Facts
The Federal Court had to deal with an appeal by the insured person V. against the decision not to proceed of the Federal Administrative Court. The insured person had lodged an appeal against the pension-refusing decision of the Disability Insurance Office for Insured Persons Abroad, which was however dismissed due to a missed deadline. The Disability Insurance Office had sent the decision on 2 February 2007 as a postal item with proof of delivery to the address of the insured person's legal representative, which had arrived at the post office at the recipient's location on 7 February 2007. The legal representative had retained the item due to a retention order until 26 February 2007 and had received it on 26 February 2007 at the counter together with the other retained mail.
The insured person appealed to the Federal Court with the request to repeal the decision not to proceed and to obligate the Federal Administrative Court to consider the appeal lodged in time. The Disability Insurance Office requested the dismissal of the appeal, while the Federal Office for Social Insurance waived its statement.
Considerations
The Federal Court had to examine whether the fiction of service in the case of a postal retention order also applies under the new law. The fiction of service states that a registered item is to be considered as served at the latest on the last day of a period of seven days from its arrival at the post office at the recipient's location.
The court found that the fiction of service also applies in the case of a postal retention order, as the addressee had to expect the service in question. The insured person's legal representative had appealed against the preliminary decision of the Disability Insurance Office and therefore had to expect the…