Decision on the application of EU law in a judicial appeal procedure in social insurance matters

Facts

The applicant is a Spanish national who has pursued a gainful activity in Switzerland and is claiming benefits from the Swiss unemployment insurance. Given that this is a cross-border situation involving a national of an EU Member State, the question arises as to whether and to what extent the Agreement of 21 June 1999 between the Swiss Confederation, on the one hand, and the European Community and its Member States, on the other, on the free movement of persons (Agreement on the Free Movement of Persons, AFMP), which entered into force on 1 June 2002, is applicable in the present appeal procedure. The administrative decision was issued before the entry into force of the AFMP, but the appeal is being judged after its entry into force.

Considerations

According to the consistent case law of the Federal Insurance Court, the court's examination is in principle limited to the period preceding the issuance of the administrative decision; subsequent changes in the facts or the law cannot normally be taken into account. This also applies to the AFMP and the acts to which it refers, in particular Regulations (EEC) No 1408/71 and No 574/72. Indeed, in the absence of specific Community or contractual regulations, the organization of the procedure is determined according to Swiss law, subject to the principles of equivalence and effectiveness.

Thus, in the present case, where…