Liability of Foundation Board Members for Damage in Occupational Pensions

Facts

The N. Foundation was established in 2003 and aimed to carry out all forms of occupational pensions. The appellant A. joined as a foundation board member in 2005. In 2006, the Federal Social Insurance Office suspended all eight serving foundation board members and appointed interim foundation board members. The OPA security fund paid an advance of CHF 33,000,000.- to secure statutory benefits. The OPA security fund took over the claims against 13 individuals, including A., and had all claims assigned to it by the foundation.

The Administrative Court of the Canton of Zug ordered the defendants, including A., to pay damages of CHF 30,000,000.- plus interest. A. appealed and requested the reversal of the decision.

Considerations

3. Legal Basis

Art. 52 para. 1 OPA regulates the liability of organs of the pension institution for damages caused intentionally or negligently. Art. 56a para. 1 OPA regulates the right of recourse of the security fund against persons who are responsible for the insolvency of the pension institution.

4. Conditions for Liability

The conditions for liability under Art. 52 para. 1 OPA are met if damage has occurred, a breach of duty of care exists, fault is present, and an adequate causal link between the damage and the conduct giving rise to liability exists.

5. Damage

Damage is given, as the outflows of the foundation up to the amount of CHF 30,553,230.39 are sufficiently substantiated and not disputed by the appellant.

6. Breach of Duty of Care

The appellant breached his duty of care by not taking care of the…