Opinion of Mr Advocate General ischo delivered on 4 June 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

++++

Mr President,

Members of the Court,

1. The case pending before the Arbeitsgericht (Labour Court) Loerrach, (Germany), brought by Vittorio Paletta, his wife and their children, against their employer, Brennet AG, raises the problem of the applicability of Article 18(1) and (5) of Council Regulation (EEC) No 574/72, (1) as interpreted by the Court in its judgment in Case 22/86 Rindone v Allgemeine Ortskrankenkasse Bad Urach-Muensingen [1987] ECR 1339, to legislation such as the Lohnfortzahlungsgesetz (German Law on the continued payment of wages) of 27 July 1969 (BGBl. I, p. 946, hereinafter referred to as "the LFZG"), under which the employer, and not the competent social security institution, must pay to the worker concerned the cash benefits provided for.

2. For the detailed facts of the case and the relevant Community rules and national rules, I refer to the Report for the Hearing. I shall mention them only in so far as is necessary for a proper understanding of this Opinion.

3. At this stage, suffice it to mention that under Article 1 of the LFGZ a worker prevented by illness from working is entitled to continued payment of his wages for a period of six weeks. At no point in its order for reference does the national court doubt that continued payment of wages as provided for by the LFGZ constitutes a cash benefit paid in the event of illness within the meaning of Council Regulation (EEC) No 1408/71 of 14 June 1971 (2) and that it accordingly comes within the scope of Article 18 of Regulation (EEC) No 574/72, either directly or by analogy, pursuant to Article 24 of that regulation. The national court even expressly states that

"cash benefits in the event of sickness, as regulated by Regulation No 1408/71 of the Council on the basis of Article 51 of the EEC Treaty, include both cash benefits paid by a social security institution and those paid by an employer."

4. Article 4 of Regulation No 1408/71, which defines the substantive scope thereof, expressly provides at paragraph (2) that

"This Regulation shall apply to ... schemes concerning the liability of an employer ... ."

As that provision itself states, the liability in question must be "in respect of the benefits referred to in paragraph (1)". Those include, at point (a), sickness benfits. However, in the observations which they submitted to the Court, the Netherlands and German Governments dispute that the benefits paid under the LFZG constitute sickness benefits and, consequently, assert that Regulations Nos 1408/71 and 574/72 are not applicable to them. Before being able to reply to the questions submitted by the national court, I must therefore first examine, as the Commission also suggests, whether the benefits paid pursuant to the right to continued payment of wages provided for in the LFGZ fall within the substantive scope of Regulation No 1408/71.

Applicability of Regulation No 1408/71

5. One might be tempted to give a very brief answer to this question. In its judgment in Case C-171/88 Rinner-Kuehn v FWW Spezial-Gebaeudereinigung GmbH & Co. KG [1989] ECR 2743, paragraph 7, the Court expressly stated that

"... continued payment of wages to an employee in the event of illness falls within the concept of 'pay' within the meaning of Article 119 of the Treaty."

That case also concerned the LFZG. It is true that in arriving at that finding the Court simply confirmed the position of the national court without explaining its reasons. It is also true that that statement may seem surprising if one compares it with the case-law of the Court according to which the concept of pay within the meaning of Article 119 of the Treaty cannot encompass

"social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are compulsorily applicable to general categories of workers." (3)

In fact, the LFGZ has those characteristics.

6. On the other hand, however, the Court also stated in the same case that

"consideration in the nature of social security benefits is not in principle alien to the concept of pay."

Therefore, it is not ruled out ab initio that those same benefits may be social security benefits whilst still falling within the concept of "pay" within the meaning of Article 119 of the Treaty.

7. On the question whether the benefits in question may be regarded as social security benefits and in particular as sickness benefits within the meaning of Regulation No 1408/71, two preliminary observations are in order. On the one hand, the fact that the LFZG is not mentioned in the declarations made by Germany under Article 5 of Regulation No 1408/71 cannot prevent that legislation from being classified as falling within the scope of that regulation. (4) On the other hand, the fact that under German law, as the Commission acknowledges, the benefits provided for by the LFZG are not regarded as social security benefits is not so decisive as to exclude them, under Community law, from the substantive scope of Regulation No 1408/71. (5) As the Court stated in its judgment in Case 69/79 Jordens-Voorster v Bedrijfsvereniging voor de Leder- en Lederwerkende Industrie [1980] ECR 75, paragraph 6:

"It is well established that the requirement that Community law be applied uniformly within the Community implies that the concepts to which that law refers should not vary according to the particular features of each system of national law but rest upon objective criteria defined in a Community context."

The Court added that:

"In accordance with this principle, the concept of 'sickness and maternity benefits' appearing in Article 4(1)(a) of Regulation No 1408/71 is to be determined for the purpose of applying the regulation not according to the type of national legislation containing the provisions giving those benefits, but in accordance with Community rules which define what those benefits shall consist of."

8. It is settled in case-law (6) that

"the distinction between benefits which are excluded from the scope of Regulation No 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant."

It is true that those rulings were made in cases in which it had to be ascertained whether a given social security benefit came within the category of benefits expressly excluded from the scope of Regulation No 1408/71 by virtue of Article 4(4) thereof, such as medical and social assistance benefits (7) or those in favour of victims of war or its consequences. (8) Nevertheless, the fact remains that owing to its general nature it also applies to a case such as the present in which it has to be determined whether a certain benefit falls within one of the branches of social security referred to in Article 4(1).

9. In that connection it must first be observed that the benefit in question is related to one of the risks set out in that provision which is the condition sine qua non for it to fall within the substantive scope of Regulation No 1408/71: (9) in fact it is paid only if the worker becomes ill. As the Commission rightly points out, that link is further reinforced by the fact that during the first six weeks of incapacity for work owing to illness, for as long as benefits under the LFZG are paid, the daily sickness allowances, which incontestably and without contestation constitute sickness benefits, are suspended. The right to continued payment of wages thus fulfills, during the initial period of illness, the function of daily sickness benefits. Moreover, by virtue of Article 10 of the LFGZ, where an employer does not regularly employ more than twenty persons, he is entitled to reimbursement from the Sickness Assurance Fund of 80% of the wages which continue to be paid, which is exactly the amount of the daily sickness benefit normally paid by the Fund. Even if that provision is of limited application, it confirms that, at least as to 80% thereof, the right to the continued payment of wages takes the place of a sickness benefit.

10. On the basis of the foregoing this case may be distinguished from Case 39/76 Metaalnijverheid v Mouthaan [1976] ECR 1901 which at first sight might be thought to show certain similarities with it. The Mouthaan case concerned Netherlands legislation on unemployment which, besides providing for the grant of unemployment benefit, provided for payment by the competent social security institution of arrears of wages owed by the insolvent employer; this occurred through the institution' s subrogation to the obligations owed by the insolvent employer to the worker under the contract of employment. The question to be decided was whether the latter benefits were "unemployment benefits" within the meaning of Article 4(1)(g) of Regulation No 1408/71. At paragraph 20 of its judgment the Court answered that question in the negative on the ground that

"Such a subrogation does not partake of the nature of the unemployment benefits referred to in Article 4(1)(g) of Regulation No 1408/71 which are essentially intended to guarantee to an unemployed worker the payment of sums which do not correspond to contributions made by that worker in the course of his employment."

What was therefore decisive in the Court' s view was not the fact that the benefits in question directly stemmed from the employment relationship, but that they had no link with one of the risks mentioned in Article 4(1), in this case unemployment. Furthermore, the Court did not attach significance to the fact that the amount of those benefits corresponded to the amount of the wages provided for in the contract of employment.

11. The fact that the benefits paid under the LFGZ are of an amount equal to the contractual remuneration and greater than the daily sickness allowances would not, however, seem to me to be bound to alter their nature as sickness benfits. On the one hand, daily sickness benefits are similarly directly dependent on the remuneration usually paid. On the other hand, it is not unusual during the initial period of payment for certain social security benefits to be higher than they are subsequently.

12. Similarly, the fact that it is the employer who finances the benefits provided for by the LFGZ, whereas the daily sickness allowances are financed by employers' and employees' contributions, is immaterial in this context, since the Court has held that (10)

"The classification of an allowance as a social security benefit covered by the Regulation does not depend upon the manner in which the allowance is financed."

Moreover, the Commission did not fail to point out the link between the financing of the two benefits: the financing of the LFGZ benefits by the employers entails a diminution in their contributions to the financing of the daily sickness benefits because the level of contributions which they pay in that connection is fixed according to the principle of coverage of expenditure.

13. Finally, it is perhaps also useful to point out that the expression "benefit", as defined in Article 1(t) of Regulation No 1408/71 "must be understood in its widest sense" (11), so that in order to bring continued payment of wages, as provided for by the LFZG, within that definition it is not necessarily a question of finding in that provision an express element warranting its inclusion, but it is sufficient if there is nothing there to require its exclusion, as the Commission argues.

14. It may therefore be concluded from the foregoing that continued payment of wages by the employer when the worker is prevented from carrying on his activity owing to incapacity for work caused by illness, as provided for in the LFZG, constitutes a "sickness benefit" within the meaning of Article 4(1)(a) of Regulation No 1408/71. Accordingly, it is necessary to examine the questions raised by the national court with regard to the applicability of Article 18 of Regulation No 574/72, as interpreted in the judgment in Case 22/86 Rindone v Allgemeine Ortskrankenkasse Bad Urach-Muensingen [1987] ECR 1339, to a situation in which the "competent institution" within the meaning of that provision is the employer and not a social security institution.

The first and second questions

15. The first two questions are worded as follows:

"(1) Can the principles contained in the judgment of the Third Chamber of the Court of Justice of 12 March 1987 in Case 22/86 Rindone regarding the interpretation of Article 18(1) and (5) of Council Regulation (EEC) No 574/72 be applied in whole or in part to cases in which payment of cash benefits in the event of illness is made by the employer and not by the social security institution, as for example under Paragraph 1 et seq. of the German Lohnfortzahlungsgesetz of 27 July 1969 (BGBl I, p. 946, as amended most recently by the Law of 20 December 1988, BGBl I, p. 2477)?

In particular:

(2) Is the body responsible for continued payment of remuneration in the event of illness under the law of the Federal Republic of Germany in accordance with Paragraph 1 et seq. of the Lohnfortzahlungsgesetz required to base its decision, in fact and in law, concerning the claim for cash benefits on the findings made by the social security institution of the employee' s place of residence concerning the commencement and duration of the incapacity for work?"

16. It should be recalled that in its judgment in Rindone the Court held 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 of the place of residence as regards the commencement and duration of the incapacity for work."

By its first two questions the national court therefore seeks to know whether the principle thus established is also applicable to a situation in which the competent institution is the employer.

17. The reply, it seems to me, may be brief. According to Article 1(o)(iv) of Regulation No 1408/71, "competent institution" means

"in the case of a scheme relating to an employer' s liability in respect of the benefits set out in Article 4(1), either the employer or the insurer involved or, in default thereof, a body or authority designated by the competent authority of the Member State concerned."

In accordance with Article 1(c) of Regulation No 574/72 (OJ, English Special Edition 1972 (I), p. 159),

"the definitions in Article 1 of the Regulation have the meaning assigned to them in the said Article."

Since Annex 2 to the said Regulation, which mentions the competent institutions of each Member State (see Article 4(2)), does not moreover contain under "B. Germany" at point "1. Sickness Insurance" any statement to the contrary, it must be concluded that Article 18 of Regulation No 574/72 which uses without distinction the expression "competent institution" is also applicable in a case such as the present one in which the employer is the competent institution.

18. Consequently, and even if the competent institution in the Rindone case was a sickness fund, the solutions adopted by the Court in its judgment in that case are also valid in such a situation. That seems to me all the more so since the interpretation given by the Court in Rindone, as it pointed out at paragraph 13 of its judgment,

"is also made necessary by the purpose of Article 18 of Regulation No 574/72 and of Article 19 of Regulation No 1408/71."

The Court went on to point out that:

"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)."

19. I therefore propose that the Court should reply in the affirmative to the first two questions submitted by the national court.

The third question submitted for a preliminary ruling

20. The third question is in the following terms:

"If the answer to Question 1 is in the affirmative, is the answer the same if the employer, who under Paragraph 1 of the LFZG bears responsibility for continued payment of wages, has no way of checking, in fact or in law, the findings concerning the commencement of the incapacity for work other than to call upon the competent sickness insurance fund, which in this case is not primarily liable to pay the benefit, to have the employee examined by a doctor of its own choice (or its medical officer) pursuant to Article 18(5) of Regulation (EEC) No 574/72?"

21. The Arbeitsgericht Loerrach thus draws our attention to the different kinds of difficulties facing an employer when he wishes to have the occurrence of incapacity for work verified by a doctor of his choice within the meaning of Article 18(5) of Regulation No 574/72. Like the German and Netherlands Governments and the Commission, I am very aware of those difficulties, and I appreciate the efforts made by the Commission to reconcile the solution it arrives at in principle, which I share, with the particular aspects of the employer' s situation, of which Article 18 takes no account. Amendment of that provision would be appropriate. But in the meantime one may take the view, as the Commission does, that in certain exceptional cases when "serious well-founded doubts exist as to the incapacity for work established by institution at the place of residence", it is not appropriate to regard the examination provided for in Article 18(5) as the only possibility for an employer to call in question the evidentiary value of the certificate of incapacity for work issued by the institution of the place of residence? I hesitate to accept the Commission' s suggestion in that form.

22. In general terms, as the Court pointed out in its judgment in Case C-236/88 Commission v France [1990] ECR I-3163, the fact that application of social security regulations may give rise to practical difficulties must not prejudice the rights which individuals derive from the principles of the social legislation of the Community. Moreover, as the Court observed in the same judgment, practical problems may always be referred to the Administrative Commission on Social Security for Migrant Workers provided for in Articles 80 and 81 of Regulation No 1408/71. Moreover, in its judgment in Case C-228/88 Bronzino [1990] ECR I-531, paragraph 14, the Court held that

"disadvantages ... which result from the application of Regulation No 1408/71 cannot call in question the interpretation, based on its wording and purpose, of one of the provisions of that regulation."

In addition, provided that Community law is observed, a Member State may also, unilaterally, adopt the necessary administrative measures so that under sickness insurance schemes in which the employer is the "competent institution", the employer is placed in a position to exercise the rights available to him under Article 18 of Regulation No 574/72.

23. In the light of these considerations of a general nature, the following specific remarks may be made about the difficulties expressly raised in the present case.

24. First, if Article 18(3) is correctly applied, the employer should be informed, within the period provided, of the occurrence and likely duration of the incapacity for work. In fact, since the employer is also the "competent institution" vis-à-vis the institution of the place of residence, it is to him that the latter must forward the report of the examining doctor within three days of the date of the examination. Should that present problems, they must be resolved in the context of the concertation procedures specially provided for, in particular in Article 84 of Regulation No 1408/71, which provides that the competent authorities of the Member States are to communicate to each other all information regarding measures taken to implement the regulation, and that the authorities and the institutions of the Member States are, for the purposes of implementing the regulation, to lend each other their good offices.

25. Secondly, as regards the costs incurred in the examination of the person concerned by a doctor chosen by the employer ° the "competent institution", which, it should be recalled, must be carried out in the State of the institution of residence (see paragraph 21 of the Rindone judgment) ° they are inherent in the system and clearly may not deprive the individual of his right under Article 18 of Regulation No 574/72, as interpreted by the Court, not to be obliged to return to the State of the competent institution in order there to undergo a medical examination. Moreover, it is always open to a Member state with a sickness assurance scheme in which the employer performs the function of "competent institution" to stipulate that the sickness funds must subsidize, wholly or in part, the costs incurred by the employer in carrying out that task. The LFZG provides, moreover, that in the case of employers normally employing fewer than twenty persons the sickness fund must reimburse 80% of the wages of the worker who has fallen ill. It may therefore be supposed that the sickness fund will also have the responsibility of having the examination mentioned in Article 18(5) carried out, so that only larger undertakings will bear examination costs themselves.

26. Finally, in order to overcome the problems which may arise from the fact that an employer may not have the same relations with the institution of the place of residence as a social security institution and in practice does not have the same opportunities as such an institution to have the person concerned examined by a doctor of his choice, a Member State may certainly lay down appropriate rules governing collaboration between the employer and the normally competent institution to which workers are affiliated; for the purposes of the proper application of Article 18, it may even provide for those functions to be performed by the institution instead of the employer. It may also be noted that under the LFZG, when the worker is residing outside the territory in which the legislation is applied at the time when the incapacity for work occurs, which was the case with the members of the Paletta family, he must indicate that fact without delay not only to his employer but also to the sickness fund with which he is insured. This simultaneous notification could be the basis for such cooperation, which should enable the employer to make effective use of the possibilities afforded to him by Article 18(5) of Regulation No 574/72. Thus Germany could provide in its legislation that in doubtful cases it is for the competent sickness fund to have examinations carried out on the spot on its own initiative and in any event at the request of an employer. The sickness funds of one Member State could also establish, together, a system of examination in other Member States.

27. This leaves the question as to whether the foregoing is also valid even if there are "serious and well-founded doubts concerning the incapacity for work established by the institution of the place of residence." In that connection it may may be stated first of all that if such doubts could in exceptional cases justify the competent institution' s not being bound, in fact and in law, by the medical findings made by the institution of the place of residence as to the occurrence and duration of the incapacity for work, that should be the case both where the competent institution is an employer and where a social security institution is involved.

28. Secondly, mere doubts cannot suffice for the competent institution not to be bound by the findings of the institution of the place of residence: the system of Article 18 is in fact such that it is precisely when there are doubts as to the accuracy of the findings of the institution of the place of residence that the competent instituion will avail itself of the possibility afforded to it by paragraph (5) of that provision to have the person concerned examined by a doctor of its choice.

29. Therefore, the findings of the institution of the place of residence may be called in question 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 manifesly 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 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 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.

30. My reply to this question will be positive, first because it does not appear to me to conflict with the principles established by the Court in the Rindone judgment and, secondly, because the Court' s case-law has precedents to that effect.

31. First of all, the reason why the Court, in the Rindone judgment, limited the way in which the competent institution can challenge the findings of the institution of the place of residence to examination by a doctor of its choice is that:

"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 ... have difficulty in producing the necessary proof" (paragraph 13 of the judgment).

However, in the present context it is neither a question of leaving the competent institution "free" not to recognize the findings of the institution of the place of residence nor a question of requiring a worker who has once again become fit for work to produce proof of his previous incapacity for work. On the contrary, it is for the competent institution to provide practically undeniable proof that the findings of the institution of the place of residence do not accord with reality and must have been obtained by fraud.

32. Secondly, the Court' s case-law on freedom of movement for workers contains precedents in which the Court has expressly ensured that the interpretation it has just given of a provision of Community law is not to be applicable to situations constituting abuse or fraud. For example, in its judgment in Case 39/86 Lair v Universitaet Hannover [1988] ECR 3161, the Court first held that Community law precludes a Member State from making the award of a grant for university studies conditional upon a minimum period of prior occupational activity within its territory. It then went on to state that

"certain abuses, for example where it may be established on the basis of objective evidence that a worker has entered a Member State for the sole purpose of enjoying, after a very short period of occupational activity, the benefit of the student assistance system in that State ... are not covered by the Community provisions in question" (paragraph 43 of the judgment).

33. Then there was Case 130/88 Van de Bijl v Staatssecretaris van Economische Zaken [1989] ECR 3039, which concerned a system dependent on production of certificates which bore certain resemblances to that operating under Article 18 of Regulation No 574/72. One of the problems to be resolved was that of whether, in accordance with the relevant provisions of Council Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23 to 40 (Industry and small craft industries (OJ, English Special Edition 1963-64, p. 148), the host Member State was required to grant the authorization necessary for the pursuit of the occupation of a self-employed painter and decorator within its territory on the strength of a certificate issued by the State of origin, although the certificate contained manifest inaccuracies or omissions relating in particular to the actual duration of the occupational activity carried on in the Member State of origin. In its judgment in that case the Court first stated that

"the host Member State ... is ... in principle bound by the declarations contained in the certificate issued by the Member State from which the beneficiary comes, as that certificate would otherwise be deprived of its effectiveness" (paragraph 22),

and then went on to state 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).

As in the present case, the competent authority of one of the Member States is therefore bound by the findings of the authority of the other Member State, except that it may request additional checks to be carried out. Nevertheless, and although the relevant provisions of Directive 64/427 do not expressly so provide, the Court has acknowledged that in certain quite exceptional cases the host Member State is not bound by the certificate of the competent authority of the Member State of origin. It held that

"the host Member State cannot be obliged to overlook matters which occurred within its own territory and which are of direct relevance to the real and genuine character of the period of professional activity completed in the Member State from which the beneficiary comes" (paragraph 26 of the judgment),

and concluded in reply to the question referred to it that

"the competent authority in the host Member State ... is not bound to grant the application automatically if the certificate produced contains a manifest inaccuracy inasmuch as it states that the person covered by the directive has completed a period of professional activity in the Member State from which he comes, when it is clear that during the same period the person in question has pursued his activities in the territory of the host Member State" (paragraph 27).

34. Certainly, the Court was very restrictive concerning the possibility of challenging the status of the certificate issued by the Member State of origin, which in principle is binding. That, it seems to me, may be accounted for by the fact that it gave a reply based on the actual facts of the case and by the specific nature of the rules in question which do not provide for direct supervision by the competent authority of the host Member State within the territory of the Member State of origin. Nor did the Court expressly base its reasoning on the general principle fraus omnia corrumpit, as suggested by Advocate General Darmon at paragraph 17 of his Opinion in the Van de Bijl case. In sum, it was sufficient, in the Court' s view, to prevent Community law from being applied in a way which went against common sense and ignored obvious and undeniable realities. The fact remains that it seems legitimate to me to regard that judgment as a precedent in which the Court refused to recognize that findings made by a competent authority of a Member State are in principle binding where that would be tantamount to recognizing manifestly inaccurate situations and/or findings which may have been obtained fraudulently. I do not see why that should not be the case in the context of Article 18 of Regulation No 574/72.

35. Accordingly, I propose that the reply to the third question should also be in the affirmative, with the following addition:

"It would be otherwise only if it is established that, during the period of incapacity for work the person concerned engaged in activities which the nature of his incapacity for work, as established by the institution of the place of residence, would not normally have allowed him to pursue."

36. The replies which I propose should be given to the questions submitted by the Arbeitsgericht Loerrach are therefore as follows:

"(1) Article 18(1) to (4) of Regulation (EEC) No 574/72 is to be interpreted as meaning that, if the competent institution does not make use of its right under Article 18(5) to have 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 concerning the occurrence and duration of the incapacity for work, even where it is the employer who is the competent institution for paying cash benefits in case of sickness.

(2) The answer is the same even where the employer has no possibility in fact or in law to check the finding that incapacity for work has occurred, except to request the competent sickness fund to have the person concerned examined by a doctor of its choice in accordance with the aforementioned provision."

(*) Original language: French.

(1) ° Regulation No 574/72 of 21 March 1972 laying down 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 (OJ, English Special Edition 1972 (I), p. 159).

(2) ° OJ, English Special Edition 1971 (II), p. 416.

(3) ° See the judgment in Case 80/70 Sabena v Defrenne [1971] ECR 445, paragraph 7,in Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraph 17, and in Case C-262/88 Barber [1990] ECR I-1889.

(4) ° See the judgment in Case 70/80 Vigier v Bundesversicherungsanstalt fuer Angestellte [1981] ECR 229, paragraph 15.

(5) ° See, for example, the judgment in Case 139/82 Piscitello v INPS [1983] ECR 1472, at paragraph 9.

(6) ° See in particular the judgments in Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn [1985] ECR 973, paragraph 11, and Case 122/84 Scrivner v Centre Public d' Aide Social de Chastre [1985] ECR 1027.

(7) ° See, in addition to the judgments in the Piscitello, Hoeckx and Scrivner cases mentioned above, the judgments in Case 1/72 Frilli v Belgium [1972] ECR 457, Case 187/73 Callemeyn v Belgium [1974] ECR 553, Case 24/74 Caisse Régionale d' Assurance Maladie v Biason [1974] ECR 999, Case 39/74 Costa v Belgium [1974] ECR 1251, Joined Cases 379 to 381/85 and 93/86 CRAM Rhône-Alpes v Gilletti [1987] ECR 955. In its judgment in the latter cases (at paragraph 9) the Court stated that the possibility cannot be excluded that by reason of the persons covered, its objectives and its methods of application, national legislation may, at one and the same time, have links to both those categories (emphasis added).

(8) ° See the judgments in Case 9/78 Directeur Régional de la Sécurité Sociale de Nancy v Gillard [1978] ECR 1661 and Case 207/78 Even [1979] ECR 2019.

(9) ° See paragraphs 12 and 19 respectively of the abovementioned judgments in the Hoeckx and Scrivner cases.

(10) ° See the judgment in the Giletti case, cited above, at paragraph 7.

(11) ° See paragraph 10 of the judgment in Callemeyn v Belgium, cited above.