Facts
This case concerns a claim for damages by the compensation fund against the sole director of a public limited company (X AG) for non-payment of social security contributions. The company had been granted a payment deferral with an amortization plan by the compensation fund, before going bankrupt shortly afterwards. The compensation fund then sought to hold the director personally liable on the basis of Art. 52 OASIA.
The unpaid contributions concerned the months of December 1994, the entire year 1994, and the year 1995. Until October 1994, the company had regularly fulfilled its payment obligations. After receiving the year-end statements for 1994, the company requested a payment deferral, which was granted by the compensation fund on 22 February 1995 in the form of an amortization plan spread until November 1995. However, the company was declared bankrupt on 10 May 1995, before the amortization plan even began.
Considerations
The Federal Tribunal ruled that the granting of a payment deferral with an amortization plan could not be considered a serious fault on the part of the director, as it was aimed at attempting to retroactively regularize the payment delay that had already occurred. The Tribunal considered that the director had not acted negligently in requesting this deferral, as there were at the time prospects for the company's…