Facts
The case concerns the question of whether an insured person can invoke the principle of legitimate expectation to be allowed to retain an insurance benefit that was received unlawfully.
In its previous case law, the Federal Insurance Court had additionally required, in addition to the fulfillment of the five general prerequisites for the principle of legitimate expectation, that there must be no special regulation directly and compulsorily resulting from the law, to which the principle of legitimate expectation must give way.
In the leading decisions BGE 100 V 154, 158 and 162, the Court had applied this sixth prerequisite in particular with regard to the duty to reimburse under Art. 47 AHVG and Art. 95 AVIG and rejected the principle of legitimate expectation.
Considerations
The Federal Supreme Court now concludes that this sixth prerequisite can no longer be upheld. The right to legitimate expectation is a constitutional entitlement guaranteed by Art. 4 BV, which cannot be set aside by simple statutory provisions.
A consistent application of the sixth prerequisite would also have led to the principle of legitimate expectation being virtually…