News

November 14, 2024 – Geneva, Switzerland

The Global Justice Network (GJN) has issued a response to recent remarks made by Dr. Roy Jacobs, CEO of Philips, regarding the “Respironics” European class action currently before the courts of Milan. This case, led by GJN in collaboration with Adusbef and European patient representatives, seeks accountability for the effects of Philips' recalled medical respiratory devices on hundreds of thousands of patients across Europe.

In a recent interview with the Dutch publication NU.nl, Dr. Jacobs addressed the class action by stating, “If there are consequences, they will be of a very different magnitude than in the North American case,” and added that “It is too early to talk about it at this stage. We don’t know yet if there is anything significant in the case”.

GJN wishes to address these comments considering the significant potential implications for affected individuals across Europe.

Magnitude of the Case

The European class action has already seen interest from thousands of individuals seeking legal recourse due to the potential health risks associated with Philips' recalled devices. The lawsuit could represent over one million users of these medical devices, though the true number of individuals exposed may be significantly higher. This includes not only users of these devices at home but also those who have relied on ventilators in critical care settings, particularly during the COVID-19 pandemic. Given the scope of this impact, GJN emphasizes that this matter warrants serious consideration.

Acknowledging Public Health Concerns

In response to Dr. Jacobs’ assertion that it is premature to address the concerns raised, GJN underscores the importance of clarity and transparency from corporate leadership on matters that impact public health. The organization asserts that public trust and confidence require clear communication and responsible action from multinational corporations, especially in health-critical industries.

GJN’s position is that patients and the public deserve assurance that their health has been protected at all stages of device manufacturing and distribution. GJN is committed to addressing the potential health impacts linked to the use of the recalled devices, such as respiratory diseases, carcinogenic and neurotoxic effects, and endocrine disruption—all conditions highlighted in reports from expert toxicologists consulting on this case.

Health Risks Identified by Toxicology Experts

Consultations with leading toxicologists have identified dozens of harmful chemicals in the sound-dampening foams used in Philips’ devices, some of which may pose serious health risks. These toxic compounds, released in the form of particulates (PMs) or volatile organic compounds (VOCs), have been associated with respiratory issues, certain cancers, and other health problems. Philips is, in recent settlements in the United States, in the wake of compensating users suffering from health conditions similar to those reported by European users.

Operational and Procedural Concerns

Global Justice Network questions Philips' timeline for recalling affected devices and its communication practices with distributors and patients. Noting the prolonged duration of the recall, GJN asserts that more timely communication and action would have potentially prevented ongoing risks to users. GJN points to the importance of prioritizing patient safety over procedural delays, especially when health risks are known.

Seeking Accountability and Clarity

The GJN urges Philips to demonstrate a clear commitment to patient safety and address the concerns raised by the class action suit. The organization also calls upon the Milan court to consider the urgency and breadth of this issue in its proceedings. In the meantime, GJN will continue advocating for the protection and compensation of all individuals affected by Philips’ recalled devices across Europe.

For further information, please contact our swiss partner firm Eurolegal Swiss Law firm representing claimants from Switzerland or directly the Global Justice Network  which also has its registered seat in Zug, Switterland

Since the summer of 2021, the Dutch company Koninklijke Philips N.V. has been forced to withdraw from the global market several devices massively affecting the whole world, and more specifically, defective models of respirators presenting a health risk for patients suffering from respiratory problems, including sleep apnea[1].

The nature and scale of the case led consumers around the world to question the legal options available to them in such a situation. A first initiative was the conclusion of an agreement between Philips and the United States, under which the Dutch company would have agreed to compensate 58,000 people affected by the defective devices, to the tune of 1.1 billion dollars[2], in order to collectively settle all claims for damages from the victims. 

However, unlike in the United States, where the class action originated, what about on a European scale, and more specifically, in European Union law? European law has a legal text that is binding on its member states: Directive 2020/1828 on representative actions to protect the collective interests of consumers, which came into force on June 25, 2023. In its preamble, the Directive aims to "improve consumers' access to justice" (ch. 10), and consequently, to be represented by entities qualified to act against companies (art. 4 ch. 1). It thus enables European consumers to have their rights and interests protected in the event of infringement of European law by companies.

In June 2023, as part of the Global Justice Network (GJN), one of the world's leading groups of international lawyers, our firm proudly and with dignity demonstrated its willingness to continue its commitment by working and persevering in its mission to represent people harmed in Europe by the use of these devices, and in particular those in Switzerland who had used the 28,188 devices sold in that country. Together with the Italian consumer rights organization ADUSBEF, our groups then brought the first Europe-wide class action based on the aforementioned Directive against Philips[3].

Following the example of the United States, the European desire we represent today is to bring this action in order to obtain compensation for the 1.2 million European citizens concerned. The lawyers are claiming 70,000 euros per victim, representing a total of 84 billion euros. They justify this demand by the emotional trauma suffered and are also claiming additional compensation for patients who actually suffered health problems linked to the faulty respirators, as well as for the families of deceased patients[4].

The outcome of such an action will mark a high point in the jurisprudential history of European legal procedure, as it will pave the way for many future Europe-wide class actions, as we are currently experiencing with this first action against the Dutch company, Philips[5].

Despite the emergence of European class actions, which reflect new issues and introduce complex legal challenges due to their international nature, involving victims from different countries, our commitment remains intact. We are proud to continue to represent the Swiss, despite the legal challenges we face in this new era of European class actions. We will continue to be on hand to inform the Swiss about their rights, and to reaffirm our firm's commitment to defending its international clientele in close collaboration with the GJN. 

 
[1] https://www.rtbf.be/article/respirateurs-philips-possiblement-defectueux-les-utilisateurs-attendent-les-actionnaires-reclament-dedommagement-11065254
[2] https://lemondedudroit.fr/decryptages/94291-vers-une-europe-des-nuclear-verdicts-l-affaire-philips-et-les-nouvelles-perspectives-juridiques.html
[3]  https://www.euractiv.fr/section/sante/news/action-collective-a-lechelle-europeenne-contre-philips-pour-des-respirateurs-potentiellement-toxiques/
[4] https://www.euractiv.fr/section/sante/news/action-collective-a-lechelle-europeenne-contre-philips-pour-des-respirateurs-potentiellement-toxiques/
[5] https://lemondedudroit.fr/decryptages/94291-vers-une-europe-des-nuclear-verdicts-l-affaire-philips-et-les-nouvelles-perspectives-juridiques.html#_ftn3

On the 9^th of April 2024, the European Court of Human Rights condemned the Swiss Government for not implementing efficient climate change policies and for violating the right to life.

The applicant of this case was a Swiss association of elderly women, between the age of 78 and 89, whom since 2016 fought for the prevention of climate changes. The applicants complained about the health problems caused by the global warming and the effects on their health conditions especially during heatwaves.

After exhausting all the domestic remedies in Switzerland, the applicants brought the case before the European Court of Human Rights in Strasbourg and the charges against Switzerland were on Article 2 (right to life), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy), and the criteria sets on Article 34 (victim status). The Court held that there was a violation of Article 8 and Article 6 § 1 of the Convention.

In Article 8 the Swiss authorities failed to comply with its duties, also known as positive obligations, to implement measures to reduce the effects of climate change and as such failed to meet its greenhouse emission reduction target; while in Article 6 § 1 there is a lack of available avenues by the Swiss national law where to bring complaints to a court, because before the ECHR the case was only rejected by an administrative authority and then by national courts at two levels of jurisdiction.

Whilst these two articles were found to be properly violated by Switzerland, the Grand Chamber found inadmissible the complaints against Article 2 and Article 13 for the lack of effective elements against Switzerland.

One could argue that the decision made by the Court on the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was too harsh on the Swiss authorities. On the same day other two cases, Carême v. France and Duarte Agostinho and Others v. Portugal, having the same charges on climate change were found inadmissible.

Concerning the case against France, the complaints made by the applicant were not accepted because the same applicant does not live anymore in the place where he is seeking remedies, and it is considered inadmissible under aArticle 34.

As regards of the complaints against Portugal, the applicants failed to exhaust all domestic remedies, and therefore it is against the applicability criteria sets by the Convention.

For certain the decision made by the Court against Switzerland has brought many criticisms and doubts on the fairness of the judgement, but it has marked the Court’s first ruling on a climate case and enriching so the jurisprudence of the European Court of Human Rights.

Thomas AGUIAR, Ingrid POUWER, Marie-Lise SALAME, Chiara SOUVLAKIS, Nadia DJENNI

1. Coordination between Switzerland and the European Union

The legal framework governing relations between Switzerland and the EU is based on a bilateral agreement: the Agreement of June 21, 1999 between the Swiss Confederation, of the one part, and the European Community and its Member States, of the other, on the free movement of persons (hereinafter "ALCP").

Annex II of this agreement refers to European Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, and to European Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004.

ALCP coordination rules must be applied as a matter of priority, even if they run against to European rules (Métral Jean/Moser-Szeless Margit, L'accord sur la libre circulation des personnes: coordination des systèmes de sécurité sociale et jurisprudence du Tribunal fédéral (II), REAS 2007, p. 169).

These regulations strengthen cooperation between the social security institutions of the EU Member States and Switzerland, particularly where old-age institutions are concerned.

In particular, if you contribute in more than one country, each pays a pension or lump-sum benefit corresponding to the assets accumulated for work carried out in its own country. It is not possible to transfer occupational assets between pension funds located in different countries. Therefore, if you have contributed in several countries, you will receive an annuity or lump-sum payment from each of them, depending on the applicable conditions.

2. AVS/AHV pension (1st pillar)

In Switzerland, access to ordinary first-pillar benefits is conditional on reaching the age of 65 (art. 21 al. 1 LAVS).

In addition to ordinary benefits, it is possible to opt for early retirement one or two years before ordinary retirement age, i.e. at 63 or 64. There are no specific grounds for early retirement (poor health, etc.), and only the age requirement (art. 40 al. 1 LAVS) and any purchase of regulatory benefits (art. 1b OPP 2) are relevant in determining this entitlement.

With regard to foreign workers, art. 18 para. 2 LAVS specifies that they and their survivors who are not Swiss nationals are only entitled to a pension as long as they have their domicile and habitual residence in Switzerland.  The notion of domicile refers to that of art. 23 to 26 of the Swiss Civil Code (art. 13 al. 1 LPGA), and that of habitual residence (art. 13 al. 2 LPGA) "corresponds to the place where the person concerned stays for a certain period of time, even if the duration of this stay is limited from the outset" (ATF 141 V 530, consid. 5.1. and references cited). Consequently, a person without Swiss nationality who permanently leaves Switzerland to settle abroad loses his or her entitlement to a Swiss AVS/AHV pension.

3. Professional pension provisions (2nd pillar)

In the case of professional pension provision (2nd pillar), entitlement to retirement benefits begins at the age of 65 (art. 13 para. 1 BVG).

The income capitalized over the years in the occupational pension account may be paid out in the form of an annuity (monthly payment) or a single lump-sum payment from the total occupational pension assets. It is important to note that an annuity can only be paid out once a certain amount of contributions has been made, otherwise only a single lump-sum payment can be made. To find out how much you can expect to receive, contact your pension fund.

Another important note: it is not possible to make a lump-sum withdrawal before retirement or early retirement age when leaving Switzerland permanently to settle in an EU/EFTA country (Vuilleumier Frédéric, Prévoyance professionnelle et aspects internationaux - partie II, in Droit fiscal et assurances sociales, en particulier la prévoyance professionnelle et les aspects transfrontaliers [de Vries Reilingh Daniel, ed. Zurich (Schulthess) 2016, p. 159 ff, p. 178; Office fédéral des assurances sociales OFAS, Prévoyance professionnelle (2e pilier), Prestation de libre passage : n'oubliez pas vos actifs et prévoyances).

4. What happens in the event of a spouse's death?

The surviving spouse is entitled to a widower's pension under the following cumulative conditions:

• · If the surviving spouse has at least one dependent child or has reached the age of 45 (art. 19 al. 1 let. a LPP);
• · If the surviving spouse has been married to the deceased for at least five years (art. 19 al. 1 let. b BVG/LPP);
• · If the deceased had made sufficient contributions (to the first pillar);
• · If the deceased's pension assets have not previously been withdrawn as a lump sum.

Survivor's pensions (in this case, the widower's pension) are paid in the EU under the same conditions as in Switzerland. However, they cannot be paid at the same time as an old-age pension in Switzerland. When two pensions (such as a widower's pension and an AHV/AVS pension) compete, the higher of the two is paid (art. 24b LAVS). If the surviving spouse has contributed more than the deceased spouse, he or she is likely to receive only his or her old-age pension, and vice versa.

Similarly, some countries reduce their benefits when foreign pensions are combined with national pensions (art. 10 of European Regulation (EC) no. 987/2009).

5. Choosing between an annuity and a lump-sum payment, and methods of payment abroad

Depending on your state of health, years of contributions, spouse's needs, life plans, etc., you will need to assess whether it is preferable to opt for an annuity paid over the long term (generally until the beneficiary's death) or a withdrawal of all contributions (i.e. a lump-sum payment).

A lump-sum payment in the event of early retirement will only be partial: a sum indicated on the insurance certificate must remain in the vested benefits account pending retirement age or death. This amount varies from one pension fund to the other.

6. Conclusion

Swiss social security is available throughout Europe to Swiss nationals, but to foreigners only in Switzerland. Note also that health is not a relevant factor when it comes to early retirement. In terms of crucial choices, a lump-sum payment is preferable when health is not at its best in order to facilitate access to pension assets for the surviving spouse, but an annuity is preferable when the comfort of a monthly payment is required.

Please note that above considerations apply in principle to all EU/EFTA countries.

Eurolegal Team : Auriane PHILIPPE, Thomas AGUIAR, Ilona CADOUX, Marie CARRILLO