Facts
On August 8, 1996, the Unemployment Insurance Fund of the Canton of Bern granted [H.], born in 1950 and unemployed since June 1, 1996, an advance of CHF 1,000 on the expected unemployment compensation. After it was determined that she was entitled to unemployment compensation of a total of CHF 80 until taking up a position in November 1996, the Unemployment Insurance Fund demanded the remaining amount of the advance of CHF 920 back from [H.] by decree on June 27, 1997. The insured person did not contest this decree, but requested a waiver of the reimbursement, which the Unemployment Insurance Fund rejected due to lack of good faith by decree of February 25, 1998.
Upholding the appeal filed against this, the Administrative Court of the Canton of Bern, in its decision of July 27, 1998, first affirmed the good faith of [H.], refrained from examining the second prerequisite for a waiver, namely undue hardship, and granted her request for a waiver of the reimbursement of CHF 920.
Against this decision, the State Secretariat for Economic Affairs (seco) (formerly the Federal Office for Economic Affairs and Labour) filed an administrative court appeal, requesting that the cantonal decision be overturned and the matter be remanded to the lower instance to clarify whether the reimbursement would constitute undue hardship for H.
Considerations
The Federal Social Insurance Court first examines whether the new regulation issued by the Federal Council, in particular Art. 79 para. 1quater OASI, is also applicable in the field of unemployment insurance and, if so, whether it is in accordance with the law and the Constitution.
The Court concludes that Art. 79 para. 1quater OASI, which waives the examination of…