Facts
A. worked temporarily for X. Sàrl, a company affiliated with the Vaudoise Assurances Collective Pension Foundation (the foundation), from May 17, 1988 to November 30, 1995. On August 16, 1988, A. signed a declaration of waiver by which he refused to join his employer's pension fund. No contributions were deducted from his salary or paid to the foundation during these years of employment.
On March 26, 1998, A. requested from his former employer the LPP affiliation certificates or the reimbursement of all occupational pension contributions. The foundation declared itself ready to pay CHF 7,350, the amount corresponding to half of the pension assets of CHF 14,699.90 as of September 30, 1998, but invoked the offset against the employer's claim for the contributions not deducted from A.'s salaries.
A. filed an action against the foundation before the Administrative Court of the Canton of Fribourg, requesting the payment of the termination benefit of CHF 14,699.90. During the proceedings, he reduced his claim to CHF 7,350, after the foundation had paid an equal amount into his LPP account. The court dismissed the claim.
A. appealed the judgment by way of administrative law appeal. The foundation concluded for the dismissal of the appeal, and subsidiarily requested that it be found that it has the right to invoke the partial offset of the entitlement to benefits in favor of A.
Considerations
The Federal Tribunal considered that the pension fund required to pay a termination benefit cannot oppose the insured the exception of Art. 82 CO regarding contributions not deducted from his salary by the employer. Although the insured participates in the financing of the regulatory benefits, the employer alone appears to be the debtor to the institution for all contributions. If the insured is entitled to the payment or transfer of a termination benefit, the institution has no direct claim against him and therefore cannot oppose the non-performance of a benefit.
Re…