Facts
The dispute concerns the question of whether the respondent supervisory authority was entitled to require the appellants, Foundation A. and Foundation B., to amend their articles of association to bring them into line with Directives D-04/2014 of the Occupational Pension Supervisory Commission. This amendment would introduce the rule that at least one member of the foundation board must neither be a representative of the founding bank, nor participate in the management or asset management of the banking foundation, nor be economically linked to the founding bank, the company responsible for the management or the one responsible for the asset management of the foundation. The appellant foundations are subject to the supervision of the cantonal supervisory authority within the meaning of Art. 61 para. 1 OPA. Since the entry into force of Art. 3 OPO 1, in its version in force from 1 January 2012, there is now an implementing provision from which it follows that vested benefits foundations and pillar 3a banking foundations are considered to be institutions that fall within the scope of Art. 61 para. 1 OPA and are therefore subject to the supervision of the competent cantonal authority.Considerations
However, the Federal Court considers that Nos. 1.2 para. 2 and 2.1 para. 2 of Directives D-04/2014, which are intended to concretise Art. 48h para. 1 OPO 2, go beyond the legal framework set by Art. 5 para. 3 OPO 3 and Art. 19a para. 2 OVB. These provisions only provide for the application by analogy of Art. 49 to 58 OPO 2 to the investment of the assets of vested benefits…