Urteil des Eidgenössischen Versicherungsgerichts in Sachen Ausgleichskasse des Kantons Jura gegen Courtet vom 23. Oktober 1985 (BGE 111 V 201), Urteil des Eidgenössischen Versicherungsgerichts in Sachen X gegen Ausgleichskasse des Kantons Wallis vom 25. August 1993 (BGE 119 V 171)
Background
The first two rulings of 1985 and 1993 were made by the Swiss Federal Insurance Court, which at that time was an organizationally independent division of the Federal Supreme Court responsible for federal social security law. The institutional merger of the Federal Insurance Court into the Federal Supreme Court took place as part of the federal judicial reform of 2007. The rulings reflect the Court’s changing views on the direct applicability of a norm of ILO Convention No. 128 in one and the same case constellation after the first ruling met with tremendous criticism from legal scholars. Convention No. 128 had been concluded by the Federal Council and approved by Parliament, and the provision of national law applicable subject to international norms – the Federal Act on Invalidity Insurance – had been adopted by the Federal Assembly and was subject to a referendum (which had not been taken).
Summary
BGE 111 V 201:
The Federal Supreme Court had to rule on an insured person’s claim to a disability pension. It was disputed whether the responsible office of the state administration for compulsory disability insurance could enforce a reduction because the person had harmed his/her health through gross negligence, though not intentionally. At that time, the national Disability Insurance Act allowed reducing a disability pension due to actions with intent or gross negligence (without intent) on the part of the insured person. Pursuant to Article 32(1)(e) of ILO Convention No 128 concerning invalidity, old age and survivors’ benefits adopted 29 June 1967, which has been binding for Switzerland since 13 September 1978, and pursuant to Article 68(f) of the European Code of Social Security of 16 April 1964 which entered into force for Switzerland on 17 September 1978, such benefits may only be reduced in cases of wilful misconduct on the part of the person concerned. The Court considered the international law provisions cited above to be not directly applicable in the case under review, i.e. non-“self-executing” – contrary to the prevailing opinion among legal scholars. It was argued that while the preparatory work for the Federal Assembly’s ratification decision did not indicate that the national law provision was to hold precedence, it had been considered that the international agreements did not entail any new financial or administrative obligations for Switzerland, and that no individual legal claims could be derived from these. Legislators had retained the possibility of a reduction for gross negligence in the new Accident Insurance Act after entry into force of the international agreements, it was argued, and no adaptation to international law had been envisaged in the initiated revision of the Disability Insurance Act. Legislators thus did not wish to exclude the possibility of a benefit reduction in cases of gross negligence when they ratified the agreements. The reduction-related provisions under international law thus were not directly applicable, and instead it was up to legislators to resolve any conflict between national and international law, particularly because the possibility of reduction due to gross negligence was a fundamental principle of Swiss social security law. This decision met with unanimous rejection among legal scholars.
BGE 119 V 171:
In this ruling the Federal Insurance Court changed its previous position, declaring the treaty provisions to be directly applicable. While some treaty provisions only broadly regulate certain matters or leave considerable discretionary margin and are therefore not “self-executing”, the Court considered the reduction-related provisions to be sufficiently precise and clear so as to enable a concrete decision to be made based on them. They did not need to be further specified in legislation according to the Court and were therefore directly applicable. According to the Courtet ruling, the fact that the Swiss legislature continued to allow reduction in cases of gross negligence even after the entry into force of the international agreements in revisions to the law lost significance because in the meantime, in both the new Military Insurance Act already passed and the Federal Act on the General Part of Social Insurance Law currently under parliamentary discussion, benefit reductions were only permitted in cases of intentional or tortious conduct in view of international law.