Federal Supreme Court, Decision 9C_88/2022 from 19 July 2022
19 août 2022 – In the present decision, the Federal Supreme Court (hereinafter the Court) had to assess whether certain contested provisions of the Ordinance on the Social Services of the Canton Berne are to be repealed. The court examined the prerequisites for a judgment on the merits, in particular the legitimacy to appeal.
Specifically, the complainants appealed against Art. 8 para. 2 and 3 of the Law on Social Services of the Canton Berne (Gesetz über die sozialen Leistungsangebote, SLG/BE) as well as Art. 4 para. 2 lit. c and Art. 5 of the Ordinance on Social Services of the Canton Berne (Verordnung über die sozialen Leistungsangebote, SLV/BE). These provisions regulate the assessment of “contributions” to contribution recipients and to service providers. The parties claimed that the crediting of own funds of the contribution recipients as well as of the service providers according to that law violates cantonal and federal law.
The right to appeal in the case of abstract norm control requires the complainants to be virtually affected, meaning that there is a minimum probability they will be directly affected by the contested regulation sooner or later. The complainants claimed they would likely be affected by the capital charge as they are recipients of contributions. The Health, Social and Integration Directorate of the Canton of Berne reimburses the claimants service providers for care costs not covered by the health insurers and the service recipients pursuant to Art. 25a of the Federal Law on Health Insurance (Bundesgesetz über die Krankenversicherung, KVG) and in accordance with Art. 29 para. 1 SLG/BE. However, the Court ruled that the residual financing of care costs according to Art. 25a KVG in conjunction with Art. 29 SLG/BE did not constitute a contribution payment in the sense of Art. 8 SLG/BE. Thus, the complainants were not virtually affected by them. Accordingly, their legitimacy was to be denied and the complaint was dismissed.
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