Facts
The present case concerns a dispute between the company M. AG and the Pro Ventura Pension Fund, as well as the Social Insurance Court of the canton of Zurich. The central issue concerns the right to costs for social insurers who prevail in cantonal proceedings. According to the case law of the Federal Supreme Court, social insurers who prevail in cantonal proceedings and are represented by a lawyer or other qualified person can claim costs if the opposing party acts in a reckless or negligent manner. In the absence of such representation, the other conditions for the award of costs to an unrepresented party must also be met, in addition to the condition related to recklessness or negligence.Considerations
The Federal Supreme Court recalls that the notions of recklessness and negligence are a matter of federal law. These notions can be considered as fulfilled when a party asserts facts knowing that they are inaccurate, or when it bases its position on a state of facts that it should know to be incorrect given the diligence required of it. The proceedings are also reckless when a party adheres to a manifestly illegal interpretation. However, there is no reckless or negligent procedure as long as the party seeks to have the judge examine a point of view that does not appear arbitrary, even if the judge manages to convince it of the inaccuracy of its position during the proceedings. The filing of an appeal without any prospect of…