Facts
The company (B. GmbH) was entered in the commercial register from November 2001 to March 2016. Following bankruptcy proceedings opened in August 2015, it was deleted ex officio. From 1 January 2002 it was affiliated for occupational pension provision with the collective institution A. (pension fund).
Insured were the managing director and shareholder C. (until November 2003 and from 2004 to 2014), who died on 10 July 2014, and D. (2006 to 2009), a former managing director and co-shareholder.
The company paid the OPA contributions only until 31 December 2003. In 2008 the pension fund transferred the retirement assets of C. still held with it to the Collective Foundation OPA. By invoices dated 17 October and 3 December 2014 it demanded contributions of CHF 42'113.50 for 2009 to 2013 retroactively. For 2004 to 2008 it waived issuing invoices, assuming limitation.
On 21 September 2015 the pension fund paid a death benefit of CHF 43'457.20 to the survivors of C. In February 2016 it received a bankruptcy dividend of CHF 1'192.05; for CHF 40'921.45 in premiums and CHF 2'227.75 in interest and costs, certificates of loss were issued.
On 16 March 2016 the pension fund applied to the Security Fund OPA (Security Fund) for securing statutory benefits totalling CHF 50'514.96 (retirement assets of C. and D.) due to insolvency. By decision of 26 September 2016 the Security Fund affirmed its liability for the company's employees in the amount of CHF 6'605.35, but refused to secure the benefits for C. on grounds of abusive claiming (Art. 56 para. 5 OPA).
The Federal Administrative Court upheld the pension fund's appeal by decision of 14 February 2018, annulled the refusal and remitted the matter to the Security Fund for calculation of the securing amount.
The Security Fund lodges an appeal in public law matters with the Federal Supreme Court and requests that the lower court's decision be set aside and its decision be confirmed; in the alternative, remittal for supplementation of the facts. The pension fund requests dismissal, and the Supervisory Commission for Occupational Pensions OAK Cst. requests approval. The INO waives comment.
The question in dispute is whether and to what extent the Security Fund must secure the benefits for C. (or her survivors), in particular whether a collective institution can apply for securing at all and whether abusive claiming exists.
Considerations
As a preliminary matter, the fundamental question must be clarified whether a collective institution may apply for securing with the Security Fund. Collective foundations are characterised by the fact that their affiliations are not accounted for separately and that they have a common regulation and pension assets. The wording of Art. 56 para. 3 OPA in the version in force since 1 January 2012 appears to exclude collective institutions that have no pension units from securing. The legislative materials show, however, that this was merely a editorial amendment and that the legislator did not intend it.
Pension unit and insured collective refer to the same thing, namely all insured persons of an affiliated employer. The insured persons affiliated under the same affiliation contract therefore form a pension unit within the meaning of Art. 56 para. 3 OPA, which is why a collective institution may also apply for securing for an insolvent insured collective.
The insolvency (Art. 25 GFO) and the formal requirements (Art. 24 GFO) are not contested and are therefore not subject to review by the Federal Supreme Court.
On the abuse element under Art. 56 para. 5 OPA, the Federal Supreme Court notes that both the abusive causing of insolvency and the abusive increase of…