Facts

Parties: Appellant [A.] against the Swiss Compensation Office SAK.

Facts:

  • The Swiss Compensation Office SAK terminated the widower's pension of [A.] as of December 31, 2018, because his youngest child had reached the age of 18.
  • The Federal Administrative Court dismissed the appeal filed against this decision with judgment of October 14, 2020.
  • [A.] requested, by way of appeal in public law matters, the continued payment of the widower's pension beyond December 31, 2018.
  • The Compensation Office requested that the appeal be struck out as devoid of purpose and simultaneously submitted an order of November 28, 2022, granting [A.] a widower's pension from January 1, 2019.

Considerations

The Federal Supreme Court examines its jurisdiction and the conditions for entering into the case ex officio and with full cognizance. The application of the Compensation Office to strike out the proceedings is admissible, as it is of a purely procedural nature. The appeal to the Federal Administrative Court and that in public law matters to the Federal Supreme Court are devolutive and fundamentally reformatory legal remedies. With the appeal against a decision or a decision on an objection, the insurer generally loses control over the subject matter of the dispute (devolutive effect).

The Compensation Office exceeds its functional jurisdiction and disregards the devolutive effect by granting, with the order of November 28, 2022, during the federal court proceedings, the widower's pension, hitherto refused, from November 1, 2020. This order is formally null and void and is to be considered in this proceeding as an application by the respondent to grant the appeal. This does not result in the proceedings becoming devoid of purpose, but rather requires a material examination of the appeal.

Under Art. 24 para. 2 OASIA, the entitlement to a widower's pension expires if the last child of the widower reaches the age of 18. The ECtHR ruled in judgment 78630/12…