Calculation of the Appeal Deadline in Case of Service during Court Vacations

Facts

The Federal Office of Civil Aviation approved a provisional operating regulation for Zurich Airport by order dated March 29, 2005. The order was served on the Cantonal Government of Aargau on March 30, 2005. The Cantonal Government appealed to the Federal Appeals Commission for Infrastructure and Environment on April 29, 2005. However, the appeal was not submitted to the post office until May 4, 2005. The Appeals Commission decided on August 25, 2005 not to enter into the appeal due to late filing, as the deadline had expired on May 3, 2005. The Canton of Aargau filed an administrative court appeal against this decision with the Federal Supreme Court.

Considerations

The Federal Supreme Court had to clarify whether the first or the second day after the end of the suspension of time limits pursuant to Art. 22a of the Administrative Procedure Act (VwVG) should be considered the first day of the appeal period. It interpreted Art. 20 para. 1 VwVG to the effect that in the case of service of an order during the suspension of time limits, the first day after the end of the suspension is to be counted as the first day of the appeal period. This interpretation corresponds to the case law of the Federal Insurance Court (EVG) and is convincing, as Art. 20 para. 1 VwVG links the running of the time limit to the notification.

In contrast, the Federal Supreme Court adheres to the previous practice for the calculation of time limits pursuant to Art. 32 para. 1 of the Federal Supreme Court Act (OG).…