Notion of domicile within the meaning of the Civil Code for the right to the extraordinary pension and the disability allowance of disability insurance

Facts

The Federal Tribunal had to rule on the notion of "domicile in Switzerland" within the meaning of Articles 42(1) OASI, 39(1) and 42(1) DIA, which is a condition for the right to the extraordinary pension and the disability allowance of disability insurance.

According to established case law prior to the 10th revision of the OASI, this notion implied that the insured person not only had their domicile within the meaning of civil law, but also their actual residence in Switzerland, with the intention of maintaining it and keeping it as the center of their relationships. With the 10th revision, the requirement of "actual residence" has been codified in the terms of "habitual residence".

In a judgment ATF 106 V 5, the Federal Tribunal ruled that for the right to the extraordinary pension (Art. 42(1) OASI), the notion of domicile in the strict sense, i.e. that of Articles 23 et seq. of the Civil Code, applies. This notion encompasses not only voluntary domicile, but also the derived domicile of persons under guardianship (former Art. 25(1) CC). The Tribunal considered that there was no particular reason specific to social insurance law to depart from this specific notion of domicile within the meaning of the Civil Code.

With regard to the right to the disability allowance under Art. 42 DIA, the Tribunal ruled that the same notion of domicile as in the case of the extraordinary pension should be applied.

Considerations

With the abolition of the insurance clause in the DIA, the legislator did not intend to extend the…