Facts
The insured person, born in 1955, filed a claim for benefits with the Disability Insurance (DI office of the Canton of Solothurn) in June 2011. On 22 November 2011, the DI office commissioned the BEGAZ Assessment Centre to prepare a multidisciplinary expert opinion, which was submitted on 19 April 2012. Based on this, the DI office rejected the application with a decision dated 6 March 2013. The appeal lodged against this was upheld by the Insurance Court of the Canton of Solothurn with a decision dated 21 May 2014: the decision was set aside and the matter was remitted to the administrative authority for a new MEDAS assessment to be carried out in accordance with the considerations and for a new decision to be made on the insured person’s entitlement to benefits. Furthermore, the DI office was ordered to pay the insured person party compensation of CHF 2,502.90 and procedural costs of CHF 600.-.
Subsequently, the DI office commissioned an interdisciplinary expert opinion from the Centre for Medical Assessment (ZMB), Basel, which was issued on 23 April 2015. On this basis, the administrative authority again rejected the pension claim due to lack of qualifying disability (preliminary decision dated 23 October 2015, unchallenged and final decision dated 8 December 2015).
With an appeal in public law matters dated 25 February 2016, the DI office requested the setting aside of Dispositive Items 2 and 3 of the decision of the Insurance Court of the Canton of Solothurn dated 21 May 2014. It sought to be relieved of any obligation to bear costs, in particular the obligation to pay party compensation and procedural costs. The lower court and the insured person submitted that the appeal should be dismissed. The Federal Supreme Court partially upheld the appeal.
Considerations
1. Admissibility of the appeal The Federal Supreme Court examined the admissibility of the appeal ex officio. The contested decision was an interlocutory decision that is only appealable under the conditions of Art. 93 para. 1 FSCA. An interlocutory decision exists where the lower court rules on the cost consequences of a remittal decision. Such an interlocutory decision does not cause irreparable harm within the meaning of Art. 93 para. 1 lit. a FSCA, since the cost decision can be challenged subsequently following the new final decision on the merits based on the remittal decision (Art. 93 para. 3 FSCA). The appeal period begins with the date of notification of the new decision (Art. 100 FSCA). In the present case, the appeal of the DI office dated 25 February 2016 was late, as the new decision had already been served on 8 December 2015.
2. Protection of legitimate expectations in the event of a change in case law: In principle, new case law must be applied immediately and universally. However, the principle of good faith (Art. 5 para. 3 Cst.) and the principle of protection of legitimate expectations (Art. 9 Cst.) must be taken into account. A change in case law relating to the conditions for the admissibility of an appeal may not be applied without prior notice if it results in the forfeiture of a right. The DI office was entitled to rely on the previous case law of the social law divisions of the Federal Supreme Court regarding the calculation of deadlines. A refusal to enter into the appeal due to the expiry of the deadline would therefore have violated the principle of protection of legitimate expectations. The appeal was therefore to be declared admissible and examined on the merits.
3. Assessment of evidence and admissibility of the expert opinion The lower court Insurance Court had based its remittal on the grounds that the BEGAZ expert opinion of 19 April 2012 was inadmissible, as the requirements under BGE 137 V 210 had not been met. However, the Federal Supreme Court found that the contested remittal was not based on an assessment of evidence in the individual case, but rather sanctioned a general practice of the DI office. The requirements under BGE 137 V 210 had not yet been mandatory at the time the order was placed (22 November 2011), but had merely advisory character. It was only with the entry into…