# CE2004084EN.01070201.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/702 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/702

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(2004/C 84 E/0788)

WRITTEN QUESTION P-0974/04

by Guido Sacconi (PSE) to the Commission

(23 March 2004)

Subject:   EU-Switzerland agreements and implementation of Rönfeldt-Thévenon case law

Subject:

Following the entry into force of the EU-Switzerland agreement on the free movement of persons and given that from 1 June 2002 Regulation (EEC) No 1408/71 (1) replaces the bilateral social security agreements concluded between the Member States and Switzerland and, in particular, the Italo-Swiss general convention of 14 December 1962, as subsequently amended, Italian workers employed in Switzerland are no longer entitled to transfer contributions from the Swiss insurance scheme to the Italian scheme with a view to the granting of a single pension under the Italian scheme. The Commission is already aware of this situation, to which attention has been drawn on several occasions by the unions, including Inca-Ggil.

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Under the Rönfeldt-Thévenon case law, workers are entitled to retain the advantages provided for in earlier bilateral agreements where:

| (a) | the provisions of those agreements gave rise to advantages greater (i.e. more favourable) than those provided for in Regulation (EEC) No 1408/71; and |
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(a)

the provisions of those agreements gave rise to advantages greater (i.e. more favourable) than those provided for in Regulation (EEC) No 1408/71; and

| (b) | the worker was covered by the legislation in question prior to the entry into force of Regulation (EEC) No 1408/71 and can prove that his personal rights have been infringed. |
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(b)

the worker was covered by the legislation in question prior to the entry into force of Regulation (EEC) No 1408/71 and can prove that his personal rights have been infringed.

Given the above, would the Commission state: Whether the Rönfeldt-Thévenon case law, the principles of which have been endorsed by a large number of subsequent judgments of the Court of Justice, ‘inter alia’ on relations with third countries affected by the EEA Agreement, might not be applied in this instance, given the terms and substance (as evidenced by the preamble, the objectives set out in Article 1 and the provisions of Annex I) of the EU-Switzerland agreement on the free movement of persons and the fact that the arrangements for transferring contributions that are laid down in the Italo-Swiss bilateral agreement previously in force may be deemed systems for the coordination of social security schemes?

Whether, should this be the case, given the amount of time that has elapsed since the agreement entered into force and in view of the provisions of Article 16 thereof (reference to Community law), it would agree that it should take steps to ensure that this case law is duly considered and implemented by the relevant authorities and institutions?

Answer given by Mr Dimas on behalf of the Commission

(21 April 2004)

(21 April 2004)

The Commission considers that, within the framework of the agreement on free movement of persons between the European Community and its Member States on the one hand and the Swiss Confederation on the other, the application of the Rönfeldt principle to the provisions of bilateral conventions such as the Italo-Swiss convention on the transfer of contributions would not be justified as a means of protecting acquired rights, for the following reasons:

| — | The fundamental judgment in Rönfeldt (2) is to be seen in the specific context of the free movement within the Community of workers who are Member State nationals. Thus, the purpose of Regulation (EEC) No 1408/71 (3) — to facilitate the free movement of workers between Member States provided for in Articles 39 and 43 — led the Court in its judgment to ‘moderate’ the automatic effect of the replacement of bilateral social security conventions by Regulation (EEC) No 1408/71. It was because of this objective specific to the Community that the Court of Justice had to determine whether the replacement of social security conventions between Member States led to workers being placed in a less favourable situation, as regards their rights, than that resulting from the previous arrangements. |
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The fundamental judgment in Rönfeldt (2) is to be seen in the specific context of the free movement within the Community of workers who are Member State nationals. Thus, the purpose of Regulation (EEC) No 1408/71 (3) — to facilitate the free movement of workers between Member States provided for in Articles 39 and 43 — led the Court in its judgment to ‘moderate’ the automatic effect of the replacement of bilateral social security conventions by Regulation (EEC) No 1408/71. It was because of this objective specific to the Community that the Court of Justice had to determine whether the replacement of social security conventions between Member States led to workers being placed in a less favourable situation, as regards their rights, than that resulting from the previous arrangements.

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| — | In the context of the EC-Switzerland agreement, especially as regards the application of Article 16 of this agreement when determining the implications of the judgment, it should be noted that the legal framework for assessing any unfavourable consequences for workers resulting from the replacement of certain provisions of bilateral conventions between a Member State and a third country by the EC-Switzerland agreement differs substantially from that underlying the judgment in Rönfeldt; even though the EC-Switzerland agreement is concerned with the free movement of workers, this concept does not have the same basis (in particular, the unconditional character that the Treaty confers on the exercise of this basic freedom). |
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In the context of the EC-Switzerland agreement, especially as regards the application of Article 16 of this agreement when determining the implications of the judgment, it should be noted that the legal framework for assessing any unfavourable consequences for workers resulting from the replacement of certain provisions of bilateral conventions between a Member State and a third country by the EC-Switzerland agreement differs substantially from that underlying the judgment in Rönfeldt; even though the EC-Switzerland agreement is concerned with the free movement of workers, this concept does not have the same basis (in particular, the unconditional character that the Treaty confers on the exercise of this basic freedom).

| — | Similarly, a referral to the ‘acquis communautaire’ (i.e. Regulation (EEC) No 1408/71) does not mean that the Court's interpretation of certain provisions of the Regulation in terms of the free movement of workers within the Community can automatically be applied to a situation involving Member State nationals and nationals of a third country within the framework of an international agreement. |
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Similarly, a referral to the ‘acquis communautaire’ (i.e. Regulation (EEC) No 1408/71) does not mean that the Court's interpretation of certain provisions of the Regulation in terms of the free movement of workers within the Community can automatically be applied to a situation involving Member State nationals and nationals of a third country within the framework of an international agreement.

| — | Moreover, as regards the transfer of contributions provided for in the Italo-Swiss agreement, Regulation (EEC) No 1408/71 lays down a different principle: that of aggregation/pro rata calculation; Thus, the essential difference between the two methods has nothing to do with their aim, which is to assist workers, but concerns the sharing of the costs of financing benefits between the various countries where the employed person engaged in an activity that entitled him or her to receive benefits. Accordingly, the Commission considers that, after the EC-Switzerland agreement came into force, replacing the transfer of contributions by the aggregation/pro rata arrangements provided for in the Regulation cannot be seen as placing the worker in a less favourable situation than that obtaining previously under the bilateral convention between his or her country of origin and Switzerland. |
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Moreover, as regards the transfer of contributions provided for in the Italo-Swiss agreement, Regulation (EEC) No 1408/71 lays down a different principle: that of aggregation/pro rata calculation; Thus, the essential difference between the two methods has nothing to do with their aim, which is to assist workers, but concerns the sharing of the costs of financing benefits between the various countries where the employed person engaged in an activity that entitled him or her to receive benefits. Accordingly, the Commission considers that, after the EC-Switzerland agreement came into force, replacing the transfer of contributions by the aggregation/pro rata arrangements provided for in the Regulation cannot be seen as placing the worker in a less favourable situation than that obtaining previously under the bilateral convention between his or her country of origin and Switzerland.

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(1)  OJ L 149, 5.7.1971, p. 2.

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(2)  Case C-227/89, judgment of 7 February 1991, ECR I-323.

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(3)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, OJ L 149 of 5.7.1971.

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