Switzerland approves changes to its social insurance legislation, allowing insurance providers to conduct undercover investigations

In a 25 November 2018 referendum, the Swiss people approved proposed changes to the Swiss social insurance legislation. These changes will allow social insurance providers to monitor the insurance claimants in case of suspected insurance fraud. Such monitoring may be performed undercover but remains subject to various legal conditions. An official report, together with links to the relevant documentation, is available in German, French, Italian, Rhaeto-Romanic and English (in summarized form).

More specifically, the new provisions – articles 43a et seq. of the Federal Act on the General Aspects of Social Security Law – permit undercover observation of claimants if (i) the social insurance provider has serious evidence that the claimant is receiving or attempting to receive undue social insurance benefits and (ii) other means of inspection would fail or be exceedingly difficult without the undercover observation. Such undercover observations are moreover limited to publicly accessible spaces or spaces which are freely visible from publicly accessible spaces. The means at the disposal of the social insurance provider (and its investigators) include visual and sound recordings. The new law also permits the use of localisation tools, but subjects this to court approval.

Further limitations to the observation are, inter alia, a time limit as such observations cannot exceed thirty days over a six-month period (subject to extension), as well as a transparency obligation as the social insurance provider must inform the claimant of the observation at the latest before rendering a decision on the social insurance benefits.

The origins of the above changes to the legislation come from a European Court of Human Rights (ECHR) decision of 18 October 2016 (Vukota-Bojić v. Switzerland). In its ruling, the ECHR considered that Switzerland lacked a sufficiently precise legal basis for social insurance providers to be able to lawfully perform undercover monitoring of insurance claimants. Consequently, in a 14 July 2017 decision, the Swiss Federal Supreme Court took note of the ECHR ruling and deemed unlawful any secret surveillance of insured persons under the (then-)current Swiss legislation. Both the ECHR and the Swiss Federal Supreme Court decisions are discussed in our news of 25 October 2016, available here, and of 15 August 2017, available here. It thus became apparent that the Swiss legislator needed to come up with a clear legal basis.

The Federal Council drafted an implementing ordinance, which is undergoing a consultation process until 21 December 2018. The date of entry into force of the revised Swiss social insurance legislation and of the abovementioned implementing ordinance will be communicated at a later stage.