Facts
The dispute concerns the qualification of a concubine as non-gainful activity in old-age and survivors' insurance. The woman, L., lives in a marital relationship with a man, C., without being married to him, and exclusively takes care of the common household. In exchange, she receives from her partner benefits in kind (food and housing) and possibly pocket money.
The Compensation Fund of the canton of Berne required C. to pay OASIA/AI/AC/AF/ACF contributions (including administrative fees) for the years 1995 and 1996, considering that L. did not work outside the household and that C. had to pay contributions on a salary in kind for housing and food, as well as suitable pocket money.
The Administrative Court of the canton of Berne dismissed the complaint of L. and C., but questioned the jurisprudence of the Federal Insurance Court, considering that it was up to the latter to modify its practice if necessary.
Considerations
The Federal Insurance Court examined the question of whether the jurisprudence should be modified to consider a concubine as non-gainful activity in old-age and survivors' insurance. The Court considered that the new solution had to be better adapted to the ratio legis, changed external circumstances, and modified legal concepts.
The Court found that the current jurisprudence, which considers benefits in kind as determining salary, is no longer justified. Benefits in kind, as well as possible pocket money, do not constitute determining salary within the meaning of art. 5 al. 2 OASIA.
The…