Proposal for a Council Decision on a Community Position regarding draft Decision of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons
Date: 2005-03-17
Institutions: European Commission
Subjects: Switzerland, agreement (EU), free movement of persons, joint committee (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.3.2005 
COM(2005) 93 final 

Proposal for a 

COUNCIL DECISION 

on a Community Position regarding draft Decision of the Joint Committee established 
under the Agreement between the European Community and 
its Member States, of the one part, and the Swiss Confederation, of the other, on the 
Free Movement of Persons 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

On 1 June 2002 the Agreement between the European Community and its Member States of 
the  one  part  and  the  Swiss  Confederation  of  the  other,  on  the  Free  Movement  of  Persons 
entered into force. Annex II of this Agreement provides for the coordination of social security 
schemes. 

According to Article 14 and 18 of the Agreement, the EU-Swiss Joint Committee on the Free 
Movement of Persons may adopt amendments to Annex II of the Agreement by decision of 
the Joint Committee. Article 2 of the Decision (2002/309/EC, Euratom) of the Council, and of 
the  Commission  as  regards  the  Agreement  on  Scientific  and  Technological  Cooperation,  of 
4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation provides 
that the Council, on a proposal from the Commission, lays down the position to be taken by 
the Community as regards such decisions of the Joint Committee. 

To  ensure  a  coherent  and  correct  application  of  Community  legislation  and  to  avoid 
administrative and possibly legal difficulties Annex II of the Agreement should refer to all the 
relevant  Community  legislation  and  the  Decisions  of  the  Administrative  Commission. 
Therefore,  Annex  II  of  the  Agreement  needs  to  be  updated  to  also  refer  to  those  amending 
Regulations of Regulations (EEC) No 1408/71 and (EEC) No 574/72 which have entered into 
force  since  Annex  II  of  the  Agreement  was  last  amended  by  Decision  2/2003  of  the  Joint 
Committee.  It  also  needs  to  refer  to  the  decisions  of  the  Administrative  Commission  which 
have  been  adopted  in  the  meantime,  including  the  three  decisions  which  introduce  the 
European  Health  Insurance  Card.  Furthermore,  Annex  II  to  the  Agreement  needs  to  be 
completed and updated to reflect changes at national level. 

The  Council  is  therefore  invited  to  approve  the  Community  position  on  the  adoption  of  the 
draft Decision No …/… of the EU-Swiss Joint Committee on the Free Movement of Persons, 
regarding the Joint Committee's Decision on amending Annex II to the Agreement following 
the entry into force of the Agreement. 

The amendments to be made to Annex II of the Agreement are the following: 

The amending Regulation No 631/2004 which entered into force on 1 June 2004, thus after 
the last amendment of the Agreement by Decision 2/2003 of the Joint Committee, aligns the 
rights and simplifies the procedures in respect of sickness or maternity benefits in kind. 

Adaptations  of  Annex  VI  of  Regulation  1408/71  concern  in  particular  the  possibility  to 
demand exemption from compulsory Swiss sickness insurance coverage, a possibility which 
does not exist under Regulation 1408/71: 

The  Portuguese  government  wishes  to  offer  to pensioners  who  receive  a  Swiss  pension  and 
who  reside  in  Portugal  the  individual  right  to  demand  exemption  from  compulsory  Swiss 
sickness insurance and be covered by the Portuguese National Health Service instead. 

The French government has expressed the wish that a person who resides in France and who 
is  insured  under  the  Swiss  sickness  insurance  scheme  despite  the  possibility  to  ask  for 
exemption and have alternative coverage by the French sickness insurance scheme shall not 
only have access to health care in France but also in Switzerland.  

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An entry needs to be made to Annex VIII of Regulation 1408/71 for Switzerland, indicating 
that  Switzerland  does  not  have  a  scheme  which  provides  only  for  family  allowances  or 
supplementary or special allowances for orphans. 

The competent German institution and liaison body regarding pension insurance for manual 
workers in relation to Switzerland needs to be named in Annex 2 of Regulation 574/72. 

Legal effects of amendments 

According to Article 18 of the Agreement, decisions of the Joint Committee on Annex II may 
enter into force immediately after the decision. 

In the interest of the persons covered by the Agreement, the reference to amending Regulation 
631/2004 shall have effect as of the date of entry into force of this Regulation on 1 June 2004. 
Overall,  the  application  of  common  and  homogeneous  provisions  and  an  effective  and 
coherent coordination for the complicated and technical  nature of the coordination of social 
security  schemes  is  essential.  As  Regulation  631/2004  facilitates  the  introduction  of  the 
European Health Insurance Card by aligning the rights and simplifying procedures for access 
to medical care, applying it as of the date of its entry into force avoids parallel application of 
different  coordinating  provisions.  This  would  not  only  increase  administrative  burdens  and 
delay decisions but also be to the detriment of persons concerned as different procedures and 
rights to medical care would apply in relation to Switzerland. 

The  amending  provisions  extending  the  right  to  demand  exemption  from  compulsory  Swiss 
sickness insurance to pensioners residing in Portugal shall be effective as of 1 June 2004 as 
they are in the interest of the persons concerned and have already been applied on the basis of 
a mutual agreement between Switzerland and Portugal since that date. Equally, the request of 
the French government is in the interest of the persons concerned and has been applied since 
1 January 2004 so this amendment should be effective as of this date. 

The Council is requested to approve the attached draft decision for adoption by the EU-Swiss 
Joint Committee on Free Movement of Persons. 

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Proposal for a 

COUNCIL DECISION 

on a Community Position regarding draft Decision of the Joint Committee established 
under the Agreement between the European Community and 
its Member States, of the one part, and the Swiss Confederation, of the other, on the 
Free Movement of Persons 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having regard to Decision 2002/309/EC, Euratom of the Council and of the Commission as 
regards  the  Agreement  on  Scientific  and  Technological  Cooperation  of  4  April  2002  on  the 
conclusion  of  seven  Agreements  with  the  Swiss  Confederation1,  and  in  particular  Article  2 
thereof, 

Having regard to the proposal from the Commission2, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The Agreement between the European Community and its Member States, of the one 
part, and the Swiss Confederation, of the other part, on the Free Movement of Persons 
(hereinafter referred to as "the Agreement") entered into force on 1 June 2002. 

Articles 14 and 18  of the  Agreement provide that the EU-Swiss Joint Committee on 
Free  Movement  of  Persons  may,  by  decision,  adopt  amendments  to  Annex  II  to  the 
Agreement, dealing with coordination of social security schemes. 

In order to preserve a coherent and correct application of Community legislation and 
to  avoid  administrative  and  possibly  legal  difficulties,  Annex  II  to  the  Agreement 
needs  to  be  amended  to  integrate  the  Community  legislation  which  has  entered  into 
force since the last adaptation of Annex II by Decision No 2/2003 of 15 July 2003 of 
the  EU-Swiss  Joint  Committee  on  the  Free  Movement  of  Persons,  and  to  which  the 
Agreement does not currently refer. 

In view of changes at national level, Annex II to the Agreement needs to be completed 
and updated. 

Annex II of the Agreement needs to be amended by the integration of the Decisions of 
the  Administrative  Commission  on  Social  Security  of  Migrant  Workers  which  have 
been  adopted  since  the  last  adaptation  of  the  EU-Swiss  Agreement  by  Decision  

1 
2 

OJ L 114, 30.4.2002, p. 1. 
OJ C […], […], p. […]. 

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No 2/2003 of 15 July 2003 of the EU-Swiss Joint Committee on the Free Movement 
of Persons and to which the Agreement does not currently refer. 

(6) 

The Community should now adopt its position for a decision of the Joint Committee, 

HAS DECIDED AS FOLLOWS: 

Sole Article 

The Position of the European Community in the Joint Committee created by Article 14 of the 
Agreement between the European Community and its Member States, of the one part, and the 
Swiss Confederation, of the other part, on the Free Movement of Persons shall be based on 
the draft decision of the Joint Committee set out in the Annex to this Decision. 

Done at Brussels, 

For the Council 
The President 

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ANNEX 

Draft Decision  

of the EU-Swiss Joint Committee on the Free Movement of Persons amending Annex II 
(Social Security) to the Agreement between the European Community and its Member 
States and the Swiss Confederation 

THE JOINT COMMITTEE, 

Having regard to the Agreement between the European Community and its Member States, of 
the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons and 
in particular Articles 14 and 18 thereof, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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4 
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6 
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The Agreement between the European Community and its Member States, of the one 
part,  and  the  Swiss  Confederation,  of  the  other,  on  the  Free  Movement  of  Persons 
(hereinafter referred to as "the Agreement") was signed on 21 June 1999 and entered 
into force on 1 June 2002. 

Annex II to the Agreement, as amended by Decision No 2/2003 of 15 July 2003 of 
the EU-Swiss Joint Committee on the Free Movement of Persons, refers in particular 
to  Council  Regulations  (EEC)  No  1408/713  and  (EEC)  No  574/724,  as  updated  by 
Regulation  (EC)  No  118/975  as  well  as  to  subsequent  amending  Regulations, 
including  Regulation  (EC)  1386/20016  of  the  European  Parliament  and  of  the 
Council and Commission Regulation (EC) 410/20027. 

Regulations  (EEC)  No  1408/71  and  (EEC)  No  574/72  have,  since  the  adoption  of 
Decision  2/2003  of  the  EU-Swiss  Joint  Committee  of  15  July  2003,  been  amended 
twice. Consequently, it is now necessary to incorporate the relevant amending acts, 
namely  Commission  Regulation  (EC)  1851/2003  of  17  October  20038  and 
Regulation (EC) No 631/20049 of the European Parliament and of the Council of 31 
March 2004, into the Agreement, and specifically into Annex II thereto. 

The option to request exemption from compulsory Swiss sickness insurance should 
be offered to pensioners who receive a Swiss pension and who reside in Portugal as 
they will be covered by the Portuguese sickness insurance. 

Persons  who  reside  in  France  and  who  are  insured  under  the  Swiss  sickness 
insurance scheme despite the possibility to ask for exemption should have access to 
health care in France and in Switzerland. 

OJ L 149, 5.7.1971, p. 2. 
OJ L 74, 27.3.1972. 
OJ L 28, 30.1.1997, p. 1 
OJ L 187, 10.7.2001, p. 1. 
OJ L 62, 5.3.2002, p. 17. 
OJ L 271, 22.10.2003, p. 3. 
OJ L 100, 6.4.2004, p. 1. 

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(6) 

(7) 

(8) 

(9) 

(10) 

It needs to be indicated that Switzerland does not have a scheme which provides only 
for family allowances or supplementary or special allowances for orphans. 

Annex II needs to be amended to list the competent German institution and liaison 
body regarding pension insurance in relation to Switzerland. 

The complicated and technical nature of the coordination of social security schemes 
requires effective and coherent coordination, through the application of common and 
homogeneous provisions within the territory of the Contracting parties. 

It  is  in  the  interest  of  the  persons  covered  by  the  Agreement  to  resolve,  or  at  least 
limit  in  time,  any  negative  effects  arising  from  the  application  of  different 
coordination rules by the Contracting Parties. 

Amendments to Annex II which insert the reference to Regulation 631/2004 and on 
the  possibility  to  exempt  pensioners  residing  in  Portugal  from  Swiss  compulsory 
insurance  should  take  effect  as  from  1  June  2004,  and  amendments  which  concern 
the  possibility  for  persons  residing  in  France  to  access  health  care  in  Switzerland 
should take effect as from 1 January 2004. 

HAS DECIDED AS FOLLOWS: 

Annex II to the Agreement shall be amended as set out in the Annex to this Decision. 

Article 1 

Article 2 

This Decision shall enter into force on the day of its adoption by the Joint Committee. 

Provisions  of  this  Decision  which  insert  the  reference  to  Regulation  631/2004,  as  well  as 
regarding  Point  3  letter  (b)  of  Annex  II  to  the  Agreement,  extending  the  possibility  of 
exemption  from  Swiss  compulsory  insurance  for  pensioners  residing  in  Portugal  shall  take 
effect on 1 June 2004. Provisions of this Decision regarding Point 4 offering access to health 
care in Switzerland to persons who are covered by the Swiss sickness insurance scheme and 
who reside in France shall take effect on 1 January 2004. 

Article 3 

This Decision shall be published in the Official Journal of the European Communities. 

Done at Brussels, 

For the Joint Committee 
The Chairman  
The Secretaries 

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Annex 

Annex II to the Agreement between the European Community and its Member States, of the 
one  part,  and  the  Swiss  Confederation,  of  the  other,  on  the  free  movement  of  persons  is 
amended as follows: 

(1) 

The following is inserted under the Title "Section A: Acts referred to" under point 1 
"Regulation (EEC) No 1408/71" after "301 R 1386: Regulation (EC) No 1386/2001 
of the European Parliament and of the Council…": 

"Regulation  (EC)  No  631/2004  of  the  European  Parliament  and  of  the  Council  of 
31 March 2004 amending Council Regulation (EEC) No 1408/71 on the application 
of social security schemes to employed persons and their families moving within the 
Community,  and  Council  Regulation  (EEC)  No  574/72  fixing  the  procedure  for 
implementing  Regulation  (EEC)  No  1408/71,  in  respect  of  the  alignment  of  rights 
and the simplification of procedures (OJ L 100, 6.4.2004, p.1)." 

(2) 

Under  the  heading  "For  the  purposes  of  this  Agreement,  the  Regulation  shall  be 
amended as follows:", point 1 of Section A of Annex II of the Agreement is amended 
as follows: 

(a)  Under letter (o), concerning Annex VI, insert the following under No 3 letter 

(b) after the word "… Finland": 

"and with regard to persons referred to in (a) (ii), Portugal." 

(b)  Under  letter  (o),  concerning  Annex  VI,  insert  under  No  4  after  the  word 

"Belgium," the word "France". 

(c)  After letter p), concerning Annex VII, add a new paragraph q): 

"q)  The following shall be added to Annex VIII: 

Switzerland 

None" 

(3) 

The following is inserted under the Title "Section A: Acts referred to" under point 2 
"Regulation  (EEC)  No  574/72"  after  "302  R  410:  Commission  Regulation  (EC) 
No 410/2002…": 

"Commission Regulation (EC) No 1851/2003 of 17 October 2003 amending Council 
Regulation  (EEC)  No  574/72  laying  down  the  procedure  for  implementing 
Regulation  (EEC)  No  1408/71  on  the  application  of  social  security  schemes  to 
employed  persons,  to  self-employed  persons  and  to  members  of  their  families 
moving within the Community (OJ L 271, 22.10.2003, p.3). 

Regulation  (EC)  No  631/2004  of  the  European  Parliament  and  of  the  Council  of 
31 March 2004 amending Council Regulation (EEC) No 1408/71 on the application 
of social security schemes to employed persons and their families moving within the 
Community,  and  Council  Regulation  (EEC)  No  574/72  fixing  the  procedure  for 

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implementing  Regulation  (EEC)  No  1408/71,  in  respect  of  the  alignment  of  rights 
and the simplification of procedures (OJ L 100, 6.4.2004, p.1)" 

(4) 

Under  the  heading  "For  the  purposes  of  this  Agreement,  the  Regulation  shall  be 
amended as follows:", point 2 Section A of Annex II of the Agreement is amended as 
follows: 

(a)  Under  letter  b),  concerning  Annex  2,  the  following  section  is  inserted  before 

the section headed "Switzerland": 

"C. GERMANY 

(1)  Under  point  2  "Pension  insurance  for  manual  workers,  clerical  workers 
and miners", the following addition is made to letter (a)(i), first sentence: 

- 

if  the  person  concerned  is  resident  in  Switzerland  or  is  a 
Swiss  national  resident  in  the  territory  of  a  non-member 
State: 

Landesversicherungsanstalt  Baden-Württemberg  (Regional 
Insurance Office of Baden-Württemberg), Karlsruhe". 

(2)  Under  point  2  "Pension  insurance  for  manual  workers,  clerical  workers 
and miners", the following addition is made to letter (b)(i), first sentence: 

- 

if  the  last  contribution  under  the  legislation  of  another 
Member  State  was  paid  into  a  Swiss  pension  insurance 
institution:   

Landesversicherungsanstalt  Baden-Württemberg  (Regional 
Insurance Office of Baden-Württemberg), Karlsruhe". 

(b)  Under letter c) concerning Annex 3, the following section is inserted before the 

section headed "Switzerland":  

"C. GERMANY 

Under point 3 "Pension insurance", the following addition is made to letter (a): 
In relation to Switzerland: 
Landesversicherungsanstalt Baden-Württemberg (Regional Insurance Office of 
Baden-Württemberg), Karlsruhe". 

(c)  Under letter d) concerning Annex 4, the following section is inserted before the 

section headed "Switzerland":  

"C. GERMANY 

Under point 3 "Pension insurance", the following addition is made to letter (b): 
In relation to Switzerland: 

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Landesversicherungsanstalt Baden-Württemberg (Regional Insurance Office of 
Baden-Württemberg), Karlsruhe". 

(5) 

Section B of Annex II is amended as follows: 

(a)  Nos 4.19, 4.32, 4.48 and 4.68 are deleted. 

(b)  After No 4.68, the following new numbers are added: 

"4.69 : Decision No 184 of 10 December 2001 on the model forms necessary 
for  the  application  of  Council  Regulations  (EEC)  No 1408/71  and  (EEC) 
No 574/72 (E 201 to E 207, E 210, E 213 and E 215 ) (OJ L 304, 6.11.2002, 
p.1) 

4.70 :  Decision  No  185  of  27  June  2002  amending  Decision  No  153  of 
7  October  1993  (form  E  108)  and  Decision  No  170  of  11  June  1998 
(compilation  of  the  lists  provided  for  in  Article  94(4)  and  Article  95(4)  of 
Council Regulation (EEC) No 574/72 of 21 March 1972) (OJ L 55, 1.3.2003, 
p.74) 

4.71 : Decision No 186 of 27 June 2002 on the model forms necessary for the 
application  of  Council  Regulations  (EEC)  No  1408/71  and  (EEC)  No  574/72 
(E 101) (OJ L 55, 1.3.2003, p.80) 

4.72 : Decision No 187 of 27 June 2002 on the model forms necessary for the 
application  of  Council  Regulations  (EEC)  No  1408/71  and  (EEC)  No  574/72 
(E 111 and E 111B) (OJ L 93, 10.4.2003, p.40) 

4.73 : Decision No 188 of 10 December 2002 on the model forms necessary for 
the application of Council Regulation (EEC) No 574/72 (E 210 and E 211) (OJ 
L 112, 6.5.2003, p.12)  

4.74 :  Decision  No  189  of  18  June  2003  aimed  at  introducing  a  European 
health  insurance  card  to  replace  the  forms  necessary  for  the  application  of 
Council Regulations (EEC) No 1408/71 and (EEC) No 574/72 as regards ccess 
to  health  care  during  a  temporary  stay  in  a  Member  State  other  than  the 
competent State or the State of residence (OJ L 276, 27.10.2003, p.1) 

4.75 : Decision No 190 of 18 June 2003 concerning the technical specifications 
of the European health insurance card (OJ L 276, 27.10.2003, p.4)   

4.76 : Decision No 191 of 18 June 2003 concerning the replacement of forms 
E  111  and  E  111  B  by  the  European  health  insurance  card  (OJ  L  276, 
27.10.2003, p.19) 

4.77 : Decision  No  192  of  29  October  2003  concerning  the  conditions  for 
implementing Article 50(1)(b) of Council Regulation (EEC) No 574/72 (OJ L 
104, 8.4.2004, p.114)   

For the purposes of the present agreement, the Decision is amended as follows: 

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In section 2.4 the following shall be added: 

Switzerland 

Schweizerische  Ausgleichskasse,  Genf  -  Caisse  suisse  de  compensation, 
Genève - Cassa svizzera di compensazione, Ginevra. 

4.78 :  Decision  No  193  of  29  October  2003  on  the  processing  of  pension 
claims (OJ L 104, 8.4.2004, p.123) 

4.79 :  Decision  No  194  of  17  December  2003  concerning  the  uniform 
application of Article 22(1)(a)(i) of Council Regulation (EEC) No 1408/71 in 
the Member State of stay (OJ L 104, 8.4.2004, p.127) 

4.80 : Decision No 195 of 23 March 2004 on the uniform application of Article 
22(1)(a)(i)  of  Regulation  (EEC)  No  1408/71  as  regards  health  care  in 
conjunction with pregnancy and childbirth (OJ L 160, 30.4.2004, p.134) 

4.81 :  Decision  No  196  of  23  March  2004  pursuant  to  Article  22(1a)  of 
Regulation (EEC) No 1408/71 (OJ L 160, 30.4.2004, p.136)  

4.82 :  Decision  No  197  of  23  March  2004  on  the  transitional  periods  for  the 
introduction of the European Health Insurance Card in accordance with Article 
5 of Decision No 191   

4.83 :  Decision  No  198  of  23  March  2004  concerning  the  replacement  and 
abolition  of  the  model  forms  necessary  for  the  implementation  of  Council 
Regulations (EEC) No 1408/71 and 574/72 (E110, E111, E111B, E113, E114, 
E119, E128, E128B) 

(6) 

In Section C: "Acts of which the contracting parties shall take note" after No 6.4 the 
following new number is added: 

"6.5 :  Recommendation  No  23  of  29  October  2003  on  the  processing  of  pension 
claims (OJ L 104, 8 April 2004, p.125)." 

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