Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

I. With reference to its previous observation concerning Part II (Invalidity benefit), Article 12, of the Convention (in relation to Article 32, paragraph 1(e)), the Committee notes with satisfaction the reversal of the case-law relating to the direct applicability of the above-mentioned provisions of the Convention by the Federal Insurance Court (TFA) in a decision of 25 August 1993, of which the text has been supplied by the Government. In its decision, the TFA considered that Article 32, paragraph 1(3), of the Convention, which provides that cash benefits may be withheld where the contingency has been wilfully caused by the serious misconduct of the person concerned, applies directly and takes precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) to the extent that this standard of federal law provides, in particular, the reduction of benefits for serious misconduct committed by negligence.

Consequently, the Government concludes in its report that, contrary to the provisions of the Act, negligence, even when serious, is no longer sufficient grounds for reduction of invalidity insurance benefits and that the situation prevailing in Switzerland is in conformity with the provisions of Article 32, paragraph 1, of the Convention, given the self-executing nature of this provision, which is recognized by the TFA. The Government adds that national legislation will be brought officially into conformity with the Convention once the Bill on the general part of social insurance law enters into force. The Committee requests the Government to keep it informed of any developments in this matter, in both legislation and practice.

II. Furthermore, the Committee notes with interest, from the information supplied in the Government's report, the adoption of the tenth revision of the Old-Age and Survivors' Insurance Act which will enter into force on 1 January 1997. The Committee hopes that the Government's next report will contain detailed information on the effects of this legislation on Parts III and IV of the Convention.