Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128) - Switzerland (Ratification: 1977)

1. The Committee notes with interest the information provided by the Government in its report, and at the Conference Committee in 1993. It also notes with interest the information concerning the new type of pension introduced on 1 January 1993 in the context of the first part of the tenth revision of the Old-Age and Survivor's Insurance (AVS) (Part V of the Convention (Standards to be complied with by periodical payments) in relation to Part III (Old-Age Benefit)).

2. Part II (Invalidity benefit), Article 12 of the Convention (in relation to Article 32, paragraph 1(e)). In its previous comments the Committee raised the matter of the compatibility with the above-mentioned provisions of the Convention of section 7 of the Federal Invalidity Insurance Act (LAI) of 19 June 1959 which provides that cash benefits may be refused, reduced or withheld in the event of serious misconduct of the insured person or his dependants. As the Committee pointed out in its previous comments, suspension of benefits is authorized under Article 32, paragraph 1(e) of the Convention only where the invalidity has been caused by serious and wilful misconduct on the part of the person concerned.

In its report, the Government indicates that the debates in Parliament on the Bill concerning the general part of social insurance law which is to bring the LAI into conformity with the Convention on this matter, have been suspended. It points out that the Bill was initiated by Parliament, since the Committee of the States Council drafted it. The Bill has already been approved by the States Council. The National Council, for its part, has asked for further time to examine it. What is at issue is whether, at a time when numerous specific social security laws are being revised, it would not be more advisable, rather than to elaborate, a Bill on the general part of social insurance law, to draft a law harmonizing the legislation, which would be less complicated than the present Bill. The Government adds that, in any event, the issue is now in the hands of Parliament and that there is no question but that the LAI will be brought into conformity with the Convention by one type of law or another.

The Committee notes this information. It expresses the hope that the parliamentary debates on the issue will be pursued and will lead to the adoption in the near future of a text which will take full account of the above-mentioned provisions of the Convention.

Furthermore, the Government indicates that the Federal Insurance Court reversed the case law by a decision of 25 August 1993, i.e. after the reporting period in question; the Court found that the rule of international law contained in Article 32, paragraph 1, of the Convention applies directly and takes precedence over section 7(1) of the LAI. The Committee notes this information with interest. It asks the Government to provide the text of the above ruling.