Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Part VI (Employment injury benefit), Article 38 of the Convention (in relation to Article 69(f)). In its previous observation, the Committee noted the reversal by the Federal Insurance Court (TFA) of the case law relating to the direct applicability of the above provisions of the Convention, which authorize the suspension of benefit only where the contingency has been caused by the wilful misconduct of the person concerned. According to the rulings of the TFA of 25 August 1993 and 21 February 1994, international standards take precedence over section 7(1) of the Federal Invalidity Insurance Act (LAI) and section 37(2) of the Federal Accident Insurance Act (LAA), which permitted the reduction of cash benefits on grounds of serious negligence. The Committee had therefore requested the Government to indicate in future reports any amendments made to the national legislation with a view to bringing it into formal 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.

In reply, the Government indicates in its report that, by means of an amendment of 9 October 1998, which entered into force on 1 January 1999, the LAA was brought into conformity with Article 38 of the Convention, in relation to Article 69(f). In accordance with the new wording of section 37(2) of the LAA (as it was in force on 6 April 1999) supplied by the Government, the possibility of reducing the daily benefits of insured persons in relation to an accident caused by their serious negligence is only retained in insurance for non-occupational accidents. The Committee notes with interest this amendment relating to accidents caused by the misconduct of insured persons. However, it notes that as regards the same penalty applied to the survivors of insured persons under section 38(2) of the LAA, which remains applicable to occupational accidents and diseases in addition to non-occupational accidents, the situation in law remains unchanged, since this provision still authorizes the reduction or even the refusal in particularly serious cases, of the cash benefits to a survivor where the latter has caused the death of the insured person by serious negligence.

The Committee notes in this respect, according to the information provided by the Government in its 24th annual report on the application of the European Code of Social Security, that the draft fourth revision of the LAI is currently being examined by Parliament. It also notes, from the information provided by the Government in its report for the period 1996-2001 on Convention No. 128, that the national legislation will be brought into formal conformity with the Convention following the entry into force on 6 October 2000 of the Federal Act on the general part of social insurance law (LPGA). The Committee therefore hopes that the Government will take this occasion to bring section 38(2) of the LAA, as well as section 7(2) of the LAI, into full conformity with the Convention. It requests the Government to inform it of any development which may occur in this respect.