Facts
[D.], born in 1961, had been operating the agricultural business Y. leased from the city of X. together with A. as a simple partnership since 1996. When his co-tenant was able to acquire his own business on January 1, 2006, there was a need for financing to pay out the partner's equity and to invest in a more efficient fodder system at a cost of CHF 600,000. To partially finance this, [D.] wanted to draw on the funds from the 2nd pillar, which amounted to CHF 321,573 at the end of December 2005. He therefore terminated his risk protection insurance and the savings plan with the occupational pension provider, the Pension Foundation of Swiss Agriculture, as of December 31, 2005, and demanded the lump-sum payment of the accumulated funds. The pension provider refused this, as the BVG revision no longer allowed lump-sum payments of retirement assets to self-employed persons.
Considerations
The Federal Court concluded that the appellant is entitled to demand the lump-sum payment of his accumulated retirement capital. This results from a historical and systematic interpretation of Art. 4 para. 4 BVG. Although the wording of this provision states that the contributions and deposits made by self-employed persons must be permanently used for occupational pensions, the legislative materials clearly show that the legislator intended to provide for exceptions for business investments. The Federal Council had even planned a corresponding ordinance provision (Art. 32a BVV 2) to regulate the withdrawal of the termination benefit for investments. From a systematic point of view, it would also be contradictory if self-employed persons could withdraw the vested benefits they had accumulated involuntarily as employees in cash, but could not have access…