C-344/89

OPINION OF MR MISCHO — CASE C-344/89

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 12 December 1990 *

Mr President, travelling to the Netherlands, but he refused Members of the Court, to comply with the notice summoning him and instituted proceedings in the competent Netherlands court, asking it to rule that he 1. Mr Martínez Vidal, a Spanish national, was not required to return to the worked from 1963 until 1979 as a seaman in Netherlands to undergo a medical exam- the service of Netherlands employers. ination there.

5. Mr Martínez Vidal did not claim that the state of his health prevented him from (a) invalidity benefits;

* Original language: French.

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MARTÍNEZ VIDAL

prejudice to the provisions of paragraph 6, the notification to the person concerned shall be treated as a decision taken on behalf of the competent institution.

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OPINION OF MR MISCHO — CASE C-344/89

12. The Spanish Government and the staying in a Member State other than that in Commission take the view that it is apparent which he is insured, it is obvious that a at once, merely from the wording of Article major role must be played by the institution 51, that the medical examination at issue of the country where he is staying, since it is must be carried out in the State of residence important to have the commencement of the of the worker. For my part, however, I do sickness certified as quickly as possible.

Article 51, on the other hand, refers to the case where a person has already been granted an invalidity benefit and it is simply a matter of verifying whether the degree of 13. For its part, the Arrondissements- invalidity has changed one way or the other. rechtbank, Amsterdam, takes the view that the judgment in Rindone does not provide an answer to the question raised, because 16. Secondly, the court making the reference considers that it is appropriate to attach some significance to the fact that, 'the provisions on checks and examinations within the framework of Article 51, the in Article 51 are less detailed than the rules institution of the place of residence of the on medical examinations contained in person concerned carries out administrative Articles 18 and 61. 2 Furthermore, Article 51 checks or medical examinations only at the also departs from Articles 18 and 61 request of the institution responsible for inasmuch as it provides that the examination payment of the benefit.

On that 2 — Article 61, which relates to accidents at work and occu- assumption, the regulation would simply pational diseases, is identical to Article 18. 3 — Emphasized in the original. have created an option of which the

19. The Commission also argues that 21. Again in connection with the wording of Article 51, another passage in that 'if the expression "doctor of its own choice" provision seems to me to be of some signifi- was intended also to refer to a doctor who, cance, namely the fact that the institution of on behalf of the competent institution, the place of stay or of residence of the carried out medical examinations in the recipient is to have the examination carried State where that institution was situated, out 'in accordance with the procedures laid Article 51 would doubtless have been down by the legislation administered by the drafted differently. It would, no doubt, have latter institution.' indicated that the competent institution may either carry out the examination in its own 22. It is no doubt a result of the fact that country, or entrust that examination to the the institution of the place of stay or of institution of the place of residence. Since residence does not necessarily apply quite Article 51 is not so drafted and does not the same criteria as the institution contain even the slightest indication to that responsible for payment that the possibility effect, it must be considered that the of an examination by the latter was "doctor of its own choice" cannot mean the envisaged. competent institution's "own doctor" carrying out the examination in its own country, to which the recipient would thus 23. The differences in the legislation of the be required to travel'. Member States are particularly marked in the area of invalidity. It is sufficient, in that respect, to cite Article 40(4) of Regulation 20. In my view, that observation is not No 1408/71 (the basic regulation), convincing. The fact that the text is not according to which

24. That provision does not, of course, apply in the case in point, for two reasons. It is located in Section 2 (of Chapter 2, on 27. In their observations, the Netherlands invalidity), which deals with the case where Government and the GMD explained the workers have been subject either only to particular features of the Netherlands legislation under which the amount of inval- system for assessing incapacity for work, idity benefit depends on the duration of which includes a comparison between the periods of insurance or residence, or to income earned beforehand and the income legislation of that type and of the type which the person concerned could still earn referred to in Section 1, that is to say, legis- from suitable activities. That income is lation under which the amount of invalidity determined on the basis not only of the benefits is independent of the duration of health of the person concerned but also of periods of insurance. The Netherlands his abilities. The Government of the Government indicates that its legislation is Netherlands has pointed out that that of the latter type. Furthermore, it appears assessment involves the participation not that, in the case of Mr Martínez Vidal, a only of a doctor but also of an employment pension was granted exclusively on the basis expert and legal expert in that Member of Netherlands legislation. Secondly, Article State. 40(4) refers only to an initial finding of invalidity,4 whereas we are concerned here with the case of subsequent checks and examinations. It is interesting to note, 28. The focus of the Court's decision is not, however, that the system established by however, the Netherlands situation. It is, in Regulation No 1408/71 does not provide in any event, clear that for the institution all cases for automatic recognition of responsible for payment, which must assess decisions recognizing the initial state of the situation of the person concerned on the invalidity taken in another Member State. basis of its own legislation, the most practical solution consists in summoning the person to make the journey so that it may proceed in the usual way, with the partici- pation of all its experts and with all its equipment at hand. 25. Incidentally, Article 40(4) of the basic regulation also shows that the judgment in Case 28/85 Deghillage [1986] ECR 999, to which reference has been made in this case, 29. That is not possible in the case of other 4 — See the judgment in Case 232/82 Baccini [1983] ECR 583. solutions, namely the delegation of powers

to a doctor established in the country of another Member State, or to discourage stay or residence of the person concerned, him, should he one day be certified as an or the sending of a doctor from the invalid in his country of employment, from institution to that country. The latter would, returning to live in his country of origin. moreover, prove very expensive, since the Once it is established that the requirement hours spent travelling would have to be to undergo an examination at the institution added to the expense of the journey. responsible for payment cannot be imposed on an ex-worker in conditions which would be intolerable from a physical or financial point of view, the mere possibility of such an examination could not have a restrictive 30. It remains to be ascertained whether the effect on freedom of movement for workers. person concerned may derive from Community law a right not to comply with a summons to go to the country where the institution responsible for payment is situated. 34. However, for the sake of completeness, I propose to proceed to examine whether the principle would fall foul of one of the objectives of the basic regulation, as expressed in its provisions and in the fifth, 31. As the Court has ruled on many sixth and seventh recitals. These are worded occasions, regulations adopted for the as follows: implementation of Article 51 of the EEC Treaty must be interpreted in the light of the objective pursued by that article, which is the establishment of the greatest possible freedom of movement for migrant workers 'Whereas the provisions for coordination of within the common market. 5 national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should, to this end, contribute towards the improvement of their 32. I do not see why that objective specifi- standard of living and conditions of cally prevents the recipient of an invalidity employment, by guaranteeing within the benefit from 'moving' in order to undergo Community firstly equality of treatment for administrative checks and medical examin- all nationals of Member States under the ations, provided that his health is not likely to various national legislations and secondly suffer as a result and that he does not have to social security benefits for workers and their bear the costs of that journey. dependants regardless of their place of employment or of residence;

and by the provision of benefits for the examination to be carried out by the various categories of persons covered by the institution responsible for payment in the Regulation regardless of place of residence Member State where it has its seat. within the Community; However, in order that he should not be penalised by the fact that he has returned to his country of origin, which he may not be prevented from doing, he should not have Whereas the provisions for coordination to bear travelling expenses higher than those adopted for the implementation of Article which would fall to be paid by an ex-worker 51 of the Treaty must guarantee to workers living in the country of the institution who move within the Community their responsible for payment. accrued rights and advantages whilst not giving rise to unjustified overlapping of benefits'. 38. In addition, Article 51 of Regulation No 574/72 is intended to avoid where possible the need for him to travel, by providing, essentially, that, in the absence of an express decision to the contrary on the 35. In this case, the principle of the aggre- part of the institution responsible for gation of insurance periods and that of the payment, the administrative checks and payment of benefits in the territory of any medical examinations carried out by the Member State other than that in which the institution of the country of residence are to institution responsible for payment is be considered sufficient. Article 51 thus situated are not at issue. At the very most, remains highly effective, even if the we must ask ourselves whether a question of principle that the person concerned may be equality of treatment arises. summoned to the institution responsible for payment is accepted.

(2) (a) Does it make any difference for the purposes of the answer to Question 1 whether it appears that the 40. Mr Martínez Vidal has further invoked recipient is capable of travelling the right of every invalid to be questioned in without damaging his health to the his own language. Even if a doctor from the Member State in which the country of the institution responsible for institution responsible for payment payment went to examine the person of the benefit, or the body concerned in his country of stay, however, responsible for carrying out medical the interview with him would have to be examinations, is situated? conducted through an interpreter if the doctor was not familiar with the language of the person concerned. (b) Does it matter for the purposes of the answer to Question 2(a) whether ability to travel is estab- 41. For all the reasons set out above, I lished by the institution of the place suggest that the Court should answer the of stay or residence or by the first question as follows: institution responsible for payment of the benefit or body responsible for carrying out medical examin- ations? 'After it has obtained the report of the institution of the country of stay or residence of the person concerned, the 43. The answer to part (a) of the second institution responsible for payment of an question may be found in the proposed invalidity benefit — or the authority reply to the first question. responsible for having the medical exam- ination carried out — may, when availing itself of the right provided for in Article 44. With regard to the answer to be given 51(1) of Regulation (EEC) No 574/72 to to part (b) of the second question, it should have the recipient of an invalidity benefit be noted that the Governments of Germany examined by a doctor of its own choice, and the Netherlands, the Commission and summon the recipient of an invalidity the GMD accept what is dictated by benefit to the Member State of the common sense, namely that the fitness of institution responsible for payment in order the person concerned to make the journey to undergo there a medical examination. must be established without his having to The recipient is required to comply with travel to the country of the competent that summons, provided that it is established institution. I should add that Form E 231 in that he is fit to make the journey without any event includes a heading C.7 under impairment of his health and that he does which the doctor must indicate whether the not have to bear the travel and accommo- person concerned is 'completely unfit to dation expenses.' travel'.

(2) The fitness of the person concerned to make the journey must be established in his country of stay or residence.'

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