Passive Legitimation of the Former Employer in Claims for Subsequent Payment of Contributions to Occupational Pension Schemes

Facts

This judgment addresses the issue of the passive legitimation of the former employer when the employee asserts claims for subsequent payment of contributions to the occupational pension scheme. The Federal Court clarifies its previous case law and holds that the former employer is passively legitimated if the employee asserts claims based on Art. 66 para. 3 BVG, regardless of whether the termination of the employment relationship leads to insurance benefits or a vested benefits payment.

In earlier judgments, the Federal Court had decided that the claim for vested benefits always lies against the pension or compensation fund, but not against the former employer, even if the latter had never transferred the deducted contributions to a pension fund. This case law was later refined to the effect that this not only applies when a vested benefits payment is due, but also when an insured event in the form of old-age benefits occurs.

In the present judgment, the Federal Court changes its case law and recognizes that the claim for subsequent payment of contributions is a dispute between employer and employee within the meaning of Art. 73 para. 1 BVG. Accordingly, the former employer is passively legitimated if the employee asserts claims based on Art. 66 para. 3 BVG, regardless of whether the termination of the employment relationship leads to insurance benefits or a vested benefits payment.

Considerations

The Federal Court states that in the procedure of the original administrative law jurisdiction pursuant to Art. 73 para. 1 BVG, a prerequisite for a judgment on the merits is that the claimant has a legally protected interest of a legal or factual nature (interest in legal protection) in the legal claim asserted. It could be questioned whether an insured person always has such an interest in a claim directed at the fulfillment of the duty to provide information and pay contributions by the employer, since their main interest is directed at the correct assessment of a benefit that has already fallen due or will fall due in the future by the pension fund.

However, in order not to have to make such…