No authorization of group management members to challenge the decision of the Federal Office of Private Insurance

Facts

The Federal Office of Private Insurance (Federal Office) investigated the activities of the Pension Fund subsidiary Long Term Strategy AG (LTS) from the end of 2002 and issued a decision to the Pension Fund on April 8, 2003. This decision included the order that the Pension Fund should take all suitable measures to recover the lost interest on loans, guarantee commissions, and other costs for its services, as well as the lost profit.

X. and Y., both group management members of the Pension Fund, appealed against this decision and another decision of April 30, 2003, to the Federal Commission of Appeal for the Supervision of Private Insurance (Commission of Appeal). The Commission of Appeal lifted item 3 of the disposition of the decision of April 8, 2003.

The Federal Court now had to rule on the administrative appeal of the Federal Office against this decision.

Considerations

The Federal Court had to examine whether the respondents (X. and Y.) were authorized to challenge the decision of the Federal Office of April 8, 2003. The question of authorization is governed by Art. 48 lit. a APA, which is identical to Art. 103 lit. a FJA.

The Federal Court stated that the respondents were not the addressees of the challenged order and were not directly affected by it. The order was addressed to the Pension Fund, which had to take the suitable measures to remedy the alleged damage.

The Federal Court concluded that the respondents did not have their own and independent interest in legal protection, which would justify the annulment of the disputed order. Their interests could be perceived in the relevant…