61989J0344

++++

Social security for migrant workers - Invalidity insurance - Person in receipt of benefits residing in a Member State other than the competent State - Medical examinations - Requirement that the recipient travel to the territory of the competent Member State at the request of the institution responsible for payment - Conditions - Journey not harmful to the health of recipient and expenses paid - Unfitness to travel certified by the institution of the place of stay - Verification on the spot of unfitness to travel by the institution responsible for payment - Permissibility

(Council Regulation No 574/72, Article 51(1) )

Where an institution responsible for payment of an invalidity benefit exercises the power provided for in Article 51(1) of Regulation No 574/72 of having a recipient of the benefit residing in another Member State examined by a doctor of its own choice, the person concerned may be required to go to the Member State in which the competent institution is situated, provided that the travel and accommodation expenses thereby incurred are borne by the competent institution and the person concerned is fit enough to make the journey without impairment of his health.

Where the institution of the place where the person concerning is staying or residing has determined that that person is not fit enought to undertake the journey, there is nothing to prevent the institution responsible for payment or the body responsible for medical examinations from verifying that circumstance on the spot.

In Case C-344/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtbank, Amsterdam, for a preliminary ruling in the proceedings pending before that court between

Manuel Martínez Vidal

and

Gemeenschappelijke Medische Dienst

on the interpretation of 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),

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse and M. Zuleeg, Judges,

Advocate General: J. Mischo,

Registrar: J. A. Pompe, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Manuel Martínez Vidal by J.P. Smit, of the Amsterdam Bar,

- the Gemeenschappelijke Medische Dienst by R.A.A. Duk, of The Hague Bar,

- the Netherlands Government by B.R. Bot, Secretary General of the Ministry of Foreign Affairs, acting as Agent,

- the German Government by E. Roeder and G. Leibrock, acting as Agents,

- the Spanish Government by C. de la Higuera González and C. Bastarreche Saguees, acting as Agents,

- the Commission of the European Communities by B.J. Drijber, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument presented by Manuel Martínez Vidal, the Gemeenschappelijke Medische Dienst, the Netherlands Government, represented by T. Heukels, acting as Agent, the German Government, the Spanish Government, represented by R. Silva de Lapuerta, acting as Agent, and the Commission, at the hearing on 23 October 1990,

after hearing the Opinion of the Advocate General at the sitting on 12 December 1990,

gives the following

Judgment

1 By judgment of 18 October 1989, which was received at the Court Registry on 6 November 1989, the Arrondissementsrechtbank (District Court), Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of 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).

2 Mr Martínez is a Spanish national who worked from 1963 as a seaman in the employment of Netherlands employers. After ceasing to work on 27 April 1979 following an illness, he returned to Spain, where he was operated on for a slipped disc. In 1980, 1982 and 1984, the Instituto Nacional de la Seguridad Social (National Social Security Institute), which had kept Mr Martínez under medical observation, supplied the competent Dutch institution, the Gemeenschappelijke Medische Dienst (Joint Medical Service, hereinafter "GMD") with reports on his state of health. By letter of 17 April 1989 the GMD invited Mr Martínez, who since 25 April 1980 had been in receipt of an invalidity pension under Netherlands legislation, to undergo in the Netherlands an examination which was to be carried out by two doctors chosen by the GMD.

3 Mr Martínez then instituted proceedings against the GMD and the Bedrijfsvereniging voor de Koopvaardij (Professional and Trade Association for the Merchant Navy, hereinafter "BVK") in the Arrondissementsrechtbank, Amsterdam, for a ruling that he was not required to return to the Netherlands in order to undergo such an examination.

4 It was in those circumstances that the national court dismissed Mr Martínez' s application as inadmissible in so far as it was directed against the BVK and decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

"(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 having medical examinations carried out, 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?"

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case before the national court, the rules applicable and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6 By its first question and the first part of its second question, the national court seeks to ascertain whether, when the institution responsible for payment of an invalidity benefit avails itself of the right conferred on it by Article 51(1) of Regulation No 574/72 to have a recipient living in another Member State examined by a doctor of its own choice, the person concerned may be required to go to the Member State of the competent institution, in particular if it has been established that he is fit enough to make the journey without damage to his health.

7 Under Article 51(1) of Regulation No 574/72, when a person in receipt of invalidity benefits 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 are to 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 is, however, to retain the right to arrange for the examination of the recipient by a doctor of its own choice.

8 It follows that, unlike Article 18 of the same regulation, which provides, in cases of sickness and maternity, for administrative checks or medical examinations to be carried out by the institution of the place of residence on its own initiative, Article 51(1) makes provision for such checks or examinations only at the request of the competent institution.

9 That difference, which was underlined by the national court, cannot form the basis for an interpretation of Article 51(1) to the effect that, in a case of invalidity, the competent institution may either ask the institution of the place of residence to carry out an examination or arrange an examination itself. If, in such a case, an examination is carried out only at the request of the competent institution, it is because an examination is not always needed. If it does take place, it is carried out by the institution of the place of residence. However, the competent institution may, if it considers it necessary, arrange for an additional examination.

10 Article 51 does not, however, specify the place where such an additional examination is to take place.

11 In connection with the examination for which provision is made in Article 18(5) in cases of sickness and maternity, the Court considered that concern for the health of the worker concerned required that he should not have to return to the Member State in which the competent institution was situated in order to undergo there a medical examination (judgment in Case 22/86 Rindone [1987] ECR 1339, at paragraph 21).

12 That restriction on the right of the institution responsible for payment to carry out examinations cannot be accepted in the case of invalidity.

13 While, in a case of sickness, there is a risk that the recovery of the person concerned will be seriously impaired by the journey, a worker suffering from invalidity cannot be presumed to run that risk. Fitness to travel must thus be assessed on a case-by-case basis.

14 Moreover, under the legislation of the various Member States the differences are particularly pronounced with regard to invalidity. In order to determine the degree of invalidity under that legislation, the examinations necessary require the participation of various experts, in particular, in the case of the Netherlands, in the fields of medicine, employment and law. If all those experts were required to make the journey, substantial expense would be incurred and it is not certain that they would find in the Member State in which the person concerned was staying or residing all the facilities necessary to carry out the examinations.

15 It follows that, in a case where the state of health of the person concerned so allows, he is required, when asked by the institution responsible for payment, to go to the Member State of that institution in order to undergo there an examination by a doctor of the institution' s choice.

16 Nevertheless, it would be to disregard the objective of Article 51(1), which is intended to protect, as far as possible, recipients of the benefits referred to therein from the inconveniences caused by such journeys, were the persons concerned obliged to bear the travel and accommodation expenses incurred in connection with medical examinations because they were living in another Member State.

17 The answer to the first question and the first part of the second question must therefore be that, where an institution responsible for payment of invalidity benefits exercises the power provided for in 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 of having the recipient of the benefit residing in another Member State examined by a doctor of its own choice, the person concerned may be required to go to the Member State in which the competent institution is situated, provided that the travel and accommodation expenses thereby incurred are borne by the competent institution and the person concerned is fit enough to make the journey without impairment of his health.

18 In the second part of the second question, the national court seeks to ascertain, essentially, whether the institution responsible for payment, or the body responsible for carrying out medical examinations, is bound by the findings of the institution at the place where the person concerned is staying or residing regarding his fitness to undertake the journey.

19 In that respect, it is sufficient to state that where the institution at the place where the person concerned is staying or residing has determined that that person is not fit enough to undertake the journey, there is nothing to prevent the institution responsible for payment or the body responsible for medical examinations from verifying that circumstance on the spot.

20 The answer to the second part of the second question must therefore be that where the institution at the place where the person concerned is staying or residing has determined that that person is not fit enough to undertake the journey, there is nothing to prevent the institution responsible for payment or the body responsible for medical examinations from verifying that circumstance on the spot.

Costs

21 The costs incurred by the German, Spanish and Netherlands Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending 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 Arrondissementsrechtbank, Amsterdam, by judgment of 18 October 1989, hereby rules:

1. Where an institution responsible for payment of invalidity benefits exercises the power provided for in 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 of having the recipient of the benefit residing in another Member State examined by a doctor of its own choice, the person concerned may be required to go to the Member State in which the competent institution is situated, provided that the travel and accommodation expenses thereby incurred are borne by the competent institution and the person concerned is fit enough to make the journey without impairment of his health.

2. Where the institution at the place where the person concerned is staying or residing has determined that that person is not fit enough to undertake the journey, there is nothing to prevent the institution responsible for payment or the body responsible for medical examinations from verifying that circumstance on the spot.