Opinion of Mr Advocate General ischo delivered on 21 November 1991. - Alberto Paletta and others v Brennet AG. - Reference for a preliminary ruling: Arbeitsgericht Lörrach - Germany. - Social security - Recognition of incapacity for work. - Case C-45/90.



European Court reports 1992 Page I-03423

Swedish special edition Page I-00115

Finnish special edition Page I-00159



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. On 4 June 1991 Advocate General Mischo delivered his Opinion in this case. In view of the importance of the case the Fifth Chamber of the Court, which was hearing the case, decided in accordance with Article 95 of the Rules of Procedure to refer the case to the Full Court. The Court then decided to re-open the oral procedure. I must now deliver my Opinion.

That duty is not an excessively difficult one, since for the most part I am in agreement with the Opinion of Advocate General Mischo.

Background to the case

2. The case before the German Arbeitsgericht which has referred the questions for a preliminary ruling concerns the application of the German legislation which requires employers to continue payment of wages for a period of six weeks in the event of an employee' s incapacity for work on grounds of illness (Lohnfortzahlungsgesetz).

A family of four Italian nationals who worked for the same German company all fell sick while on holiday in Italy. Their illness and the resulting incapacity for work was recorded and notified in accordance with the relevant Community and German rules. The German employer nevertheless refused to pay wages for the period of illness in question on the ground that the persons concerned had also fallen ill on previous holidays in Italy. The employer thus refused to recognize the certificates of incapacity for work issued by the competent Italian institution in accordance with Article 18 of Council Regulation No 574/72.

It appears from the order of the national court that the evidence before it on the family' s record of illness on trips to Italy gives rise to such serious doubt as to the correctness of the certificates that under German law the Arbeitsgericht might be able to find for the employer in the proceedings brought by the members of the Italian family against it.

However, it also appears from the decision of the national court

that the Arbeitsgericht is aware of the judgment of the Third Chamber of the Court of Justice in Case 22/86 Rindone v Allgemeine Ortskrankenkasse Bad Urach-Muensingen [1987] ECR 1339 and

that it considers that the present case must be decided on the basis of the same provision as was interpreted in the Rindone case and that the main issue is therefore whether there is such a difference between this case and the Rindone case that the interpretation of the relevant provision of the regulation in Rindone is not binding in this case.

The most significant difference, in the view of the Arbeitsgericht, is that the Rindone judgment concerned a situation in which the competent institution responsible for payment was a German sickness fund, whereas the competent institution responsible for payment in this case is a private employer, which has much greater difficulties in applying the relevant provision of the regulation than a German sickness fund.

Scope of the questions referred to the Court

3. As will appear from the following, I am essentially in agreement with the analysis of the Arbeitsgericht as set out in its decision referring to the Court of Justice.

That means, first, that like Advocate General Mischo I take the view that payments under the Lohnfortzahlungsgesetz are covered by Regulation No 1408/71. On this point I can simply refer to paragraphs 5 to 14 of the Opinion of Advocate General Mischo.

Secondly, that means that the relevant Community rules are the provisions of Article 18 of Regulation No 574/72, which lays down certain procedural rules for the payment of cash benefits in the event of illness to workers who reside in a Member State other than the competent State.

It will be observed that Article 18 concerns the situation where workers are resident in a State other than the competent State, and that this case concerns workers who were simply staying in a Member State other than the competent State. Advocate General Mischo pointed out, in paragraph 3 of his Opinion, that in the view of the national court the case fell within Article 18 either directly or by analogy by virtue of Article 24 of Regulation No 574/72. (Article 24 concerns cash benefits under Article 22(1)(a)(ii) of Regulation No 1408/71 and covers workers who are staying in a Member State other than the competent State. Article 24 provides that the provisions of Article 18 of Regulation No 574/72 are applicable). We may therefore proceed on the basis that the questions in this case concern the interpretation of Article 18, which is also accepted by the parties that have submitted observations to the Court. On that basis I shall in the rest of my Opinion use the expression "residence", even if in the actual circumstances of this case it might have been more appropriate to use the expression "stay".

4. The case thus concerns interpretation of a provision of a regulation which has already been interpreted by the Court of Justice and whose purpose, like that of the other provisions of Regulation No 1408/71 and Regulation No 574/72, is to promote freedom of movement for migrant workers.

5. The basis for any conclusion regarding the questions referred to the Court must therefore be an examination of Article 18 of Regulation No 574/72 and of the judgment in the Rindone case.

Article 18 of Council Regulation No 574/72

Advocate General Mischo discussed Article 18 in his Opinion in the Rindone case. Reference may be made to his analysis, and here I shall simply stress the following essential matters. Article 18 establishes a scheme under which the decisive certificate regarding incapacity for work is not a certificate issued by the doctor providing treatment but one issued by the medical examiner of the competent institution of the State of residence. Article 18 thus establishes a system under which the institution of the State of residence has an important duty, that of determining, by way of its own medical examiner, whether the worker is unable to work, and forwarding the result of that examination to the competent institution in the country where the benefit is to be paid. The obligation to carry out an examination is imposed on the institution of the State of residence by a Community provision. The examination must be carried out by the institution of the place of residence as if the person concerned "were insured with that institution", and the general presumption in Article 18 is that the institution of the place of residence acts on behalf of the competent institution (see the last sentence in Article 18(4)).

Article 18(5) expressly gives the competent institution a right of verification. Under Article 18(5) the competent institution reserves "in all cases ... the right to have the person concerned examined by a doctor of its own choice". That provision is of obvious relevance for the questions before us. It gives the competent institution the possibility of providing itself with a basis for rejecting the results of the medical examination carried out by the institution of the place of residence.

It has been suggested that Article 18(6) might be interpreted as entailing a more general possibility for the competent institution to reject the results of the examination. Article 18(6) is worded as follows: "If the competent institution decides to withhold the cash benefits because the person concerned has not completed the formalities laid down by the legislation of the country of residence, or if it establishes that the person concerned is fit to resume work, it shall notify the person concerned of its decision and shall simultaneously send a copy of such decision to the institution of the place of residence." In my view Article 18(6) is not relevant to the questions at issue in this case. It simply governs two situations which do not concern the possibility for the competent institution to reject the results of the examination carried out by the institution of the place of residence. Furthermore, it is clear that in Rindone the Court of Justice did not attribute any significance to Article 18(6) in replying to the questions referred.

The judgment in the Rindone case

6. At first sight the judgment in Rindone is entirely clear and of direct relevance to the questions in this case.

The main issue in the Rindone case was whether the competent institution is bound by the certificate issued by the medical officer of the institution of the place of residence if it does not have the person concerned examined by a doctor of its own choice pursuant to Article 18(5). The Commission had proposed an affirmative reply, while the defendant German sickness fund and the United Kingdom had proposed a negative answer, arguing that "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."

The Court held inter alia 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." (paragraph 9)

"It follows that it is for the institution of the place of residence to determine the commencement and duration of the incapacity for work and the competent institution merely retains the possibility of having a worker examined by a doctor of its own choice (Article 18(5))." (paragraph 12)

"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 of work made by the institution of the place of residence, a worker who in the meantime who 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)." (paragraph 13)

"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." (paragraph 15)

The judgment can thus be understood only as meaning that Article 18 contains rules not only on how workers who fall ill in a State other than the competent State must conduct themselves in order to substantiate their incapacity for work but also on the evidentiary significance to be given by the competent institution to certificates issued by the institution in the place of residence.

The central issue in the case

7. In my view, therefore, there can be no doubt that in this case the Court of Justice is confronted with the question whether the result in the Rindone judgment should be upheld or whether that decision should be overruled or modified in a more narrowly defined sense.

That is a far from easy question to answer. There are good arguments for upholding the Rindone judgment to the full, but good reasons can also be put forward for modifying it. I shall first examine those reasons, and in that connection I shall in particular discuss how far those reasons require the Rindone judgment to be modified.

Modification of the Rindone judgment where the competent institution is an employer

8. As I have mentioned above, the Arbeitsgericht takes the view that consideration should be given to modifying the result in Rindone because the competent institution in this case is an employer and not, as in Rindone, a sickness fund. The Commission, in particular, subscribes to that reasoning, pointing out that the verification system under Article 18 is not designed to cover the situation where the competent institution is an employer.

In his Opinion Advocate General Mischo rejected the view that Article 18 could be interpreted in a different manner depending on which body was the competent institution under the legislation of the country where payment is made. I am in agreement with Advocate General Mischo on this point, and I shall simply refer to his arguments, including his remarks to the effect that there must be other means of resolving the practical problems of employers (paragraphs 17 to 27).

I am thus in agreement with Advocate General Mischo that any modification of the Rindone judgment must apply generally, that is to say without regard to the identity of the competent institution in the country of payment.

Reversal of the Rindone judgment

9. It has been argued that Article 18 should be interpreted as meaning that the evidentiary value of the certificate issued after examination by the institution of the place of residence should be determined in accordance with the rules applicable in that regard in the State of payment, since it must be ensured that there is no discrimination and that the purpose of Article 18 is not disregarded.

As far as I can see, such a result would mean overruling the Rindone judgment, which cannot be recommended. In my view, the Rindone judgment contains a fundamentally correct interpretation of Article 18. A complete modification of the result in Rindone would give the competent institution the opportunity to challenge the correctness of certificates of the institution of the State of residence, which would be difficult to reconcile with the need to ensure a relationship of trust and scrupulous cooperation between authorities and institutions in the Member States.

10. Another possible interpretation of Article 18 might be considered. It can be argued that the system established by Article 18 is one in which the institution of the place of residence acts on behalf of the competent institution (see the last sentence of Article 18(4)) and that unless the competent institution has made use of Article 18(5) it must be put in the same position as if it had itself made the decision regarding incapacity for work. That would mean that in the country of payment the decision on incapacity for work could be altered only to the extent to which it is possible for an institution to review its own favourable decisions. That interpretation, which is a possible one in the light of the wording of Article 18, would have a number of advantages. It would presumably mean that there would be stringent conditions regarding the possibility for the competent institution to challenge the correctness of the examination carried out by the institution of the place of residence. It can be argued, furthermore, that that interpretation would make it easier to justify the fact that the review of the certificate of incapacity for work that is actually carried out in connection with the review of the result of the medical examination takes place in the country of payment and not in the country where the medical examination was carried out.

However, I shall not pursue that reasoning further. It was not discussed in Rindone or in this case, and its practical consequences, partly for that reason, are difficult to assess. Furthermore, such an interpretation would mean overruling the Rindone judgment, something which I find neither necessary nor desirable.

Modification of the Rindone judgment in exceptional circumstances

11. Serious consideration must be given, on the other hand, to the question whether the special circumstances in this case and the views expressed in these proceedings have shown that there is a need for some modification of the Rindone judgment.

Such a modification is prompted by two circumstances. First of all, the fact, that it cannot, of course, be excluded that information may come to light which shows that a certificate of incapacity for work cannot possibly be correct. Secondly, because it can be argued that the system of Article 18 does not sufficiently protect the interests of the competent institution where it has had no reason to make use of its possibility under Article 18(5) to have an examination carried out by its own doctor. It can be argued that there is a gap in the Article 18 system in the situation where the information which gives grounds for doubting the correctness of the certificate issued after the original medical examination first comes to the attention of the competent institution at a time when the examination provided for in Article 18(5) no longer has any point.

Advocate General Mischo expressed those views in his Opinion of 4 June 1991.

I think it appropriate to quote paragraph 29 of Mr Mischo' s Opinion, which contains the essence of his reasoning: "Therefore, the findings of the institution of the place of residence may be questioned by the competent institution (which did not have the examination provided for in paragraph (5) carried out) only if they were obtained as a result of fraudulent conduct which misled the institution of the place of residence, and/or they subsequently prove to be manifestly incorrect. In my view, it is very difficult to accept that where the competent institution has relied on the findings of the institution of the place of residence and had no obvious reason to have the person concerned examined by a doctor of its own choice (that examination must after all be the exception under the Article 18 system), it would continue to be bound by those findings even if they turn out without the slightest doubt to be incorrect and to have been obtained by fraud. Would it be acceptable, for example, for the competent institution to remain bound even if, during the period of incapacity for work as certified by the institution of the place of residence, the person concerned were involved in a road accident at a place where his alleged state of ill health would not normally have allowed him to be, or if it were shown that he had engaged in an activity inconsistent with such ill health? I must admit that an affirmative reply to that question would disturb me. The question is, however, whether Article 18 of Regulation No 574/72, as interpreted by the Court, or Community law in general permit such exceptional situations to be taken into account."

Advocate General Mischo replied to that question in the affirmative, pointing out inter alia that in the exceptional circumstances so defined there is no real need to have regard to the interests of the worker.

I am tempted to choose that solution, that is to say that the competent institution or court in the country of payment can refuse to recognize certificates issued by the institution of the place of residence where "they were obtained as a result of fraudulent conduct which misled the institution of the place of residence and/or they subsequently prove to be manifestly incorrect." I should be inclined, however, to restrict that exception to the situation where the information which gives grounds for doubt first comes to the attention of the competent institution at a time when the examination provided for in Article 18(5) no longer has any point.

If my final conclusion is nevertheless that the result in the Rindone judgment is the correct one, that is due to positive arguments in favour of that result and arguments which can be put forward against the solution I have just discussed.

Confirmation of the Rindone judgment

12. In my view the Rindone judgment expresses the most obvious interpretation of Article 18 of Regulation No 574/72, having regard to both the wording and the purpose of that provision, in the light also of Article 51 of the EEC Treaty.

It goes without saying, moreover, that there must be very serious reasons for modifying a judgment delivered by the Court of Justice. That point of view has particular weight in a situation where the judgment contains an interpretation of a measure adopted by one of the Community institutions, which the institutions can amend if they find that the Court of Justice has come to a conclusion which does not correspond to the objective of the provision or which has been found to entail practical difficulties.

The Rindone judgment also has the advantage of having a straightforward conclusion. It avoids the difficulties associated with the attempt to define the context in which it should be possible for the competent institutions in the country of payment to refuse to recognize the certificate issued by the institution of the place of residence.

Furthermore, in my view it is important that the Rindone judgment is an expression of important principles, namely that there should be scrupulous cooperation between the institutions in the Member States, built on mutual trust (see in this regard Article 84 of Regulation No 1408/71, in conjunction with Article 5 of the EEC Treaty) and that the authorities in one Member State must recognize the correctness of certificates issued by the authorities in other Member States pursuant to Community provisions.

If the Court of Justice has accepted limitations to this last principle at all, it has been in very specific circumstances. (1) In my view such circumstances are not present in this case.

The conclusion in the Rindone judgment does not mean that the competent institution has no means of reacting when information comes to light which gives grounds for doubting the correctness of the certificate issued by the supervising authorities of the place of residence (fraud or manifest inaccuracy). In such a case the competent institution will normally send the relevant information to the institution of the place of residence with a view to having the latter modify the original certificate of incapacity for work.

In my view, that must be the correct and natural manner of proceeding, and it is reasonable to assume that the new information, having regard to its nature, will lead to the result desired by the competent institution of the country of payment. The institution of the place of residence is, of course, also under an obligation to cooperate scrupulously with the competent institution of the country of payment.

Even though I do not wish to place decisive weight on it for the interpretation which I propose, partly because this point of view was not put forward during the proceedings and therefore has not been sufficiently discussed, I should nevertheless mention that in a case where the institution of the place of residence refuses to alter the declaration of incapacity for work, the possibility cannot normally be excluded that the competent institution might bring the matter before the courts of the country of residence. This would amount to review a posteriori of certificates which refer to incapacity for work in connection with illness suffered in the country of residence and which are issued by a doctor chosen by the institution of the place of residence. As a matter both of principle and of practicality, there are good reasons for having such a review of the correctness of certificates carried out by the courts of the country whose institutions issued the certificates and where the factual circumstances to which the certificates refer took place.

Proposed answer to the questions referred to the Court

13. On the basis of those considerations I propose that the Court of Justice give the following reply to the questions referred by the Arbeitsgericht Loerrach:

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. That is equally true where the competent institution is an employer.

(*) Original language: Danish.

(1) ° In his Opinion of 4 June 1991 Advocate General Mischo mentioned the judgment in Case 130/88 Van de Bijl as a possible example of such a limited exception. I think it is important to observe that in that judgment the Court of Justice emphasized that where there are objective factors which lead the host State to consider that the certificate produced contains manifest inaccuracies, that State may, if it so wishes, approach the Member State from which the beneficiary comes with a view to requesting additional information (paragraph 24), and that in paragraph 25 the Court of Justice accepted that the authorities of the host country could decline to rely on the certificate issued in the country from which the person concerned came only in cases where the periods concerned were, as a simple matter of fact, completed in the territory of the host country ° that is to say, in circumstances which the authorities of the host country are the best placed to assess.