Provisional Measures in the Procedure of Action before the First-Instance Judicial Authority

Facts

The case concerns a dispute between the Fondo di Previdenza per il personale della Banca Commerciale di Lugano and R., within the framework of the Federal Act on Occupational Pension Plans (OPA). The Cantonal Insurance Court of the Canton of Ticino was seized of the case. On 24 May 1993, the Federal Insurance Court rendered a decision in this case.

The parties involved are the Fondo di Previdenza per il personale della Banca Commerciale di Lugano and R. The Cantonal Insurance Court of the Canton of Ticino was seized of the case in the first instance. The decision of the Cantonal Insurance Court was appealed by the Fondo di Previdenza per il personale della Banca Commerciale di Lugano before the Federal Insurance Court.

The main issue at stake is the admissibility of the administrative law appeal against an interlocutory decision issued by the first-instance judicial authority, as well as the possibility of ordering provisional measures in the procedure of action before this authority.

Considerations

The Federal Insurance Court considered that, in the procedure of action before the first-instance authority, no suspensive effect can be attributed due to the lack of an enforceable decision. In such a situation, the course to follow is that of ordering positive provisional measures.

The Federal Insurance Court also considered that, even if the OPA provides for a procedure of action, Article 56 of the Administrative Procedure Act (APA) constitutes a federal legal basis allowing, in the field of occupational pension plans, the ordering of…