Decision on the Privileged Collocation of an Employee Pension Fund in the Bankruptcy of the Employer

Facts

Mess-Union GmbH established an employee pension fund (the "Employee Pension Fund") in 1945. In 1953, Mess-Union A.G. took over the fund upon the transformation of the company. In 1955, Mess-Union A.G. went bankrupt. The Employee Pension Fund then requested the collocation of its claim of CHF 73,693.60 (the fund's capital with interest) in the 2nd class. Kredit- und Verwaltungsbank Zug A.G., a 5th class creditor of the bankruptcy estate, contested this collocation.

Considerations

The Federal Tribunal dismissed the bank's appeal. It considered that the supervisory authority (the District Council of Zurich) was entitled to represent the fund in the collocation proceedings, as the fund's governing bodies had remained passive. The fund's claim against the bankrupt company did not constitute a mere promise of donation, but a firm placement of funds benefiting from the privilege of the 2nd class under Art. 219(4) DEBA. It is irrelevant that, at the time of the bankruptcy, there were no beneficiaries with rights to benefits from the fund: the privilege…