of the Community regulations on lose the advantages in the field of social social security 1 in connection with the security guaranteed to them by the laws of a determination of whether a worker residing single Member State'. outside the country in which he is a member of the social security scheme is unfit for work. It is in that spirit, therefore, that I will consider the questions referred to the Court. As the Court has decided on many occasions, the answer to such questions First question must be guided by an interpretation of the provisions at issue in the light of the articles of the Treaty dealing with freedom of The Bundessozialgericht first asks the Court movement for workers. 2 to reply to the following question:

OPINION OF MR MISCHO — CASE 22/86

It can be seen from Article 19 of that regu­ The question whether a person is or is not lation that in regard to sickness and ill is decided exclusively by the social maternity benefits, a worker residing in the security institution of the country of territory of a Member State other than residence which applies for that purpose the competent State, who satisfies the solely its national legislation. conditions of the legislation of the competent State for entitlement to benefits, A finding that the worker is ill entails is entitled to receive in the State in which he expenditure (including, where relevant, is resident: reimbursement of the cost of hospital­ ization) on the part of the institution of the country in which the worker is insured (the (a) benefits in kind provided on behalf of competent institution) from which it cannot the competent institution by the escape unless the fixed amount has been institution of the place of residence in exceeded. accordance with the legislation admin­ istered by that institution as though he Where cash benefits are applied for, Article were insured with it; 19 (b) of Regulation No 1408/71 states that they are to be provided not in accordance with the legislation of the country of (b) cash benefits provided by the competent residence, but in accordance with that of the institution in accordance with the legis­ country in which the worker is insured. lation which it administers.

It is thus tempting to believe, solely on the In order to receive benefits in kind, it is basis of Article 19, that it is in any case for therefore sufficient for the worker to the worker to make contact with the register with the institution of the place of competent institution in the country in residence, submitting a certificate to the which he is insured in order to furnish the effect that he is entitled to such benefits. necessary supporting evidence and to comply with all the formalities.

The report of the examining doctor indicating That appears to me to be logical because the the probable duration of the incapacity for institution of the country of residence has work is to be forwarded to the competent already made an independent and definitive institution within three days (Article 18 (3)) finding as to the worker's illness. and that report thus constitutes the essential element in this procedure. However, with regard to the incapacity for work, the finding made by the institution of the country of residence is definitive only if The institution of the place of residence the competent institution does not choose to must subsequently carry out any necessary have the worker examined by a doctor of its checks or examinations as if the worker were own choice. insured with that institution. It adopts the decision that the worker is fit to resume work on behalf of the competent institution 2. An examination of the various forms (Article 18 (4)) but, as the Court will see used by the institutions concerned (see later, it may also make an immediate Official Journal L 167 of 27 June 1983) finding, following the initial examination, confirms, in my view, the interpretation set that the worker is not unfit for work. out above.

In all cases the competent institution It can be seen from Form E 115, entitled reserves the right to have the worker 'Claim for cash benefits for incapacity for 4 examined by a doctor of its own choice work', which must be filled out by the (Article 18 (5)). institution of the country of residence at the very beginning of the procedure, that that institution's examining doctor is called upon It may withhold cash benefits because the to give an opinion immediately on whether worker has not completed the formalities or not there is an incapacity for work. Point 6 laid down by the legislation of the country of that form is drafted in the following of residence or if it establishes that the terms: worker is fit to resume work (Article 18 (6))· '6. In the opinion of our examining doctor

That means that if the examining doctor in The defendant in the main proceedings the country of residence is of the opinion draws support from the line reading 'The that the worker is not unfit for work, the facts which have been brought to our institution of the country of residence is to notice ... show' for the proposition that 'the send to the person concerned, of its own facts communicated by the institution of the motion, an E 118 form entitled 'Notifi­ place of residence (therefore) authorize the cation of non-recognition or of end of inca­ competent institution to reject the pacity for work'. application without having to order a medical examination'. Contrary to the claim of one of the parties to the main proceedings, the institution of I do not regard that argument as decisive the country of residence thus has the power because the form does not say 'the facts not merely to decide that the incapacity for which have been brought to our notice lead work has ended but also to decide, from the us to the conclusion'; it says 'show'. very beginning and on behalf of the competent institution, that no incapacity for work exists. In both cases, Form E 118 The content and the structure of Article 18, must be used. On the back of that form is to as well as the series of forms taken as a be found the following information for the whole, lead me to the conclusion that the worker: competent institution is not entitled to draw a distinction between the diagnosis estab­ lished by the examining doctor in the 'You may appeal against the decision which country of residence and the conclusion is notified to you by this document to the which he drew from that diagnosis authority competent to hear your appeal in regarding the existence or otherwise of the competent State or you may send your incapacity for work. appeal to the authority competent to hear appeals in the country where you are staying or where you are resident.' It seems more probable that the line in question was inserted to cover the case in Form E 118 must also be used by the which the examining doctor in the country competent institution when it refuses to of residence found a partial incapacity for grant cash benefits. Point 3 of that form work, particularly in cases of industrial reads as follows: accident (see note 7 on page 2 of Form E 116). '3.1. The facts which have been brought to our notice It would then be for the competent institution to determine the appropriate 3.2. The examination carried out by our amount of the partial benefit. doctor on ... show(s) 3. In my opinion, a very important element 3.2.1. that your incapacity for work is in this debate is the following remark, made only partial by the Bundessozialgericht on page 15 of its order for reference: 3.2.2. that you are entitled to partial cash benefits amounting to ... from (date) ... 'If, however, [the competent institution] does not . . . have the worker examined by a 3.2.3. that you are fit for work doctor of its own choice, it might be necessary to regard it as being bound 3.2.4. that your incapacity for work because the worker concerned is in principle ended on ... ' entitled to protection of his legitimate

However, if even in the absence of an It is precisely in order to avoid the danger examination by a doctor of the competent that negligence of that kind might lead to institution's own choice the institution was benefits being unduly granted that the possi­ free not to accept the opinion of the bility of having an examination carried out examining doctor of the institution of the by a doctor chosen by the competent country of residence, a worker who moved institution was provided for. from one Member State to another would find himself in the same situation in regard to proof of his incapacity for work as he 5. The Bundessozialgericht and the Bundes­ was in before the adoption of Community verband der Ortskrankenkassen point out Regulations Nos 3 and 1408/71. He could that according to Article 19 (1) of Regu­ therefore just as easily send a medical lation No 1408/71 the worker must satisfy certificate from the doctor treating him in the conditions imposed by the legislation of the country of residence by post to the the competent State and that, according to competent institution, with the hope that the subparagraph (b), cash benefits are provided latter would be good enough to regard it as in accordance with the legislation admin­ convincing. istered by the competent institution; the examining doctor of the institution of the country of residence must therefore base his 4. Another consideration which must not be assessment on a legal concept drawn from lost sight of is that a social security the national law of the competent institution institution does not normally have an exam­ which is, inevitably, foreign to him. ination carried out by its medical adviser unless it has doubts concerning the certificate issued by the doctor treating the Indeed, it does not seem to me to be worker. possible to require a doctor to base his assessment on criteria applicable in a country other than his own. However, under the scheme envisaged by Article 18 of Regulation No 574/72, an examination by a doctor chosen by the But is that really the case here? institution of the countiy of residence is provided for automatically. The first idea which comes to mind when faced with such a problem is to say that the It is true that, in this case, that examination assessment must be made on the basis of a was carried out only after a delay which Community interpretation of the concept of

In regard to the interpretation of the The fact that Form E 116, entitled 'Medical expressions 'sickness and maternity benefits' report relating to incapacity for work and 'invalidity benefits' within the meaning (Sickness, maternity, accident at work, occu- of Regulation No 1408/71, the Court has pational disease)' is to be used both in the held that 'It is well established that the case of ordinary sickness and in the case of requirement that Community law be applied occupational disease tends to show that the uniformly within the Community implies case-law developed by the Court in the that the concepts to which that law refers latter area may properly be applied. should not vary according to the particular features of each system of national law but rest upon objective criteria defined in a Community context. In accordance with this It should be noted in that connection that principle, the concept of "sickness and Article 61 of Regulation No 574/72, maternity benefits" appearing in Article 4 dealing with cash benefits due as a result of (1) (a) of Regulation No 1408/71 is to be accidents at work or occupational diseases is determined for the purpose of applying the drafted in exactly the same terms as Article regulation not according to the type of 18, dealing with cash benefits due in cases national legislation containing the provisions of 'ordinary' sickness. giving those benefits, but in accordance with Community rules which define what those benefits shall consist of.' 5 When it does not avail itself of the oppor­ tunity of having an examination carried out Unfortunately I have not been able to find by a doctor of its own choice, the in the two regulations at issue an indication competent institution is therefore bound by of what the Community definition of the the 'conclusions' (see point 5.7 of Form concept of incapacity for work may be. E 116) of the examining doctor of the institution of the country of residence, arrived at on the basis of the rules applicable in his country. I am therefore of the opinion that the problem must be resolved in accordance with the spirit of the judgment of 11 March 1986 (Case 28/85, Deghillage v Caisse primaire d'assurance maladie [1986] ECR If the system is to retain its useful effect, the 1003, paragraphs 16 and 17), in which the competent institution must be bound by that Court decided that 'a procedure duly finding even if, under its national law, it carried out in one Member State resulting in is not bound by the findings of its own a diagnosis that the person is suffering from examining doctor. In that sense, it is an occupational disease cannot be required therefore bound both in fact and in law. to conform to the rules of another Member State's legislation' (paragraph 17).

In that regard, I would like to observe that The Bundesverband der Ortskrankenkassen Regulation No 574/72 is not an [Federal Association of Local Sickness implementing regulation adopted by the Funds] argues that only the competent Commission on the basis of an enabling sickness insurance fund is sufficiently clause contained in a Council regulation. It familiar with the employment last exercised is, on the contrary, a measure adopted by by the worker to be able to judge whether the Council itself on the basis of the same or not he is still capable of working. provisions of the Treaty and according to the same procedures (opinion of the Parliament and of the Economic and Social Committee) as Regulation No 1408/71. However, it seems perfectly possible to me for a foreign doctor to obtain a sufficiently precise idea of the worker's most recent activity. He would merely need to ask him Even if certain provisions of Regulation No whether that activity was carried out in the 574/72 constituted more than implementing open air or indoors, whether or not it measures, a question which it is not required heavy physical effort, exposure to necessary to consider here, they would none cold or to great heat, continual movement, the less have been validly adopted. constant standing or sitting, etc.

574/72), and/or the institution of the 'There is indeed no sanction attached to the place of residence has the worker obligation to notify a change of residence medically examined but fails to observe laid down in Article 59 of Regulation No the time-limits prescribed for that 574/72. Accordingly, failure to notify, or purpose, and for forwarding the report late notification of, a transfer of residence to the competent institution, in Article cannot entail loss of entitlement to the 18 (3) of Regulation (EEC) No benefits due for the period between the 574/72?' transfer of residence and the date on which the competent institution was apprised of the transfer. However, when the competent institution of the Member State in which the That question falls into two parts. The first recipient formerly resided is informed of the part seeks to know what sanction may be transfer of residence, it is entitled to attached to failure on the part of the worker ascertain, by means of a check in to apply 'within three days of accordance with Article 51 of Regulation commencement of the incapacity for No 574/72, whether the conditions for work ... to the institution of the place of receipt of the benefits were still fulfilled residence by submitting a notification of during the period in question.' 6 having ceased work or ... a certificate of incapacity for work issued by the doctor treating the worker concerned' (Article 18 Those principles appear to be equally (1))· applicable in this case.

The three-day time-limit laid down in In that regard, it should be pointed out first Article 18 of Regulation No 574/72 is a that Article 18 (6) of Regulation No 574/72 procedural measure which contains no expressly provides that the competent express automatic sanction for failure to institution may withhold cash benefits if the comply with it. The principle of 'no loss of worker has not completed the formalities rights without an express provision' must be laid down by the legislation of the country of residence. applied.

to cash benefits retroactive to that day The questions are as follows: notwithstanding the absence of notice within the prescribed time-limit. '3. (a) May the competent institution also have the worker examined by a doctor in the country of The second part of the second question employment pursuant to Article 18 concerns the consequences liable to flow (5) of Regulation (EEC) No from the failure on the part of the 574/72? institution of the country of residence to comply with the time-limits imposed on it by Article 18 of Regulation No 574/72 for (b) When the worker is requested to carrying out the medical examinations and return to his country of employment transmitting the medical report to the in order to be examined by a competent institution. particular doctor there must the request be accompanied by an assurance on the part of the competent institution that it will pay In that regard, it is necessary to note first the expenses incurred in connection that the worker has no means of compelling the institution of the country of residence to with the journey there and back? comply strictly with the obligations imposed on it by Article 18. (c) Should the insured at the same time be informed in writing of possible adverse legal consequences if he fails However, as the Commission rightly to comply with the request without pointed out, it is established in Community good reason? law that procedural flaws which are beyond the control of the beneficiary must not have 4. What are the legal consequences if the effects which are unfavourable to him. 7 worker does not attend for examination in the country of employment?'

Conclusion

On the basis of the foregoing considerations, I propose that the Court reply as follows to the questions referred to it:

(1) Article 18 (1) to (4) of Regulation (EEC) No 574/72 must be interpreted as meaning that the competent institution must reach a decision on the application for cash benefits on the basis, both in fact and in law, of the findings made by the examining doctor of the institution of the place of residence as regards the commencement and duration of incapacity for work, unless it makes its own findings in accordance with Article 18 (5) and (6).

(2) Without prejudice to the rights of the competent institution under Article 18 (6), that is also true if the worker fails to comply with his obligations under Article 18 (1).

If the worker's failure to comply with his obligations under Article 18 (1) interferes with or hinders the institution of the place of residence in the findings which it is required to make, the disadvantages to which that situation gives rise must be borne by the worker.

Procedural defects attributable to the institution of the place of residence rather than to the worker must not produce effects unfavourable to the latter.