Facts
Z. was employed at B. AG when in 2008 he performed a total of 29 civil protection service days as a member of the management of the civil protection organization Y., of which eleven days were for community service. The corresponding loss of earnings compensation was paid to the employer. The compensation fund X. later demanded this compensation back from B. AG, as two days could be recognized as a refresher course, while nine days were not eligible for compensation due to lack of service authorization.
The Administrative Court of the Canton of Bern upheld the appeal of B. AG and overturned the objection decision. The Federal Social Insurance Office then filed an appeal in public law matters.
Considerations
According to the clear wording of Art. 1a para. 3 EOG, the claim for compensation for loss of earnings is exclusively linked to the entitlement to pay. This can usually not be denied on the grounds that the authorization required for the service in question was insufficient or even non-existent, but only on the grounds that the permissible number of service days was exceeded.
The Federal Supreme Court dismissed the appeal of the Federal Social Insurance Office. It concluded that the reclaiming of the compensation is excluded due to the lack of a basis for revocation, as Z.'s entitlement to pay for the civil protection service…