Facts
On July 5, 1988, a fire broke out in the Weissenburg telephone exchange, causing significant material damage. The Swiss Confederation (PTT-Betriebe), owner of the exchange, estimated that the fire was due to work carried out by employees of company X. AG near the exchange. The work was under the responsibility of Mario C. and his direct supervisor, Martin B., against whom a criminal procedure was initiated. The procedure was closed on October 17, 1991, after Mario C.'s death, while Martin B. was acquitted on October 19, 1992.
Subsequently, the Swiss Confederation (PTT-Betriebe) brought an action for damages against company X. AG for unlawful act. The procedure was limited to examining the defense of statute of limitations raised by the defendant. On September 15, 1994, the Solothurn-Lebern district court admitted the defense and dismissed the claim.
The Solothurn cantonal court, seized by the plaintiff, confirmed the first-instance decision on July 18, 1995. The plaintiff appealed against this decision, which was rejected by the Federal Court.
Considerations
The Federal Court examined whether the statute of limitations in criminal law applies to the employer's liability for auxiliaries. It considered that the application of Article 60 paragraph 2 of the Code of Obligations (CO) does not require a prior criminal procedure or a criminal judgment. It is sufficient that a criminal offense is committed.
The Federal Court also examined the distinction between the organ and the auxiliary of a legal entity. It considered that the organs of a legal entity are those who participate in the formation of the company's will and who have corresponding decision-making competence. Simple employees who perform tasks without decision-making competence are not considered organs.
In this case, the Federal Court considered that Mario C. did not have the status of an organ of company X.…