Recourse of the OPA Security Fund against a bank

Facts

M. AG, a construction company, was affiliated with the employee welfare foundation of M. AG. In the bankruptcy of M. AG, the pension fund remained largely uncovered with its claim, whereupon it also had to be liquidated. The OPA Security Fund provided benefits of over 6.2 million francs for the uncovered claims of the insured employees. M. AG had maintained a securities account with Bank C., which it transferred to the pension fund in 1983. However, Bank C. continued to pay the interest income and capital repayments of 119,500 francs to M. AG. These claims remained uncovered in the bankruptcy of M. AG. The OPA Security Fund filed a lawsuit against Bank C. for payment of 119,500 francs plus interest, based on Art. 56a OPA. The Basel-Stadt Social Insurance Court did not enter into the lawsuit.

Considerations

The Federal Court overturns the decision and remands the case to the Social Insurance Court for a decision on the merits. According to the case law of the Federal Court, the jurisdiction must be assessed based on the claim asserted by the plaintiff and its justification. If a fact is the connecting factor for jurisdiction and is also of decisive substantive legal significance (doubly relevant fact), a decision on this must be made exceptionally in the context of the decision on the merits, not in the context of the question of entry. In the present case, the facts presented by the plaintiff to justify the recourse under Art. 56a OPA are to be considered as given with the probability required for entry into…