Report for the Hearing in Case C-344/89

I — Facts and procedure

1. Legal framework

Under Article 51(1) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1972 (I), p. 159):

‘1. When a person in receipt of benefits, in particular: (a) invalidity benefits; (b) old-age benefits awarded in the event of unfitness for work; (c) old-age benefits awarded to elderly unemployed persons; (d) old-age benefits awarded in the event of cessation of a professional or trade activity; (e) survivors' benefits awarded in the event of invalidity or unfitness for work; (f) benefits awarded on condition that the means of the recipient do not exceed a prescribed limit; is staying or residing in the territory of a Member State other than the State in which the institution responsible for payment is situated, administrative checks and medical examinations shall be carried out, at the request of that institution, by the institution of the place of stay or residence of the recipient in accordance with the procedures laid down by the legislation administered by the latter institution. The institution responsible for payment shall, however, retain the right to arrange for the examination of the recipient by a doctor of its own choice.’

It is apparent from the judgment referring questions to the Court that, according to Netherlands legislation, the determination of the right to Netherlands benefits for loss of salary in case of sickness or incapacity for work depends essentially on the question whether the person affected is incapable through sickness of performing his normal work, irrespective of the fact that he could possibly perform other work.

At the end of the 52 weeks during which the person concerned may claim sickness benefit, a decision must be made as to whether he is entitled to an invalidity benefit under the Netherlands legislation. The decision to grant, withdraw or reduce the benefit in question is adopted by the competent Bedrijfsvereniging (Professional and Trade Association), in this case the Bedrijfsvereniging voor de Koopvaardij (Professional and Trade Association for the Merchant Navy), based at The Hague, hereinafter ‘BVK’), which must obtain, for that purpose, the opinion of the Gemeenschappelijke Medische Dienst (Joint Medical Service, hereinafter ‘GMD’), which alone has the authority to have the worker in question examined at a place which it specifies and by an expert whom it appoints.

If, without a legitimate reason, the person concerned does not comply with a notice from the GMD requiring him to attend for examination, the BVK, after consulting the GMD, determines whether to grant or refuse the benefit in question in whole or in part, temporarily or permanently.

Within the framework of its consultative role, the GMD investigates, from the medical point of view, whether, if he is not completely and permanently unfit for work, the person concerned is still capable of performing his former work and, if not, what medical restrictions on the exercise of occupational activities are applicable, such restrictions generally being revealed by what is known as an ‘aptitude scale’ which is used to determine the activities suitable for the person concerned.

Neither the nature nor the extent of the medical restrictions is conclusive with regard to the right to an invalidity benefit; what counts is the degree by which earnings corresponding to suitable work are less that what is known as the reference wage (generally the last wage earned before the person concerned became unfit to work). If that difference is less than a certain percentage, the person concerned may not claim the benefit.

In the case of a recipient living outside the Netherlands who has undergone a medical examination in the Netherlands after being summoned there by the GMD, the subsequent investigation into possible suitable activities is generally carried out in the absence of the person concerned, who, in the majority of cases, has returned to his country of residence.

If the investigation carried out by the GMD results in a report advising that the benefit in question should be reduced or withdrawn from a certain date, that report is notified in writing to the person concerned, together with a list of suitable activities which he could pursue in the Netherlands.

2. Factual background to the main proceedings

Mr Martinez, a Spanish national, had worked since 1963 as a seaman in the service of Netherlands employers.

At the end of April 1979 he had to cease work as a result of back pain and never resumed work. He returned to his native country shortly after the onset of his illness. Mr Martinez first received sickness benefit under the Netherlands Law on Sickness Insurance (Ziektewet) and, subsequently, from 25 April 1980, he received invalidity benefit under the Netherlands Law on Insurance against Incapacity for Work (Wet op de Arbeidsongeschiktheidsverzekering, hereinafter ‘WAO’) as well as under the Netherlands Law on General Insurance against Incapacity for Work (Algemene Arbeidsongeschiktheidswet, hereinafter ‘AAW’), calculated on the basis of a degree of incapacity of 80 to 100%.

In January 1980 Mr Martinez was operated on for a slipped disc in Spain. The report drawn up in that connection by the Instituto Nacional de Seguridad Social (National Social Security Institute, hereinafter ‘INSS’), dated 1 October 1980, suggested that further medical examinations and, possibly, further surgery would be necessary.

The INSS, which kept Mr Martínez under medical observation, produced further reports dated 1 March 1982 and 4 June 1984.

By letter of 17 April 1989 the GMD summoned Mr Martinez to the Netherlands to undergo an examination to be carried out by two doctors appointed by the GMD.

Mr Martinez did not claim that his state of health prevented him from travelling to the Netherlands, but he refused to comply with the notice summoning him.

In those circumstances, Mr Martínez instituted proceedings against the GMD in the Arrondissementsrechtbank (District Court), Amsterdam, for a ruling that he was not required to return to the Netherlands to undergo the medical examination in question.

By a judgment of 18 October 1989 the Arrondissementsrechtbank, Amsterdam decided to stay its proceedings and refer to the Court the following preliminary questions :

‘1. May the institution responsible for payment of invalidity benefits, or the body responsible for carrying out medical examinations, in exercising the power conferred on it by Article 51(1) of Regulation (EEC) No 574/72 to have a person in receipt of an invalidity benefit examined by a doctor of its own choice, summon the recipient from the Member State in which he is staying or residing in order to make him undergo a medical examination in the Member State in which that institution is situated and is the recipient required to comply with the notice summoning him? 2. (a) Does it make any difference for the purposes of the answer to Question 1 whether it appears that the recipient is capable of travelling without damaging his health to the Member State in which the institution responsible for payment of the benefit, or the body responsible for carrying out medical examinations, is situated? (b) Does it matter for the purposes of the answer to Question 2(a) whether ability to travel is established by the institution of the place of stay or residence, or by the institution responsible for payment of the benefit or body responsible for carrying out medical examinations?’

3. Procedure before the Court

The judgment of the Arrondissementsrechtbank, Amsterdam, was lodged at the Court Registry on 6 November 1989.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged by the German Government, represented by E. Röder and G. Leibrock, acting as Agents, by the Netherlands Government, represented by B. R. Bot, Secretary General of the Ministry for Foreign Affairs, acting as Agent, by the Spanish Government, represented by C. de la Higuera González and C. Bastarreche Sagües, acting as Agents, by the Commission of the European Communities, represented by B. J. Drijber, a member of its Legal Department, acting as Agent, by the Gemeenschappelijke Medische Dienst, represented by R. A. A. Duk, of The Hague Bar, and by M. Martínez Vidal, represented by J. P. Smit, of the Amsterdam Bar.

Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

By a decision of 4 July 1990, the Court assigned the case to the Third Chamber.

II — Summary of the written observations submitted to the Court

The first question

3.1. Mr Martinez, the applicant in the main proceedings, refers first to the judgment in Case 284/84 Spruyt [1986] ECR 685, in which the Court stated that: He then points out that Regulation No 574/72, which includes provisions relating to the type of checks and examinations and the place in which they must be carried out, namely Article 18 (in respect of sickness and maternity), Article 51 (relating to invalidity) and Article 61 (concerning accidents at work and occupational diseases), sets up a system which, in his opinion, may be summarized as follows: Administrative checks and medical examinations are to be carried out by the institution of the place of residence; however, the competent institution may appoint a doctor of its own choice, in which case it must either send a doctor to examine the person concerned in the Member State in which he resides or avail itself of the services of a doctor in the latter State (see the judgment in Case 22/86 Rindone [1987] ECR 1339). As a result, the person concerned is not obliged to return to the Member State in which the competent institution is situated for that examination. Where it does not appoint a doctor of its own choice, the competent institution is bound by the assessment of the institution of the place of residence (see judgment in Case 28/85 Deghillage [1986] ECR 991). Mr Martínez notes that, with regard to the interpretation of Article 18 of Regulation No 514/72, the Court ruled in Rindotie that: Mr Martínez points out that the Court considered that an obligation to return to the State of the competent institution in order to undergo a medical examination there was incompatible with due concern for the health of the worker. According to Mr Martinez, Article 51 must be interpreted in the same way. The medical examination for which provision is made may be carried out without inconvenience by doctors in the Member State of residence, who have at their disposal for that purpose Forms E 213 and E 214, by means of which they can provide the medical information which the competent institution needs in order to reach a correct decision. It is only where the medical situation reveals that some capacity to carry out an occupational activity remains that, in accordance with the relevant Netherlands legislation, there is an investigation on a purely theoretical basis to determine whether there are any occupations that the person concerned could pursue. Mr Martinez points out that, in the case of a worker living abroad, that assessment is carried out in the absence of the person concerned and is communicated to him in writing. He takes the view, moreover, that several factors militate in favour of the medical examination being carried out in the Member State of residence. The person concerned is then examined and interviewed in his own language, and the fact that the doctors treating him are close at hand enables him to remain in contact with them for the purposes of complete and effective examinations and gives him the opportunity of discussing the results of those examinations. Consequently, Mr Martinez takes the view that the first question calls for a negative reply.

‘the provisions of Regulation No 1408/71, and in particular those of Annex VI thereto, 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 the Member States. The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise 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.’ (paragraphs 18 and 19)

‘Article 18(5) of Regulation No 574/72 must be interpreted as meaning that the competent institution may have the prescribed examination carried out by a doctor of its choice, including a doctor in the country in which the person concerned resides, and that that person is not obliged to return to the State of the competent institution to undergo a medical examination there.’

3.2. According to the GMD, the question is whether Article 51 must be given the same interpretation as that accepted by the Court in connection with Article 18 of Regulation No 574/72 in Rindotie. The GMD disagrees that the solution reached in that case should also apply in respect of Article 51. Similarly, it states that the judgment of the Court in Deghillage to which Mr Martinez refers is not relevant, since that case concerned Article 57 of Regulation No 1408/71, a provision which refers to benefits for occupational diseases. First, contends the GMD, Article 18 specifies in a much broader and more detailed way the tasks and powers of the institution of the recipient's place of residence. Under Article 18(1) to (4) that institution is recognized as having an indisputably predominant role in determining incapacity for work, whereas Article 51 confines the possible tasks of the institution of the place of residence to administrative checks and medical examinations. The GMD then submits that, whereas the concept of incapacity for work for the purpose of fixing the right to sickness benefits does not differ noticeably between the various Member States, thus allowing the institution of the State of residence to apply the laws of another Member State without great difficulty, the concept of incapacity for work utilized to determine the right to invalidity benefits does vary noticeably between the Member States, so that recourse to the institution of the recipient's place of residence for a valid decision on the extent of the invalidity is thus ruled out. In the GMD's opinion, it also follows from the objective of Regulation No 1408/71 that the decision concerning the extent and duration of the invalidity of a recipient of benefits should, in theory, be taken by the competent institution. According to the GMD, it is even questionable whether the institution of the place of residence is capable of collecting the medical and technical data which the competent institution needs in order to be able to reach the correct decision, in so far as the drafting of medical and technical reports requires specialized knowledge of the concept of incapacity for work utilized, and the experts on the subject are generally to be found in the Member State of the competent institution. The GMD points out that in view of the criterion applied, which refers to work carried out in the country of the statutory scheme in question, determination of the degree of invalidity hinges on local and very complex circumstances so that, in many cases, it is quite simply impossible for the institution of the place of residence to determine correctly the degree of invalidity. Even though Form E 214 may constitute an aid to the doctors of the recipient's State of residence, experience has shown that the difficulties arising when it is used are often resolved only after Netherlands specialists have been consulted. Nor, according to the GMD, does sending experts to the Member State in which the person concerned resides provide an adequate solution, in so far as, apart from the disproportionate expense involved, those experts do not have available, at the place of residence of the person concerned, the facilities necessary to carry out their examinations, and the checks and examinations procedure is unnecessarily prolonged. The GMD therefore considers that, even if the checks and examinations may in some cases be properly carried out in the country of residence, in many other cases it is appropriate for the person concerned to make the journey. The GMD also contends that when, with regard to Article 18, the Court ruled in Rindone that an obligation for the worker to return to the Member State in which the competent institution was situated was incompatible with due concern for the health of the worker, it did not have to take account of a situation such as that arising in this case, where the person concerned is already suffering from long-term incapacity for work and is often able to travel despite his disability. In such a case the situation of the person concerned has generally stabilized in the meantime, whereas there is a risk that the process of recovery of a worker to whom Article 18 applies would be seriously impaired by a ‘forced’ journey. The GMD thus takes the view that it is inconceivable that it should always be incompatible with due concern for the health of the person concerned to ask him to travel to another Member State so that the degree of his incapacity for work may be established (‘incapacity for work’ being expressly mentioned in Article 18 but not in Article 51). It is, according to the GMD, a matter to be resolved on a case-by-case basis. The GMD adds that the judgment in Rindotie has enabled the system to be manipulated in some instances, leading to the payment of undue benefits. Finally, the GMD specifies that, in practice, the person concerned is only summoned if there is some indication that the insured worker is still partially capable of working, and that such a summons is ruled out if there is any doubt concerning the fitness of the person concerned to travel. The GMD concludes that the first question should in principle be answered in the affirmative.

3.3. The German Government points out, first, that Article 51 forms part of Chapter 3 of Regulation No 574/72, which deals with invalidity, old-age and death (pensions). Wording similar to that of the second sentence of Article 51(1) is to be found elsewhere in the regulation at issue. That is the case regarding Article 18(5), which appears in Chapter 2 (‘Sickness and maternity’) governing cash benefits in the case of residence in a Member State other than the competent State, and Article 61(5), which is found in Chapter 4 (‘Accidents at work and occupational diseases’) and concerns cash benefits other than pensions in the case of residence in a Member State other than the competent State. According to the German Government, it follows from Article 51(1) of Regulation No 574/72 that an institution which is required to pay invalidity benefit is in principle entitled to ask the recipient to undergo a medical examination in the Member State where that institution is based. In the opinion of the German Government, such an interpretation is necessary, if only for practical reasons. In the absence of a reciprocal agreement between the Member State of the competent institution and the State of the institution of the place of residence regarding assessment of the degree of incapacity or invalidity, that assessment can generally be properly carried out only by doctors established within the purview of the local institution responsible for payment, who are familiar with the system of classification applicable there and its criteria, such as the principal occupation previously carried out, the possibility of the worker's being employed in other work or the situation on the employment market and, crucially, the earning capacity of the person concerned. Although it seems to the German Government that a doctor from the jurisdiction of the competent institution could conceivably be sent to the State of the institution of the place of residence, the cost in staff and money which that would entail would, given the large number of persons involved, exceed the resources of the competent institution, with the result that it could no longer, in practice, make use of the right conferred on it by Article 51(1) to appoint a doctor ‘of its own choice’, thus rendering the provision ineffective. In the opinion of the German Government, furthermore that interpretation does not conflict with the judgment of the Court in Rindone. It points out that what was at issue in that case was the interpretation of Article 18 of the same regulation, which makes provision for cash benefits in the event of incapacity for work due to current illness and therefore, as a general rule, refers to persons who are not capable of travelling. The German Government points out that Article 51, on the other hand, deals with permanent incapacity for work, in which case it is quite possible that the recipient may not be in such a frail state that all travel should be ruled out automatically, as in a case where the incapacity relates only to carrying out hard physical work. The question of fitness to travel should thus be left to the national court to assess. The German Government concludes that Article 51(1) does not, in principle, prevent the competent institution from requesting the recipient to undergo an examination in the Member State in which the institution is situated.

3.4. The Netherlands Government submits, first of all, that the person concerned in this case is entitled to invalidity benefits pursuant to the provisions of Title III, Chapter 2, Section 1, of Regulation No 1408/71. More specifically, it is pursuant to the provisions of Article 37(1) that entitled to benefits in accordance with Article 39 arises. Article 39(1) provides that the competent institution is to determine, in accordance with its national legislation, whether the person concerned satisfies the conditions for entitlement to benefits. Under Article 39(2), the person concerned is to obtain the benefits in accordance with the legislation which the competent institution administers. In the opinion of the Netherlands Government, the power of decision regarding the invalidity benefits at issue has, accordingly, been conferred exclusively on the competent institution applying the national legislation concerned. With regard to the administrative checks and medical examinations referred to in Article 51(1) of Regulation No 574/72, the Netherlands Government states that, in so far as the competent institution retains the right to appoint a doctor of its own choice, it is thus also for that institution to determine the procedure according to which those checks and examinations are to be carried out. In the opinion of the Netherlands Government, it is important, for the purposes of answering the first question, to explain the way in which long-term incapacity for work is established under the Netherlands legislation. In that respect, it specifies, first of all, that ‘incapacity for work’ within the meaning of the AAW and the WAO signifies that the person concerned is not capable of earning the equivalent of his former wage, either in his own occupation or by performing other suitable work. In order to assess incapacity for work, account is then taken of the training received, of the occupation normally followed, of the capacities and aptitudes of the person concerned and of the state of his health. Those factors enable suitable activities which the person concerned could still pursue to be determined. The degree of incapacity for work is established by comparing the income previously earned with the income which the person concerned could still earn from suitable activities. The Netherlands Government draws attention to the fact that that assessment is carried out by the staff of the GMD (a doctor, an employment expert and a legal expert), which is the consultant body advising the professional and trade association concerning application of the AAW and the WAO. Finally, if the person concerned is requested to travel to the Netherlands in order to undergo an examination there, interviews are held in turn with the various persons who have to submit an opinion regarding the incapacity. According to the Netherlands Government, in the light of the foregoing account, it is quite comprehensible that circumstances may render it necessary for the person concerned to return to the Netherlands. The experts mentioned above live in the Netherlands and, apart from possible problems concerning the authorization which they might require in order to carry out their tasks when they are not established in the Member State in question, there is no certainty, in the opinion of the Netherlands Government, that the facilities needed for the examinations would be available in the State of residence. The Netherlands Government adds that, in any event, the person concerned is reimbursed for the travelling and accommodation expenses incurred. The Netherlands Government takes the view, moreover, that the judgment given by the Court in Rindone, in respect of Article 18(5) of Regulation No 574/72, must be interpreted as meaning that it is permissible to require the person concerned to return to the State of the competent institution in order to undergo a medical examination there unless the state of health of the person concerned prevents him from doing so, which Mr Martínez has not claimed is the case as far as he is concerned. According to the Netherlands Government, the answer to the first question should be that:

‘The institution responsible for payment of invalidity benefits, or the body responsible for carrying out medical examinations, may, in exercising the power conferred on it by Article 51(1) of Regulation (EEC) No 574/72 to have a person in receipt of an invalidity benefit examined by a doctor of its own choice, summon the recipient in question from the Member State in which he is staying or residing in order to undergo a medical examination in the Member State in which that institution is situated, and the recipient is in principle required to comply with the notice summoning him.’

3.5. According to the Spanish Government, it is clear simply from the wording of Article 51(1) that it does not provide that the administrative checks and medical examinations of the person concerned must necessarily take place in the territory of the State responsible for payment of the benefit, or that they must be carried out by the competent institution. According to Article 51(1), those checks and examinations are to be carried out by the institution of the place of residence of the recipient, and a second optional examination, performed by a doctor appointed by the competent institution, may, in principle, be substituted for the first or carried out in parallel, which does not presuppose that the person concerned must return to the Member State of that institution. In the view of the Spanish Government, that interpretation is confirmed by the case-law of the Court, and in particular by the judgments in Deghillage and Rindone. With regard, first of all, to the judgment in Deghillage, the Spanish Government submits that the Court made a clear distinction between the stage of the substantive decision (award of the benefit) and the preliminary stage at which a report is established, the facts determined and evidence filed, which may take place in a Member State other than that of the competent institution. The Spanish Government considers that that case-law is relevant to the case in point, even though it concerns the interpretation of Article 57(2) of Regulation No 1408/71, which envisages a situation similar to that referred to in Article 51(1) of Regulation No 574/72, and confirms the validity and scope of a medical procedure carried out in another Member State, while respecting the powers of the institution responsible for payment regarding the final decision to be taken on the subject. The Spanish Government contends that in Rindotie, Article 18(5) of Regulation No 574/72 was interpreted by the Court as meaning that there is no requirement for the person concerned to return to the State of the competent institution in order to undergo a medical examination there. According to the Spanish Government, Article 18(5) serves the same purpose as Article 51. In that connection the Spanish Government refers to paragraph 12 of that judgment, from which it is clear that the stage at which the state of health of the person concerned is examined falls within the competence of the State of residence, without prejudice to the right of the competent institution to have an examination carried out in order to take the final decision on the subject. The Spanish Government also refers to paragraph 13 of the judgment, which states: According to the Spanish Government, it follows from paragraph 21 of the same judgment that a worker recognized as unfit for work is presumed to be in a precarious state of health which makes it inadvisable for him to travel, and there is no need for a statement as to how serious his condition is. In the opinion of the Spanish Government, to interpret the judgment otherwise would mean that the burden of proving the state of his health would rest with the worker. The powers of the State of residence would be restricted as regards examination of the recipient's state of health for reasons which do not seem to have been intended by the legislature and it would be very difficult, in practice, to determine in each case whether it was appropriate for the person concerned to travel. In support of its reasoning, the Spanish Government also refers to Article 10(1) of Regulation No 1408/71, in the words of which: That provision, according to the Spanish Government, reflects the principle according to which the situation of the person concerned must not be made worse by reason of where he resides, which would, however, be the case if he were obliged to return to the State of the competent institution. According to the Spanish Government, the answer to the first question should be as follows :

‘That interpretation is also made necessary by the purpose of Article 18 of Regulation No 574/72 and of Article 19 of Regulation No 1408/71. If the competent institution was free not to recognize the finding of incapacity for work made by the institution of the place of residence, a worker who in the meantime had once again become fit for work could, as the national court emphasizes, have difficulty in producing the necessary proof. However, it is precisely those difficulties which the Community rules at issue are designed to eliminate. Such a situation would be unacceptable because it would interfere with the “establishment of the greatest possible freedom of movement for migrant workers, which is one of the foundations of the Community” (judgment in Case 284/84 L. A. Spruytv Bestuur van de Sociale Verzekeringsbank [1986] ECR 693)’.

‘Save as otherwise provided in this Regulation, invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.’

‘The institution responsible for payment of an invalidity benefit may, in view of the option conferred on it by Article 51(1) of Regulation (EEC) No 574/72, carry out the medical examination of the recipient by specifying that the latter is to be examined by a doctor whom it will appoint, but the recipient should not be required to return from the State where he is staying or residing to the State where the institution responsible for payment is situated in order to undergo the examination there.’

3.6. The Commission claims, in the first place, that it can be concluded simply from the wording of Article 51 that the medical examination which it envisages must be carried out in the State of residence of the worker. The provision lays down a system under which the competent institution responsible for payment of the cash benefit cooperates with the institution of the place of residence of the recipient. Thus the latter carries out the medical examination at the request of and on behalf of the competent institution, which retains the right to appoint a ‘doctor of its own choice’. The expression ‘doctor of its own choice’ can, according to the Commission, mean only a doctor performing the examination in the Member State of residence of the recipient. That means either a doctor who normally works in that place or a doctor who travels there. In the Commission's opinion, there is nothing in the words of Article 51 from which it can be concluded that the institution may have the medical examination carried out by its own doctor in its own country, to which the person concerned would thus be required to travel. Secondly, the Commission points out that the Court accepted such a construction with regard to Article 18(5) of Regulation No 574/72, concerning the medical examination of a worker for the purpose of determining whether he was entitled to sickness benefit (judgment in Rindone, which is on the same lines as the judgment in Deghillage). As a result, in so far as, according to the Commission, Article 51(1) seems to fulfil the same function as Article 18(5), and in view of the almost identical wording of both provisions, the interpretation which the Court gave to Article 18(5) in Rindone should be applied by analogy to Article 51. In the Commission's view, the differences between the two provisions upon which the GMD relies for the purpose of rejecting an interpretation by analogy are not such as to cast doubt on its conclusion. The Commission points out, first of all, that the fact that the provisions of Article 51 are less detailed than those of Article 18 (relating to sickness) and Article 61 (relating to occupational diseases) is not sufficient reason to apply Article 51 more strictly. It is the subject-matter of the procedure in Article 18 that explains the more detailed nature of those provisions, since what must be determined in that case is whether the person concerned is sick and it is precisely in the assessment of sickness that the most doubtful cases can appear. Under Article 51, on the other hand, it is a question of determining whether the incapacity for work, which has already been established, persists. The Commission then takes the view that the fact that workers suffering from long-term incapacity for work are generally fitter to travel than those suffering from short-term sickness does not, contrary to the GMD's contention, constitute sufficient reason for requiring workers affected by long-term incapacity for work to travel to the State of the competent institution in order to undergo a medical examination there. The Commission points out, in that respect, that, if the recipient states that he is not fit to travel, it is necessary for a doctor to verify the accuracy of that statement on the spot, and it is hard to understand why that same doctor should not also carry out the whole examination to ascertain incapacity or degree of incapacity. Lastly, the fact that in the case of Article 51 the examination is to be carried out by the institution of the place of residence ‘at the request’ of the competent institution is not regarded by the Commission as so different from the procedure laid down by Article 18 as to allow the conclusion to be drawn that the recipient is required to comply with a summons from the competent institution. According to the Commission, the inclusion in Article 51 of the words ‘at the request’ is explained by the occasional nature of the medical examination, which takes place only if the competent institution, in view of the way its own legislation is applied, considers it necessary, unlike the procedure laid down in Article 18, which automatically involves the institution of the place of residence. In the third place, the Commission argues that, even if the competent institution must determine on the basis of its own legislation whether a worker is entitled to a benefit for incapacity for work, that does not, however, mean that only a doctor sufficiently familiar with the criteria of that legislation, that is to say, a doctor from the State of the competent institution, is best capable of determining the degree of incapacity for work. In that connection, the Commission points out that, apart from the fact that the Court has already dismissed a similar argument in Rindone (paragraphs 8 and 9 of the grounds for the decision), the system established by Article 51 is meaningless unless the institution of the place of residence is in principle deemed capable of ruling on the degree of incapacity for work of the recipient worker. With regard to the difficulties which the institution of the place of residence may experience in day-to-day practice in collecting the requisite medical and ergonomic information, the Commission considers that, in order to avoid such difficulties as far as possible, the competent institution could forward its own criteria of assessment to the institution of the place of residence, which may then take account of them when completing the medical declaration (Form E 116). Should problems nevertheless remain, the competent institution could always decide to send a doctor of its own choice. That involves expense, of course, but the fact that the person concerned is required to come to the country of the competent institution also involves expense for that institution. The Commission emphasizes that Article 51 is based on the principle of cooperation between the institutions of both Member States concerned and of the reciprocal recognition of their findings. It is a matter of the best way to achieve the objectives of Article 51 of the EEC Treaty. If a medical declaration were to contain obvious inaccuracies imputable to the person concerned, who might, for example, have deliberately provided inaccurate information, the competent institution would not be required to accept such a declaration. The Commission considers that the principle fiaus omnia corrumpit would apply in such a case, referring in that connection to the judgment given in a different context in Case 130/88 Van de Bijl [1989] ECR 3039. The Commission suggests that the answer to the first preliminary question should be as follows:

‘In the light of the foregoing considerations, the Commission considers that the recipient of a benefit for incapacity for work cannot be required to return to the State of the competent institution for the medical examination referred to in Article 51(1) of Regulation (EEC) No 574/72.’

The second question

3.7. Mr Martínez takes the view that, should the answer to the first question not be entirely in the negative, the fact that a worker might be required to come to the State of the competent institution depending on whether the journey would be detrimental to his health complicates the application of the system at issue. In the first place he considers it absurd to have the competent institution declare that a person was not capable of travelling, which implies that the person must already have made the journey that might be declared impossible. However, in the opinion of Mr Martínez, the idea that the institution of the State of residence should assess fitness to travel should also be rejected. Mr Martinez considers that, in ruling in Rindone that a requirement to travel to the country of the competent institution was incompatible with due concern for the health of the worker, the Court was utilizing that statement as the point of departure for its reasoning, and not as a criterion to be applied in each individual case to the effect that the question whether the health of the worker allowed him to travel should be examined. Such an interpretation would confine the role of the institution of the place of residence to reporting on fitness to travel and would be contrary to the system established by Article 51, which provides that the medical examination should be carried out by the institution of the State of residence.

3.8. The GMD points out that if the worker considers that it is impossible for him to travel, it is for the institution of the place of residence to assess the situation.

3.9. According to the German Government, the validity of such a summons depends on the state of health of the person concerned, and it suffices that he has himself declared unfit to travel by the institution of the State in which he is staying or residing, the competent institution then being bound by that declaration, in accordance with the Court's case-law, in particular the judgment in Case 28/85 Deghillage.

3.10. On the basis of the observations submitted concerning the first question, the Netherlands Government suggests that part (a) of the second question be answered as follows : and that part (b) of the second question be answered as follows:

‘for the answer to the first question, it is important that it be established that the recipient is able, without damaging his health, to travel to the Member State of the institution responsible for payment or body responsible for carrying out medical examinations’,

‘in situations such as that in the case in point, a declaration of fitness to travel may be given by the institution of the place of residence or stay, since that is not a declaration of incapacity for work within the meaning of the national legislation on social security’.

3.11. On the basis of the observations submitted on the first question, the Spanish Government suggests that the second question be answered as follows: and that

‘it is not possible to argue against the conclusion set out above that the recipient is able to travel without damage to his health, the reason being to avoid situations especially harmful to workers, which would have an adverse effect on the application of the principle of freedom of movement for workers and, all things considered, would be detrimental to the objectives underlying the Community rules on social security benefits’,

‘once it is established that a worker's theoretical fitness to travel does not affect the interpretation of Article 51(1) of Regulation No 574/72, the question of the attribution of the necessary power to establish fitness to travel loses all significance’.

3.12. With regard to the answer to part (b) of the second question, the Commission takes the view that an examination of a worker's fitness to travel should only take place in the State of the institution of the place of residence before the person concerned undertakes the journey. However, that question may remain unanswered in so far as the first question calls for a negative answer.

C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the case: Dutch.