Appeal of the OPA Guarantee Fund against a former member of the foundation board

Facts

The OPA Guarantee Fund Foundation has brought an action for liability against E., a former member of the board of the X. Pension Fund in liquidation, for an amount of 5 million francs. The Foundation is based on the one hand on the claims assigned by the X. Pension Fund in liquidation pursuant to Art. 52 OPA, and on the other hand on Art. 56a para. 1 OPA. The Cantonal Court dismissed the claim on the grounds of prescription. The OPA Guarantee Fund Foundation has appealed against this decision to the Federal Tribunal.

Considerations

With regard to the claims based on Art. 52 OPA, the Federal Tribunal considers that the prescription is not acquired. Indeed, the defendant has regularly waived the right to invoke the prescription against the X. Pension Fund in liquidation, and this waiver is also opposable to the assignee, namely the OPA Guarantee Fund Foundation.

On the other hand, the claims based on Art. 56a para. 1 OPA are prescribed. The law does not provide for a specific limitation period for these claims. The…