Federal Supreme Court, 03.23.2026, 9C_166/2026
Facts
In a dispute regarding the radio and television license fee (household fee) involving Serafe AG, A.________ filed an appeal with the Federal Administrative Court (FAC). In an interlocutory decision dated February 9, 2026, the FAC ordered A.________ to pay an advance on costs of CHF 1,000 by March 2, 2026, failing which the appeal would be deemed inadmissible. On March 3, 2026, A.________ appealed this interlocutory decision to the Federal Supreme Court (FSC). He argued that as a recipient of supplementary benefits, he was financially unable to pay such an advance on costs, whether before the FAC or the FSC.
Legal Analysis
The Federal Supreme Court reiterates the conditions for the admissibility of an appeal against an interlocutory decision, i.e., a decision that does not conclude the proceedings. According toArt. 93 para. 1 let. a of the Federal Supreme Court Act (FSCA), such an appeal is only admissible if the decision in question may cause irreparable harm. Harm is considered irreparable when it cannot be fully remedied by a subsequent favorable final decision.
In accordance withArt. 42 para. 1 FSCA, it is the responsibility of the appellant to demonstrate in their appeal brief how the contested decision causes them such harm, unless it is self-evident.
Case law has established that an interlocutory decision ordering the payment of an advance on costs does not, as a general rule, cause irreparable harm. The situation is different if this decision is the result of the rejection of an application for legal aid. In such a case, being required to pay an advance on costs despite indigence constitutes irreparable harm, as it may deprive the party of their access to justice.
Finally, the FSC specifies that applications for legal aid must be submitted to the authority competent for the proceedings in question. If an application is addressed to an incompetent authority, it must be forwarded ex officio to the competent authority (Art. 30 para. 2 FSCA).
Application to the Case
The Federal Supreme Court notes that the FAC's decision ordering an advance on costs is indeed an interlocutory decision within the meaning of Art. 93 FSCA.
However, it notes that the appellant did not explain in his brief how this decision would cause him irreparable harm. The appeal therefore fails to meet the formal requirements of Art. 42 para. 1 FSCA.
Furthermore, the FSC analyzes the situation on the merits and concludes that there is no irreparable harm. The appellant had not filed an application for legal aid with the FAC before it rendered its interlocutory decision. The contested decision therefore did not concern a refusal of legal aid. Consequently, the obligation to pay an advance on costs does not deprive the appellant of his access to justice, as he is still free to file a formal application for legal aid with the FAC. The issue of the advance on costs could, if necessary, be re-examined in the context of an appeal against the final decision.
The Federal Supreme Court nevertheless interprets the appellant's arguments regarding their indigence as an implicit request for legal aid for the proceedings before the Federal Administrative Court. As the Federal Supreme Court does not have jurisdiction to rule on this request, it decides to forward it ex officio to the Federal Administrative Court for processing.
Regarding the proceedings before the Federal Supreme Court itself, the request for legal aid is considered moot with respect to costs, as the Court waives them. The request for the appointment of a lawyer is rejected, as the appeal is manifestly devoid of any chance of success.
Outcome
The Federal Supreme Court declares the appeal inadmissible.
It forwards the file to the Federal Administrative Court to rule on the appellant's request for legal aid for the first-instance proceedings. The Federal Supreme Court specifies that the Federal Administrative Court must set a new deadline for the payment of the advance on costs after ruling on this request.
No court costs are charged for the federal proceedings. The request for legal aid for the federal proceedings is otherwise rejected.
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