Collective Withdrawal from a Pension Fund in the Form of a Cooperative

Facts

The Pension Fund of Swiss Electricity Companies (PKE), a cooperative within the meaning of Art. 828 et seq. CO, had included the Industrial Services of the Municipality of Sion (the Industrial Services) as members since 1922. The Industrial Services declared their withdrawal from the PKE as of March 31, 1985, which resulted in the payment of 90% of the mathematical reserve, i.e. CHF 15,985,969, in accordance with Art. 30 para. 7 of the PKE's articles of association. The Industrial Services then filed an action with the Insurance Court of the Canton of Zurich against the PKE, requesting the payment of the remaining 10% of the mathematical reserve. The Insurance Court granted the claim.

Considerations

The Federal Insurance Court considers that the statutory limitation of the withdrawal claim to 90% of the mathematical reserve is admissible and does not make the right of withdrawal excessively burdensome within the meaning of Art. 842 para. 3 CO. As long as the dissolution of the cooperative is not decided, each cooperative member has the right to withdraw freely (Art. 842 para. 1 CO). The articles of association may provide that the withdrawing cooperative member is obliged to pay a reasonable withdrawal indemnity if, taking into account the circumstances, the withdrawal causes significant damage to the cooperative or jeopardizes its existence (Art. 842 para. 2 CO). However, a permanent prohibition or excessive obstruction of the right of withdrawal by the articles of association or by contract are null and void (Art. 842 para. 3 CO).

According to Art. 864 CO, the articles of association determine whether and what claims on the cooperative's assets accrue to the withdrawing cooperative members or their heirs. These claims are calculated on the basis of the net book value at the time of withdrawal, excluding the reserves (Art. 864 para. 1 CO). The articles of association may grant the…