In its ruling 8C_665/2022 of December 15, 2022, the Federal Supreme Court clarified the admissibility of A Mail Plus in social insurance law. Accordingly, delivery to a P.O. Box on Saturday also triggers the deadline.
Matthias Fricker
Attorney at law and partner at Fricker and Füllemann Attorneys at Law
Studied at the University of St. Gallen, graduating with a Master in Law (M.A. HSG in Law) in 2012, registered in the Bar Register of the Canton of Zurich, member of the Zurich Bar Association.
Fabian Füllemann
Attorney at law and partner at Fricker and Füllemann Attorneys at Law
Studied at the Universities of St. Gallen and Zurich, graduating with a Master of Law UZH in 2013, registered with the Zurich Bar Registry, member of the Zurich Bar Association.
A Mail Plus with pitfalls
We already addressed the problem with the delivery of A Mail Plus letters that trigger the deadline on Saturday in our article from September 2, 2021.
When registered mail is delivered, the time limit is generally triggered by collection from the post office box. If a consignment is not collected, it is deemed to have been delivered on the seventh day (so-called delivery fiction).
With A Mail Plus, however, the time of delivery already triggers the deadline. In the case of delivery on a Saturday, the deadline begins on the following day, i.e. on Sunday. If the mailbox is not emptied until the following Monday, this means that the deadline starts two days earlier (compared to registered mail).
As already reported, in our experience, certain insurance providers seem to have mail items with A Mail Plus in social insurance law delivered specifically on Saturdays in order to achieve a corresponding “shortening of the deadline”.
Current judgment of the Federal Supreme Court
In its ruling 8C_665/2022 of December 15, 2022, the Federal Supreme Court has now consolidated the practice on A Mail Plus in social insurance law. It states that in social security proceedings there are no statutory provisions on how the insurance institutions should serve their orders. Therefore, the dispatch of an objection decision using the “A Mail Plus” dispatch method is not objectionable. Referring to earlier rulings, it states that, according to case law, the delivery of the item to the addressee’s post box is deemed to trigger the deadline, even if this took place on a Saturday. The fact that the addressee concerned does not collect the item from the post box until the following Monday is irrelevant. It would be the recipient’s responsibility to empty the mailbox themselves on a Saturday.
Best practice for lawyers regarding mailings with A Mail Plus
The Federal Supreme Court’s requirement for lawyers to empty their mailboxes on a Saturday seems impractical and somewhat casual to us. As a result, the decision is nevertheless tenable. Lawyers can tackle the problem without having to sacrifice part of their weekend.
In our opinion, best practice is to check all consignments with A Mail Plus for the delivery date using the Track & Trace number asstandard especially as late deliveries can also be expected during the week. Setting up such a process in the law firm does not require a great deal of effort and reliably prevents incorrect deadline calculations.
