1 BY A JUDGMENT OF 27 NOVEMBER 1985, WHICH WAS RECEIVED AT THE COURT ON 24 JANUARY 1986, THE BUNDESSOZIALGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS ON THE INTERPRETATION OF ARTICLE 18 OF REGULATION NO 574/72 OF THE COUNCIL LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS, TO SELF-EMPLOYED PERSONS AND TO THEIR FAMILIES MOVING WITHIN THE COMMUNITY
2 THE QUESTIONS AROSE IN THE CONTEXT OF A DISPUTE CONCERNING THE REFUSAL BY THE ALLGEMEINE ORTSKRANKENKASSE BAD URACH-MUENSINGEN (( LOCAL GENERAL SICKNESS FUND OF BAD URACH-MUENSINGEN, HEREINAFTER REFERRED TO AS "THE DEFENDANT ")) TO PAY IN RESPECT OF THE PERIOD FROM 24 DECEMBER 1979 TO 28 MAY 1980 A CASH BENEFIT TO GIUSEPPE RINDONE ( HEREINAFTER REFERRED TO AS "THE PLAINTIFF "), A WORKER OF ITALIAN NATIONALITY RESIDING IN ITALY . THE ACTION BEFORE THE NATIONAL COURT DEALS ESSENTIALLY WITH THE DETERMINATION OF THE COMMENCEMENT AND DURATION OF THE PLAINTIFF' S INCAPACITY FOR WORK AND THE BENEFITS RELEVANT THERETO TO WHICH HE IS ENTITLED UNDER ARTICLE 18 OF REGULATION NO 574/72 .
3 FOLLOWING THE REFUSAL OF THE DEFENDANT TO GRANT THE SAID CASH BENEFITS FOR THE PERIOD AT ISSUE, AN ACTION WAS BROUGHT BEFORE THE SOZIALGERICHT (( SOCIAL COURT )) REUTLINGEN . BY A JUDGMENT OF 15 OCTOBER 1981, THAT COURT DECIDED THAT THE PLAINTIFF WAS ENTITLED TO CASH BENEFITS ONLY IN RESPECT OF THE PERIOD DURING WHICH HE WAS HOSPITALIZED, FROM 21 TO 26 APRIL 1980 . THAT DECISION WAS CONFIRMED BY A JUDGMENT OF THE LANDESSOZIALGERICHT (( HIGHER SOCIAL COURT )) BADEN-WUERTTEMBERG DATED 20 JULY 1984 .
4 THE BUNDESSOZIALGERICHT, BEFORE WHICH AN APPEAL WAS BROUGHT, STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
"1 . DOES THE COMPETENT INSTITUTION HAVE TO ACCEPT THE FINDINGS BOTH IN LAW AND IN FACT OF THE INSTITUTION OF THE PLACE OF RESIDENCE IN RELATION TO THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK IN ITS DECISION ON A CLAIM FOR CASH BENEFITS ( IN THIS CASE, SICKNESS BENEFIT UNDER ARTICLE 182 OF THE REICHSVERSICHERUNGSORDUNUNG (( IMPERIAL INSURANCE REGULATION ))*) IF IT DOES NOT HAVE THE WORKER EXAMINED BY A DOCTOR OF ITS OWN CHOICE PURSUANT TO ARTICLE 18 ( 5 ) OF REGULATION ( EEC ) NO 574/72?
2 . IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, IS THAT ALSO THE CASE WHERE THE WORKER DOES NOT, WITHIN THREE DAYS OF COMMENCEMENT OF THE INCAPACITY FOR WORK, APPLY TO THE INSTITUTION OF THE PLACE OF RESIDENCE BY SUBMITTING A CERTIFICATE OF INCAPACITY FOR WORK ISSUED BY THE DOCTOR PROVIDING TREATMENT ( ARTICLE 18 ( 1 ) OF REGULATION ( EEC ) NO 574/72 ), AND/OR THE INSTITUTION OF THE PLACE OF RESIDENCE HAS THE WORKER MEDICALLY EXAMINED BUT FAILS TO OBSERVE THE TIME-LIMITS PRESCRIBED FOR THAT PURPOSE, AND FOR FORWARDING THE REPORT TO THE COMPETENT INSTITUTION, IN ARTICLE 18 ( 3 ) OF REGULATION ( EEC ) NO 574/72?
3(A ) MAY THE COMPETENT INSTITUTION ALSO HAVE THE WORKER EXAMINED BY A DOCTOR IN THE COUNTRY OF EMPLOYMENT PURSUANT TO ARTICLE 18 ( 5 ) OF REGULATION ( EEC ) NO 574/72?
( B ) WHEN THE WORKER IS REQUESTED TO RETURN TO HIS COUNTRY OF EMPLOYMENT IN ORDER TO BE EXAMINED BY A PARTICULAR DOCTOR THERE MUST THE REQUEST BE ACCOMPANIED BY AN ASSURANCE ON THE PART OF THE COMPETENT INSTITUTION THAT IT WILL PAY THE EXPENSES INCURRED IN CONNECTION WITH THE JOURNEY THERE AND BACK?
( C ) SHOULD THE INSURED AT THE SAME TIME BE INFORMED IN WRITING OF POSSIBLE ADVERSE LEGAL CONSEQUENCES IF HE FAILS TO COMPLY WITH THE REQUEST WITHOUT GOOD REASON?
4 . WHAT ARE THE LEGAL CONSEQUENCES IF THE WORKER DOES NOT ATTEND FOR EXAMINATION IN THE COUNTRY OF EMPLOYMENT?"
5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE COMMUNITY RULES AT ISSUE AND THE OBSERVATIONS SUBMITTED TO THE COURT BY THE PARTIES IN THE MAIN PROCEEDINGS, THE UNITED KINGDOM AND THE COMMISSION WHICH ARE MENTIONED AND DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
FIRST QUESTION
6 IN THE FIRST QUESTION, THE NATIONAL COURT ASKS ESSENTIALLY WHETHER ARTICLE 18 OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION IS REQUIRED TO ACCEPT THE FINDINGS BOTH IN FACT AND IN LAW MADE BY THE MEDICAL OFFICER OF THE INSTITUTION OF THE PLACE OF RESIDENCE IN RELATION TO THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK IF IT DOES NOT HAVE THE PERSON CONCERNED EXAMINED BY A DOCTOR OF ITS OWN CHOICE PURSUANT TO ARTICLE 18 ( 5 ) OF THE SAME MEASURE .
7 THE COMMISSION CLAIMS THAT IT FOLLOWS FROM THE PROCEDURE LAID DOWN IN ARTICLE 18 OF REGULATION NO 574/72 THAT THE COMPETENT INSTITUTION IS BOUND BY THE FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE IF IT DOES NOT ITSELF HAVE THE WORKER EXAMINED PURSUANT TO ARTICLE 18 ( 5 ). THE PLAINTIFF SHARES THAT VIEW AND ALSO REFERS TO THE LEGITIMATE EXPECTATION OF THE WORKER CONCERNED .
8 IN THE VIEW OF THE DEFENDANT AND THE UNITED KINGDOM, THE CONCEPT OF INCAPACITY FOR WORK IS A LEGAL CONCEPT AND IT IS FOR THE COMPETENT AUTHORITIES TO APPLY IT IN ACCORDANCE WITH NATIONAL LAW . THE MEDICAL FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE CONSTITUTE MERELY EXPERT OPINIONS WHICH IT IS FOR THE COMPETENT INSTITUTION TO ASSESS . FOR THE PURPOSES OF ARTICLE 182 OF THE REICHSVERSICHERUNGSORDNUNG "INCAPACITY FOR WORK" MEANS THAT IT IS NOT POSSIBLE TO PURSUE AN ACTIVITY OF THE KIND PREVIOUSLY PURSUED . HOWEVER, ONLY THE COMPETENT AUTHORITY HAS THE INFORMATION NECESSARY TO MAKE SUCH AN ASSESSMENT .
9 IT MUST BE POINTED OUT THAT THE INTERPRETATION ADOPTED BY THE DEFENDANT AND THE UNITED KINGDOM TO THE EFFECT THAT MEDICAL FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE CANNOT BIND IN FACT AND IN LAW THE COMPETENT INSTITUTION IS JUSTIFIED NEITHER BY THE TERMS OF ARTICLE 18 OF REGULATION NO 574/72 NOR BY ITS PURPOSE .
10 ARTICLE 18 LAYS DOWN A PROCEDURE ACCORDING TO WHICH THE PERSON CONCERNED MUST :
( I ) EITHER SUBMIT TO THE INSTITUTION OF THE PLACE OF RESIDENCE A CERTIFICATE OF INCAPACITY FOR WORK ISSUED BY THE DOCTOR PROVIDING TREATMENT;
( II ) OR, WHERE THE DOCTORS PROVIDING TREATMENT IN THE COUNTRY OF RESIDENCE DO NOT ISSUE CERTIFICATES FOR INCAPACITY FOR WORK, APPLY DIRECTLY TO THE INSTITUTION OF THE PLACE OF RESIDENCE WHICH "SHALL FORTHWITH HAVE THE INCAPACITY FOR WORK MEDICALLY CONFIRMED AND THE CERTIFICATE ... DRAWN UP" ( ARTICLE 18 ( 1 ), ( 2 ), ( 3 )*).
11 ARTICLE 18 ALSO PROVIDES THAT IT IS FOR THE INSTITUTION OF THE PLACE OF RESIDENCE TO CARRY OUT ANY NECESSARY ADMINISTRATIVE CHECKS OR MEDICAL EXAMINATIONS ON THE WORKER AND TO ESTABLISH THAT THE WORKER IS FIT TO RESUME WORK "ON BEHALF OF THE COMPETENT INSTITUTION" ( ARTICLE 18 ( 4 )*). DIFFERENT RULES IN REGARD TO THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK CANNOT BE JUSTIFIED BECAUSE IN BOTH CASES, IT IS THE SAME FACTS WHICH FALL TO BE ASSESSED BY THE INSTITUTION OF THE PLACE OF RESIDENCE IN ORDER TO ARRIVE AT A DECISION ON THE SAME CONCEPT, NAMELY THE WORKER' S INCAPACITY FOR WORK .
12 IT FOLLOWS THAT IT IS FOR THE INSTITUTION OF THE PLACE OF RESIDENCE TO DETERMINE THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK AND THE COMPETENT INSTITUTION MERELY RETAINS THE POSSIBILITY OF HAVING THE WORKER EXAMINED BY A DOCTOR OF ITS OWN CHOICE ( ARTICLE 18 ( 5 )*).
13 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 OF 25 FEBRUARY 1986 IN CASE 284/84 L . A . SPRUYT V BESTUUR VAN DE SOCIALE VERZEKERINGSBANK (( 1986 )) ECR 693 ).
14 FINALLY, ATTENTION MUST BE DRAWN TO THE FACT THAT THE COMMUNITY RULES ON CASH BENEFITS PAID IN RESPECT OF ILLNESS AND ON CASH BENEFITS PAID IN RESPECT OF ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES ARE ANALOGOUS : THE CONTENT OF ARTICLES 18 AND 61 OF REGULATION NO 574/72 IS THE SAME . IN A CASE RAISING QUESTIONS COMPARABLE TO THOSE AT ISSUE HERE, THE COURT DECIDED THAT A DIAGNOSIS THAT A PERSON IS SUFFERING FROM AN OCCUPATIONAL DISEASE MUST BE RECOGNIZED BY THE MEMBER STATE WHICH IS UNDER A DUTY TO PAY THE BENEFITS, EVEN IF THAT DIAGNOSIS WAS MADE IN ANOTHER MEMBER STATE AND IN ACCORDANCE WITH ITS LEGISLATION ( JUDGMENT OF 11 MARCH 1986 IN CASE 28/85 DEGHILLAGE V CAISSE PRIMAIRE D' ASSURANCE MALADIE (( 1986 )) ECR 999 ).
15 THE REPLY TO THE FIRST QUESTION SHOULD THEREFORE BE THAT ARTICLE 18 ( 1 ) TO ( 4 ) OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT IF THE COMPETENT INSTITUTION DOES NOT EXERCISE THE OPTION PROVIDED FOR IN PARAGRAPH ( 5 ) OF HAVING THE PERSON CONCERNED EXAMINED BY A DOCTOR OF ITS CHOICE, IT IS BOUND, IN FACT AND IN LAW, BY THE FINDINGS MADE BY THE INSTITUTION AT THE PLACE OF RESIDENCE AS REGARDS THE COMMENCEMENT AND DURATION OF INCAPACITY FOR WORK .
SECOND QUESTION
16 IN THE SECOND QUESTION, THE NATIONAL COURT WISHES TO KNOW WHETHER THE REPLY TO THE FIRST QUESTION WILL BE THE SAME IF THE WORKER DOES NOT COMPLY WITH THE THREE-DAY TIME-LIMIT LAID DOWN IN ARTICLE 18 ( 1 ) OF REGULATION NO 574/72 FOR THE SUBMISSION OF A CERTIFICATE OF INCAPACITY FOR WORK ISSUED BY THE DOCTOR PROVIDING TREATMENT OR IF THE INSTITUTION OF THE PLACE OF RESIDENCE HAS NOT COMPLIED WITH THE TIME-LIMITS LAID DOWN IN ARTICLE 18 ( 3 ) FOR FORWARDING THE MEDICAL REPORT TO THE COMPETENT INSTITUTION .
17 WITH REGARD TO THE FIRST PART OF THE QUESTION, IT IS SUFFICIENT TO NOTE THAT THE WORKER' S OBLIGATION TO SUBMIT THE CERTIFICATE OF INCAPACITY FOR WORK TO THE INSTITUTION OF THE PLACE OF RESIDENCE WITHIN THREE DAYS AFTER THE COMMENCEMENT OF THE INCAPACITY CARRIES NO SANCTION . IT FOLLOWS THAT EITHER THE MEDICAL OFFICER OF THE LATTER INSTITUTION IS NO LONGER IN A POSITION TO DIAGNOSE THE INCAPACITY, IN WHICH THE WORKER MUST HIMSELF BEAR THE CONSEQUENCES OF THE OMISSION, OR THE EXAMINATION CAN STILL TAKE PLACE, IN WHICH CASE THE PROCEDURE WILL TAKE THE NORMAL COURSE .
18 WITH REGARD TO THE SECOND PART OF THE QUESTION, IT SHOULD BE POINTED OUT THAT, AS THE COURT DECIDED IN ITS JUDGMENT OF 6 OCTOBER 1982 ( CASE 302/81 EGGERS V HAUPTZOLLAMT KASSEL (( 1982 )) ECR 3443 ), THE PRINCIPLE THAT PROCEDURAL DEFECTS WHICH ARE BEYOND THE CONTROL OF THE BENEFICIARY MUST NOT HAVE EFFECTS WHICH ARE UNFAVOURABLE TO HIM MUST BE REGARDED AS A GENERAL PRINCIPLE OF LAW .
19 THE REPLY TO THE SECOND QUESTION SHOULD THEREFORE BE THAT THE ANSWER TO THE FIRST QUESTION REMAINS UNALTERED IF THE PERSON CONCERNED DID NOT APPLY TO THE INSTITUTION OF THE PLACE OF RESIDENCE BY SUBMITTING A CERTIFICATE OF INCAPACITY FOR WORK AS REQUIRED BY ARTICLE 18 ( 1 ) OF REGULATION NO 574/72 OR IF THAT INSTITUTION HAS MEDICAL EXAMINATIONS CARRIED OUT WITHOUT OBSERVING THE TIME-LIMITS PRESCRIBED IN ARTICLE 18 ( 3 ) OF THAT REGULATION FOR THAT PURPOSE AND FOR FORWARDING THE MEDICAL REPORT TO THE COMPETENT INSTITUTION .
THIRD AND FOURTH QUESTIONS
20 THE THIRD AND FOURTH QUESTIONS CONCERN THE INTERPRETATION OF ARTICLE 18 ( 5 ) OF REGULATION NO 574/72 AS REGARDS THE COMPETENT INSTITUTION' S OPTION OF HAVING THE WORKER EXAMINED BY A DOCTOR OF ITS CHOICE .
21 THE COURT CONSIDERS THAT THAT PROVISION MAY NOT BE INTERPRETED AS MEANING THAT THE WORKER MAY BE REQUIRED TO RETURN TO THE MEMBER STATE IN WHICH THE COMPETENT INSTITUTION IS SITUATED IN ORDER TO UNDERGO THERE A MEDICAL EXAMINATION WHEN HE IS UNABLE TO WORK OWING TO ILLNESS . SUCH AN OBLIGATION WOULD BE INCOMPATIBLE WITH DUE CONCERN FOR THE HEALTH OF THE WORKER . THE EXAMINATION IN QUESTION CAN BE CARRIED OUT BY THE COMPETENT INSTITUTION EITHER BY SENDING A DOCTOR TO EXAMINE THE WORKER IN THE MEMBER STATE IN WHICH HE RESIDES OR BY AVAILING ITSELF OF THE SERVICES OF A DOCTOR IN THE LATTER STATE . IF THE WORKER DOES NOT ACCEPT SUCH AN EXAMINATION, IT FOLLOWS FROM THE PROVISION AT ISSUE THAT THE COMPETENT INSTITUTION IS NOT BOUND BY THE FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE .
22 THE REPLY TO THE THIRD AND FOURTH QUESTIONS SHOULD THEREFORE BE THAT 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 .
COSTS
23 THE COSTS INCURRED BY THE UNITED KINGDOM AND THE COMMISSION, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY A JUDGMENT OF 27 NOVEMBER 1985,
HEREBY RULES :
( 1 ) ARTICLE 18 ( 1 ) TO ( 4 ) OF REGULATION NO 574/72 MUST BE INTERPRETED AS MEANING THAT IF THE COMPETENT INSTITUTION DOES NOT EXERCISE THE OPTION PROVIDED FOR IN PARAGRAPH ( 5 ) OF HAVING THE PERSON CONCERNED EXAMINED BY A DOCTOR OF ITS CHOICE, IT IS BOUND, IN FACT AND IN LAW, BY THE FINDINGS MADE BY THE INSTITUTION OF THE PLACE OF RESIDENCE AS REGARDS THE COMMENCEMENT AND DURATION OF THE INCAPACITY FOR WORK .
( 2 ) THE ANSWER TO THE FIRST QUESTION REMAINS UNALTERED IF THE PERSON CONCERNED DID NOT APPLY TO THE INSTITUTION OF THE PLACE OF RESIDENCE BY SUBMITTING A CERTIFICATE OF INCAPACITY FOR WORK AS REQUIRED BY ARTICLE 18 ( 1 ) OF REGULATION NO 574/72 OR IF THAT INSTITUTION HAS MEDICAL EXAMINATIONS CARRIED OUT WITHOUT OBSERVING THE TIME-LIMITS PRESCRIBED IN ARTICLE 18 ( 3 ) OF THAT REGULATION FOR THAT PURPOSE AND FOR FORWARDING THE MEDICAL REPORT TO THE COMPETENT INSTITUTION .
( 3 ) 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 .
