Rastello v Caisse Cantonale Genevoise de Compensation
Jurisdiction | Suiza |
Date | 26 juin 1984 |
Court | Federal Tribunal (Switzerland) |
International organizations Officials Immunity European Community Permanent Delegation to international organizations in Geneva Employees of foreign nationality Exemption from social security contributions Whether person enjoying exemption entitled to make voluntary contributions Vienna Convention on Diplomatic Relations, 1961, Article 33 Contributions made in good faith under mistake Whether refundable
Treaties Effect on third parties Vienna Convention on Diplomatic Relations, 1961, Article 48 Whether Convention applicable to representatives of inter-State organizations Application by analogy and special agreement Whether social security provisions of Convention applicable to members of Permanent Delegation of European Community to international organizations in Geneva The law of Switzerland
Summary: The facts:Under an Agreement concluded with the Federal Office for Social Insurance in 1966, several foreign employees of the Permanent Delegation of the Commission of the European Community to the International Organizations in Geneva, became affiliated to the Caisse cantonale genevoise de compensation, making regular social security contributions. In 1982 the Caisse notified the Delegation that it had discovered that three of the persons in question, including Liliane Rastello, were members of the delegation with diplomatic status and, as such, were not required under Swiss law to make contributions because they enjoyed fiscal immunity. Since such persons were not allowed under Swiss law to make voluntary contributions, the Caisse decided to return their contributions. The Delegation and Ms Rastello challenged these decisions in administrative law appeals to the Federal Tribunal. They argued that the acquired rights of Ms Rastello should be protected and her affiliation to the Caisse for the period in question should be upheld. They also argued that the decision in question should be annulled because it violated the diplomatic status of Ms Rastello.
Held:The appeals were allowed and the decisions in question were annulled.
(1) The Vienna Convention on Diplomatic Relations, 1961 was not binding on the European Community since, under Article 48, it was only open for the signature of States or specialized agencies of the United Nations. Nevertheless, the Swiss Federal Council had decided that members of the permanent delegations of States, or certain institutions such as the European Community, accredited to the international organizations with their seats in Switzerland, enjoyed the same fiscal exemptions as diplomatic agents who were members of the missions of the signatory States of the Vienna Convention.
(2) Article 33 of the Vienna Convention concerning exemption from social security provisions was therefore applicable by analogy to the appellant, who had been accredited as a diplomat during her period of service at the Delegation. Accordingly she had been exempt from making social security contributions under Article 33(1). Article 33(4) allowed...
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