CELEX: 52011PC0671
Language: en
Date: 2011-10-24
Title: 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

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		52011PC0671
		
			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 /* COM/2011/0671 final - 2011/0291 (NLE) */
			
				
		
		
			
			   	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 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. 
–     
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.
–     
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;
–     
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 to old-age, invalidity or survivors' pension that complement the federal supplementary benefits. 
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. 
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;
–     
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
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)          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);
(b)          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 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
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. 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
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.
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 Confederation[1],
and in particular Article 2 thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)              
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.
(2)              
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.
(3)              
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, 
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
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)          The Agreement was signed
on 21 June 1999 and entered into force on 1 June 2002.
(2)          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 systems[2]
and the measures adopted to implement that regulation.
(3)          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 Community[3]. 
(4)          In the interests of
clarity and rationality, Annex II and the Protocol to that Annex should be
consolidated in a legally binding version.
(5)          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:
Article
1
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.
Article
3
The Decision
shall enter into force on the day following the day of its adoption.
Done at …, ….
For the Joint Committee
The Chairman
The Secretaries
ANNEX
'ANNEX II
Co-ordination
of social security schemes
Article
1
(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.
(2)          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
(1)          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.
(2)          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
(1)          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
systems[4]
(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 Annexes[5] 
For the purposes of this Agreement,
Regulation (EC) No 883/2004 shall be adapted as follows:
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
a)         Convention on social security of
25 February 1964, as amended by Complementary 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).
b)         Convention on unemployment
insurance of 20 October 1982, as amended by the 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'
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.
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 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.
5.           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.
6.           For the purposes of
applying Articles 18, 19, 20, 27 of the Regulation in Switzerland, the competent
insurer shall bear all invoiced costs.
7.           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.
8.           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.’          
 
2.           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 systems[6]

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) No 592/2008 of the European Parliament and of the Council of 17
June 2008[7]
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.           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 2009[8] and when referred to in
Regulations (EC) No 883/2004 or No 987/2009 or when cases are concerned which
occurred in the past.
5.           398 L 49 Council Directive
98/49/EC of 29 June 1998[9] on safeguarding the
supplementary pension rights of employed and self-employed persons moving
within the Community.
SECTION B: ACTS OF WHICH THE CONTRACTING
PARTIES SHALL TAKE DUE ACCOUNT
(1)          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 Council[10].
(2)          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 State[11].
(3)          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 883/2004[12].
(4)          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 Council[13].
(5)          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
benefits[14].
(6)          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 systems[15].
(7)          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 Systems[16].
(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 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 Council[17]. 
(9)          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 Systems[18].
(10)        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 systems[19].
(11)        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' benefits[20].
(12)        Decision of the
Administrative Commission for the Coordination of Social Security Systems No S1
of 12 June 2009 concerning the European Health Insurance Card[21].
(13)        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 Card[22].
(14)        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 Council[23].
(15)        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 Council[24].
(16)        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 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].
(17)        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 987/2009[26].
(18)        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 procedures[27].
(19)        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 family[28].
(20)        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-employment[29].
(21)        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 883/2004[30].
SECTION C: ACTS OF WHICH THE CONTRACTING
PARTIES SHALL TAKE NOTE
1            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 residence[31].
2            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 State[32].
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.
1.         The following rules shall apply
with respect to unemployment insurance for workers 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.
1.3       The portion of the contributions
levied for workers referred to in 1.2 shall be refunded on an annual basis in
accordance with the following provisions:
a)         The total contributions of these
workers shall be calculated, by country, on the basis of the annual number of
workers employed and the average annual contributions paid for each worker
(employer's and employee's contributions).
b)         Of the amount calculated in this
way, a portion thereof corresponding to the relative 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 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.'
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.
[1]               OJ L 114, 30.4.2002, p. 1.
[2]               OJ L 166, 30.4.2004, p. 1.
[3]               OJ L 149, 5.7.1971, p. 2.
[4]               OJ L 166, 30.4.2004, p.1.
[5]               OJ L 284, 30.10.2009, p. 43.
[6]               OJ L 284, 30.10.2009, p.1.
[7]               OJ L 177, 4.7.2008, p.1.
[8]               OJ L 39, 10.2.2009,
p.29.
[9]               OJ L 209, 25.7.98, p. 46.
[10]             OJ C 106, 24.4.2010, p.1. 
[11]             OJ C 106, 24.4.2010, p.5.
[12]             OJ C 149, 8.6.2010,, p 3.
[13]             OJ C 106, 24.4.2010, p.9.
[14]             OJ C 106, 24.4.2010, p.11.
[15]             OJ C 106, 24.4.2010, p.13.
[16]             OJ C 106, 24.4.2010, p.17.
[17]             OJ C 106, 24.4.2010, p.56.
[18]             OJ C 107, 27.4.2010, p.3.
[19]             OJ C 149, 8.6.2010, p. 5.
[20]             OJ C 106, 24.4.2010, p.21.
[21]             OJ C 106, 24.4.2010, p.23.
[22]             OJ C 106, 24.4.2010, p.26.
[23]             OJ C 106, 24.4.2010, p.40.
[24]             OJ C 106, 24.4.2010, p.52.
[25]             OJ C 106, 24.4.2010, p.54.
[26]             OJ C 107, 27.4.2010, p.6.
[27]             OJ C 107, 27.4.2010, p.8.
[28]             OJ C 106, 24.4.2010, p.42.
[29]             OJ C 106, 24.4.2010, p.43.
[30]             OJ C 106, 24.4.2010, p.45.
[31]             OJ C 106, 24.4.2010, p.49.
[32]             OJ C 106, 24.4.2010, p.51.
[33]             Currently 12 months.
[34]             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.