Facts
The case concerns the liability of the former Chairman of the Board of Directors of a public limited company (X AG) for unpaid social security contributions of the company. The Compensation Fund of the Canton of Zurich demanded compensation from the Chairman of the Board of Directors, Dr. G., and the former Managing Director, L., in the amount of CHF 2,401.70, as X AG had not correctly accounted for a salary payment of CHF 39,000 to L. in 1967 and had not paid the corresponding contributions. Furthermore, a wage difference of CHF 750 had not been correctly accounted for in 1968.
The lower instance (AHV Appeal Commission of the Canton of Zurich) had upheld the Compensation Fund's claim and ordered Dr. G. and L. to pay the compensation. It justified this by stating that Dr. G. as Chairman of the Board of Directors had grossly negligently disregarded the provisions of the AHVG (Federal Act on Old-Age and Survivors' Insurance) despite being aware of the deficiencies.
Dr. G. then filed an administrative court appeal and requested the judgment to be overturned insofar as it burdened him. He denied any responsibility for the non-accounting of the salary payment of 1967, as he had no longer been a member of the Board of Directors at that time.
Considerations
The Federal Supreme Court states that according to Art. 52 AHVG, an employer who has caused damage through intentional or grossly negligent disregard of regulations must reimburse this to the Compensation Fund. The employer's obligation to pay contributions and account for them is a legally prescribed public law task, the non-fulfillment of which entails compensation for damages under Art. 52 AHVG.
If the employer is a legal entity that no longer exists at the time the liability is asserted, the responsible bodies may be held liable. The decisive factor is whether gross negligence can be attributed to the body.
The Federal Supreme Court considers the…