Replacement of a disability pension with an old-age pension when insurance periods have been completed abroad

Facts

The case concerns a Swiss national who first lived in the Netherlands, where she contributed for 3 years and 1 month to the Dutch pension insurance, before settling in Switzerland in 1963. From 1963 to 1969 and from 1981 to 2002, she contributed to the Swiss Old-Age and Survivors' Insurance (OASI) and Disability Insurance (DI). From 1992 to 2002, she received a half-DI pension calculated taking into account her Dutch insurance periods. In 2002, the Federal Social Insurance Office granted her a regular OASI old-age pension calculated without considering her foreign insurance periods.

The insured person appealed against this decision. The cantonal court increased the amount of the old-age pension. The Federal Social Insurance Office then filed an administrative law appeal.

Considerations

The Federal Tribunal ruled that the principle of protection of the acquired situation provided for in Art. 33bis para. 1 OASIA does not apply to the amount of a pension calculated taking into account insurance periods completed abroad. When a Swiss DI disability pension, calculated on the basis of the risk principle taking into account insurance periods completed abroad, is replaced by an OASI old-age pension, the latter is calculated autonomously based solely on the Swiss periods, without the State that paid the disability pension being required to compensate the difference.

According to the Federal Tribunal, neither the Agreement on the Free Movement of Persons (AFMP) nor the European coordination regulations on social security provide for protection of the acquired situation when…