WRITTEN QUESTION P-0974/04 by Guido Sacconi (PSE) to the Commission. EU-Switzerland agreements and implementation of Rönfeldt-Thévenon case law.
Date: 2004-03-23
Institutions: European Parliament, Provisional data
Subjects: Italy, Switzerland, agreement (EU), bilateral agreement, case-law (EU), free movement of persons, interpretation of the law, social security legislation, social-security contribution

C 84 E/702

Official Journal of the European Union

EN

3.4.2004

(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

Following the entry into force of the EU-Switzerland agreement on the free movement of persons and
from 1 June 2002 Regulation (EEC) No 1408/71 (1) replaces the bilateral social security
given that
in particular, the Italo-Swiss
agreements concluded between the Member States and Switzerland and,
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.

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

(a)

(b)

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

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?

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

Answer given by Mr Dimas on behalf of the Commission

(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:

(cid:1) The fundamental judgment in Rönfeldt (1) 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 (2) (cid:1) to facilitate the free movement of workers between Member States provided
for in Articles 39 and 43 (cid:1) 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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Official Journal of the European Union

C 84 E/703

(cid:1) 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).

(cid:1) 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.

(cid:1) 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.

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

(2004/C 84 E/0789)

WRITTEN QUESTION P-1040/04

by Enrico Ferri (PPE-DE) to the Commission

(29 March 2004)

Subject: Requirements for entry in the studbook, transposition of Community legislation

Further to my parliamentary question of 27 October 2003 and the Commission’s answer (P-3312/03 (1)),
it is important to point out that the question concerns a matter falling within the sphere of competence
not only of DG SANCO but also of DG MARKT, in addition to the fact that the Commission has merely
replied that it was not aware of the problem and has not expressed its views on the substance of the
matter.

Will the Commission, represented by Commissioner Byrne and Commissioner Bolkestein, indicate what
steps have been taken to check whether the Community legislation relating to the sector has been properly
and adequately transposed?

Has the Commission checked whether the existence of the assessment committee which I referred to is
admissible?

(1) OJ C 70 E, 20.3.2004, p. 254.

Answer given by Mr Byrne on behalf of the Commission

(23 April 2004)

The Commission would like to reassure the Honourable Member that it followed up the information he
provided in Written Question P-3312/03 of 27 October 2003.

As indicated in its answer, the Commission had no knowledge of the existence in Italy of a morphological
test for entering stallions in the studbook and a committee to carry out the assessment.