No appeal by the Federal Office of Public Health against a remittal decision of the Federal Administrative Court in a dispute between accident insurers

Facts

The Federal Office of Public Health (FOPH) had to decide as a supervisory authority on a dispute between Lloyd's Underwriters London (Lloyd's) and other accident insurers (Zurich Insurance Company Ltd and AXA Insurance Ltd) as to which accident insurer had to provide benefits for a knee injury of an insured person. The FOPH had established the liability of Lloyd's by decision of 3 November 2011. Lloyd's had appealed to the Federal Administrative Court, which repealed the decision and remitted the case to the FOPH for further clarification.

The FOPH appealed to the Federal Supreme Court and requested that the remittal decision be repealed and that it be established that Lloyd's had to provide the benefits. Lloyd's, Zurich and AXA requested the dismissal of the appeal.

Considerations

The Federal Supreme Court had to examine whether the FOPH was entitled to appeal against the remittal decision of the Federal Administrative Court. The appeal entitlement of the FOPH was examined on the basis of Art. 89 para. 1 and 2 FSCA. The FOPH relied on the general legitimization clause and on Art. 132 para. 2 AIO, which authorizes the FOPH to appeal to the Federal Supreme Court against decisions of the Federal Administrative Court.

However, the Federal Supreme Court decided that the question of the appeal entitlement of the FOPH in this proceeding did not have to be answered conclusively, since in any case the requirements of Art. 93 para. 1 FSCA were not met. The contested decision of the Federal Administrative Court was a remittal decision that remitted the case to the FOPH for further clarification. Such a decision usually does not cause a non-reparable harm within the meaning of Art. 93 para. 1 lit. a FSCA.

The Federal Supreme Court stated that a non-reparable…