Facts
The [X. GmbH] was forcibly affiliated to the OPA, branch office German-speaking Switzerland, by the foundation OPA with a ruling of 12 December 2005, retroactive to 1 January 1999. The [X. GmbH] filed a complaint with the Federal Complaints Commission for Occupational Old-Age, Survivors' and Disability Insurance, which rejected the complaint on 4 July 2006.
The [X. GmbH] requested with an administrative court complaint of 4 August 2006 that the judgment of the Complaints Commission be annulled and the forced affiliation prevented. The complainant argued that its sole owner [AC.] was to be considered as a self-employed person and therefore did not fall under the OPA obligation.
The Federal Court had to examine whether the sole owner of the [X. GmbH] was to be considered as an employee within the meaning of occupational pension law and whether the [X. GmbH] was therefore subject to the OPA obligation.
Considerations
The Federal Court examined the jurisdiction and the legitimacy of the complainant. It found that the jurisdiction of the Federal Court to judge the complaint was given and the complainant was directly affected by the contested decision and therefore entitled to file the administrative court complaint.
The Federal Court applied federal law ex officio and examined whether the sole owner of the [X. GmbH] was to be considered as an employee within the meaning of occupational pension law. It found that the concept of employee according to Art. 2 para. 1 in conjunction with Art. 7 para. 1 OPA was to be assessed according to AHV legal criteria.
The Federal Court came to the conclusion that the sole owner of the [X. GmbH] was to be considered as an employee within the meaning of occupational pension law, as he was engaged in non-self-employed activity and did not bear any specific entrepreneurial risk. It rejected the complaint and confirmed the forced affiliation of the [X. GmbH] to the…