Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report as well as in the annual reports on the application of the European Social Security Code.

Part VI (Employment injury benefit). (a) Article 38 of the Convention (in relation to Article 69(f)). The Committee notes with satisfaction the reversal of the case law relating to the direct applicability of the above-mentioned provisions of the Convention by the Federal Insurance Court (TFA) in its decisions of 25 August 1993 and 21 February 1994, the texts of which have been supplied by the Government. In its decision of 25 August 1993, the TFA considered that the provisions of international instruments which stipulate that cash benefits may be withheld where the contingency has been wilfully caused by the serious misconduct of the person concerned apply directly and take precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) in that this standard of federal law provides, in particular, for the reduction of benefits for serious misconduct committed by negligence. In a later decision of 21 February 1994, the TFA confirmed this case law by specifying that standards of international law also take precedence over section 37(2) of the Federal Accident Insurance Act (LAA), which provides for the reduction of cash benefits for invalidity if the insured person has caused the accident by serious negligence. Consequently, the Government concludes in its report that contrary to the provisions of the law, negligence, even when serious, is no longer sufficient ground for the reduction of benefits in the event of occupational accident or disease. The Committee also noted with interest the Government's statement made in regard to the European Social Security Code to the effect that, in the light of this new case law, the competent insurance bodies henceforth apply the provisions of the LAI and the LAA taking account of the relevant international standards. The Committee requests the Government to indicate in its next reports any amendments made to national legislation with a view to bringing it into full conformity with Article 69(f) of the Convention, for example, on the occasion of the next revision of the LAA or the adoption of the Act on the general part of social insurance law.

(b) In regard to its previous comments concerning Article 34, paragraphs 1 and 2, of the Convention, the Committee notes with interest Recommendations No. 7/90 of the ad hoc commission, accidents LAA, for the application of the LAA and the OLAA (Ordinance on Accident Insurance) relating to home nursing care, supplied by the Government in the framework of the Code and further to a decision of 9 January 1990 of the Federal Insurance Court. These Recommendations state that costs arising from medical care similar to that provided by nurses must be covered by the insurer if the physician considers that this "home nursing care" is necessary. The Government confirms in its report that, in practice, the insurers cover the total cost of such care. The Committee therefore notes, given the absence of any participation by the victims of occupational injury in the cost of nursing care at home, as the Government indicates, that the situation prevailing in Switzerland is in conformity with Article 34 of the Convention. It requests the Government to indicate in its future reports any development which may arise in this regard, in both legislation and practice.