Fiction of notification in case of mail hold request and computation of appeal deadlines

Facts

On 5 March 2012, the Swiss Federal Railways (SBB) submitted to the approval of the Federal Office of Transport (FOT) a railway development project between Coppet and Geneva. An ordinary plan approval procedure was opened on 19 April 2012, prompting several objections, including those of appellants A. and B.

On 20 December 2013, the FOT approved the project and dismissed the appellants' objection. A decision notified by registered mail on 23 December 2013 was subject to a mail hold request by the appellants, valid from 21 December 2013 to 6 January 2014. The mail was collected by the appellants on 6 January 2014 at the Chambésy post office. The FOT considered that the notification was effective on 24 December 2013, the date the mail was delivered to the post office at the appellants' domicile.

The Federal Administrative Court ruled that the 30-day appeal period (art. 50 para. 1 APA) had expired on 3 February 2014, taking into account the fiction of notification on 31 December 2013 (7 days after delivery to Swiss Post) and the extension of deadlines for the Christmas holidays (art. 22a para. 1 TSOA. c APA). The appeal filed on 5 February 2014 was therefore deemed untimely.

The appellants challenged this decision before the Federal Supreme Court, alleging a violation of the rules for computing deadlines and an erroneous interpretation of art. 20 para. 2bis APA.

Considerations

The Federal Supreme Court recalls that, in accordance with consistent case law, a party to judicial proceedings must expect to receive judicial documents and take the necessary measures to ensure their receipt, including designating a representative or informing the authority of their absence. A mail hold request with Swiss Post does not constitute a sufficient measure to interrupt the fiction of notification (art. 20 para. 2bis APA).

In the present case, the appellants, who had been aware of the proceedings since April 2012 and had received a final notice from the FOT on 28 August 2013, should have expected a decision. Their absence during the Christmas holidays does not justify an exception, especially since the period elapsed between the last exchange and the decision (4 months) was reasonable in a complex procedure. They should have informed the authority of their absence or designated a representative.

The Federal Supreme Court confirms that, in the case of a mail hold request, the fiction of notification occurs on the last day of the 7-day hold period (art. 20…