Additional buy-ins for early retirement: nullity for lack of a prior written request and restitution of payments

Facts

The appellant, [A.] , was director of the Fondation [B.] from 1 January 2005, an all-encompassing private-law occupational pension institution, after having worked for [C.] from 2004. He also worked part-time for the company [D. SA] from 2007 to 2016, affiliated with the Caisse Inter-Entreprises de prévoyance professionnelle (CIEPP).

On 26 May 2015, he paid CHF 43,420.30 to the Fondation [B.] as the maximum buy-in of contributions. On 10 November 2015, he informed the management of [C.] that he wished to take early retirement with effect from 30 June 2016.

On 25 July 2016, the Fondation calculated a vested benefit convertible into a pension of CHF 1,248,086.39, taking into account sums of CHF 482,280.20, CHF 37,242.67 and CHF 21,609.80 paid on 6 April and 30 June 2016, originating from the CIEPP and from pillar 3a foundations (Banque Coop/Banque Cler and PostFinance).

On 3 January 2017, the Fondation found that the payments of 15 March, 19 April and 2 June 2016 were not admissible. It issued a corrected statement on 26 April 2017, reducing the pension and claiming CHF 51,081.50 corresponding to the overpayment from July 2016 to April 2017. In spring 2017, it transferred CHF 437,589.80 to the CIEPP, CHF 37,691.42 to the Fondation de prévoyance 3a Banque Cler (refunded on 18 July 2017 for lack of instructions) and CHF 21,837.51 to the Fondation 3a PostFinance.

By claim of 20 December 2017, amended on 30 November 2018, the appellant brought an action before the Cantonal Court of the canton of Vaud, Social Insurance Division, for payment of the statutory and regulatory benefits calculated on the old-age capital as at 30 June 2016, or alternatively for a declaration of a repayment obligation to be determined by expert opinion. The Fondation requested dismissal and, by counterclaim, restitution of CHF 51,081.50. A preliminary hearing on 13 March 2019 heard the parties and two managers of the Fondation.

By judgment of 18 October 2019, the Cantonal Court dismissed the claim, ordered the Fondation to transfer CHF 37,242.67 plus interest to the Fondation 3a Banque Cler, partially upheld the counterclaim, ordered the appellant to repay CHF 51,081.50 and ordered the transfer of that sum to the CIEPP.

The appellant lodges an appeal in public law matters with the Federal Supreme Court, principally requesting that the buy-ins of 19 April and 2 June 2016 be held valid, and alternatively that the case be remitted. The Fondation requests dismissal. The Federal Social Insurance Office declined to submit observations.

Considerations

The Federal Supreme Court applies the law of its own motion but reviews the facts only if they were established in a manifestly incorrect manner (arbitrarily) or in breach of the law (Art. 105 para. 1, 97 para. 1 and 106 para. 2 FSCA). Arguments that merely challenge the appraisal of the facts are inadmissible, and documents post-dating the cantonal judgment are not taken into consideration (Art. 99 para. 1 FSCA). The interpretation of a private pension fund regulation follows the general rules governing contracts (Art. 18 para. 1 CO), seeking first the real and common intention of the parties, then the principle of good faith, and subsidiarily the rule on ambiguous clauses.

On the merits, Art. 13 para. 2 OPA allows early retirement from the age of 58, and Art. 1b OPO 2 authorises additional buy-ins to offset the reduction in benefits, provided that benefits do not exceed the regulatory target by more than 5% in the event of renunciation of early retirement. The Fondation's regulations (Art. 5 no. 1 and Art. 16 para. 6) make these payments subject to a written request from the insured and to authorisation by the Fondation. These buy-ins must be fixed in advance according to schematic and objective criteria; the institution must design its pension plan a priori so as to respect the 5% limit.

The right to be heard (Art. 29 para. 2 Cst.) was not violated: the Fondation had argued from its initial submissions that the payments were unlawful, so the appellant had to expect that nullity would be examined, the judge being able to apply the law of its own motion (jura novit curia). The new exhibits produced in this respect are inadmissible.

The requirement of a written request is not a mere directory provision nor an ambiguous or unusual clause: it allows the Fondation to verify a priori the conformity of the buy-ins with mandatory legal and regulatory requirements. The managers had moreover indicated that a questionnaire was given to the insured to assess buy-in potential. The Fondation certainly had no free…