Withdrawal of a Member from an Association by Contractual Agreement

Facts

[Z.], born on July 12, 1942, was employed at the carpentry business A. from February 15, 1961 to December 31, 1997, and subsequently at its legal successor, B. SA. [B. SA] was a member of the Swiss Builders' Association (SBV). On November 12, 2002, the SBV, the Construction and Industry Union, and the Syna Union concluded the Collective Bargaining Agreement for Flexible Retirement in the Main Construction Industry (GAV FAR), the operational scope of which also included the carpentry trade.

On February 24, 2003, the Association of Swiss Timber Construction (a specialist group of the SBV) and 652 timber construction companies, who were members of both the Association of Swiss Timber Construction and the SBV, applied for an amendment to the SBV's articles of association with the aim of enabling the members of the Association of Swiss Timber Construction to withdraw from the SBV by March 31, 2003. The General Assembly of the SBV adopted the corresponding amendment to the articles of association on March 26, 2003. [B. SA], like most timber construction companies, withdrew from the SBV on March 31, 2003.

By judgment of the Federal Court 5C.67/2006 of June 8, 2006, the action for annulment against the amendment to the articles of association of March 26, 2003 was upheld in the final instance, and the resolution of the General Assembly was overturned.

On January 28, 2004, [Z.] applied to the Foundation for Flexible Retirement in the Main Construction Industry (Stiftung FAR) for the regulatory benefits of early retirement. The Foundation rejected this on the grounds that [B. SA] had dissolved its membership in the SBV as of March 31, 2003 and was therefore not subject to the GAV FAR.

Considerations

The Federal Court has decided that [B. SA] withdrew from the SBV at the end of March 2003 by contractual agreement. The GAV FAR, which only entered into force on July 1, 2003, was thus never binding on B. SA. This eliminates the question of whether the GAV FAR would have had any continuing effects in the event of a withdrawal after its entry into force. A claim by the complainant [Z.] to a bridging pension under the GAV FAR must therefore be denied.

The Federal Court has stated that in addition to the unilateral withdrawal from an association…