Reclaiming of Family Allowances Wrongly Received by the Employer from the Compensation Fund

Facts

Company A AG is affiliated with the Compensation Fund of the Canton of Bern as an employer within the framework of family allowances. B. was employed at A. AG from June 1, 2005 and received family allowances for his two sons. It was determined that B. had wrongly received family allowances in the amount of a total of CHF 3,680 from May 1, 2011 to January 1, 2013. The Compensation Fund demanded these amounts back from A. AG.

The Administrative Court of the Canton of Bern dismissed the appeal of A. AG against the reclaim. The Federal Social Insurance Office then filed an appeal in public law matters with the request to set aside the lower court's decision and to remand the case for a new assessment.

Considerations

The Federal Supreme Court states that the employer A. AG is not obliged to reimburse under federal law, as it only acts as a paying agent and does not acquire any rights or obligations of its own from the benefit relationship. However, the cantonal law of the Canton of Bern, which obliges the employer to reimburse, is contrary to federal law, as it undermines the risk distribution provided for by the federal legislator and infringes on the rights of the…