Facts
The case concerns a complaint by [W.], [W.] and S. against the Canton of St. Gallen (Insurance Fund for State Personnel) and the Insurance Court of the Canton of St. Gallen. The complainants allege that the transitional provision of Art. 97 of the Ordinance on the Insurance Fund for State Personnel (VVK), on which the cantonal Finance Department based its rejection of their claim for payment of a lump-sum compensation under Art. 41 VVK, was enacted in violation of the mandatory federal law provision of Art. 51 of the Federal Act on Occupational Retirement, Survivors' and Disability Pension Plans (BVG). Accordingly, the paritarily composed body of the public-law pension institution should have been heard during the enactment of the regulatory provisions.
Considerations
The Federal Supreme Court first establishes that the litigation procedure under Art. 73 BVG does not allow for an abstract review of the regulatory provisions of the pension institutions. However, the judge can, within the framework of incidental norm control, examine whether individual regulatory or statutory provisions are contrary to federal law.
However, under Art. 73 BVG, the judge is generally prohibited from deciding whether regulatory or statutory provisions have been enacted in compliance with the procedural regulations, in particular the duty to be heard pursuant to Art. 51 para. 5 BVG. This applies as long as the procedural error is not so serious that it results in the nullity of the provision concerned.
In the present case, the right to be heard of the paritarily composed administrative commission…