Claim of the Departing Balance to the Division of Reserves and Provisions in the Partial Liquidation of a Pension Fund

Facts

After the insurance company C. AG had taken over the insurance company [D. AG], its employees - in terms of occupational pension law - switched from Pension Fund [A.] to Pension Fund [B.] on January 1, 2012. This led to a partial liquidation of Pension Fund [A.] as of December 31, 2011. Pension Fund [B.] and a group of former employees of [D. AG] questioned the distribution plan regarding the collectively transferable provisions and requested a corresponding review by the Bernese BVG and Foundation Supervisory Authority (BBSA). The BBSA ordered that the collective provisions, with the exception of those for pending disability cases, are to be transferred proportionately to the collectively departing insured persons.

Pension Fund [A.] appealed against the decision of the BBSA. The Federal Administrative Court dismissed the appeal and awarded a party indemnity of CHF 15,000 to the former employees of D. AG.

Pension Fund [A.] filed an appeal in public law matters with the Federal Supreme Court.

Considerations

According to the Federal Supreme Court, the partial and total liquidation of the pension institution must be carried out taking into account the principle of equal treatment and in accordance with professionally recognized principles. In the event of a collective departure, there is an additional collective proportionate claim to the provisions and fluctuation reserves, in addition to the claim to the free assets.

For the assessment of whether an actuarial risk is transferred, only the…