User company cannot rely on the recourse privilege under Art. 75 ATSG

Facts

In this case, it was about a work accident of a carpenter's assistant who was borrowed from the personnel leasing company B. AG to the user company A. AG. The accident insurance (Suva) provided benefits and subsequently demanded recourse from the user company A. AG for the paid medical costs and loss of earnings. The Federal Court had to decide whether the user company A. AG can rely on the recourse privilege under Art. 75 para. 2 ATSG.

Considerations

The Federal Court concluded that the user company A. AG cannot rely on the recourse privilege under Art. 75 para. 2 ATSG. According to the legal definition, in the personnel leasing relationship, the lender (B. AG) and not the user company (A. AG) is the employer of the insured person. The legislative history of Art. 75 para. 2 ATSG as well as the purpose and intent of the recourse privilege also suggest that the circle of privileged employers should not be expanded beyond those privileged under the old law.

While one could conclude from the systematic structure of the law that the actual operating conditions are decisive for the qualification as an employer…