No extension of the exemption from Swiss social security legislation for a foreign pensioner

Facts

The complainant, a German national and dentist born in 1947, had been working in Switzerland since 1 October 2011. Initially, he was employed in Germany, but registered as self-employed with the compensation fund medisuisse in February 2012. From 1 April 2013, he worked as an employee in Switzerland while remaining self-employed in Germany. The Federal Social Insurance Office (INO) approved an exception agreement on the proposal of the German Liaison Office for Health Insurance Abroad (DVKA), so that the complainant remained subject to German social security legislation until 31 December 2015. An extension of this exemption beyond 31 December 2015 was rejected by the INO, in particular for the period from 1 January 2016 to 31 December 2018. The medisuisse compensation fund then demanded advance contributions for 2016 amounting to CHF 5,142.20, based on income earned in Germany. The complainant filed an appeal against this, which was dismissed by the Social Insurance Court of the Canton of Zurich. The Federal Supreme Court partially set aside this decision with judgment 9C_603/2019 of 17 February 2020 and referred the matter back to the compensation fund for a new ruling. The Federal Administrative Court dismissed the complainant’s appeal with a judgment of 9 May 2023, to the extent that it entertained it. In his appeal to the Federal Supreme Court, the complainant requested that the exemption from German social security legislation be extended beyond 31 December 2015 until 31 March 2019. He also requested a second exchange of written submissions.

Considerations

1. Admissibility of the appeal and procedural issues:

The Federal Supreme Court rejected the request for a second exchange of written submissions, as this was not required under Art. 102 para. 3 FSCA. Moreover, the appeal was only admissible for the period from 1 January 2016 to 31 December 2018, as this was the subject matter of the lower-instance proceedings. An extension of the exemption beyond 31 December 2018 was not part of the proceedings and was therefore dismissed as inadmissible. The Federal Supreme Court examined the appeal only insofar as violations of law under Art. 95 et seq. FSCA were alleged. The violation of fundamental rights was only examined insofar as it was substantiated. The findings of fact of the lower court were adopted, as there were no obvious errors.

2. General subjection to Swiss social security legislation:

Under Art. 13 para. 3 of Regulation (EC) No 883/2004, the complainant was generally subject to Swiss social security legislation from 1 January 2016 onwards. However, Art. 16 para. 1 of Regulation No 883/2004 allows for exceptions if agreed upon by the competent authorities in mutual agreement. The INO has considerable discretion in this regard, as the provision is formulated as a discretionary provision and does not create a right to exemption. The issue was whether the lower court violated federal law by confirming the INO’s decision to refuse approval of the DVKA’s proposal of 20 September 2016.

3. Examination of the alleged violations of law:

The complainant alleged a violation of the right to a fair hearing (Art. 30 para. 1 APA, Art. 29 para. 2 Cst.), as he had not been heard again before the decision of 16 March 2020 was issued. The Federal Supreme Court held that a non-serious violation of the right to a fair hearing can be cured if the person concerned is given the opportunity to present their case before a court of appeal that can review both the facts and the law freely. This was the case here, as the Federal Administrative Court conducted a comprehensive review of appropriateness. Moreover, the referral back to the administration was considered formalistic and unnecessary, as the case file was clear.

The complainant also complained that the Federal Administrative Court had not addressed all of his arguments. The Federal Supreme Court clarified that a violation of the duty to state reasons only exists if it was not possible to properly challenge the lower court’s judgment. This was not the case here. Furthermore, the time limit on the exemption was deemed permissible, as it fell within the discretion of the INO and did not require a specific legal basis. No legitimate expectation under Art. 9 Cst. was recognised, as the previous exemption until the end of 2015 did not create a right to further extension.

4. Examination of substantive violations of law:

The complainant argued that…