Facts
The [X.] Employee Welfare Foundation was established in 1942 to provide welfare for the personnel of the founder company. Due to a restructuring of the founder company in the 1990s, there was a significant reduction in personnel, and in 1993, a plant was closed. This led to a partial liquidation of the foundation. The supervisory authority, the OPA and Foundation Supervisory Authority [Y.] , issued various rulings to implement the partial liquidation, in particular to determine the free foundation assets to be paid out to the departing beneficiaries. The question was whether the welfare fund and the hardship fund should be considered as free funds or as employer contribution reserves. The foundation filed an appeal against the rulings of the supervisory authority with the Federal Administrative Court, which dismissed the appeal. The foundation then filed an appeal in public law matters with the Federal Supreme Court.Considerations
The Federal Supreme Court dismissed the appeal. It concluded that neither the welfare fund nor the hardship fund can be considered as employer contribution reserves. The welfare fund, according to the regulations, serves the welfare of the employees and not primarily the formation of reserves for employer contributions. The hardship fund, which was exclusively funded by the founder company, also cannot be qualified as an employer contribution reserve, as there are no indications for this. Therefore, both funds represent free foundation assets, which must be paid out to the departing beneficiaries as part of the partial…