Invalid Transfer of Exclusion Competence to the Central Administration of a Health Insurance Cooperative

Facts

Gustav Strahm has been a member of the Swiss Health Insurance Helvetia, a health insurance fund recognized by the Federal Council pursuant to Art. 1 para. 3 KHIA, in the legal form of a cooperative, for years. According to the statutes of Helvetia, the Central Board is responsible for the exclusion of members, but can transfer this competence to the Central Administration pursuant to § 62.

Considerations

The Section Basel 3 excluded Strahm due to violations of the statutes, which was confirmed by the Central Administration. Strahm then filed a lawsuit with the request to continue to be a member of the fund.

The Federal Supreme Court decided that the transfer of the exclusion competence to the Central Administration as a mere executive body is inadmissible. According to Art. 846 para. 3 CO, the general meeting is generally responsible for the exclusion of cooperative members, whereby the statutes can transfer the competence to the administration within the meaning of Art. 894 et seq. CO, i.e. the Central Board. However, a further delegation to the Central Administration as a subordinate body is not permitted.

Art. 30 KHIA, which allows the exclusion of the ordinary…