Facts
This case involved a welfare foundation established by the company [X.] . Until the amendment of its foundation purpose in 2002, the foundation was financed solely by the employer, i.e., the entire foundation assets originated from the employer without any contributions from the employees. After the purpose amendment in 2002, the foundation was now intended to serve the occupational pension provision for the employees of the founding company.
In 2008, the Office for Social Insurance and Foundation Supervision of the Canton of Bern ordered that the free foundation capital transferred as of January 1, 2004 from the employer contribution reserve, as well as the surplus earnings allocated to the employer contribution reserve in the years 2004-2006, be repatriated to the free foundation capital. The foundation appealed against this decision.
Considerations
The Federal Supreme Court decided that Art. 331 para. 3 CO, which regulates the parity contribution obligation of the employer, is not applicable in this case. This provision requires that the employees must contribute to the pension institution. Since the foundation was financed solely by the employer until 2002 and the employees did not have to make any contributions, Art. 331…