No entry on appeal against late appeal against decision not to enter into proceedings regarding repayment of education grants

Facts

The appellant received an education grant of CHF 10,923.-- from the Office for Central Services of the Canton of Bern, Department of Education Grants by decision dated 25 February 2022. With a decision dated 6 July 2023, this grant was adjusted retroactively and repayment of CHF 9,343.-- was ordered.

The appellant filed an appeal with the Directorate of Education and Culture of the Canton of Bern against the repayment decision on 5 October 2023. The Directorate classified the appeal as late, since the 30-day appeal period under Art. 21 and 22 of the Bernese Education Grants Act (ABG/BE; INA 438.31) in conjunction with Art. 62 para. 1, 67 and 43 para. 1 of the Bernese Act on Administrative Court Procedure (VRPG/BE; INA 155.21) had already expired on 7 August 2023. The appellant claimed an alleged extension of the deadline until 4 September 2023, but was unable to provide any evidence thereof.

The Administrative Court of the Canton of Bern, Administrative Law Division confirmed the Directorate’s decision not to enter into proceedings with a judgment dated 11 September 2024. The appellant filed an appeal with the Federal Supreme Court on 11 October 2024 and supplemented it on 16 October 2024.

Considerations

The Federal Supreme Court first examines the admissibility of the appeal. Under Art. 83 lit. k FSCA, appeals against decisions concerning subsidies to which no entitlement exists are inadmissible. However, this exception does not apply to decisions concerning the repayment of a subsidy (see judgment 2C_644/2020 of 24 August 2021, para. 1.1). Thus, the appeal in public law matters is admissible.

The appeal must be sufficiently substantiated under Art. 42 FSCA. The appellant must specifically address its legal requests and arguments to the considerations of the lower court that led to the decision not to enter into proceedings. The Federal Supreme Court reviews the application of cantonal law only for violations of federal law, in particular arbitrariness (see BGE 149 IV 183 para. 2.4). Moreover, a qualified duty to raise and substantiate objections applies to challenges of fundamental rights and cantonal law under Art. 106 para. 2 FSCA.

The appellant primarily challenges the lower court’s assessment of evidence and claims that the Administrative Court acted arbitrarily. However, the Federal Supreme Court takes the facts as established by the lower court as its basis (Art. 105 para. 1 FSCA). Criticism of the established facts is only admissible if they are obviously incorrect, arbitrary or based on a violation of law and could be decisive for the outcome of the proceedings (see Art. 105 para. 2 FSCA). The app…