Facts
The case concerns an employer, B., who was convicted of having failed to transfer employee contributions by the latest possible date, although he was able to do so or because it resulted from a faulty breach of the duty to keep the necessary funds available. The employer was the chairman of the board of directors of a public limited company (SA) that had joined a professional pension institution. The SA had withheld employee contributions without transferring them to the pension institution, which led to a delay in the payment of contributions.
The court of first instance sentenced the employer to a prison sentence for violating the Federal Act on Occupational Pensions (OPA) and the Federal Act on Old-Age and Survivors' Insurance (OASIA). The employer appealed and requested the annulment of the decision of the court of first instance.
Considerations
The Federal Court examined the question of whether the employer had committed an offense by failing to transfer employee contributions by the latest possible date. The Court considered that Articles 87 para. 3 OASIA and 76 para. 3 OPA must be interpreted in the same manner.
The Court also examined the question of whether the employer had breached his duty to keep the necessary funds available to transfer employee contributions. The Court considered that the employer had not committed an offense, as he had transferred the employee contributions before the decision…