Demande directe (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

1. Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention. In its previous comments the Committee observed that, under section 19(2) of Part V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue no longer than one month after the termination of membership, provided that no gainful activity is exercised. Similar provision is contained in section 19(3) for family members, when the family insurance ends by death of the insured person. The Committee recalled that under Article 16, paragraph 2, of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks: Provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". The Committee therefore requested the Government to supply detailed information on the measures taken or contemplated to give full effect to this provision of the Convention, as far as formerly insured members were concerned who did not have recourse to voluntary insurance and were not covered by another social security protection providing health care. The Committee also requested the Government to indicate how effect is given to Article 16, paragraph 3, of the Convention, which prescribes that, notwithstanding the provisions of paragraph 2 of the said Article, the duration of medical care shall be extended for prescribed diseases recognized as entailing prolonged care.

In reply, the Government states that section 19(2) of Part V of the Social Code serves to compensate for the difference between the interests of the joint association of statutory sickness insurance funds and the requirement for cover of the insured person who has ceased to be a member, and therefore does not infringe upon the aims of Article 16, paragraph 2, of the Convention, which seeks to prevent that the loss of membership of the group of protected persons entails the immediate loss of the right to medical care benefits. Thus, according to the Government, unemployed persons who forfeit their membership of the group of protected persons, continue to receive health care benefits for as long as they draw unemployment benefits under the Employment Promotion Act, and persons drawing regular assistance for their subsistence in accordance with the Federal Public Assistance Act, can also receive sickness benefits whose nature and scope conform to the benefits of the sickness funds. The Government considers that, together with voluntary insurance, these possibilities are to be seen as alternatives of equal value to the ongoing entitlement to benefits provided in Article 16, paragraph 2, of the Convention for a period of 26 weeks. It adds that, from this legal position, a special provision within the meaning of Article 16, paragraph 3, for prescribed diseases would not be necessary and would also not be in keeping with the system.

The Committee notes this information. It would like to emphasize that Article 16 of the Convention sets out a general principle according to which medical care shall be provided throughout the contingency (paragraph 1). However, with respect to persons who cease to belong to the protected category, it permits a derogation from this principle on conditions expressly stated in paragraphs 2 and 3. In as much as the national legislation has recourse to this authorized derogation, it should strictly abide by the terms of those paragraphs. As regards more particularly persons in receipt of a benefit under the Employment Promotion Act mentioned by the Government, the Committee notes that they are subject to compulsory insurance under section 5(2) of Part V of the Social Code and therefore do not fall into the category of persons covered by Article 16, paragraph 2, of the Convention. In light of the above, the Committee once again expresses the hope that the next report of the Government will indicate the measures taken or contemplated to ensure that the provisions of Article 16, paragraphs 2 and 3, of the Convention, are fully applied in the national legislation and practice with respect to persons who are not covered by the social security protection providing medical care, including under the Federal Public Assistance Act, and who do not contract voluntary insurance providing medical care. In addition, it would like the Government to supply the text of provisions of the Federal Public Assistance Act which provide for medical care.

2. Part III (Sickness benefits), Article 27. In its previous comments the Committee pointed out that section 58 of Part V of the Social Code, under which a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, was not in conformity with paragraph 1 of Article 27 of the Convention. In its reply, the Government states that the condition of being insured as of 1 January 1989 to be entitled to funeral benefit can be considered as a "prescribed condition" within the meaning of Article 27 of the Convention. It also states that the conditions for derogation provided for under paragraph 2(b) and (c) of this Article are satisfied as, in accordance with section 47 of Part V of the Social Code, the sickness benefit amounts to 80 per cent of the normal remuneration of the insured person and there exists a large number of voluntary individual or collective supplementary death benefit insurance schemes.

The Committee notes this information. It recalls that under Article 27 of the Convention, the right to funeral benefit can be made conditional upon the fulfilment of prescribed conditions, for instance a qualifying period. Such conditions, however, shall not be such as to deprive persons who normally belong to the categories of persons protected of the right to benefit, as would be the case under section 58 of Part V of the Social Code in respect of persons who became insured after 1 January 1989. On the other hand, as regards the possibility to make use of the derogation provided for under paragraph 2 of Article 27 of the Convention, the Committee would like the Government to supply in its future reports statistical information on the number of persons covered by voluntary insurance providing a funeral grant in relation to the total number of persons insured with the statutory sickness insurance scheme after 1 January 1989.