Swiss Federal Supreme Court Says Uber Switzerland Does Not Have to Pay UberPop Drivers Retirement Benefits
In August 2019, the Canton of Zurich's social security office (SVA Zurich) decided that Uber Switzerland GmbH was a permanent establishment of the Netherlands-based Rasier Operations B.V. and therefore had to pay social security contributions for UberPop drivers in Switzerland. The SVA Zurich's decision was overturned by the Federal Supreme Court in its judgment of March 29, 2021.
SVA Zurich had linked the obligation to pay contributions to Uber Switzerland's status as a Swiss permanent establishment of the Uber Group. This was despite the fact that the actual employer of the UberPop drivers (insofar as they are indeed employed persons) is Netherlands-based Rasier Operations B.V. Like Uber Switzerland GmbH, the latter is a subsidiary of Uber International Holding B.V., which is also Dutch. The Federal Supreme Court has now said that merely being part of a group is not sufficient to establish an obligation to pay contributions.
Under the Swiss social security system, an employer is obliged to pay the social security contributions (both the employer's and the employee's shares) to the competent cantonal office.
The Federal Supreme Court says the law leaves no room for extending the obligation to pay contributions to Uber Switzerland. The latter is a legally independent company that is not liable for any liabilities of other legal entities. This principle must also be applied to corporate groups, unless a structure is obviously abusive.
This ruling therefore provides a little more legal certainty, at least insofar as the status as an employer is concerned from the perspective of social security law.
The Federal Supreme Court makes it clear that the social security contribution obligation only applies to one employer, not several liable parties. An employer is considered to be anyone who employs and remunerates insured persons who are liable to pay contributions, provided that their business is located in Switzerland.
International corporations no longer have to worry that their Swiss subsidiaries will be under an obligation to pay social security contributions for staff working for a foreign group company.
However, the Federal Supreme Court decision sheds no light on whether Uber Switzerland GmbH is actually a permanent establishment of the Netherlands-based Rasier Operations B.V. or whether the UberPop drivers are even dependent employees. Other labor law issues related to the gig economy are thus still unresolved and will have to be clarified in the future.