Facts
The case concerns the entitlement to family allowances during unpaid leave. S., born in 1974, took additional unpaid leave from September 30, 2009 to February 6, 2010 following her maternity leave. The Family Compensation Fund of the Association for Social Insurance Matters of Public Institutions of the Canton of Bern (FAK ÖKB) rejected a claim for family allowances for this period. The Federal Social Insurance Office (BSV) then filed a public law appeal with the aim of overturning the lower court's decision and remitting the matter to the lower court.
Considerations
The Federal Supreme Court dismissed the appeal. It concluded that neither the Federal Act on Family Allowances (FamZG) nor the Ordinance on Family Allowances (FamZV) provide a legal basis for the entitlement to family allowances during unpaid leave without a specific reason. The guideline of the BSV (FamZWL), which provides for such an entitlement, goes beyond the statutory and regulatory provisions and is therefore without a legal basis.
The Federal Supreme Court explained that the legislator in Art. 13 para. 1 FamZG has established the principle that the entitlement to family allowances arises and expires with the entitlement to wages. For exceptions, it has granted the Federal Council a wide discretion. In the FamZV, the Federal Council has then regulated specific cases in which the entitlement to family allowances remains even without an entitlement to wages, such as in the case of maternity…