Facts
In 1996, the BVG Guarantee Fund secured statutory pension benefits of CHF 62.5 million for the beneficiaries of the Collective Foundation X in liquidation and CHF 10.1 million for those of the Collective Foundation Y in liquidation. Both Collective Foundations had been dissolved by orders of the Federal Social Insurance Office (FSIO) on January 16, 1996.
On April 20, 2000, the Guarantee Fund submitted two "claims for damages under the Liability Act" to the Federal Department of Finance (FDF), arguing that the FSIO had breached its supervisory duties. The FDF proposed that the Guarantee Fund withdraw its submissions and pursue the legal remedy set out in the BVG.
On July 25, 2000, the Guarantee Fund filed two lawsuits with the Administrative Court of the Canton of Bern, seeking the amounts of CHF 62.5 and 10.1 million, plus interest, from the Swiss Confederation. The Administrative Court did not enter into the two lawsuits.
On April 1, 2010, the Guarantee Fund requested the resumption of the proceedings with the FDF and the confirmation of its jurisdiction. By order of April 19, 2011, the FDF did not enter into the Guarantee Fund's claims for damages of April 20, 2000.
Against this order, the Guarantee Fund filed a complaint with the Federal Administrative Court on May 31, 2011. The Federal Administrative Court upheld the complaint and referred the matter back to the FDF to enter into and substantively examine the two claims for damages of the Guarantee Fund of April 20, 2000.
The Swiss Confederation filed an appeal in public law matters on October 26, 2012 and requested the annulment of the decision of the Federal Administrative Court.
Considerations
The Federal Supreme Court holds that the Guarantee Fund's recourse claim against the Confederation based on a breach of supervisory duty by the FSIO is to be asserted under the provisions of the BVG, not…