Facts
The proparis Vorsorge-Stiftung Gewerbe Schweiz (hereinafter: Foundation) is a collective foundation that offers occupational old-age, survivors' and disability pension provision for employees in the commercial sector and self-employed persons in the commercial sector. The Foundation is open to all associations, professional organizations and companies that are members of the Swiss Business Federation.
By order dated May 1, 2018, the Bernese BVG and Foundation Supervisory Authority (BBSA) ordered a partial liquidation of the Foundation, as the founding associations of the pension scheme PANVICA (Pension Fund PANVICA) had terminated the affiliation contract with the Foundation as of December 31, 2017. The Foundation filed a complaint against this, which was dismissed by the Federal Administrative Court.
Considerations
The Federal Supreme Court upholds the Foundation's complaint. It finds that according to Art. 11 para. 3bis BVG, the dissolution of an existing affiliation with a pension institution and the re-affiliation with a new pension institution by the employer must be done with the consent of the personnel or any employee representation. The law establishes a genuine co-determination of the personnel or the employee representation in the dissolution of an…