Facts
The appellant, a Swiss national residing in Greece, filed a claim for disability insurance benefits with the Swiss embassy in Greece. The AI Office for insured persons residing abroad (OAI) rejected the claim by decision of 5 August 1997. The appellant lodged an appeal against this decision with the Federal Commission of Appeal in matters of old-age, survivors' and disability insurance for persons residing abroad, but this appeal was declared inadmissible due to late filing.
The appellant then filed a public law appeal against this judgment, invoking insufficient indication of appeal channels in the administrative decision and a violation of the prohibition of excessive formalism. The OAI waived its right to comment, while the Federal Office of Social Insurance did not take a position.
Considerations
The Federal Insurance Court examined the appellant's grievances and found that the indication of appeal channels in the administrative decision was insufficient. In fact, the OAI had not explicitly mentioned the rule that the appeal had to be handed in at a Swiss post office, as required by Article 21 para. 1 of the Administrative Procedure Act (APA).
The Federal Insurance Court recalled that this rule had been adopted for serious reasons, in particular to avoid the judicial authority not knowing for a more or less long period of time whether a decision was being challenged or not. However, the OAI should have mentioned this particular rule of Swiss law in the…