Opinion of the Advocate General — ECLI:EU:C:1998:386
Date: 1998-07-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment
1. Social security for migrant workers — Invalidity insurance — Benefits recipient residing in a
Member State other than the competent State — Frontier workers — Administrative checks
and medical examinations — Examination carried out by the competent institution without
requesting a prior examination by the institution of the place of residence— Not permissible
— Waiver by the recipient of the right to prior examination by the institution of the place of
residence — Whether permissible — Conditions
(Council Regulation No 574/72, Art. 51(1))
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SUMMARY — CASE C-279/97
2. Social security for migrant workers — Invalidity insurance — Determination of the degree of
invalidity — Person residing in a Member State other than the competent State — Determina­
tion made by the competent institution without requesting a prior examination by the institu­
tion of the place of residence — Whether permissible — Obligation to take account of any
administrative and medical information from the institution of the State of residence
(Council Regulation No 574/72, Art. 40)
1. In the case of a former frontier worker
and recipient of invalidity benefits who
lives in a Member State other than that of
the institution responsible for payment,
and whose place of residence is nearer to
the institution of the competent Member
State than to the institution of the State of
residence, Article 51(1) of Regulation No
574/72 fixing the procedure for imple­
menting Regulation No 1408/71, as
amended and updated by Regulation No
2001/83, precludes the competent institu­
tion from carrying out the administrative
checks and medical examination of that
worker without requesting a prior exami­
nation by the institution of his place of
residence.
However, the above provision does not
preclude the worker from waiving the right
to prior examination by the institution of
his place of residence, provided that his
waiver is freely made and unambiguous.
Although that option cannot be inferred
directly from the wording of Article 51(1),
it must be accepted that, having regard to
the objectives of that provision, namely to
protect the interests of the recipient of
invalidity benefits, it cannot be the subject
of a general exclusion.
2. In the case of a first assessment of inval­
idity benefit granted to a person who is
resident in a Member State other than that
of the competent institution, Article 40 of
Regulation No 574/72 fixing the proce­
dure for implementing Regulation No
1408/71 does not preclude the competent
institution from determining the degree of
invalidity on the basis of its own medical
examination without requesting a prior
examination by the institution of the place
of residence. However, the competent insti­
tution must take account of any docu­
ments, medical reports and administrative
information from the institution in the
Member State in which the worker
resides.
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