Unlawfulness of the final regulation of the deduction from the table wage in Art. 26bis para. 3 InvIO (version of 3 November 2021)

Facts

The insured person, born in 1974, entered Switzerland in 1992 and worked in the construction industry. After an accident in February 2018 resulting in a knee injury, he registered with the Federal Invalidity Insurance (InvIA) for benefits in August 2018. The InvIA office of Basel-Stadt granted him, by decision of 9 November 2022, a full pension as of February 2019 and, as of June 2022 – taking into account a 10 % deduction from the table wage – a pension of 54 % of a full InvIA pension.

The insured person appealed this decision to the Social Security Court of the Canton of Basel-Stadt. The court upheld the appeal and granted him, as of June 2022, a pension of 59 % of a full InvIA pension, allowing a 15 % deduction from the table wage, deviating from the contested decision.

The Federal Social Insurance Office (INO) appealed this judgment to the Federal Supreme Court in public law matters. It alleged, in particular, a violation of the rules on the deduction from the table wage issued by the ordinance-maker as well as legal violations concerning the start of entitlement and the timing of the pension reduction.

Considerations

1. Legal bases and delegation framework The assessment of the degree of invalidity is governed by Art. 28a para. 1 InvIA in conjunction with Art. 16 GSSLA. The Federal Council is empowered to define the earnings relevant for assessing the degree of invalidity as well as the applicable correction factors. Previous case law recognised two central correction instruments: the deduction from the table wage and parallelisation. The deduction from the table wage served to take account of personal and professional factors such as age, years of service or residence category that may affect wage levels.

2. Interpretation of Art. 26bis para. 3 InvIO The contested provision stipulates that where functional capacity is 50 % or less, a flat-rate deduction of 10 % must be made from the statistically determined invalidity income. The INO takes the view that this regulation is final and that further deductions are inadmissible. The Federal Supreme Court, however, concludes that Art. 26bis para. 3 InvIO in the version of 3 November 2021 exceeds the delegation framework, as it largely ignores the previous case law on the deduction from the table wage and does not provide sufficient compensation for the diverse case constellations.

3. Legislative intent and materials The legislative materials on the revision of the InvIA show that the legislator generally intended to maintain the previous case law on the assessment of invalidity. The dispatch on the legislative revision emphasises that the previous practice should be incorporated into the ordinance. The use of the definite article in Art. 28a para. 1 InvIA («the correction factors») indicates that the Federal Council was to build on the previous case law. A final regulation of the deduction from the table wage was therefore not intended.

4. Systematic and teleological interpretation The unity of the legal order requires harmonised application of the assessment of invalidity in all branches of social insurance. A final regulation in the InvIO would lead to different…