Facts

Parties: A. (plaintiff) against Ecole polytechnique fédérale de Lausanne (EPFL) and vice versa (defendant)

Courts: I. Cour de droit social (first instance), Tribunal administratif fédéral (appeal instance), Bundesgericht (final instance)

Date: January 26, 2022

Main question: Responsibility of the EPFL for the gap in the occupational pension provision of [A.] due to failure to register and pay contributions during the employment relationship.

Facts:

  • [A.] has been working as a lecturer at the EPFL since the academic year 1980/1981.
  • The EPFL informed [A.] on May 10, 2004, that his position would not be extended.
  • A legal dispute arose over the nature of the employment relationship, which went to the Bundesgericht.
  • The Bundesgericht decided on June 28, 2006, that [A.] had an open-ended employment relationship and the rules of social insurance should apply.
  • The EPFL decided on November 27, 2007, that the employment relationship would end on April 30, 2008, and [A.] should have been insured with a pension fund since October 1, 1980.
  • [A.] filed an appeal against this decision, which was partially upheld.
  • Publica, the pension fund, began administrative steps for A.'s registration in March 2010.
  • The EPFL paid an amount of 54,695 CHF in September 2011 for the retroactive registration of [A.] as of January 1, 1999.
  • Publica informed [A.] about his pension entitlements as of May 1, 2008.
  • [A.] filed a lawsuit with the cantonal court on March 23, 2012, to achieve his retroactive registration with Publica as of October 1, 1980, and the payment of outstanding pensions and contributions.
  • The Bundesgericht decided on April 23, 2014, that Publica had to register [A.] retroactively as of October 1, 1980, but rejected the claim for payment of outstanding pensions and contributions.
  • [A.] filed another lawsuit against Publica and the EPFL on December 24, 2014, to obtain compensation for breach of the registration contract.
  • The cantonal court declared the lawsuit inadmissible and referred it to Publica and the EPFL.
  • Publica and the EPFL rejected A.'s compensation claim.
  • [A.] filed an appeal with the Bundesverwaltungsgericht against these decisions.
  • The Bundesverwaltungsgericht dismissed the appeal against Publica and partially upheld the appeal against the EPFL, quashed the decision, and referred the matter to the EPFL for a new decision.
  • [A.] and the EPFL both filed an appeal with the Bundesgericht.

Considerations

The Bundesgericht examined the responsibility of the EPFL for the gap in the occupational pension provision of [A.] due to failure to register and pay contributions during the employment relationship.

First, the court established that the EPFL is responsible for the damage caused by the breach of its obligations. The EPFL had the obligation to register [A.] with the pension fund and to pay the contributions. The failure to register and pay the contributions constituted an unlawful act that resulted in damage to A.

The…