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- Art. 96 para. 2 lit. a FC
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- Art. 11 CO
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- Art. 701 CO
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- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
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- Art. 39 FADP
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- Art. 48 FADP
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- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Preliminary remarks
- II. The legal framework of the family foundation
- III. The permissible purposes of the family foundation (para. 1)
- IV. Prohibition on the establishment of new family entailed estates (para. 2)
- Bibliography
I. Preliminary remarks
A. Importance of Swiss family foundations
1As of January 1, 2024, Switzerland has a total of 17,874 foundations registered in the commercial register, of which around 13,880 are charitable foundations. Compared to charitable and other traditional foundations (such as crypto foundations, corporate foundations, employee welfare foundations and art foundations), the number of family foundations is low: as of the end of 2021, the Swiss Foundation Report identified 356 family foundations entered in the commercial register. Despite the fact that some family foundations are not yet entered in the commercial register – which is not only due to the hardly avoidable “stragglers” among family foundations, but also to the sometimes restrictive practice of some commercial registry offices – the actual number of family foundations is probably not much higher than this figure. Grüninger estimates the total number of Swiss family foundations at around 500. There are no reliable studies on the assets of family foundations. In addition to large and very wealthy family foundations that hold significant shareholdings, works of art or real estate, there are many, primarily older family foundations whose assets are only sufficient to maintain a family grave.
2 Even in comparison with the foundation locations of Liechtenstein and Austria, Switzerland has only a negligible number of family foundations: as of December 31, 2023, there were 7 '662 unregistered, so-called deposited foundations with predominantly private-benefit purposes, as well as 1'774 foundations registered in the commercial register, with many of them being structured as mixed foundations and thus serving at least partially as family foundations. In Austria, there are around 2'370 family private foundations.
3 The comparatively low importance of family foundations in Switzerland is mainly due to Art. 335 and the related practice of the courts and authorities, which can only be explained by the historical context of the norm.
B. History and interpretation of Art. 335
4 With the mandate to develop and introduce a civil code at the federal level, given to Eugen Huber at the end of the 19th and beginning of the 20th century, a review of the various legal institutions in the cantons for the preservation of the assets of a natural person after his or her death was carried out. The focus was on the two legal institutions of the family foundation and the family entailed estate. Although both institutions occurred in different forms, they can be summarized as follows: a family entailed estate is a special fund without its own legal personality, inalienably linked to a family by private disposition and intended for the enjoyment of family members in a specific succession order (usually the oldest male descendant). The special assets were the property of the respective owner and beneficiary, but were subject to the condition that the assets be preserved and passed on to a natural person upon the owner's death. The family foundations, on the other hand, were legal entities with their own legal personality and thus themselves the holders of the assets dedicated to them. The foundation's beneficiaries were members of a particular family who could have certain mandatory claims against the foundation. One of the most significant differences between these two legal institutions is that the assets of the entailed estate pass unconditionally to a beneficiary, while the beneficiaries of a family foundation are only to receive benefits for specific purposes or in specific situations (e.g. in the event of need). However, it was Eugen Huber himself who rejected this absolutism with regard to the different purposes (“full economic enjoyment” in the case of the entailed estate, “specific purposes” in the case of the family foundation) in view of the heterogeneity ity of the cantonal provisions, and stated that – albeit not very common – a family fideicomiso could also provide for other purposes, such as the care of heirs who had been passed over by the commission.
5 Eugen Huber was open to both legal institutions, both in terms of their existence (he wanted to enshrine both the entailed estate and family foundations in law) and in terms of the permissible purposes: within the framework of a family foundation, “the income from real estate or capital therein is to be allocated to a specific family for any purpose”. Of course, Eugen Huber did not fail to deal at length with the various cantonal reservations regarding multiple reversion in the context of a fideicommissum substitution (which some French-speaking cantons had banned altogether, while Ticino and the German-speaking cantons had provided for restrictions to one or two reversioners).
6 In a departure from Eugen Huber's pronounced liberality, the commission of experts decided to introduce the CC to completely prohibit the re-establishment of the family entailed estates, which were regarded as “plutocratic, undemocratic” institutions of the aristocracy (Art. 335 para. 2). The following quote shows how far this result of the legislative process diverges from Eugen Huber's view: “In our opinion, the social views of our population are in and of themselves strong enough to prevent the overgrowth of the closed family estate, and we never attributed any dangerous effect to a mere occasional exception, when a family entailed estate was newly established here and there. On the contrary, it can only be to the good if the accumulation of economic power in the possession of individual families increases the prosperity of the country in general.” Eugen Huber wanted to leave the power to prohibit the establishment of family entailed estates to the cantons.
7 The Expert Commission decided to continue to allow family foundations, but only for specific purposes: education, endowment, support and similar purposes (Art. 335 para. 1). The model for the defined purposes of the family foundation was primarily the Zurich family funds (which often provided for the support of poor family members) and the Bernese family chests (which, in addition to supporting the poor, often included education). The restriction of the permissible purposes of the family foundations was based on the political views of the time, which were aimed at preventing “idleness” and a “dissolute way of life” in subsequent generations.
8 From the explanations in the materials and the interplay of Art. 335 para. 1 (purpose) and para. 2 (prohibition of the reestablishment of entailed family estates), the Federal Court concludes that the “similar purposes” prescribed by law must not be interpreted generously either – on the contrary: because the economic (full) enjoyment of the assets is to be prevented (which should follow from the prohibition of the family entailed estate), pure maintenance or enjoyment foundations should also be prohibited, i.e. foundations that provide benefits to family members “just like that” without any special conditions or that are merely intended to enhance the family's reputation. In a nutshell, the ratio legis is that a family foundation should not achieve what is prohibited by the ban on the entailment of family estates, namely that assets should pass unconditionally to certain persons over generations.
9 The Federal Supreme Court reached this conclusion in a judgment on the defense tax from 1945 (BGE 71 I 265) and has since confirmed it in consistent case law. In the opinion of the Swiss Federal Supreme Court, maintenance foundations, i.e. family foundations whose purposes go beyond Art. 335 para. 1 and as a result allow beneficiaries to enjoy the foundation's assets unconditionally, are prohibited; since this decision, existing foundations with such purposes have been declared null and void. This is the case even though the practice of setting up family foundations was initially more family-friendly after the CC came into force on January 1, 1912, and maintenance foundations were also considered permissible.
C. Effects of restrictive practice
10 Due to the limited possibilities for use for the purposes of education, endowment or support and similar purposes, Swiss family foundations are hardly suitable for the long-term preservation and transfer of family assets. The main objective of cross-generational estate planning, namely the maintenance and financing of general living expenses, is not possible due to the Federal Supreme Court's ban on maintenance foundations. As a result, hardly any new Swiss family foundations are being established. However, the authors are aware of cases in which Swiss family foundations have been deliberately set up as an “emergency fund” – including by foreign founders – to be used only if the family finds itself in dire financial straits. Those who consider genuinely planning their estate by means of a family foundation usually have to resort to neighboring jurisdictions (e.g. the Principality of Liechtenstein or Austria) that do not have corresponding restrictions on purpose. Foreign family foundations – even in the form of a pure maintenance foundation – are generally recognized in Switzerland (see below).
11 Another consequence of the restrictive practice of the Federal Court is that family foundations often have no reason to make distributions to their beneficiaries. In certain cases, this leads to family foundations accumulating large assets that they realistically will hardly ever be able to distribute. In the case of over-endowed family foundations, various options are available, depending on the constellation: For example, an expansion of the beneficiary regulation or a partial liquidation of the family foundation can be examined, taking into account the hypothetical will of the founder, in which the unneeded assets are transferred to a more flexible structure (e.g. a foreign family foundation or a trust). It is also conceivable to transfer the registered office abroad in accordance with Art. 163 PILA.
D. Recognition of foreign family foundations and family trusts
12 Most of the neighboring foundation jurisdictions do not have restrictions comparable to Art. 335. Accordingly, family foundations (or trusts) can usually also be established abroad to provide descendants with funds for their general living expenses. From Switzerland's perspective, foreign family foundations are governed by the law of the state under which they are organized (the so-called foundation or incorporation theory) in accordance with Art. 154 PILA. If a foreign family foundation has been validly established in accordance with the provisions applicable in the state in question, it is in principle recognized in Switzerland. However, a foreign foundation will be refused recognition in Switzerland if it would violate Swiss ordre public (Art. 17 PILA) or if recognition would be contrary to a provision that is to be qualified as mandatory in international relations (Art. 18 PILA, so-called loi d'application immédiate).
13 In a leading decision from 2009 regarding a Liechtenstein family foundation, the Federal Supreme Court ruled that Art. 335 para. 2 does not constitute a loi d'application immédiate within the meaning of Art. 18 PILA. As a consequence, Switzerland recognizes foreign family foundations (in their pure form or as mixed family foundations), even if they would be classified in Switzerland as impermissible maintenance foundations and even if the founder is a person domiciled in Switzerland or is a Swiss citizen.
14 In particular, the recognition of foreign maintenance foundations while simultaneously prohibiting such foundations in Switzerland has led a large part of the doctrine to state that the Swiss family foundation is self-discriminating and that the current legal situation is in need of reform.
E. Reform efforts
15 On February 27, 2024, the motion 22.4445 “Strengthening the Swiss family foundation. Lifting the ban on maintenance foundations” by SR Thierry Burkart was passed. This motion instructed the Federal Council to present a draft for the amendment of Art. 335 within two years. The reasons given for the motion included the fact that the ban on maintenance foundations was based on outdated values and that Switzerland lacked a suitable instrument for the controlled transfer of family wealth to descendants. However, it was also argued that today there was a tendency to turn to foreign institutions such as trusts, but also to foundations that were recognized in Switzerland without any control.
16 It is not yet possible to say what form a reform of the Swiss family foundation would take. Various models are on the table: on the one hand, the scope of application of family foundations could be significantly improved by repealing Art. 335 para. 2 (prohibition of family trusts) and amending para. 1 (expanding the permissible purposes of family foundations). However, a selective reform would also be possible, with the considerations already included in the explanatory statement of the motion, such as the time limitation of the family foundation or the introduction of rights of revocation or amendment.
17 Finally, it would also be possible for Switzerland to decide on a comprehensive reform in order to present a genuine alternative to the family foundations of the private foundation regimes such as Liechtenstein or Austria. In this regard, the following aspects could be taken into account:
Time limitation of the family foundation (e.g. to 100 years with the possibility of a one-time extension for another 100 years);
opening the family foundation to favor private individuals (instead of limiting it to the concept of family members, which is difficult to define anyway);
introduction of rights of revocation and change of purpose;
introduction of a general audit requirement for family foundations as well (also to counter accusations of susceptibility to abuse and to meet the constantly growing demands for transparency of legal entities);
regulation of adequate governance of the family foundation (for example, by introducing beneficiaries' rights to information or a separate internal control body, but without subjecting the family foundation to state supervision); and
statutory anchoring of the possibility for the supreme foundation body to amend the foundation statutes.
II. The legal framework of the family foundation
18 The general provisions of foundation law (Art. 80 et seq. CC) apply to family foundations. This is subject to the specific special provisions contained in various enactments (in addition to the CC, for example, the CRO or the FusG), which lead to a selective deviation of the legal framework of the family foundation from the legal framework of the classical foundation (for details, see the commentary on Art. 87, OK-Brugger/Humbel, Art. 87 N. 5 ff.).
19 When setting up a family foundation, the founder is not bound by the constitutional requirement of equality under Article 8 FC. The latter (with the exception of the principle of equal pay for equal work for men and women) is directed only at the state and does not affect the founder's freedom. Accordingly, the founder can only grant certain persons the position of beneficiaries of a family foundation (e.g. only male descendants, legitimate children, or persons of a particular faith).
III. The permissible purposes of the family foundation (para. 1)
A. Permissible purposes
20 Art. 335, para. 1 enumerates in a conclusive manner the purposes for which assets may be linked to a family by means of a family foundation. The provision stipulates the purposes for which the family foundation may be established and registered in the commercial register and at the same time defines which benefits may be permissibly provided to family members.
21 Under education training services are to be understood in the broader sense, i.e. in addition to direct costs such as school or university fees, expenses for accommodation, meals, etc. are also included. Education includes not only basic academic training, but also further training, which can be important in all phases of life (lifelong learning). Sports and cultural education can also fall under permissible educational services if they have a training character.
22 The provision of funds contributes to the establishment, improvement or safeguarding of the recipient's livelihood. Historically, the provision of funds often took the form of a dowry for the start of a marriage involving self-employment. Today, the provision of funds usually includes a parental start-up grant for a professional career or support for the financing of a home of one's own. The provision of funds is neither a pure gift nor parental maintenance, but a causa sui generis under family law.
23 Support payments in turn presuppose situations of need, which may consist of both subjective material emergencies and objectively determined stages of life (retirement age, living in a home, etc.), provided that comprehensible criteria are evident for this and no circumvention of the prohibition of maintenance payments is intended.
24 Finally, the Federal Supreme Court recognizes the similar purposes of maintaining a family grave or reading masses. The creation and preservation of a family monument, a family chronicle, a family library or similar are considered permissible ancillary sub-purposes, while the mere preservation of family assets, such as in the form of jewelry or a collection, becomes problematic. It is also disputed whether family gatherings may be financed. In our opinion, this should be affirmed, not least to avoid tightening the already narrow limits of Art. 335 even further. Financing family gatherings does not result in an unconditional increase in general living expenses; rather, it promotes a sense of belonging and connection to the family (and thus to the family foundation).
25 By contrast, the category of maintenance includes all benefits that are distributed to family members “just like that”. The view of the highest court that this should also include the purchase or maintenance of a property is much more restrictive; what is still understandable for representative purposes is questionable in the case of recreational properties in the context of today's social security situation. In any case, a blanket classification must be avoided and each individual case considered; for example, a vacation property – depending on its type and purpose – can also be qualified as an endowment or support payment. Finally, it should be noted that the foundation's purpose cannot be limited to just one beneficiary (even per generation); this would contradict the conceptually required collectivity of the family and would come close to a disowned entailed estate.
26 In our opinion, however, Art. 335 CC – even according to the restrictive interpretation of the Federal Supreme Court – allows leeway with regard to the donation modalities. For example, the strict requirement that a donation may only be granted after the purpose of the donation has been realized should not be inferred from the provision. In particular, if urgent financial need is foreseeable, it cannot be in line with the ratio legis to wait with the donation until the actual occurrence of the need or even the emergency; this applies all the more because the subsequent rectification of such a situation may require a higher expenditure (of the foundation's assets) than its anticipatory prevention. Precisely because a strict time sequence between the realization of the purpose and the donation of Art. 335 CC is not required, in principle a lump-sum donation should also be acceptable, which covers the expected need for several specifically foreseeable realizations of the purpose. Not least, such lump sums offer an instrument for reducing the administrative burden on the foundation, which ultimately promotes the effective use of the foundation's assets. Of course, if the restrictive view of the Federal Court is applied, neither the advance nor the lump-sum granting of donations may lead to the substantive link of the donation to a specific purpose within the meaning of Art. 335 CC being undermined. This is sometimes opposed by the restrictive attitude of some tax authorities, which only reluctantly recognize support payments as tax expenses, citing the principles of social assistance, which can result in multiple taxation.
27 The restrictions of Art. 335 para. 1 apply to distributions to the members of a family. Bilateral transactions (e.g. sales, but also loans) are not covered by Art. 335 para. 1 provided that no hidden distributions are made (dealing at arm's length). Furthermore, distributions to third parties are not covered by Art. 335 para. 1. If a foundation has been set up with the purpose of making distributions not only to members of a family but also to third parties (natural or legal persons) or to promote institutions or pursue charitable purposes, it is a mixed foundation.
B. Consequences of impermissible purposes
28 If a family foundation has been set up for purposes that go beyond the limits of Art. 335 para. 1, these purposes are unlawful, which may result in the invalidity of the foundation itself (Art. 20 para. 1 CO). Family foundations that have been set up for unlawful purposes cannot acquire legal personality (Art. 52 para. 3 CC). If only parts of the foundation's purpose or individual components of it are unlawful, this merely leads to a partial nullity of the foundation, provided that the foundation would have been established even without the inadmissible partial component (Art. 20 para. 2 CO), which is to be determined by interpreting the hypothetical will of the founder. The incompatibility of a (partial) purpose with Art. 335 para. 1 must also be examined if the foundation also pursues other partial purposes; it is therefore not sufficient to add traditional partial purposes in order to circumvent the prohibitions in Art. 335 para. 1 CC. The entry of a family foundation with inadmissible purposes in the commercial register has no remedial effect.
29 Null and void family foundations have no independent legal existence and must be unwound: their assets revert to the founder or his heirs. Art. 57 para. 3 CC, which provides for the reversion of the assets to the community in the event of original nullity, does not apply to family foundations (see the details in the commentary on Art. 57 CC, OK ZGB-Brugger/Humbel, Art. 57 N. 8 ff.). Although nullity is an original one (effect ex tunc), in the opinion of the Federal Supreme Court and the prevailing legal opinion, the reversion of assets is preceded by liquidation proceedings (effect ex nunc), in which the claims of creditors and third parties are also settled (see details in the commentary on Art. 52 CC, OK-Brugger/Humbel, Art. 52 N. 12 f.).
30 Before a (partial) purpose is found to be unlawful and the foundation is declared (partially) null and void, it must be examined whether the inadequately expressed legal transaction can be reinterpreted as a valid substitute transaction and the inadmissible foundation can be “saved” by means of conversion into an admissible foundation.
31 Foundation bodies that do not observe the limits of Art. 335 para. 1 in the actual distribution policy act in violation of the law and the statutes and expose themselves to (personal) liability risks. However, any unlawful action by the foundation's governing bodies does not, in principle, affect the invalidity of the foundation (except in the case of simulated foundation transactions, in which the governing bodies collude to maintain the legal appearance of the foundation). However, the Federal Supreme Court has declared a family foundation null and void because its regulations, which could be amended at any time, were incompatible with Art. 335 para. 1. In our opinion, this view is too simplistic: insofar as regulations serve to substantiate a permissible, open-ended foundation purpose in accordance with the statutes, it should be possible to correct the unlawful regulations in order to prevent the threat of (partial) nullity of the foundation. If, however, the regulations merely contain more detailed explanations of a statutory purpose that is already inadmissible in and of itself, the conclusion must be that the foundation is (partially) invalid.
32 Finally, the declaration of nullity of a family foundation can also be averted by amending the statutes in good time. In the view presented here, this power of amendment falls within the competence of the foundation's governing bodies (for details, see the commentary on Art. 87 CC, OK-Brugger/Humbel, art. 87 N. 13 et seq.).
IV. Prohibition on the establishment of new family entailed estates (para. 2)
33 In Switzerland, the institution of the entailed estate has hardly caught on. The re-establishment of family entailed estates was already prohibited at the federal level with the introduction of the CC in 1912. Under cantonal and customary law, old family entailed estates continue to exist. In the absence of positive legal provisions, the private autonomous arrangements in statutes and other founding documents play a significant role.
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