Proposal for a COUNCIL DECISION on the position to be taken by the European Union in 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 as regards the replacement of Annex II to that Agreement on the co-ordination of social security schemes
Date: 2011-10-24
Institutions: European Commission
Subjects: Switzerland, cooperation agreement (EU), free movement of persons, free movement of workers, frontier worker, revision of an agreement, social-security benefit, social-security harmonisation

EUROPEAN COMMISSION 

Brussels, 24.10.2011 
COM(2011) 671 final 

2011/0291 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken by the European Union in 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 as 
regards the replacement of Annex II to that Agreement on the co-ordination of social 
security schemes 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

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 to this Agreement provides for the coordination of social security 
schemes. 

Under Article 18 of the Agreement, the EU-Swiss Joint Committee on the Free Movement of 
Persons  may  adopt  amendments  to  Annex  II  of  the  Agreement.  Article  2  of  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 Union as regards such decisions of the 
Joint Committee. 

To ensure coherent and correct application of EU legislation and to avoid administrative and 
possibly  legal  difficulties,  Annex  II  of  the  Agreement  should  refer  to  all  the  relevant  EU 
legislation  and  the  Decisions  of  the  Administrative  Commission  for  the  Coordination  of 
Social  Security  Systems.  Therefore,  Annex  II  of  the  Agreement  needs  to  be  updated  in 
particular to integrate the modernised system for the coordination of social security schemes 
which  became  applicable  within  the  EU  on  1  May  2010,  i.e.  Regulation  No  883/2004  as 
amended  by  Regulation  No  988/2009,  its  implementing  Regulation  No  987/2009  and  the 
decisions  and  recommendations  of  the  Administrative  Commission.  Regulations  No 
883/2004, 988/2009 and 987/2009 state that they are with relevance for Switzerland. 

To that end, the Commission presented a proposal for a Council Decision on the position to be 
taken  by  the  Union  in  the  Joint  Committee  established  by  the  Agreement  on  28  June  2010. 
The  Commission  proposal  was  subsequently  amended  in  order  to  refer  to  Article  48  TFEU 
(coordination of social security systems), in conjunction with Article 218(9) TFEU, as legal 
basis. 

The Council adopted its Decision on 6 December 2010. The Council Decision was adopted on 
the  basis  of  Article  79  TFEU,  in  conjunction  with  Article  218(9)  TFEU.  The  Commission 
issued a Declaration in favour of Article 48 TFEU as the correct legal basis. The Commission 
recalled, in particular, that Article 48 TFEU allows for the extension of EU acquis in the field 
of  social  security  to  third  country  nationals  and  that  the  objectives  and  provisions  of  the 
Agreement  on  the  Free  Movement  of  Persons  aim at extending EU legislation, in particular 
provisions on the free movement of workers, to Swiss nationals in the EU. 

Article  79  TFEU  falls  under  Title  V  (area  of  freedom,  security  and  justice)  and  implies  the 
applicability of Protocols n° 21 and 22. As a consequence, the Council Decision did not bind 
the United Kingdom, Ireland or Denmark.  

Ireland and Denmark subsequently aligned themselves with the position of the Union, but not 
the  United  Kingdom.  The  representative  of  the EU  within  the  Joint  Committee  proposed  to 
Switzerland  the  adoption  of  the  draft  Joint  Committee  decision  on  the  basis  of  the  position 
taken  by  the  Council,  on  behalf  of  the  EU  and  of  its  Member  States,  including  Ireland  and 
Denmark  (which  had  aligned  themselves  with  the  position  of  the  Union),  but  with  the 

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exception of the United Kingdom. The United Kingdom presented its specific position on its 
own.  The  United  Kingdom  proposed,  more  concretely,  the  non-applicability  of  the  rules  on 
coordination  of  social  security  systems  to  those  economically  non-active  persons  who  are 
covered  under  the  EU  coordination  rules  since  the  entry  into  force  of  Regulation  No 
883/2004, in the relations between Switzerland and the United Kingdom. 

By  letter  dated  2  September  2011,  Switzerland  has  informed  the  representative  of  the  EU 
within the Joint Committee that the proposed Joint Committee decision and the proposal from 
the  United  Kingdom  are  not  acceptable  to  Switzerland  as  such.  First  of  all,  Switzerland 
regrets that the EU has not endorsed the text which had already been approved by the Swiss 
Government  in  March  2011.  This  text  corresponds  to  the  original  Commission  proposal. 
Secondly, Switzerland indicates that it could only accept any such reservation for the United 
Kingdom if further derogations were introduced as regards non-active persons which would 
be applicable in relation to all EU Member States. 

The Swiss refusal implies that a new Council Decision is necessary on the position to be taken 
by the EU within the Joint Committee for the revision of Annex II. This proposal for a new 
Council Decision is based on Article 48 TFEU, in conjunction with Article 218(9) TFEU, as 
the Commission remains convinced that this is the correct legal basis. Moreover, this proposal 
takes into account the text of the draft Joint Committee decision which had met the approval 
of  the  Swiss  Government  in  March  2011,  which  can  also  best  ensure  achievement  of  the 
objective of homogeneous and coherent application of the EU legislation on the coordination 
of social security systems in the relations between the EU and Switzerland. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

The updated version of Annex II of the attached proposal is the result of technical discussions 
involving  social  security  experts  in  particular  from  the  Swiss  social  security  administration 
and from the European Union. The result was submitted for information to the 318th meeting 
of  the  Administrative  Commission  for  the  Coordination  of  Social  Security  Systems  on  16 
December  2009,  where  delegations  welcomed  this  proposal.  Updating  Annex  II  of  the 
Agreement  will  simplify  and  modernise  coordination  of  social  security  systems  between 
Switzerland  and  EU  Member  States  by  introducing  in  particular  the  new  Regulation  No 
883/2004  as  amended  by  Regulation  No  988/2009  and  Regulation  No  987/2009.  This  will 
have  a  positive  impact  in  comparison  with  the  existing  legislation  and  will  improve 
administrative  procedures  for  all  users  of  the Regulations,  including  national  social  security 
authorities,  employers  (in  particular  small  and  medium-sized  businesses)  and  individual 
citizens.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

SECTION A: ACTS REFERRED TO 

With regard to Regulation No 883/2004, the reasons for the entries to the Annexes regarding 
Switzerland are as follows: 

–  With  regard  to  Annex  I  (I)  of  Regulation  No  883/2004  ('Advances  of  maintenance 
payments'),  Switzerland  avails  itself  of  the  opportunity  to  exempt  the  advances  of 
maintenance payments from the application of R 883/04 by making a special entry.  

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–  With regard to Annex I (II) of Regulation No 883/2004 ('special childbirth and adoption 
allowances'), there is no change in substance and this entry corresponds to the current entry 
in Annex II section II of Regulation 1408/71).  

–  With  regard  to  Annex  II  of  Regulation  No  883/2004  ('provisions  of  conventions  which 

remain in force…'): 

Those entries which correspond to Annex III, part  A  and part  B of Regulation 1408/71 and 
which  concern  the  payment  of  cash  benefits  to  persons  resident  in  a  third  country  are  not 
listed any more in this Annex. EU nationals residing in third country can rely on Article 4 of 
Regulation 883/2004 since this equal treatment clause does not refer any more to "residence 
in the EU" (which corresponds to Article 3 (1) modified by Regulation 647/2005). 

Switzerland will have to export pensions on the basis of Article 4 of Regulation No 883/2004 
(equality of treatment), since its national legislation guarantees the payment of Swiss pensions 
to Swiss nationals worldwide. 

There will be an improvement in rights for EU nationals who are currently not covered by a 
bilateral agreement, such as nationals of Estonia, Latvia, Lithuania, Hungary, Malta, Poland, 
Romania and Slovakia, since Switzerland will now have to export pensions to nationals of all 
EU Member States in third countries as Switzerland does for Swiss citizens. 

With regard to the entry concerning Germany-Switzerland, there are two conventions which 
are already listed in the current Annex III of Regulation No 1408/71:  

The convention under point a) offers non-active residents of Büsingen who are not otherwise 
insured  in  Germany  the  option  of  joining  the  Swiss  health  insurance  scheme  (point  i)  and 
facilitates  the  access  to  the  German  sickness  insurance  scheme  for  workers returning 
to Germany (point ii). 

The  convention  under  point  b)  concerns  unemployment  insurance  and  enables  frontier 
workers from Büsingen to receive, under certain conditions, unemployment benefits as if they 
were resident in Switzerland. Article 8(5) of this convention provides that Germany (district 
of Büsingen) shall contribute a sum equivalent to the cantonal contribution under Swiss law 
towards the cost of actual places on employment-promotion measures for workers subject to 
this provision.With regard to the entry concerning Spain-Switzerland, this corresponds to the 
current  entry  in  Annex  III  of  Regulation  No  1408/71.  The  entry  refers  to  the  Spanish 
'Convenio  especial',  i.e.  foreign  workers  returning  to  Spain  can  join  the  Spanish  sickness 
scheme  and  they  are  therefore  no  longer  obliged  to  be  insured  as  pensioners  under  Swiss 
sickness insurance. 

With  regard  to  the  entry  concerning  Italy-Switzerland,  this  concerns  the  aggregation  of 
periods  completed  in  third  countries,  and  it  enables  the  taking  into  account  of  insurance 
periods of Swiss or Italian citizens in third countries to fulfil the conditions for entitlement to 
Italian  pensions  (unilateral  provision).  This  entry  is  necessary  since  Switzerland  is  not  in  a 
position  to  apply  recommendation  P1  concerning  the  Gottardo  judgment  since  it  is  directly 
based on the TFEU (ex EC-Treaty). 

–  With regard to Annex III of Regulation No 883/2004 ('restriction of rights to benefits in 
kind  for  members  of  the  family  of  a  frontier  worker'),  there  is  no  entry  concerning 
Switzerland. 

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–  With  regard  to  Annex  IV  of  Regulation  No  883/2004  ('more  rights  for  pensioners 

returning to the competent member State'), Switzerland is added to this list. 

–  With  regard  to  Annexes  V,  VI  and  VII  of  Regulation  No  883/2004,  there  is  no  entry 

concerning Switzerland. 

–  With regard to Annex VIII, part 1 of Regulation No 883/2004 ('cases in which the pro 
rata calculation shall be waived pursuant to Art. 52 (4)'), Switzerland is listed with regard 
to  its  scheme  already  mentioned  under  Annex  IV  C  to  Regulation  1408/71,  i.e.  the 
calculation of pensions under the Swiss law in accordance with Art 52 (1) (a) results in a 
benefit equal to or higher than the pro rata benefit calculated in accordance with Art. 52 (1) 
(b).  

–  With regard to Annex VIII, part 2 of Regulation No 883/2004 ('cases in which Art. 52 
(5)  applies'),  the  Swiss  old-age,  survivors'  and  invalidity  pensions  under  the  statutory 
occupational benefit plans are listed. This scheme is currently listed under Annex IV C to 
Regulation 1408/71. This scheme is listed in part 2 of Annex VIII of Regulation 883/2004 
since its pensions are calculated out of accumulated and capitalised individual savings, i.e. 
periods of time are of no relevance to the calculation. 

–  With regard to Annex IX, part II of Regulation No 883/2004 ('benefits referred to in Art. 
54 (2) (b) of the Regulation, the amount of which is determined by reference to a credited 
period deemed to have been completed between the date on which the risk materialised and 
a  later  date'),  there  is  an  entry  concerning  the  Swiss  Survivors'  and  invalidity  pensions 
under the statutory occupational benefit plans. This entry corresponds to the current entry 
in Annex IV.D, part 2 of Regulation No 1408/71. 

–  With  regard  to  Annex  X  of  Regulation  No  883/2004  ('special  non-contributory  cash 
benefits'),  entries  n°  1,  2  and  3  correspond  to  the  current  Annex  IIa  entries.  However, 
taking into account that these entries were inserted before the stricter criteria under Annex 
IIa  of  Regulation  No  1408/71  were  introduced  by  Regulation  No  647/2005  (which 
correspond  to  the  criteria  of  Annex  X  of  Regulation  No  883/2004),  maintaining  the 
inscriptions into Annex X necessitates that these entries comply with the requirements set 
under Annex X. In this respect, these entries can be justified as follows:  

With  regard  to  entry  No  1  concerning  supplementary  benefits  (Federal  Supplementary 
Benefits Act of 19 March 1965) and similar benefits provided for under cantonal legislation: 

In  view  of  Regulation  No  883/2004,  the  Swiss  delegation  requested  keeping  in  the  list  of 
special non-contributory cash benefits the supplementary benefits as listed in current Annex 
IIa of Regulation 1408/71 giving the following justification: 

1. Description of the benefit 

Concerning  Federal  benefits,  these  benefits  are  granted  when  the  old-age,  invalidity  or 
survivors' pension does not cover basic needs. The conditions of granting the benefits are as 
follows. The claimant must: 

–  be under the minimum income established to cover basic needs (accommodation, 

health insurance, food); 

–  be entitled to an old-age, invalidity or survivors' pension; 

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–  be domiciled and resident in Switzerland. 

Benefits amount to the difference between the minimum set-out income and the person’s real 
income (pensions, income of partner, assets). The benefits are financed exclusively by general 
taxes of the Confederation and the cantons. 

Current amounts set out for the minimum income: 

–  single: CHF 18.720/year 

–  couple: CHF 28.080/year 

Concerning  cantonal  benefits,  the  cantons  may  grant  similar  additional  supplementary 
benefits 
the  federal 
supplementary benefits.  

invalidity  or  survivors'  pension 

that  complement 

to  old-age, 

Currently  eight  cantons  have  such  a  parallel  system  of  supplementary  benefits  to  old-age, 
invalidity  or  survivors'  pension.  As  a  rule,  the  person  must  receive  federal  a  supplementary 
benefits to be entitled to cantonal benefits. 

2. Qualification as special non-contributory benefit 

The  federal  and  cantonal  supplementary  benefits  meet  all  the  necessary  criteria  to  be 
considered special non-contributory benefits under Article 70 (2) of Regulation No 883/2004, 
taking  into  account  all  the  relevant  case  law  of  the  European  Court  of  Justice  concerning 
special non-contributory benefits: 

(a) 

They  are  special  (mixed-type)  benefits:  On  the  one  hand,  they  have  social  security 
characteristics  as  the  persons  concerned  have  a  clearly  defined  legal  entitlement  to 
them.  They  are  intended  to  supplement  pensions  in  order  to  guarantee  a  minimum 
subsistence income and are therefore linked to basic pensions and the risks of old age 
or invalidity. On the other hand, they have characteristics of social assistance as they 
are only granted to pensioners whose total income does not reach the minimum set 
out  by  the  legislation.  It  is  closely  linked  to  the  socio-economic  situation  in 
Switzerland  since  it  corresponds  to  minimum  basic  needs  in  Switzerland.  They  do 
not depend on periods of work or contributions; 

(b) 

They are non-contributory: they are exclusively financed by taxes and do not depend 
on any contributions. 

With  regard  to  entry  No  2  concerning  pensions  in  the  case  of  hardship  under  invalidity 
insurance  (Article  28  subparagraph  1a  of  the  Federal  Invalidity  Insurance  Act  of  19  June 
1959, as amended on 7 October 1994), the Swiss delegation requested that this entry be kept 
as listed in current Annex IIa of Regulation No 1408/7 for the following reasons: 

1. Description of the benefit 

The hardship pension was abolished as of 1 January 2004. It was replaced by supplementary 
benefits but it is still granted in some cases on the basis of transitory rules (circa 500 current 
beneficiaries) and has therefore to be listed in Annex X of Regulation No 883/04.  

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The hardship pension is a supplementary amount granted to persons entitled to a quarter of an 
invalidity  pension  (invalidity  degree  between  40%  and  49%)  whose  personal  situation  is 
difficult  and  does  not  allow  a  decent  minimum  subsistence  income  ('hardship  cases').  The 
hardship supplement  corresponds  to  a quarter  of a pension. As a result, the beneficiary will 
get the equivalent of a half-pension. The hardship pension is only paid in Switzerland. 

The conditions for granting the benefits are as follows. Claimants must: 

–  be entitled to an invalidity pension; 

–  lack of sufficient means; 

–  be domiciled and resident in Switzerland. 

2. Qualification as special non-contributory benefit 

The invalidity pension in the case of hardship meet all the necessary criteria to be considered 
a special non-contributory benefit under Article 70 (2) of Regulation No 883/2004, taking into 
account  all  the  relevant  case  law  of  the  European  Court  of  Justice  concerning  special  non-
contributory  benefits,  reference  is  made  to  the  ECJ  judgment  of  29  April  2004  in  case  C-
160/02, Skalka: 

(a) 

It  is  a  special  (mixed-type)  benefit:  On  the  one  hand,  it  has  social  security 
characteristics as the persons concerned have a clearly defined legal entitlement to it. 
Its purpose is to supplement ordinary pensions to guarantee a minimum subsistence 
income.  It  is  linked  to  basic  invalidity  pensions  and  the  risk  of  invalidity.  On  the 
other  hand,  it  has  characteristics  of  social  assistance  as  it  is  only  granted  to 
pensioners in difficult economic situation. It is closely linked to the socio-economic 
situation in Switzerland since its amount is based on the ordinary pension. They are 
not based on periods of work or contributions; 

(b) 

The benefit is of a non-contributory nature, since it is financed by taxes and does not 
depend on contributions. 

With  regard  to  entry  No  3  concerning  non-contributory  mixed  benefits  in  the  event  of 
unemployment, as provided for under cantonal legislation, because of the following reasons: 

1. Description of the benefit 

Eight  cantons  have  introduced  such  allowances:  Basel-Stadt,  Geneva,  Jura,  Neuchâtel, 
Schaffhausen,  Tessin,  Uri,  Zug.  These  benefits  are  granted  to  jobseekers  whose  rights  to 
federal unemployment benefits have ceased, in order to reintegrate them in employment and 
avoid social assistance and social exclusion. 

The conditions for entitlement are that claimants must:  

–  be under a minimum income established by the canton; 

–  have no further entitlement to federal unemployment benefits; 

–  seek a job and make themselves available for work; 

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–  be domiciled and resident in the canton. 

The  types  of  the  benefits  are:  daily  allowances  and/or  indemnities  for  various  reintegration 
measures (training courses, etc.). 

They are financed exclusively by taxes. 

2. Qualification as special non-contributory benefit 

These  cantonal  supports  for  job-seekers  meet  all  the  necessary  criteria  to  be  qualified  as 
special non-contributory benefits according to Article 70 (2) of Regulation 883/2004, taking 
into  account  all  relevant  jurisprudence  of  the  European  Court  of  Justice  concerning  special 
non-contributory benefits: 

(a) 

They  are  special  (mixed-type)  benefits:  On  the  one  hand,  they  have  social  security 
characteristics  as  the  persons  concerned  have  a  clearly  defined  legal  entitlement  to 
them.  They  are  intended  to  complement  federal  unemployment  benefits  in  order  to 
guarantee a minimum income and are clearly linked to the risk of unemployment. On 
the other hand, they have characteristics of social assistance as they are only granted 
to  job-seekers  whose  total  income  does  not  reach  the  minimum  set  out  by  the 
legislation.  They  are  closely  linked  to  the  socio-economic  situation  in  Switzerland 
since they refer to minimum income in the canton of residence and are related to the 
local labour market. They do not depend on periods of contributions; 

(b) 

They are non-contributory: they are exclusively financed by taxes and do not depend 
on any contributions. 

With regard to entry No 4 concerning non-contributory extraordinary invalidity pensions for 
young  disabled  people  (Art.  39  of  the  Federal  Invalidity  Insurance  Act  of  19  June  1959), 
Switzerland justified the entry as follows:  

In view of Regulation No 883/2004, which will also apply to non active persons, the Swiss 
delegation requested the inclusion of extraordinary pensions for non active disabled persons 
in the list of special non-contributory cash benefits because of the following justification: 

1. Description of the benefit 

To  be  entitled  to  a  regular  Swiss  invalidity  pension,  insured  persons  must  have  paid 
contributions during at least three years at the time of incapacity for work (invalidity). Persons 
disabled  since  birth  or  childhood  cannot  fulfil  this  condition  as  they  are  incapable  for  work 
before reaching the age from which contributions are levied.  

These  persons  are  entitled  to  a  special  benefit  corresponding  to  the  amount  of  the  minimal 
regular invalidity pension. The benefit is granted to persons over the age of 18 years and as 
long as they live in Switzerland. 

As  this  benefit  is  not  calculated  on  the  basis  of  contributions,  it  is  called  the  'extraordinary 
invalidity pension'. 

2. Qualification as special non-contributory benefit 

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The extraordinary invalidity pension meets all the necessary criteria to be considered a special 
non-contributory  benefit  according  to  Article  4  (2a)  of  Regulation  No  1408/71,  taking  into 
account  all  the  relevant  case  law  of  the  European  Court  of  Justice  concerning  special  non-
contributory cash benefits: 

(a) 

(b) 

It  is  a  hybrid  (mixed-type)  benefit:  On  the  one  hand,  it  possesses  social  security 
characteristics as the persons concerned have a clearly defined legal entitlement to it 
and it covers the risk of invalidity. On the other hand, it is close to social assistance 
in  the  sense  that  it  is  not  dependent  on  periods  of  work  or  contributions  and  it  is 
intended to relieve need by guaranteeing a minimum subsistence income to a socially 
disadvantaged group (disabled young people); 

It  is  a  special  benefit:  It  is  a  replacement  allowance  intended  for  those  who  do  not 
satisfy  the  conditions  of  insurance  for  obtaining  a  regular  invalidity  pension.  It  is 
closely linked to the socio-economic situation in Switzerland since it corresponds to 
the minimum pension in Switzerland; 

(c) 

It is  non-contributory: It is not financed by contributions. The Federal Government 
bears the entire costs of this benefit. 

In  case  C-154/05  Kersbergen-Lap  and  Dams-Schipper  the  European  Court  of  Justice  (ECJ) 
considered  the  Dutch  Wajong  benefit  to  be  a special non-contributory benefit. The ECJ has 
confirmed  this  judgment  in  case  C-287/05  Hendrix.  Like  the  Swiss  extraordinary  invalidity 
pension, the Dutch Wajong provides for the payment of a benefit to young persons who are 
suffering from long-term incapacity for work but do not meet the conditions for obtaining a 
regular invalidity pension.  

In  order  not  to  create  a  less  favourable  situation  compared  to  the  status  quo,  the  entry 
proposed by Switzerland shall be limited to persons who have not been subject, before their 
incapacity for work, to the Swiss legislation on the basis of an activity as an employed (e.g. as 
an apprentice) or self-employed person. 

–  With  regard  to  Annex  XI  of  Regulation  No  883/2004  ('special  provisions  for  the 

application of the legislation of the member States'): 

–  With regard to entries No 1 and 2, Switzerland justified its proposals as follows: 

Switzerland  proposes  to  maintain  the  two  entries  in  Annex  VI  of  Regulation  1408/71 
concerning the admission to the Swiss voluntary pension insurance (point 1) and the optional 
continued insurance (point 2) for persons living outside of the territorial scope of the Swiss-
EU Agreement on Free Movement of Persons. These entries shall be inserted into Annex XI 
of Regulation 883/2004. Reason for these entries: 

Concerning entry No1 (Voluntary insurance): 

Nationals of Switzerland and the EU Member States can apply, optionally, for membership of 
the Swiss old-age, survivors' and invalidity insurance schemes. 

As  the  voluntary  insurance  is  partly  financed  by  Swiss  State  revenues,  only  persons  with  a 
close  link  to  Switzerland  are  allowed  to  become  members  of  this  insurance  scheme. 
Therefore,  they  must  have  been  insured  for  five  years  in  the  Swiss  old  age,  survivors'  and 
invalidity insurance before asking for membership. This requirement applies equally to Swiss 

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and EU nationals residing outside of the territorial scope of the Agreement on Free Movement 
of Persons. 

Concerning entry No 2 (Continued insurance when working for a Swiss employer abroad): 

Persons  working  for  a  Swiss  employer  abroad may  continue  paying  insurance  contributions 
under  the  old-age,  survivors'  and  invalidity  schemes.  However,  the  employer,  who  will  pay 
half of the contributions, must agree to the arrangement. As the continued insurance is partly 
financed by Swiss State revenues, only persons with a close link to Switzerland are allowed to 
become members of this insurance scheme. Therefore, they must have been insured for five 
years in the Swiss old age, survivors' and invalidity insurance before asking for membership. 
This requirement applies equally to Swiss and EU nationals residing outside of the territorial 
scope of the Agreement on Free Movement of Persons. 

Concerning  entry  No  3,  this  corresponds  to  the  existing  entry  No  3  in  Annex  VI  of 
Regulation  No  1408/71.  This  option  right  gives  more  rights  to  migrant  workers  and  their 
family  members.  This  right  has  been  asked  for  by  migrant  workers  since  they  can  avoid 
paying  higher  health  care  contributions  in  Switzerland  than  they  would  in  their  respective 
Member State. 

Concerning  entry  No  4,  Switzerland  proposes  to  maintain  this  entry,  which  corresponds  to 
point 3a of Annex VI of Regulation No 1408/71 regarding non-occupational accidents. This 
entry shall be inserted into Annex XI of Regulation No 883/2004. 

Persons working in Switzerland and living in Austria, Germany, France or Italy are allowed to 
choose  to  be  insured  against  sickness  in  their  State  of  residence  rather  than  in  Switzerland 
(opting out; point 3(b) of Annex VI, Switzerland, of Regulation No 1408/71). 

In such cases, simultaneous responsibility might arise in case of non-work related accidents 
between the Swiss accident insurance institution and the sickness insurance institution of the 
State  of  residence.  In  fact,  non-occupational  accidents  are  treated  as  occupational  accidents 
and industrial diseases under the Swiss legislation while they are treated as sickness benefits 
in kind under the legislation of the EU Member States concerned.  

A clear provision on the distribution of costs is necessary.  

Concerning  entry  No  5,  this  corresponds  to  the  existing  entry  No  3b  of  Annex  VI  of 
Regulation  No  1408/71.  It  concerns  the  situation  when  a  person  who  works  in  Switzerland 
and resides in another Member State has opted to be insured in the country of residence. In 
this situation, this entry ensures that Article 19 of Regulation No 883/2004 applies so that the 
person  concerned  receives  medically  necessary  care  during  a  stay  in  (non-financially 
competent) Switzerland.  

The wording has been improved in order to ensure that family members are covered as well. 

Entries No 4 and 6 of Annex VI of Regulation 1408/71 are no longer necessary since these 
situations are covered by Articles 18 and 27(2) of Regulation No 883/2004. 

With  regard  to  entry  No  6,  this  corresponds  to  the  current  entry  No  5  of  Annex  VI  of 
Regulation  No  1408/71.  It  stipulates  in  accordance  with  Article  62  (1)  of  the  new 
Implementing  Regulation  No  987/2009  that  the  competent  institution  will  reimburse  the 
institution that provided benefits in Switzerland the actual amount shown in that institution's 

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accounts.  This  is  also  applicable  to  benefits  provided  in  Switzerland  to  persons  who  have 
opted to be insured in the country of residence according to entry No 3 (a) of Annex XI. 

Concerning entry No 7, this corresponds to the current entry No 7 of Annex VI of Regulation 
No  1408/71  and  Switzerland  proposes  to  maintain  point  7  of  Annex  VI  of  Regulation  No 
1408/71 regarding sickness benefits in cash.  

In Switzerland, insurance for sickness benefits in cash is optional. Everybody who is insured 
in Switzerland for sickness benefits in kind is entitled to join this additional insurance scheme.  

Insured persons are free to change their insurance company at any time. In this case, the new 
insurer is allowed to exclude payment for risks and diseases which already existed before the 
person joined. 

However,  if  the  person  concerned  was  obliges  to  change  the  insurer  because  he  or  she  had 
taken  up  a  new  employment  or  had  moved  to  a  place  where  the  previous  insurer  does  not 
operate, he or she must be accepted by the new insurer without any further restriction. In such 
cases, the previous insurer must issue a certificate showing that the change of institution was 
involuntary. The new insurer is bound by this document which is valid for a period of three 
months. Until the previous insurer has not delivered the certificate to the insured person, he 
remains responsible for any benefits in cash not covered by the new insurer. 

If a person was previously insured by an institution in an EU Member State, he or she cannot 
obtain  a  certificate  proving  that  the  conditions  for  admittance  without  reserve  are  met.  In 
order to protect such persons, previous periods of health insurance in another Member State 
are taken into account and the exclusion of coverage for pre-existing diseases or risks does not 
apply.  As  within  Switzerland,  the  change  of  institution  must  be  concluded  within  three 
months. 

Point  8  of  Annex  VI  of  Regulation  No  1408/71  is  not  being  taken  over  into  Annex  XI  of 
Regulation  No  883/2004.  In  Switzerland,  invalidity  insurance  cover  depends  on  either 
residence or gainful activity in Switzerland. Persons living outside Switzerland (e.g. frontier 
workers),  who  give  up  their  gainful  activity  due  to  an  illness  or  an  accident,  are  no  longer 
insured  and  cannot  pay  contributions.  If  such  persons  have  worked  in  Switzerland  for  less 
than a year, they are not entitled to an invalidity pension, as they do not fulfil the minimum 
period of contribution. Until the end of 2007, the minimum contribution period was of only 
one  year.  In  order  to  allow  former  frontier  workers  to  complete  this  minimum  period  of 
contribution,  point  8  of  Annex  VI  obliges  them  to  pay  contributions  to  the  Swiss  pension 
insurance scheme for one year from the beginning of incapacity for work, as long as they are 
not subject to the legislation of another Member State on the grounds of a new activity. 

On 1 January 2008 the minimum contribution period for Swiss invalidity pensions was raised 
to three years. Now this entry is superfluous: Keeping a person insured and forcing him/her to 
pay  contributions  is  no  longer  justified  since  this  supplementary  year  would  in  many  cases 
have no impact on the entitlement and it is incompatible with the competence rules laid down 
in Annex II of Regulation No 883/2004. 

Concerning entry No 8, this entry corresponds to entry No 9 of Annex VI of Regulation No 
1408/71 and the reasons for this entry are as follows: According to Swiss invalidity insurance 
legislation,  rehabilitation  measures  are  only  granted  as  long  as  the  person  concerned  is 
insured. The  insurance  cover  depends on either  residence or gainful activity in Switzerland. 

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Persons living outside Switzerland (e.g. frontier workers), who give up their gainful activity 
due to an illness or an accident, are no longer insured. The entry in Annex XI guarantees that 
these persons can still benefit from rehabilitation measures, although Switzerland has ceased 
to  be  the  competent  State.  It  concerns  mostly  professional  training  measures,  intended  to 
integrate the person back to work. The continuation of the insurance throughout the duration 
of the measures can also enable the person concerned to reach the minimum insurance period 
for an invalidity pension, if necessary.  

The existing entry has been modified since the situations to which this provision applies have 
to be more precisely defined. It will only cover the period immediately after the termination 
of  employment  in  Switzerland,  therefore  the  wording  'until  the  payment  of  an  invalidity 
pension' has been inserted, so pensioners shall not be entitled to these benefits. 

With  regard  to  the  application  of  Regulation  No  987/2009,  the  entries  to  the  Annexes 
regarding Switzerland are justified as follows: 

–  With  regard  to  Annex  1  of  Regulation  No  987/2009  ('implementing  provisions  for 
bilateral  agreements…'),  bilateral  arrangements  with  France  and  Italy  fixing  special 
procedures for the reimbursement of health care benefits are listed; 

–  With  regard  to  Annexes  3  and  5  of  Regulation  No  987/2009,  there  are  no  entries 

concerning Switzerland. 

SECTION B: ACTS  OF  WHICH  THE  CONTRACTING  PARTIES  SHALL  TAKE 
DUE ACCOUNT 

This section contains the new set of Decisions taken by the Administrative Commission for 
the Coordination of Social Security Systems. 

SECTION C: ACTS  OF  WHICH  THE  CONTRACTING  PARTIES  SHALL  TAKE 
NOTE 

This section contains the set of Recommendations taken by the Administrative Commission 
for the Coordination of Social Security Systems.  

PROTOCOL 

With regard to the Protocol to Annex II, it deals with 3 issues: 

First,  with  regard  to  the  unemployment  insurance  concerning  workers  holding  a  Swiss 
residence permit for a period of less than one year, this point has been updated in relation to 
EU-8 and EU-2 nationals, to which the current system of refunding continues applying. This 
system of refunding shall apply with regard to EU-8 nationals until 30 April 2011, see current 
point 4 of the Protocol to Annex II of the EU-Switzerland Agreement, and with regard to EU-
2 nationals until 31 May 2016, see point 5 of Annex II of the Protocol to the EU-Switzerland 
Agreement regarding the participation of Bulgaria and Romania.  

Second, concerning the Swiss allowances for helpless persons (Federal Act of 19 June 1959 
on invalidity insurance (LAI) and Federal Act of 20 December 1946 on old-age and survivors' 
pensions  (LAVS)  as  amended  on  8  October  1999),  these  benefits  cannot  be  listed  under 
Annex X of Regulation No 883/2004 since they do not fulfil the more restrictive conditions as 
set out since Regulation No 647/2005. However, taking into account that it was agreed several 

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years before the entry into force of Regulation No 647/2005 to list this benefit under Annex 
IIa  of  Regulation  No  1408/71,  taking  into  account  that  Switzerland  demands  the  status  quo 
concerning  this  benefit  by  reference  to  the  static  nature  of  the  Agreement,  and  taking  into 
account that Switzerland accepts, in general, the stricter requirements concerning Annex X of 
Regulation No 883/2004, the non-exportation of this benefit is being dealt with as a separate 
point in the Protocol to this Agreement.  

Third,  with  regard  to  the  entry  on  the  benefits  under  the  Occupational  benefit  plans 
concerning  old-age,  survivors'  and  invalidity  pensions:  this  transitory  regulation  was 
terminated on 31 May 2007, five years after the entry into force of the Agreement. However, 
it is possible that there are old cases covered by this regulation (persons who left Switzerland 
before 31 May  2007 but  did not  yet apply for the benefit), and for this  reason, this entry is 
maintained. 

In this context, Article 3 (1) has been adapted ('nationals of certain Member States') since the 
transitory  arrangements  relating  to  unemployment  insurance  for  persons  holding  a  Swiss 
residence  permit  valid  for  less  than  one  year  apply  only  for  nationals  of  EU  8  and  EU  2 
Member States; see the enlargement Protocols: Protocol of 26 October 2004 to the Agreement 
(OJ L 89, 28.3.2006, p. 30) and Protocol of 27 May 2008 (JO L 124, 20.5.2009, p. 53).  

Article 3 (1) has also been adapted for the purpose of completion by introducing a reference 
to  the  Protocol  to  the  points  already  mentioned  in  this  Protocol  regarding  Swiss  allowances 
for helpless persons and regarding benefits under the Occupational benefit plans. 

4. 

BUDGETARY IMPLICATION 

The proposal does not have implications for the EU budget. 

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2011/0291 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken by the European Union in 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 as 
regards the replacement of Annex II to that Agreement on the co-ordination of social 
security schemes 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 48, in conjunction with Article 218(9) thereof, 

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 European Commission, 

Whereas: 

(1) 

(2) 

(3) 

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') entered into force on 1 June 2002. 

Article  18  of  the  Agreement  provides  that  the  Joint  Committee  may,  by  decision, 
adopt amendments to the Agreement, inter alia to Annex II to the Agreement, dealing 
with the co-ordination of social security schemes. 

In order to preserve a coherent and correct application of EU legislation and to avoid 
administrative and possibly legal difficulties, Annex II to the Agreement needs to be 
amended  to  integrate  new  legal  acts  of  the  Union  to  which  the  Agreement  does  not 
currently refer. 

(4) 

In  the  interests  of  clarity  and  rationality,  Annex  II  and  the  Protocol  to  that  Annex 
should be codified,  

1 

OJ L 114, 30.4.2002, p. 1. 

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HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken by the Union in the Joint Committee established under Article 14 of 
the Agreement of 21 June 1999 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 shall 
be based on the draft decision of the Joint Committee set out in Annex I to this Decision. 

Article 2 

The Declaration set out in Annex II to this Decision is approved and shall be made on behalf 
of the Union in the Joint Committee when the Joint Committee adopts its decision referred to 
in Article 1. 

Done at Brussels, 

For the Council 
The President 

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ANNEX I 

Draft 

DECISION No …/… 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 

of …….. 

replacing Annex II to that Agreement on the co-ordination of social security schemes 

THE JOINT COMMITTEE, 

Having regard to the Agreement of 21 June 1999 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’), and in particular Article 18 
thereof, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The Agreement was signed on 21 June 1999 and entered into force on 1 June 2002. 

Annex II to the Agreement on the co-ordination of social security schemes should be 
updated  to  take  account  of  new  legal  acts  of  the  European  Union,  in  particular 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 
April 2004 on the coordination of social security systems2 and the measures adopted 
to implement that regulation. 

Regulation  (EC)  No  883/2004  has  replaced  Council  Regulation  (EEC)  No  1408/71 
of 14 June 1971 on the application of social security schemes to employed persons, 
to  self-employed  persons  and  to  members  of  their  families  moving  within 
the Community3.  

In  the  interests  of  clarity  and  rationality,  Annex  II  and  the  Protocol  to  that  Annex 
should be consolidated in a legally binding version. 

Annex  II  to  the  Agreement  should  be  maintained  in  line  with  the  evolution  of  the 
relevant legal acts of the European Union.  

HAS ADOPTED THIS DECISION: 

2 
3 

OJ L 166, 30.4.2004, p. 1. 
OJ L 149, 5.7.1971, p. 2. 

EN 

Article 1 

15 

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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 
(hereinafter referred to as "the Agreement") is replaced by the Annex to this Decision. 

Article 2 

This  Decision  is  established  in  the  Bulgarian,  Czech,  Danish,  Dutch,  English,  Estonian, 
Finnish,  French,  German,  Greek,  Hungarian,  Italian,  Latvian,  Lithuanian,  Maltese,  Polish, 
Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each 
of these languages being equally authentic. 

The Decision shall enter into force on the day following the day of its adoption. 

Article 3 

Done at …, …. 

For the Joint Committee 

The Chairman 

The Secretaries 

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ANNEX 

'ANNEX II 

Co-ordination of social security schemes 

Article 1 

(1) 

(2) 

(1) 

(2) 

(1) 

The  contracting  parties  agree,  with  regard  to  the  coordination  of  social  security 
schemes,  to  apply  among  themselves  the  acts  of  the  European  Union  to  which 
reference is made in, and as amended by, section A of this Annex, or rules equivalent 
to such acts. 

The  term  'Member  State(s)'  contained  in  the  acts  referred  to  in  section  A  of  this 
Annex  shall  be  understood to include Switzerland in addition  to the States  covered 
by the relevant acts of the European Union. 

Article 2 

For  the  purposes  of  applying  the  provisions  of  this  Annex,  the  contracting  parties 
shall take into due account the acts of the European Union referred to in section B of 
this Annex. 

For  the  purposes  of  applying  the  provisions  of  this  Annex,  the  contracting  parties 
shall  take  note  of  the  acts  of  the  European  Union  referred  to  in  section  C  of  this 
Annex. 

Article 3 

Special provisions concerning the transitory arrangements relating to unemployment 
insurance  for  nationals  of  certain  EU  Member  States  holding  a  Swiss  residence 
permit  valid  for  less  than  one  year,  concerning  the  Swiss  allowances  for  helpless 
persons and concerning benefits under the occupational benefit plans regarding old-
age, survivors' and invalidity pensions are set out in the Protocol to this Annex. 

(2) 

The Protocol forms an integral part of this Annex. 

SECTION A: ACTS REFERRED TO 

1. 

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 
April 2004 on the coordination of social security systems4 (OJ L 166, 30.4.2004), as 
amended  by  Regulation  (EC)  No 988/2009  of  the  European  Parliament  and  of  the 
Council  of  16 September  2009  amending  Regulation  (EC)  No 883/2004  on  the 
coordination of social security systems, and determining the content of its Annexes5  

For  the  purposes  of  this  Agreement,  Regulation  (EC)  No  883/2004  shall  be  adapted  as 
follows: 

4 
5 

OJ L 166, 30.4.2004, p.1. 
OJ L 284, 30.10.2009, p. 43. 

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a) 

The following shall be added to Annex I, section I  

'Switzerland 

Cantonal legislation concerning the advances of maintenance payments based on Articles 131 
par. 2 and 293 par. 2 of the Federal Civil Act.' 

b) 

The following shall be added to Annex I, section II 

'Switzerland 

Birth grants and adoption grants pursuant to the relevant cantonal legislation based on article 
3 par. 2 of the Federal Family Allowances Act.' 

c) 

The following shall be added to Annex II 

'Germany-Switzerland 

Convention  on  social  security  of  25  February  1964,  as  amended  by  Complementary 

a) 
Conventions No 1 of 9 September 1975 and No 2 of 2 March 1989: 

i) 
point 9b, paragraph 1, Nos 1-4 of the Final Protocol (legislation applicable and 
entitlement  to  sickness  benefits  in  kind  for  residents  of  the  German  exclave  of 
Büsingen); 

ii) 
point  9e,  paragraph  1(b),  first,  second  and  fourth  sentences,  of  the  Final 
Protocol  (access  to  voluntary  sickness  insurance  in  Germany  by  relocation  in 
Germany). 

Convention  on  unemployment  insurance  of  20  October  1982,  as  amended  by  the 

b) 
Additional Protocol of 22 December 1992: 

i) 
Article 8(5), Germany (district of Büsingen) shall contribute a sum equivalent 
to  the  cantonal  contribution  under  Swiss  law  towards  the  cost  of  actual  places  on 
employment-promotion measures for workers subject to this provision. 

Spain-Switzerland 

Point  17  of  the  Final  Protocol  to  the  Convention  on  social  security  of  13  October  1969,  as 
amended  by  the  Complementary  Convention  of  11  June  1982;  persons  insured  under  the 
Spanish  scheme  by  virtue  of  this  provision  are  exempted  from  the  requirement  to  join  the 
Swiss sickness insurance scheme. 

Italy-Switzerland 

Article  9(1)  of  the  Convention  on  social  security  of  14  December  1962,  as  amended  by 
Complementary Convention No 1 of 18 December 1963, the Complementary Agreement of 4 
July 1969, the Additional Protocol of 25 February 1974 and Complementary Agreement No 2 
of 2 April 1980.’ 

d) 

The following shall be added to Annex IV 

'Switzerland' 

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e) 

The following shall be added to Annex VIII, part 1 

'Switzerland 

All  claims  for  old-age,  survivors'  and  invalidity  pensions  under  the  basic  scheme  (Federal 
Law  on  old-age  and  survivors’  insurance  and  Federal  Law  on  invalidity  insurance)  and 
statutory  old-age  pensions  under  the  statutory  occupational  benefit  plans  (Federal  Law  on 
occupational benefits plans for old-age, survivors' and invalidity insurance).' 

f) 

The following shall be added to Annex VIII, part 2 

'Switzerland 

Old-age,  survivors'  and  invalidity  pensions  under  the  statutory  occupational  benefit  plans 
(Federal Law on occupational benefits plans for old-age, survivors' and invalidity insurance).' 

g) 

The following shall be added to Annex IX, part II 

'Switzerland 

Survivors' and invalidity pensions under the statutory occupational benefit plans (Federal Law 
on occupational benefits plans for old-age, survivors' and invalidity insurance).' 

h) 

The following shall be added to Annex X 

'1.  Supplementary  benefits  (Federal  Supplementary  Benefits  Act  of  19  March  1965)  and 
similar benefits provided for under cantonal legislation. 

2. Pensions in the case of hardship under invalidity insurance (Article 28 subparagraph 1a of 
the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994). 

3.  Non-contributory  mixed  benefits  in  the  event  of  unemployment,  as  provided  for  under 
cantonal legislation. 

4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the 
Federal  Invalidity  Insurance  Act  of  19  June  1959)  who  have  not  been  subject,  before  their 
incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-
employed person.' 

i) 

The following shall be added to Annex XI 

'Switzerland 

1. 

Article 2 of the Federal Old-Age and Survivors' Insurance Act and Article 1 of the 
Federal  Invalidity  Insurance  Act,  which  govern  voluntary  insurance  in  these 
insurance  branches  for  Swiss  nationals  resident  in  States  not  subject  to  this 
Agreement,  shall  be  applicable  to  persons  resident  outside  Switzerland  who  are 
nationals  of  the  other  States  to  which  this  Agreement  applies,  and  to  refugees  and 
stateless persons resident in the territory of these States, where these persons join the 
voluntary  insurance  scheme  not  later  than  one  year  after  the  date  on  which  they 
ceased  to  be  covered  by  old-age,  survivors'  and  invalidity  insurance  after  a 
continuous period of insurance of at least five years. 

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2. 

Where a person  ceases  to be insured under Swiss old-age, survivors'  and invalidity 
insurance  after  a  continuous  period  of  insurance  of  at  least  five  years,  he  shall 
continue to be entitled to be insured with the agreement of the employer if he works 
in  a  State  to  which  this  Agreement  does  not  apply  for  an  employer  in  Switzerland 
and if he submits an application to this effect within six months of the date on which 
he ceases to be insured. 

3. 

Compulsory insurance under Swiss sickness insurance and possible exemptions 

(a)  The  Swiss  legal  provisions  governing  compulsory  sickness  insurance  shall 

apply to the following persons not resident in Switzerland:  

(i) 

persons subject to Swiss legal provisions under Title II of the Regulation; 

(ii)  persons for whom Switzerland shall bear the costs of benefits according 

to Articles 24, 25, 26 of the Regulation;  

(iii)  persons receiving Swiss unemployment insurance benefits; 

(iv)  family members of persons referred to in (i) and (iii) or of an employed 
or self-employed person resident in Switzerland who is insured under the 
Swiss  sickness  insurance  scheme,  unless  these  family  members  are 
resident  in  one  of  the  following  States:  Denmark,  Spain,  Hungary, 
Portugal, Sweden or the United Kingdom; 

(v) 

family members of persons referred to in (ii) or of a pensioner resident in 
Switzerland  who  is  insured  under  the  Swiss  sickness  insurance  scheme, 
unless these family members are resident in one of the following States: 
Denmark, Portugal, Sweden or the United Kingdom. 

As family members are considered those persons who are defined as family members 
according to the legislation of the state of residence. 

(b)  Persons  referred  to  in  (a)  may,  on  request,  be  exempted  from  compulsory 
insurance if and as long as they are resident in one of the following States and 
can  prove  that  they  are  eligible  for  cover  in  the  event  of  sickness:  Germany, 
France, Italy, Austria, and, with regard to persons referred to in (a) (iv) and (v), 
Finland and, with regard to persons referred to in (a)(ii), Portugal. 

This request 

(aa)  must  be  submitted  within  three  months  of  the  date  on  which  the 
obligation to take out insurance in Switzerland comes into effect; where, 
in  justified  cases,  the  request  is  submitted  after  this  deadline,  the 
exemption shall take effect as from the commencement of the insurance 
obligation; 

(bb)  shall apply to all family members residing in the same state. 

4. 

Where a person subject to Swiss legal provisions under Title II of the Regulation is, 
in  application  of  3(b),  subject  for  the  purposes  of  sickness  insurance  to  the  legal 
provisions of another State covered by this Agreement, the costs of these benefits in 

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20 

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kind  for  non-occupational  accidents  shall  be  shared  equally  between  the  Swiss 
insurer  against  occupational  and  non-occupational  accidents  and  industrial  diseases 
and the competent sickness insurance institution if an entitlement exists to benefits in 
kind from both bodies. The Swiss insurer against occupational and non-occupational 
accidents  and  industrial  diseases  shall  meet  all  costs  in  the  event  of  occupational 
accidents, accidents on the way to work or industrial diseases, even where there is an 
entitlement to benefits from a sickness insurance body in the country of residence. 

Persons  who  are  working,  but  not  residing  in  Switzerland  and  who  have  statutory 
insurance cover in their State of residence in accordance with point 3(b), as well as 
their  family  members,  shall  benefit  from  the  provisions  of  Article  19  of  the 
Regulation during a stay in Switzerland. 

For the purposes of applying Articles 18, 19, 20, 27 of the Regulation in Switzerland, 
the competent insurer shall bear all invoiced costs. 

Periods  of  daily  allowance  insurance  completed  under  the  insurance  scheme  of 
another  State  to  which  this  Agreement  applies  shall  be  taken  into  account  for 
reducing  or  lifting  a  possible  reserve  in  daily  allowance  insurance  in  the  event  of 
maternity or sickness where the person becomes insured with a Swiss insurer within 
three months of ceasing to be covered by insurance in another country. 

Where  a  person  who  was  gainfully  employed  or  self-employed  in  Switzerland  and 
covering his vital needs has had to cease his activity owing to an accident or illness 
and  is  no  longer  subject  to  Swiss  legislation  on  invalidity  insurance,  he  shall  be 
considered  to  be  covered  by  that  insurance  for  the  purpose  of  eligibility  for 
rehabilitation measures until the payment of an invalidity pension and throughout the 
period during which he benefits from these measures, provided that he has not taken 
up a new activity outside Switzerland.’ 

Regulation  (EC)  No 987/2009  of  the  European  Parliament  and  of  the  Council  of 
16 September  2009  laying  down  the  procedure  for  implementing  Regulation  (EC) 
No 883/2004 on the coordination of social security systems6  

5. 

6. 

7. 

8. 

2. 

For  the  purposes  of  this  Agreement,  Regulation  (EC)  No  987/2009  shall  be  adapted  as 
follows: 

a) 

The following shall be added to Annex 1 

'Arrangement  between  Switzerland  and  France  of  26  October  2004  fixing  the  special 
procedures for the reimbursement of health care benefits  

Arrangement  between  Switzerland  and  Italy  of  17  November  2005  fixing  the  special 
procedures for the reimbursement of health care benefits' 

3. 

Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social 
security schemes to employed persons, to self-employed persons and to the members 
of their families moving within the Community, as last amended by Regulation (EC) 

6 

OJ L 284, 30.10.2009, p.1. 

EN 

21 

   EN 

 
 
  
                                                 
No 592/2008 of the  European Parliament and  of  the  Council  of  17  June  20087 and 
when  referred  to  in  Regulations  (EC)  No  883/2004  or  No  987/2009  or  when  cases 
are concerned which occurred in the past. 

4. 

5. 

Council  Regulation  (EEC)  No  574/72  of  21  March  1972  fixing  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 the members of their 
families moving within the Community, as last amended by Commission Regulation 
(EC) No 120/2009 of 9 February 20098 and when referred to in Regulations (EC) No 
883/2004 or No 987/2009 or when cases are concerned which occurred in the past. 

398  L  49  Council  Directive  98/49/EC  of  29  June  19989  on  safeguarding  the 
supplementary pension rights of employed and self-employed persons moving within 
the Community. 

7 
8 
9 

OJ L 177, 4.7.2008, p.1. 
OJ L 39, 10.2.2009, p.29. 
OJ L 209, 25.7.98, p. 46. 

EN 

22 

   EN 

 
                                                 
SECTION B: ACTS  OF  WHICH  THE  CONTRACTING  PARTIES  SHALL  TAKE 
DUE ACCOUNT 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  A1  of  12  June  2009  concerning  the  establishment  of  a  dialogue  and 
conciliation procedure concerning the validity of documents, the determination of the 
applicable  legislation  and  the  provision  of  benefits  under  Regulation  (EC)  No 
883/2004 of the European Parliament and of the Council10. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  A2  of  12  June  2009  concerning  the  interpretation  of  Article  12  of 
Regulation (EC) No 883/2004 of the European Parliament and of the Council on the 
legislation  applicable  to  posted  workers  and  self-employed  workers  temporarily 
working outside the competent State11. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  A3  of  17  December  2009  concerning  the  aggregation  of  uninterrupted 
posting periods completed under the Regulations No 1408/71 and 883/200412. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  E1  of  12  June  2009  concerning  the  practical  arrangements  for  the 
transitional period for the data exchange via electronic means referred to in Article 4 
of Regulation (EC) No 987/2009 of the European Parliament and of the Council13. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  F1  of  12  June  2009  concerning  the  interpretation  of  Article  68  of 
Regulation (EC) No 883/2004 relating to priority rules in the event of overlapping of 
family benefits14. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  H1  of  12  June  2009  concerning  the  framework  for  the  transition  from 
Council  Regulations  (EEC)  No  1408/71  and  No  574/72  to  Regulations  (EC)  No 
883/2004 and (EC) No 987/2009 of the European Parliament and of the Council and 
the  application  of  Decisions  and  Recommendations  of 
the  Administrative 
Commission for the coordination of social security systems15. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  H2  of  12  June  2009  concerning  the  methods  of  operation  and  the 
composition of the Technical Commission for Data Processing of the Administrative 
Commission for the Coordination of Social Security Systems16. 

(8) 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  H  3  of  15  October  2009  concerning  the  date  to  be  taken  into 

10 
11 
12 
13 
14 
15 
16 

OJ C 106, 24.4.2010, p.1.  
OJ C 106, 24.4.2010, p.5. 
OJ C 149, 8.6.2010,, p 3. 
OJ C 106, 24.4.2010, p.9. 
OJ C 106, 24.4.2010, p.11. 
OJ C 106, 24.4.2010, p.13. 
OJ C 106, 24.4.2010, p.17. 

EN 

23 

   EN 

 
                                                 
(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

(15) 

(16) 

consideration  for  determining  the  rates  of  conversion  referred  to  in  Article  90  of 
Regulation (EC) No 987/2009 of the European Parliament and of the Council17.  

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  H  4  of  22  December  2009  concerning  the  composition  and  working 
methods of the Audit Board of the Administrative Commission for the Coordination 
of Social Security Systems18. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems No H 5 of 18 March 2010 concerning cooperation on combating fraud and 
error within the framework of Regulations (EC) No 883/2004 and (EC) No 987/2009 
on the coordination of social security systems19. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems No P1 of 12 June 2009 on the interpretation of Articles 50(4), 58 and 87(5) 
of Regulation (EC) No 883/2004 of the European Parliament and of the Council for 
the award of Invalidity, Old-Age and Survivors' benefits20. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems No S1 of 12 June 2009 concerning the European Health Insurance Card21. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  S2  of  12  June  2009  concerning  the  technical  specifications  of  the 
European Health Insurance Card22. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems No S3 of 12 June 2009 defining the benefits covered by Articles 19(1) and 
27(1)  of  Regulation  (EC)  No  883/2004  of  the  European  Parliament  and  of  the 
Council  and  Article  25(A)  (3)  of  Regulation  (EC)  No 987/2009  of  the  European 
Parliament and of the Council23. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  S4  of  2  October  2009  concerning  refund  procedures  for  the 
implementation  of  Articles  35  and  41  of  Regulation  (EC)  No  883/2004  of  the 
European Parliament and of the Council24. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  S5  of  2  October  2009  on  interpretation  of  the  concept  of  ‘benefits  in 
kind’  as  defined  in  Article  1  (va)  of  Regulation  (EC)  No  883/2004  in  the  event  of 
sickness  or  maternity  pursuant  to  Article  17,  Article  19,  Article  20,  Article  22, 
Article 24 (1), Article 25, Article 26, Article 27 (1, 3, 4 and 5), Article 28, Article 34 
and Article 36 (1 and 2) of Regulation (EC) No 883/2004 and on calculation of the 

17 
18 
19 
20 
21 
22 
23 
24 

OJ C 106, 24.4.2010, p.56. 
OJ C 107, 27.4.2010, p.3. 
OJ C 149, 8.6.2010, p. 5. 
OJ C 106, 24.4.2010, p.21. 
OJ C 106, 24.4.2010, p.23. 
OJ C 106, 24.4.2010, p.26. 
OJ C 106, 24.4.2010, p.40. 
OJ C 106, 24.4.2010, p.52. 

EN 

24 

   EN 

 
                                                 
(17) 

(18) 

(19) 

(20) 

(21) 

amounts  to  be  refunded  under  Articles  62,  63  and  64  of  Regulation  (EC)  No 
987/2009 of the European Parliament and of the Council 25. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  S6  of  22  December  2009  concerning  the  registration  in  the  Member 
State  of  residence  under  Article  24  of  Regulation  (EC)  No  987/2009  and  the 
compilation of the inventories provided for in Article 64 (4) of Regulation (EC) No 
987/200926. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  S7  of  22  December  2009  concerning  the  transition  from  Regulations 
(EEC)  No  1408/71  and  No  574/72  to  Regulations  (EC)  No  883/2004  and  No 
987/2009 and the application of reimbursement procedures27. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  U1  of  12  June  2009  concerning  Article  54(3)  of  Regulation  (EC) 
No 987/2009 of the European Parliament and of the Council relating to increases in 
unemployment benefit for dependent members of the family28. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems No U2 of 12 June 2009 concerning the scope of Article 65(2) of Regulation 
(EC)  No  883/2004  of  the  European  Parliament  and  of  the  Council  on  the  right  to 
unemployment  benefits  of  wholly  unemployed  persons  other  than  frontier  workers 
who  were  resident  in  the  territory  of  a  Member  State  other  than  the  competent 
Member State during their last period of employment or self-employment29. 

Decision of the Administrative Commission for the Coordination of Social Security 
Systems  No  U3  of  12  June  2009  concerning  the  scope  of  the  concept  of  'partial 
unemployment' applicable to the unemployed persons referred to in Article 65(1) of 
Regulation (EC) No 883/200430. 

25 
26 
27 
28 
29 
30 

OJ C 106, 24.4.2010, p.54. 
OJ C 107, 27.4.2010, p.6. 
OJ C 107, 27.4.2010, p.8. 
OJ C 106, 24.4.2010, p.42. 
OJ C 106, 24.4.2010, p.43. 
OJ C 106, 24.4.2010, p.45. 

EN 

25 

   EN 

 
                                                 
SECTION C: ACTS  OF  WHICH  THE  CONTRACTING  PARTIES  SHALL  TAKE 
NOTE 

1 

2 

Recommendation of the Administrative Commission for the Coordination of Social 
Security  Systems  No  U1  of  12  June  2009  concerning  the  legislation  applicable  to 
unemployed persons engaging in part-time professional or trade activity in a Member 
State other than the State of residence31. 

Recommendation of the Administrative Commission for the Coordination of Social 
Security  Systems  No  U2  of  12  June  2009  concerning  the  application  of  Article 
64(1)(a)  of  Regulation  (EC)  No  883/2004  to  unemployed  persons  accompanying 
their spouses or partners pursuing a professional or trade activity in a Member State 
other than the competent State32. 

31 
32 

OJ C 106, 24.4.2010, p.49. 
OJ C 106, 24.4.2010, p.51. 

EN 

26 

   EN 

 
                                                 
PROTOCOL TO ANNEX II TO THE AGREEMENT 

I. 

Unemployment insurance 

The following arrangements shall apply to workers who are nationals of the Czech Republic, 
the Republic of Estonia, the Republic of Latvia, the Republic of Lithuanian, the Republic of 
Hungary, the Republic of Poland, the Republic of Slovenia and the Slovak Republic until 30 
April 2011 and to workers who are nationals of the Republic of Bulgaria and Romania until 
31 May 2016. 

The following rules shall apply with respect to unemployment insurance for workers 

1. 
holding a residence permit with a period of validity of less than one year: 

1.1 
Only  workers  who  have  paid  contributions  in  Switzerland  for  the  minimum  period 
required  under  the  Federal  Unemployment  Insurance  and  Insolvency  Allowances  Act  (loi 
fédérale  sur  l'assurance-chômage  obligatoire  et  l'indemnité  en  cas  d'insolvabilité  -  LACI)33 
and  who  also  satisfy  the  other  conditions  of  eligibility  for  unemployment  benefit  shall  be 
entitled  to  such  benefit  provided  by  the  unemployment  insurance  under  the  conditions  laid 
down by law. 

1.2 
A portion of the contributions levied for workers whose period of contribution is too 
short to give entitlement to unemployment benefit in Switzerland under 1.1 shall be refunded 
to  their  States  of  origin  in  accordance  with  the  provisions  of  1.3.  in  order  to  contribute 
towards  the  cost  of  benefits  provided  to  these  workers  in  the  event  of  full  unemployment; 
these  workers  shall  then  have  no  entitlement  to  benefit  in  the  event  of  their  being  fully 
unemployed  in  Switzerland. They  shall, however, be  entitled to allowances for  bad  weather 
and  in  the  event  of  the  employer  becoming  insolvent.  Benefits  in  the  event  of  full 
unemployment shall be paid by the State of origin, provided that the workers concerned make 
themselves available for work. Periods of insurance completed in Switzerland shall be taken 
into account in the same way as if they had been completed in the State of origin. 

The portion of the contributions levied for workers referred to in 1.2 shall be refunded 

1.3 
on an annual basis in accordance with the following provisions: 

The total contributions of these workers shall be calculated, by country, on the basis of 
a) 
the annual number of workers employed and the average annual contributions paid for each 
worker (employer's and employee's contributions). 

Of the amount calculated in this way, a portion thereof corresponding to the relative 
b) 
share represented by unemployment benefit as a percentage of all the allowances referred to 
in  1.2  shall  be  refunded  to  the  workers'  States  of  origin,  and  a  portion  shall  be  retained  by 
Switzerland as a reserve for subsequent benefits.34 

c) 
Switzerland shall, on an annual basis, provide a statement showing the contributions 
refunded. If the States of origin so request, it shall indicate the bases for the calculation and 

33 
34 

Currently 12 months. 
Refunded  contributions  for  workers  who  will  exercise  their  right  to  unemployment  benefit  in 
Switzerland after having paid contributions for at least 12 months - over several periods of residence -
within the space of two years. 

EN 

27 

   EN 

 
                                                 
the sums refunded. The States of origin shall each year notify Switzerland of the number of 
recipients of unemployment benefit as referred to in 1.2. 

2. 
If  a  Member  State  concerned  by  this  arrangement  encounters  difficulties  with  the 
ending  of  the  arrangements  for  refunding  of  contributions,  or  Switzerland  encounters 
difficulties  with  the  aggregation  arrangements,  the  matter  may  be  referred  to  the  Joint 
Committee by any of the contracting parties. 

II. 

Allowances for helpless persons 

Allowances  for  helpless  persons  granted  under  the  Swiss  Federal  Act  of  19  June  1959  on 
invalidity  insurance  (LAI)  and  under  the  Federal  Act  of  20  December  1946  on  old-age  and 
survivors' pensions (LAVS) as amended on 8 October 1999 shall be provided exclusively if 
the person concerned resides in Switzerland. 

III. 

Occupational benefit plans concerning old-age, survivors' and invalidity pensions 

Notwithstanding Article 10 (2) of Council Regulation (EEC) No 1408/71, the vested benefit 
provided  for  under  the  Federal  Act  on  free  movement  among  occupational  benefit  plans 
concerning old-age, survivors' and invalidity pensions (Loi fédérale sur le libre passage dans 
la prévoyance professionnelle vieillesse, survivants et invalidité) of 17 December 1993 shall 
be  paid  out  on  request  to  an  employed  or  self-employed  person  who  intends  to  leave 
Switzerland for good and who, under Title II of the Regulation, will no longer be subject to 
Swiss law, provided that they leave Switzerland within five years of this Agreement entering 
into effect.' 

EN 

28 

   EN 

 
ANNEX II 

DECLARATION  

on the Declaration on Swiss attendance of committees 

The  Administrative  Commission  on  Social  Security  for  Migrant  Workers  referred  to  in  the 
second indent of the Declaration on Swiss attendance of committees (OJ L 114 of 30.4.2002 
p.  72)  has  been  renamed  as  Administrative  Commission  for  the  Coordination  of  Social 
Security Systems by Article 71 of Regulation (EC) No 883/2004 of the European Parliament 
and of the Council. 

EN 

29 

   EN