Facts
The case concerns the reduction of the pension in case of overcompensation pursuant to the Federal Act on Military Insurance (MVG). The Federal Office for Military Insurance (BAMV) took the view that Art. 9a para. 1 of the Ordinance on Military Insurance (MVV) was in accordance with the law, as it would not correspond to the purpose of Art. 52 para. 1 MVG to freely and independently of the pension basis set the reduction limit in "dynamic further development every few months" based on an assumed increase in the hypothetical disability income.
The Federal Court had to decide whether the Federal Council, with the regulation in Art. 9a para. 1 MVV, had exceeded the competence delegated to it in Art. 52 para. 3 MVG to "issue more detailed provisions on the calculation of the reduction".
Considerations
The Federal Court concluded that Art. 52 para. 1 MVG does not contain any restriction that would bind the calculation of the reduction to the hypothetical disability income underlying the pension determination and exclude a change in the determination of overinsurance independent of the legally provided pension adjustment procedures. Rather, the absence of a corresponding restrictive provision in Art. 52 para. 1 MVG suggests that the legislator consciously allowed for an adjustment of the overinsurance calculation at any time.
With regard to the competence of the Federal Council under Art. 52 para. 3 MVG, the Federal Court came to the…