Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

In the context of the proceedings pending before the Bundessozialgericht [Federal Social Court] between Giuseppe Rindone and the Allgemeine Ortskrankenkasse Bad Urach, that court has referred to the Court of Justice a number of questions concerning the interpretation to be given to the provisions of the Community regulations on social security in connection with the determination of whether a worker residing outside the country in which he is a member of the social security scheme is unfit for work.

As the Court has decided on many occasions, the answer to such questions must be guided by an interpretation of the provisions at issue in the light of the articles of the Treaty dealing with freedom of movement for workers.

In its judgment of 25 February 1986, the Court stated in particular that: ... the provisions of Regulation No 1408/71 ... were adopted to implement Article 51 of the EEC Treaty and must be interpreted in the light of the objective of Article 51, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers, which is one of the foundations of the Community. Article 51 requires the Council to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers by securing, inter alia, payment of benefits for persons resident in the territories of Member States. The aim of Articles 48 to 51 would not be attained if, as a consequence of the existence of their right to freedom of movement, workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State.

It is in that spirit, therefore, that I will consider the questions referred to the Court.

First question

The Bundessozialgericht first asks the Court to reply to the following question:

1. In order to reply to that question, it is necessary to consider, in addition to the general principles already mentioned, the provisions of Regulation No 1408/71 (hereinafter referred to as the basic regulation).

2. An examination of the various forms used by the institutions concerned (see Official Journal L 167 of 27 June 1983) confirms, in my view, the interpretation set out above.

3. In my opinion, a very important element in this debate is the following remark, made by the Bundessozialgericht on page 15 of its order for reference:

4. Another consideration which must not be lost sight of is that a social security institution does not normally have an examination carried out by its medical adviser unless it has doubts concerning the certificate issued by the doctor treating the worker.

5. The Bundessozialgericht and the Bundesverband der Ortskrankenkassen point out that according to Article 19 (1) of Regulation No 1408/71 the worker must satisfy the conditions imposed by the legislation of the competent State and that, according to subparagraph (b), cash benefits are provided in accordance with the legislation administered by the competent institution; the examining doctor of the institution of the country of residence must therefore base his assessment on a legal concept drawn from the national law of the competent institution which is, inevitably, foreign to him.

6. Finally, I must consider the objection to the effect that an obligation binding on the competent institution of the country in which the worker is insured cannot be based on Regulation No 574/72 because the latter merely lays down rules for implementing the basic regulation.

Second question

The second question put by the Bundessozialgericht reads as follows:

That question falls into two parts. The first part seeks to know what sanction may be attached to failure on the part of the worker to apply within three days of commencement of the incapacity for work... to the institution of the place of residence by submitting a notification of having ceased work or... a certificate of incapacity for work issued by the doctor treating the worker concerned(Article 18 (1))

In that regard, it should be pointed out first that Article 18 (6) of Regulation No 574/72 expressly provides that the competent institution may withhold cash benefits if the worker has not completed the formalities laid down by the legislation of the country of residence.

If those formalities themselves include a three-day time-limit, the situation is perfectly clear.

However, what is the situation when there is no such provision in national law?

I agree with the Commission that in such a case, expiry of the three-day time-limit cannot be regarded as barring the claim.

Support for that argument may be found principally in the judgment of the Court of 11 July 1985, in which it held that:

Those principles appear to be equally applicable in this case.

The three-day time-limit laid down in Article 18 of Regulation No 574/72 is a procedural measure which contains no express automatic sanction for failure to comply with it. The principle of no loss of rights without an express provision must be applied.

The failure on the part of the worker to comply with the time-limit may, however, operate against him. If it is no longer possible to verify medically his incapacity for work retroactive to the day on which it actually commenced, the worker will not be able to claim a right to cash benefits for the period which has already expired.

If, on the other hand, the medical examination carried out on the basis of notice given late by the worker to the institution of the place of residence reveals an incapacity for work from what is genuinely the first day of the illness, the worker will be entitled to cash benefits retroactive to that day notwithstanding the absence of notice within the prescribed time-limit.

The second part of the second question concerns the consequences liable to flow from the failure on the part of the institution of the country of residence to comply with the time-limits imposed on it by Article 18 of Regulation No 574/72 for carrying out the medical examinations and transmitting the medical report to the competent institution.

In that regard, it is necessary to note first that the worker has no means of compelling the institution of the country of residence to comply strictly with the obligations imposed on it by Article 18.

However, as the Commission rightly pointed out, it is established in Community law that procedural flaws which are beyond the control of the beneficiary must not have effects which are unfavourable to him.

Moreover, it is certain that the useful effect of the scheme established by Regulations Nos 1408/71 and 574/72 would be placed in considerable jeopardy if workers were to be sanctioned for delay or negligence on the part of the social security institutions of the country of residence.

Third and fourth questions

The Bundessozialgericht then asked the Court to reply to a series of questions concerning the right of the institution in the country in which the worker is insured to obtain a second medical opinion.

The questions are as follows:

Let me say at once that it is inconceivable that the competent institution could require the person concerned, in respect of whom a certificate of incapacity for work has been issued in the Member State of residence, to return to the Member State in which the competent institution is located in order to undergo a medical examination there.

If such a discretionary right on the part of that institution were recognized, it would amount to permitting it to deprive as it saw fit the two regulations of their useful effect and to thereby return to the situation which existed before the adoption of Regulation No 3.

On the other hand, the competent institution is certainly entitled to have the worker examined by a doctor of its own choice in the country of residence or by a doctor established in the country in which the worker was employed (or in any other Member State) and who visits the worker for that purpose.

Since it does not appear to me to be possible to require the worker to return to the Member State in which the competent institution is located, Questions 3 (b), 3 (c) and 4 have to my mind no purpose.

Conclusion

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

1 Translated from the French.

2 Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416); Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation No 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159). Codified versions of these regulations were published in Official Journal 1980, C 138, pp. 1 and 65.

3 Judgment of 28 May 1974 in Case 191/73 Niemann v Bundesversicherungsanstalt für Angestellte [1974] ECR 571, paragraph 5.

4 Judgment of 28 February 1986 in Case 284/84, L. A. Spruyt v Bestuur van de Sociale Verzekeringsbank [1986] ECR 699, paragraphs 18 and 19.

5 Official Journal L 167 of 27 June 1983, p. 1.

6 Judgment of 10 January 1980 in Case 69/79, Jordens-Vosters v Bedrijfsvereniging voor de Leder- en Lederverwerkende Industrie [1980] ECR 75 at p. 84, paragraph 6.

7 Judgment of 11 July 1985 in Case 261/84 Scaletta v Union national des fédérations mutualistes neutres de Belgique [1985] ECR 2711, paragraphs 14, 15 and 16.

8 Judgment of 6 October 1982 in Case 302/81 Eggers v Hauplzollamt Kassel [1982] ECR 3443 at p. 3452, paragraph 8.