Offsetting Vested Pension Benefits against Assigned Employer Claims

Facts

The Federal Court decided in this case that offsetting the lump-sum vested pension benefits against claims that the employer has assigned to the pension fund is not permissible. This applies to both the mandatory and the supplementary occupational pension scheme.

The vested pension case arose due to the summary dismissal of the insured person on July 26, 1996. The Federal Act on the Portability of Occupational Old-Age, Survivors' and Disability Pension Plans (FZG) applies to this case.

Insofar as the vested pension benefits must guarantee the BVG retirement assets in the mandatory sector, the offsetting restriction under Art. 39 para. 2 BVG precludes offsetting with the employer's claims. With regard to the supplementary pension, offsetting is incompatible with the statutory concept of lump-sum payment under Art. 5 para. 1 FZG.

Considerations

The Federal Court justifies its decision as follows

The vested pension benefit is to be understood as a statutory benefit, to which the provisions of Chapter 6 of the BVG apply. This does not change if the benefit is paid out in cash. The offsetting restriction of Art. 39 para. 2 BVG therefore remains in effect.

For the supplementary pension sector, neither the BVG nor the FZG contain any provisions on offsetting. The Federal Court rejects offsetting, as the statutorily regulated lump-sum payment of the vested pension benefit, by its special nature, requires actual fulfillment to the creditor. Offsetting would be incompatible with this.