Liability of the Employer and its Organs for Violation of Mandatory Social Insurance Obligations

Facts

The case concerns the liability of the employer and its organs pursuant to Art. 52 OASI Act for violations of the obligations to pay, remit, and account for the parity-based social insurance contributions. The appellant Alfred U. is the President of the Board of Directors of B. AG and disputes his liability as an organ of the company.

The Federal Supreme Court confirms in its judgment the previous case law on the subsidiary liability of organs under Art. 52 OASI Act. Accordingly, the employer is primarily liable, but the persons acting on its behalf, in particular the organs of the company, are also liable. This corresponds to general legal principles on the liability of the organs of a legal entity.

Furthermore, the Federal Supreme Court maintains its strict standard of fault, even if the management has been delegated pursuant to Art. 717 para. 2 CO. The Board of Directors must keep itself continuously informed about the course of business, carefully examine reports, and, if necessary, take additional clarifications.

Considerations

The Federal Supreme Court sees no reason to deviate from its previous case law on the subsidiary liability of organs under Art. 52 OASI Act. The liability of the employer is the correlate to its public-law position as the statutory enforcement body in the implementation of social insurance. In addition, the persons acting on behalf of the employer, in particular the organs, must also be liable in…