Keywords
Summary

Keywords

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1. Social security for migrant workers ° Sickness insurance ° Worker staying in a Member State other than the competent State ° Entitlement to benefits necessitated by his state of health ° Scope ° Cash benefits designed to compensate for the sick worker' s loss of earnings ° Included ° Payment of wages after commencement of the incapacity ° Not relevant

(Council Regulation No 1408/71, Art. 22(1)(a)(ii))

2. Social security for migrant workers ° Sickness insurance ° Worker staying in a Member State other than the competent State ° Incapacity for work ° Obligatory recognition ° Limits ° Production by the employer of evidence supporting a finding of abuse or fraudulent conduct on the part of the worker ° Whether permissible ° Worker required to produce additional evidence ° Not permissible

(Council Regulation No 574/72, Art. 18(1) to (5))

Summary

1. Article 22(1)(a)(ii) of Regulation No 1408/71 is to be interpreted as covering national legislation under which an employee is entitled, on becoming incapacitated for work, to continued payment of his wages for a certain period, even where those wages are not payable until a given period has elapsed since the incapacity commenced.

By laying down the condition that the sick worker' s state of health must "necessitate immediate benefits", that provision requires confirmation of a pressing medical need for such benefits and not only encompasses "benefits in kind" needed forthwith, but further implies that, in urgent situations, the worker concerned must also be entitled to any corresponding "cash benefits" which are essentially designed to compensate for the sick worker' s loss of earnings and are therefore intended to cover his maintenance, which might otherwise be jeopardized.

2. By judgment of 3 June 1992 in Case C-45/90 Paletta v Brennet [1992] ECR I-3423, the Court ruled that Article 18(1) to (5) of Regulation No 574/72 is to be interpreted as meaning that the competent institution, even where this is the employer and not a social security institution, is bound in fact and in law by the medical findings made by the institution of the place of residence or temporary residence concerning commencement and duration of the incapacity for work, when it does not have the person concerned examined by a doctor of its choice, as it may do under Article 18(5); this does not imply that employers are barred from adducing evidence to support, where appropriate, a finding by the national court of abuse or fraudulent conduct on the part of the worker concerned, in that, although he may claim to have become incapacitated for work, such incapacity having been certified in accordance with Article 18, he was not sick at all. Community law cannot be relied on by any person for the purposes of abuse or fraud.

However, in cases where the employer argues on the basis of adequate supporting evidence that there are serious grounds for doubting the existence of the alleged incapacity, the objectives pursued by Article 18 of Regulation No 574/72 preclude requiring the worker to produce additional evidence that the medically certified incapacity for work is genuine. Such a requirement would confront a worker whose incapacity for work arises in a Member State other than the competent Member State with difficulties involved in obtaining evidence which the Community rules in fact seek to eliminate.