Restoration of suspensive effect of a pension reduction in cantonal proceedings; duty to give reasons where the administration submits no response

Facts

The insured person (respondent), born in 1967, had been receiving a three-quarter disability pension from the disability insurance since 1 November 2005. In July 2014 the IV-Stelle Uri initiated a revision procedure. After the preliminary notice procedure, it reduced the pension to a quarter pension with effect from 1 December 2018 and withdrew the suspensive effect of any appeal (decision of 24 October 2018).

The insured person appealed and requested the award of a full pension and the restoration of suspensive effect. The Cantonal Court of Uri (lower court) granted the application for restoration of suspensive effect by interlocutory decision of 21 December 2018 (FJA V 18 55).

By procedural order of 26 November 2018, the cantonal court had set the IV-Stelle a time limit of 10 days to respond to the application and declared that silence would be deemed consent. The IV-Stelle allowed the time limit to lapse unused. The time limit for responding on the merits was 30 days.

The IV-Stelle filed a public law appeal with the Federal Supreme Court and requested the annulment of the interlocutory decision and remittal to the cantonal court for a new decision on the application. It alleged a violation of the duty to give reasons (Art. 29 para. 2 Cst.), of the principle of good faith and of the prohibition of arbitrariness (Art. 9 Cst.), a bad-faith unequal setting of time limits, and an untenable anticipatory assessment of evidence in breach of the investigative principle. No exchange of written submissions took place.

The subject matter of the dispute was whether the interlocutory decision on the restoration of suspensive effect may be appealed to the Federal Supreme Court and whether it violates constitutional rights.

Considerations

The Federal Supreme Court examined of its own motion the admissibility requirements. An appeal against interlocutory decisions is admissible if they may cause a harm that cannot be remedied later (Art. 93 para. 1 lit. a FSCA). According to settled case law, where the appeal is brought by the insured person, a final harm is generally denied, since the insured person receives back payments if successful. Where, however, the administration opposes the restoration of suspensive effect, a non-recoverable harm is regularly affirmed, because there is a risk of non-recoverability in the event of repayment. The IV-Stelle's appeal was therefore admissible.

Decisions on suspensive effect are provisional measures within the meaning of Art. 98 FSCA. The complaint is therefore limited to the violation of constitutional rights, and a qualified duty to raise complaints applies (Art. 106 para. 2 FSCA). The IV-Stelle sufficiently asserted violations of Art. 29 para. 2 Cst., Art. 9 Cst. and the principle of good faith, so the appeal had to be admitted.

On the balancing of interests, the Federal Supreme Court held that the cantonal court was also required, even without a response from the administration in the appeal proceedings, to carry out a balancing of interests under the investigative principle. A prognosis of the outcome of the proceedings may be taken into account provided it is clear. Since this is a provisional measure based on summary examination, that assessment is only preliminary. The lower court could carry out the balancing of interests on the basis of the numerous documents submitted, even before the insurer's file was served. The unequal…