Reimbursement of Employer Contributions and Loans to the Employer by a Paternalistic Welfare Fund

Facts

In this case, it was about the employee welfare foundation of company X. AG, which was classified as a paternalistic welfare fund. The supervisory authority determined that the foundation had granted a loan to the employer company and financed employer contributions from its free funds. The Federal Administrative Court and later the Federal Supreme Court confirmed that the foundation was not entitled to do so, as the foundation's assets were not financed solely by the employer and no separate employer contribution reserve was formed. Furthermore, the foundation significantly exceeded the legal investment restrictions on loans to the employer, which was also impermissible. The Federal Supreme Court therefore dismissed the foundation's appeal and confirmed the reimbursement obligations towards the employer.

Considerations

The Federal Supreme Court stated that paternalistic welfare funds are not excluded from the scope of Art. 89bis para. 6 CC, but the criteria contained therein cannot be strictly transferred. Instead, the provisions of the OPA on the auditing body, supervision, legal remedies, and asset management must be applied by analogy.

With regard to asset management, the investment restrictions of Art. 57 OPO 2 also apply to paternalistic welfare funds. A more generous…