C-279/97

VOETEN AND BECKERS

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 16 July 1998 *

1. In the present case the Centrale Raad van with an undertaking in the Netherlands. In Beroep, Utrecht (Netherlands), has referred November 1989 he gave up his job because to the Court three questions whose essential he was suffering from back, shoulder and knee purpose is to ascertain whether Regulation complaints. No 574/72/EEC 1 (hereinafter 'Regulation No 574/72') allows the social security institution of the Member State to whose legislation a worker was subject when he became inca­ pable of work to adopt the decision to revise his degree of invalidity or to refuse invalidity benefits without having previously requested At the beginning of August 1990 Mr Voeten that the person concerned be examined by was examined by the medical services of the the medical services of the institution of the Netherlands social security institution. The Member State in which he resides. specialist who was treating him in Antwerp forwarded information, which is among the documents before the Court. In December 1990 Mr Voeten was interviewed by the work expert in the Netherlands, who assessed his capacity for work. By a decision of 1 March I — Facts of both proceedings 1991 he was awarded invalidity benefit, with effect from 22 November 1990, corresponding to a degree of incapacity for work of between 80 and 100%.

6. Mr Voeten appealed against both resolu­ tions. He claimed that he had not been prop­ erly examined and that his complaints had been virtually ignored. He further claimed that, according to the information provided by the specialist who was treating him in Antwerp, his degree of invalidity was between 4. It was for that reason that Mr Voeten was 80 and 90%. summoned by the medical services of the institution responsible for payment in the Netherlands for the purpose of reviewing his degree of incapacity for work. The visit took place on 13 February 1995. The doctor con­ sidered that, taking Mr Voeten's limitations into consideration, he was capable of doing 7. Mr Voeten's appeal was allowed in so far generally acceptable work on a full-time basis. as it concerned the resolution of 20 June 1995, which was annulled by the Arrondisse­ mentsrechtbank, Amsterdam. The Landelijk Instituut voor de Sociale Verzekeringen appealed to the Centrale Raad van Beroep.

Mr Voeten was then interviewed by the work expert, who classified him in the degree of 8. The second proceedings are between the incapacity of 35 to 45 %. He expressed the Landelijk Instituut voor de Sociale Verzek­ opinion that by doing other work Mr Voeten eringen, appellant, and Mr Beckers, respon­ was capable of earning a wage which, com­ dent. Mr Beckers lives in Belgium and from pared with a fork-lift truck driver's wage, 20 February 1989 worked for an undertaking represented a loss in earning power of 36%. in the Netherlands as an assembly worker. By a resolution of 20 June 1995 the appellant He ceased work on 2 September 1993 owing institution reduced Mr Voeten's benefits with to back trouble. After three months he under­ effect from 1 July 1995 in accordance with went a medical examination in the Nether­ the recommended degree of invalidity. lands and was diagnosed as suffering from a

9. In June 1994 Mr Beckers underwent a fresh '1 . Does Article 51(1) of Regulation (EEC) medical examination and had a number of No 547/72 preclude the competent insti­ interviews with the work expert, who con­ tution from carrying out in the country of cluded that he was capable of carrying out the competent institution a medical exami­ sufficient alternative work which would not nation of the person in receipt of benefit affect his back. In his opinion Mr Beckers' for incapacity for work as part of checking degree of invalidity was below 15%. the employee's degree of incapacity in the absence of a prior medical examination carried out by the institution of the place of stay or residence, where the employee is a frontier worker and, as a result, it can be presumed that the distance between his place of residence and the competent insti­ tution is not necessarily greater than the 10. On 1 September 1994, upon expiry of the distance between his place of residence 52-week period during which a claimant nor­ and the institution of the place of resi­ mally receives sickness benefit, Mr Beckers dence? applied for invalidity benefit, which was refused by resolution of 12 September 1994. Mr Beckers appealed against that resolution; he claimed that his condition had been too lightly assessed. 2. In the case of determination for the first time of entitlement to benefit, does Article 40 of Regulation (EEC) No 574/72 pre­ clude the competent institution from assessing the incapacity for work on the basis of its own medical examination, without a prior medical examination by the institution of the place of residence?

(a) invalidity benefits; 'Article 40

In order to determine the degree of invalidity, is staying or residing in the territory of a the institution of the Member State shall take Member State other than the State in which into consideration the documents and medical the institution responsible for payment is situ­ ated, administrative checks and medical exami­ nations shall be carried out, at the request of 2 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on that institution, by the institution of the place the application of social security schemes to employed per­ of stay or residence of the recipient in accor­ sons, to self-employed persons and to members of their fami­ lies moving within the Community, as amended and updated dance with the procedures laid down by the by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ L 230, p. 6), in the version amended by the Act on the condi­ legislation administered by the latter institu­ tions of accession of the Kingdom of Spain and the Portu­ tion. The institution responsible for payment guese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23). shall, however, reserve the right to have the

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recipient examined by a doctor of its own in Article 20 of the Statute (EC) of the Court choice. of Justice, by the Landelijk Instituut voor de Sociale Verzekeringen, the Governments of The Netherlands and Germany and the Com­ mission. The Landelijk Instituut voor de Sociale Verzekeringen, the Government of the ...' Netherlands and the Commission were rep­ resented at the hearing, which took place on 2 July 1998.

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OPINION OF MR RUIZ-TARABO — CASE C-279/97

In case the Court should not take that view, the Government claims that in the case of frontier workers the fact that they are required 17. The Netherlands Government observes to travel to the Member State of the institu­ that, since the legislative amendment which tion responsible for payment neither consti­ entered into force in August 1993, it is not tutes an obstacle to the free movement of the medical practitioner who determines the workers nor represents a danger to their degree of invalidity of a worker but the work health. It further states that reinstating workers residing abroad is generally difficult, since the further away they are the more difficult it is 3 — This Agreement is referred to in paragraph 9(d) of Annex 5 to maintain contact between the work expert to Regulation No 574/72 on the implementing provisions of bilateral conventions which remain inforce. and the undertaking and between the under-

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taking and the worker. Frontier workers, on that it is not open to a person who has vol­ the other hand, are for practical purposes in untarily undergone an examination in the the same situation as those who reside in the Member State of the institution responsible Netherlands as far as successful reinstatement for payment to withdraw his consent where is concerned. That is amply illustrated by the he does not agree with the result of that case of Mr Voeten, who succeeded in being examination. re-employed by the undertaking for which he had previously worked.

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OPINION OF MR RUIZ-JARABO — CASE C-279/97

Let me say at the outset that I see no reason 23. Article 51 (1 ) of Regulation No 5 74/72 has why that should be so. already been interpreted by the Court in the Martínez Vidal judgment, delivered in 1991, which contains some dicta which are of great assistance for the purpose of determining the present case. On that occasion the questions were referred to the Court by the Arrondisse­ mentsrechtbank, Amsterdam, and the facts of the case were as follows: Mr Martínez Vidal, of Spanish nationality, had worked since 1963 as a seaman in the Netherlands merchant 21. It is apparent upon a literal reading of navy. In 1979 he ceased to work owing to Article 51(1), first, that it applies to a worker back trouble. He returned to Spain, where he in receipt of invalidity benefits who lives in a was operated on for a slipped disc. He received Member State other than that of the institu­ sickness benefit for 52 weeks and then inval­ tion responsible for payment; second, that it idity benefit under Netherlands legislation. governs the procedure for carrying out a His degree of invalidity was established at medical examination of the recipient; and, between 80 and 100%. third, that it provides that the medical exami­ nation is to be carried out, at the request of the institution responsible for payment, by the institution of the place of residence, in accordance with the legislation administered by that institution.

the Amsterdam courts for a declaration that of invalidity benefits: in the first case there is he was not required to return to the Nether­ a risk that the recovery of the person con­ lands to undergo a medical examination. cerned will be seriously impaired by the journey and for that reason he cannot be required to return to the Member State of the institution responsible for payment to undergo a medical examination, while in the second case the same restriction of the right of the 24. The Arrondissementsrechtbank asked the institution responsible for payment to carry Court of Justice to rule on whether a person out examinations cannot be accepted and fit­ in receipt of invalidity benefits who is able to ness to travel must be assessed on a case-by- travel without endangering his health may be case basis. required to travel to the Member State of the institution responsible for payment of his benefits where that institution exercises the power conferred on it by the final sentence of Article 51(1) of Regulation No 574/72 to have a recipient residing in another Member State The Court observed that under the legislation examined by a doctor of its own choice. of the various Member States the differences arc particularly pronounced with regard to invalidity; that in order to determine the degree of invalidity the examinations neces­ sary require the participation of various experts; and that substantial expense would 25. In its judgment the Court held that Article be incurred if those experts were required to 51(1) could not be interpreted to the effect travel. Furthermore, it is not certain that they that, in a case of invalidity, the institution would find in the Member State of residence responsible for payment of benefits may cither of the person concerned all the facilities nec­ ask the institution of the place of residence of essary to carry out the examinations. the recipient to carry out an examination or arrange an examination itself since if, in such a case, an examination is carried out only at the request of the institution responsible for payment, it is because an examination is not always needed. The Court went on to say that if an examination docs take place, it is The Court inferred that in a case where the carried out by the institution of the place of state of health of the person concerned so residence but that the institution responsible allows, he is required, when asked by the for payment may none the less arrange for an institution responsible for payment, to go to 5 additional examination. The Court then con­ the Member State of that institution in order trasted the situation of a worker who becomes to undergo there an examination by a doctor, ill in a Member State which is not that of the provided that the travel and accommodation institution responsible for payment of ben­ expenses incurred arc borne by that institu­ efits and the situation of a person in receipt 6 tion.

28. I do not agree with the Landelijk Insti­ tuut voor de Sociale Verzekeringen's argu­ 27. Contrary to what the Landelijk Instituut ment that Article 121 of Regulation No 574/72 voor de Sociale Verzekeringen and the Gov­ allows Member States to establish administra­ ernment of the Netherlands maintain, I see tive procedures for implementing Regulation no need to take a different approach in the No 1408/71 which are not provided for in case of a former frontier worker, first because Regulation No 574/72 and that Articles 21 a provision which does not differentiate and 23 of the Agreement concluded in 1982 between two situations must not be inter­ between Belgium and the Netherlands'on preted as though it did and, second, because insurance for sickness, maternity and inval­ there is no guarantee that a former frontier idity allow the medical examination to be car-

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ried out directly by the institution respon­ that he be examined by the institution of the sible for payment, without the intervention Member State in which he resides, and that in of the institution of the State of residence. that regard the fact that the recipient was a My reasons for disagreeing are as follows. frontier worker when the incapacity for work followed by invalidity occurred is irrelevant.

First, Article 121 merely allows the Member States, where necessary, to conclude agree­ 30. It is necessary to determine next what ments designed to supplement the adminis­ happens in a case such as Mr Voeten's, where trative procedure for implementing Regula­ although the person concerned could have tion No 1408/71. It follows from the wording been examined in Belgium at the request of of Article 121 that an agreement having those the Netherlands institution responsible for characteristics provides no legal basis for dero­ payment, he complies with that institution's gating from either Regulation No 1408/71 or request and goes to the Netherlands, presum­ Regulation No 574/72, which implements it. ably of his own volition, to undergo a medical examination there.

journeys to undergo medical examinations in That argument is further reinforced where, as a Member State other than that in which they happened in the Netherlands owing to the reside. legislative reform which entered into force in August 1993, the criteria used to determine the degree of invalidity were changed in such a way that a worker like Mr Voeten who was recognised as having a degree of invalidity of 80 to 100% under the former legislation has a degree of invalidity of 25 to 35% under the new legislation and could again form part of 32. There is no doubt, however, that the the working population. institution responsible for payment is the institution ultimately empowered to decide whether the recipient is entitled to continue to receive the benefit. In that sense, although it requests the institution of the place of resi­ dence to examine the person concerned, it has the power to designate a doctor to carry out an additional examination and, since Article 51 does not specify the place in which this examination is to be carried out, the Court 34. Since the purpose of Article 51 (1) of Regu­ interpreted the relevant provision as meaning lation No 574/72 is essentially to protect the that the person concerned will have to travel, recipient of an invalidity or old-age benefit, I at the request of the institution responsible consider that if the person concerned waives for payment, where his health allows, and the the right to be examined first by the institu­ institution responsible for payment will bear tion of the Member State in which he resides the expenses. and goes to the Member State of the institu­ tion responsible for payment in response to its invitation to undergo an examination there, he will be unable subsequently to withdraw his consent where he does not agree with the result.

35. In accordance with the foregoing rea­ tution of the Member State is to take into soning, it is necessary to add in answer to the consideration the documents and medical first question that where the person con­ reports obtained by the institution of any cerned waives the procedure laid down in his other Member State. It takes the view that favour in Article 51(1) of Regulation there is no requirement that the first medical No 574/72 and goes voluntarily to the Member examination be carried out by the institution State of the institution responsible for pay­ of the Member State of residence. It further ment, he cannot subsequently claim, if he does states that, in any event, if the person con­ not agree with the result of the examination, cerned has taken the initiative to submit his to re-initiate the procedure under which he request to the institution of the Member State may be first examined by the institution of under whose legislation he comes at that par­ the Member State in which he resides. ticular time it would be illogical for that insti­ tution to be required to forward the request to the institution of the State in which he resides in order for him to undergo a medical examination there.

B — Question 2

40. The Commission considers that it is not amount of invalidity benefits is independent to be inferred from the wording of Article 40 of the length of periods of insurance. of Regulation 574/72 that before the compe­ tent institution examines the person con­ cerned he must have undergone a medical examination in the Member State in which he resides, since Article 40 refers only to 'the institution of any other Member State', meaning any Member State in which the His claim for benefits is therefore governed person concerned has applied for invalidity by the procedure set out in Article 35 of benefits or in which he is entitled to benefits Regulation No 574/72. In accordance with of that type. The other Member States referred that provision, in order to receive invalidity to will normally be those in which the person benefits the worker is to submit a claim either concerned has worked and been insured to the institution of the Member State to against invalidity rather than the Member whose legislation he was subject at the time State of residence. of occurrence of the incapacity for work fol­ lowed by invalidity or to the institution of the place of residence, which is then to for­ ward the claim to the first institution.

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the procedure, that the claimant must or may, C — Question 3 for those purposes, undergo a prior medical examination by the institution of the Member State in which he resides.

47. The national court asks the third ques­ tion only in the event that the answer to the 45. It must not be forgotten that Article 39 second question is in the negative. Since that of Regulation No 1408/71, which governs the is what I propose, I shall now consider the award of benefits where the worker has been third question, whereby the national court subject only to legislations under which the seeks to ascertain whether the outcome is the amount of invalidity benefits is independent same where the competent institution has not of the length of periods of insurance, pro­ requested and hence not taken into consider­ vides that it is the institution of the Member ation medical documents and reports which State, whose legislation was applicable at the the institution of the Member State of resi­ time when incapacity for work followed by dence may possess, but has only used infor­ invalidity occurred, which is to determine, in mation provided by the doctors who have accordance with its own legislation, whether treated the worker in the Member State in the person concerned satisfies the conditions which the competent institution is situated. for entitlement to benefits. I understand those conditions to include medical conditions and, accordingly, infer that that institution is not required to request the institution of the place of residence to examine the person concerned.

49. The German Government considers that 52. I infer from that wording that the State of the competent institution must take into con­ residence may be any of those other Member sideration the medical information available States or the State in which the competent in the Member State in which the worker institution is situated. The situation of resides at the time when it takes its decision, Mr Beckers, who resides in Belgium and is in order to avoid the duplication of medical subject to the Netherlands legislation, may examinations. By way of example, it refers to fall within the first hypothesis, while the situ­ the situation where a seasonal worker has ation of anyone who has worked in various applied for invalidity benefits to the social Member States before working and living in, security institution of the Member State in for example, the Netherlands would fall within whose territory he happens to be and that the second hypothesis. institution has carried out its own medical examinations.

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tion with which the person concerned was however, is to retain the right to have the last insured or, where appropriate, the institu­ claimant examined by a doctor of its own tions of all the other Member States in which choice. he has worked, a certified statement of the periods of insurance completed under their legislation.

55. Therefore the requirement in Article 40 56. For the reasons which I have just set out, of Regulation No 574/72 that the institution I propose that the answer to the third ques­ of one Member State, when determining the tion be that Article 40 of Regulation degree of invalidity, is to take into consider­ No 574/72 precludes the institution of the ation the medical reports and the administra­ Member State to whose legislation the worker tive information obtained by the institution was subject at the time when incapacity for of any other Member State, will be applicable work followed by invalidity arose from deter­ only where two conditions are met: the worker mining his degree of invalidity without taking has been subject, throughout his working life, into consideration the documents and medical to the social security legislation of two or information obtained by the institution of any more Member States and, under all those leg­ other Member State, provided that the worker islations, the amount of invalidity benefits is has been subject to the social security legisla­ independent of the length of periods of insur­ tion of other Member States and that, as a ance. Were it not so, it would not be consequence of the procedure laid down in necessary for the second sentence of Article 39 of that regulation, the institutions Article 40 to add that each institution, of those States forward that information.

(2) Article 40 of Regulation No 574/72 does not preclude the competent institu­ tion from determining, for the purpose of recognising entitlement to invalidity benefits, the degree to which the worker is affected, solely on the basis of the medical examinations carried out by its services.

(3) Article 40 of Regulation No 574/72 precludes the institution of the Member State to whose legislation the worker was subject at the time when incapacity for work followed by invalidity arose from determining his degree of invalidity without taking into consideration the documents and medical information obtained by the institution of any other Member State, provided that the worker has been subject to the social security legislation of other Member States and that, as a consequence of the procedure laid down in Article 39 of that regulation, the institutions of those States forward that information.

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