Facts
The [A.] -Collective Foundation of the [B.] Pension Fund (hereinafter: Foundation) was established on May 1, 2003 and registered in the Commercial Register on May 9, 2003. Among other things, it aimed to implement the occupational pension scheme in accordance with the Federal Act on Occupational Retirement, Survivors' and Disability Pension Plans (BVG).
On October 31, 2005, the Foundation submitted its 2004 annual accounts to its supervisory authority, the Federal Social Insurance Office (BSV). These showed a "capital-protected fund of Bank [K.] " of around 18.6 million Swiss francs as the main asset, although such a fund did not actually exist. The BSV then ordered supervisory measures and requested further documents, which were not submitted within the deadline. Thereupon, the BSV suspended the incumbent foundation council members and appointed new, interim foundation council members.
The interim foundation council members found that the account at Bank [K.] had a balance of only around 2.3 million Swiss francs and that there were only about 1.4 million Swiss francs available at Bank [N.] . On August 17, 2006, the interim foundation council member [M.] filed a criminal complaint against [C.] and [F.] and possibly other persons, as the actual account balances were only a fraction of the assets shown on the balance sheet.
By order of September 1, 2006, the BSV dissolved the Foundation and ordered its liquidation, as it no longer had the necessary assets to fulfill its purpose.
On August 15, 2007, the Foundation filed a claim for damages against the Swiss Confederation with the Federal Department of Finance (EFD), as the BSV had violated its supervisory duties and failed to notice and prevent the unlawful outflow of assets. By order of April 12, 2016, the EFD rejected the claim for damages in its entirety.
Considerations
The Federal Supreme Court first examined whether the Federal Administrative Court had legitimately changed its practice by now examining the statute of limitations ex officio, even if the public entity is the debtor. The Federal Supreme Court considered this change in practice to be permissible, as it is based on serious substantive reasons and corresponds to the case law of the Federal Supreme Court.
Furthermore, the Federal Supreme Court examined whether the knowledge of the foundation council members [C.] and [F.] can be attributed to the Foundation. The Federal Supreme Court denied this, as [C.] and [F.] had been convicted with legal force of multiple qualified…