Facts

Parties: Appellant ([A.] ) against the Compensation Fund of the Canton of Aargau.

Facts:

  • [A.] was President or member of the Board of Directors of [B. AG] from 2011 to 2018, which was affiliated with the Compensation Fund of the Canton of Aargau.
  • On 10 August 2017, bankruptcy proceedings were opened against [B. AG] and terminated on 27 September 2017 due to lack of assets.
  • The Compensation Fund received a loss certificate for CHF 283,568.25 and ordered [A.] to pay damages of CHF 272,079.45 by decision of 4 October 2019.
  • The insurance court of the Canton of Aargau dismissed the appeal of [A.] against the decision of 30 July 2020.
  • [A.] requested the annulment of the judgment of 4 March 2021 and the referral of the case back to the cantonal court for the supplementation of the facts and the examination of witnesses.

Main question: Whether the Compensation Fund asserted the claim for damages within the prescription period.

Considerations

The appeal in public law matters can be raised due to violations of the law pursuant to Art. 95 FSCA. FSCA. The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). It can correct or supplement the findings of fact of the lower court, either upon request or ex officio, if they are obviously incorrect or based on a violation of the law within the meaning of Art. 95 FSCA and if the correction of the defect may be decisive for the outcome of the proceedings (Art. 105 para. 2 and Art. 97 para. 1 FSCA).

The issue in dispute is whether the lower court violated federal law by affirming an obligation of the appellant to pay damages in the amount of CHF 272,079.45. The lower court correctly set out the basis of employer liability (Art. 52 OASIA; Art. 14 para. 1 and Art. 51 para. 1 OASIA in conjunction with Art. 34 ff. OASIO) and the relevant case law. This concerns in particular the conditions of the subsidiary liability of the organs of an employer (damage, unlawfulness, fault and adequate causal connection between blameworthy conduct and damage incurred).

The appellant alleges a violation of the right to be heard by the lower court. He accuses it of not having qualified the decision of 30 July 2020 as null and void, although the administration had grossly violated the duty to keep records or had denied him the right to inspect the files. Furthermore, he complains that the lower court did not hold a public hearing. The cantonal court correctly concluded that there was no serious, irreparable violation of the right to be heard which would have led to the annulment of the decision, and even less a ground for nullity. It is fully justified in stating that the unmanageable file management by the fund made it more difficult for the appellant to inspect the files, but did not make it impossible.

The preliminary question is whether the Compensation Fund asserted the claim for damages within the two-year prescription period after knowledge of the damage (Art. 52 para. 3 sentence 1 OASIA in the version applicable here, in force until 31 December 2019). The knowledge of the damage, which triggers the relative two-year period, is generally given from the time when the Compensation Fund, with the attention that can be expected of it, must realize that the actual circumstances no longer allow the contributions to be claimed, but a liability…