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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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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)
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- Art. 25 CCC (Convention on Cybercrime)
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- Art. 32 CCC (Convention on Cybercrime)
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- 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. Normative purpose and legitimacy of foundation supervision
- II. Competent supervisory authority (para. 1)
- III. Supervisory mandate and supervisory instruments (para. 2)
- IV. Legal protection
- V. Practice of the ESA
- Bibliography
I. Normative purpose and legitimacy of foundation supervision
1 The "classic" foundation is the only legal entity under Swiss private law that is subject to state supervision due to its legal form. Essentially, two main reasons are cited for this: The protection of the founder's will on the one hand and the safeguarding of the public interest on the other. Due to its legal form, a foundation has neither members nor owners who can ensure that the foundation's assets are used by the acting foundation bodies in accordance with its purpose and that the founder's will, the law and the statutes are observed. Therefore, a so-called protection deficit typical of the legal form arises, which is to be addressed by state supervision. Furthermore, it is argued in the literature that the foundation purposes, which are often oriented towards the common good, should also be protected by the community. Because the public interest is lacking in the case of family foundations and ecclesiastical foundations are subject to equivalent ecclesiastical supervision, they are exempt from general foundation supervision (Art. 87 para. 1 CC). However, mixed family foundations, i.e. foundations that pursue both family-related and traditional purposes, are subject to overall foundation supervision. In the exercise of its duties, the foundation supervisory authority must safeguard both the private and the public element in equal measure, whereby the founder's will always remains the guiding principle for the concretisation of supervision in individual cases. Of course, the foundation supervisory authority must respect the autonomy of the foundation and may only intervene in the case of actual errors of judgement (abuse, exceeding or falling short).
2 Foundation supervision is mandatory law and the founder may not exempt the foundation from it by issuing orders to the contrary. Conversely, foundations that are not subject to supervision may also be subject to foundation supervision.
3 Notwithstanding the location of foundation supervision in the CC, it is materially a matter of public (administrative) law, which is why the supervisory authorities are also bound by the general constitutional principles of public action (in particular the principle of legality and the principle of proportionality). However, due to their proximity to civil law, decisions of the foundation supervisory authority are subject to appeal in civil matters to the Federal Supreme Court (Art. 72 para. 2 subpara. b no. 4 BGG).
II. Competent supervisory authority (para. 1)
A. Federal, cantonal or communal supervisory authority
4 Foundations are subject to the supervision of the community to which they belong according to their designation. Para. 1 differentiates between the responsibility of the Confederation, the cantons and the communes. The Federal Supervisory Authority for Foundations (ESA) is organisationally attached to the General Secretariat of the Federal Department of Home Affairs. Which cantonal authority is entrusted with foundation supervision is determined by cantonal legislation and is usually regulated in the cantonal introductory laws to the CC. Often, therefore, supervisory activity by authorities at communal or district level is also found. Some cantons have combined foundation supervision via the concordat route and created supracantonal structures, such as the Central Switzerland BVG and Foundation Supervisory Authority and the Eastern Switzerland BVG and Foundation Supervisory Authority. Basel-Stadt and Basel-Land as well as the cantons of Vaud, Valais, Neuchâtel and Jura have also combined their supervision.
B. Determination of jurisdiction
5 Whether the federal, cantonal or communal foundation supervisory authority is competent is determined by the purpose of the foundation and its territorial scope; the seat of the foundation or the founder's intention are of no decisive importance. Jurisdiction follows the territorial extension of the foundation's activities, whereby it is also argued in the doctrine that it should be asked which community would be responsible if the foundation did not exist. Foundations operating throughout Switzerland (so-called national) and/or across borders or abroad (so-called international) are subject to the supervision of the ESA. Otherwise, the responsibility of the ESA is generally subsidiary. This means that the ESA is competent if no clear focus of activity can be determined with regard to a single canton or the area of competence of a supracantonal supervisory authority.
C. Communal supervision (para. 1bis)
6 According to this provision, cantons have the authority qua federal law to concentrate the foundations subject to the supervision of their communes with themselves. This centralisation of communal supervision at the cantonal level has already been taking place for several years, although there are still some communes that supervise their foundations themselves (which is to be rejected both from a governance perspective and because of the potential conflicts of interest).
D. Assumption of supervision
7 Pursuant to Art. 96 HRegV, the Commercial Register Office notifies the supervisory authority, which it considers competent, of the establishment of a foundation and sends it a copy of the foundation deed (para. 1), whereupon the supervisory authority notifies the assumption of supervision or forwards the establishment of the foundation to the competent authority (para. 2). However, only the commercial registry office has to decide on the admissibility of registration of the foundation and it may not make the registration dependent on the consent of the supervisory authority. In practice, it has proven useful to voluntarily submit the foundation documents to the supervisory authority for preliminary examination, whereupon the supervisory authority declares, as a precaution, that it will take over the supervision. In this way, adjustments can still be made and any questions of competence clarified before the foundation is entered in the commercial register.
III. Supervisory mandate and supervisory instruments (para. 2)
A. Content of supervision
8 The supervisory authority must ensure that the foundation's assets are used in accordance with its purposes. Accordingly, supervision is comprehensive and covers the entire activity of the foundation. Supervision is legal supervision and not technical supervision, which means in particular that the supervisory authority must respect the autonomy of the foundation and may not substitute its own discretion for that of the foundation bodies. In particular, the supervisory authority must monitor that the governing bodies respect the law, good morals, the foundation deed or regulations and do not unlawfully exceed or abuse their discretionary powers.
B. Supervisory instruments
9 The supervisory authority has both preventive and repressive means at its disposal as supervisory instruments. The preventive means of supervision are first and foremost the obligation to report annually to the supervisory authority (consisting of the annual financial statement as well as an activity report with the most important occurrences in the business year, the awards, etc.), furthermore the notification of changes to the regulations, as well as compliance with the requirements on investment, which vary according to the supervisory authority, and the information in the case of impending insolvency or overindebtedness (Art. 84a CC). A new Art. 84b ZGB (coming into force on 1 January 2023) also obliges the supreme foundation body to disclose separately to the supervisory authority the total amount of remuneration paid directly or indirectly to it and to any executive management.
10 Repressive supervisory instruments include warnings, reprimands, the annulment of resolutions, substitute measures, fines, the appointment of a trustee (Art. 83d para. 1 item 2 CC), the implementation of organisational changes or changes of purpose (Art. 85, 86 CC) or, as ultima ratio, the removal of a member of the governing body or of the entire governing body. These measures, which usually sanction misconduct on the part of the organs, are subject to the principles of proportionality and subsidiarity, i.e. no more drastic measures may be taken as long as milder measures are possible and lead to the same goal.
C. Liability of the supervisory authority
11 Since the relationship between the supervisory authority and the foundation is of a public law nature, cases of state liability may arise from official activities in breach of duty. Particularly in the case of corporate foundations, the supervisory authority is accordingly reluctant to act.
IV. Legal protection
A. Foundation supervisory complaint
12 The foundation supervisory complaint is a proprium of foundation law and is described by doctrine and case law as a sui generis remedy derived from Art. 84 para. 2 CC. It provides the foundation participants with an instrument to complain to the supervisory authority against acts or omissions of the foundation bodies and thus to ensure the correct pursuit of the purpose and use of assets. In other words, it grants the participants a permanent possibility of participation and control, which is why it is also regarded as a means of internal foundation governance. There is a right to treatment and the final authority decision can be appealed in court.
13 The lynchpin of the foundation supervisory complaint is the question of how wide the circle of legitimacy to file a complaint should be drawn. Thus, it is agreed that "no excessive demands" may be made in order to ensure effective protection, but that there must also be a certain threshold of seriousness, since otherwise the foundation could be blocked by so-called popular complaints. Where this borderline should be drawn, however, is disputed in detail. According to the practice, any person who might once be in a position to obtain a benefit or other advantage from the foundation, or who has another personal, direct and current interest, is entitled to complain. However, the practice based on this is strongly influenced by individual cases and hardly conducive to legal certainty. The doctrine therefore regularly argues with the formula of the "justified interest in control", which also requires concretisation, whereby the question is whether there is a legitimate interest in control with regard to the measure asserted or contested in each case. Such an interest would then in any case be attributed to persons with a claim or expectancy vis-à-vis the foundation (e.g. beneficiaries, donating or sub-founding persons who have a claim to the intended use of their donation) as well as to persons with an interest protected under foundation law (i.e. members of governing bodies and the founder). Only those persons who have only an abstract interest in the foundation would be excluded.
14 Within the framework of the Luginbühl parliamentary initiative, the foundation supervisory complaint was also regulated by positive law and the question of the legitimacy of the complaint was clarified. Thus, a new Art. 84 para. 3 CC (coming into force on 1 January 2024) was adopted, according to which "beneficiaries or creditors of the foundation, the founder, sub-founder and former and current members of the foundation council, who have an interest in ensuring that the administration of the foundation complies with the law and the foundation deed [...] may lodge a complaint with the supervisory authority against acts and omissions of the foundation bodies". This was a compromise negotiated in parliament. The proposal to introduce the criterion of "legitimate control interest" into the law was rejected in the course of the parliamentary debates. Instead, an enumeration was introduced that originally included "founders, beneficiaries, creditors of the foundation, members of the foundation council or donors or persons close to them" and was then narrowed down again. This was heavily criticised by some scholars, mainly because the enumeration was arbitrary and thus allowed loopholes, and because only an "interest" was mentioned instead of a "legitimate interest". For example, heirs or descendants of the founder are wrongly not covered by the wording of the new Art. 84 para. 3 CC. At least there should be a certain legal certainty compared to the previous, often unclear situation.
B. Notice
15 In addition to the supervisory complaint, there is the possibility of a supervisory complaint, which is also admissible without an actual interest in legal protection. However, this guarantees neither party status nor the possibility of further proceedings. Whether the authorities are obliged to deal with complaints or only to take note of them is determined by the applicable cantonal law.
V. Practice of the ESA
16 The supervisory practice of the ESA is published in various leaflets, FAQs and general information on its website. In terms of their legal nature, these publications mostly qualify as internal administrative ordinances and reflect the practice of the authorities; however, they are fundamentally not independent sources of law and thus do not contain their own legal principles with concrete rights and obligations. Fact sheets published so far deal with the takeover practice of the ESA, the exemption from the auditor's duty, regulations and their acceptance, the disclosure of remuneration to the foundation board and the executive board as well as the application of organisational reservations prior to the entry into force of the revised foundation law.
17 Since 2022, the ESA has digitised its supervisory system with the so-called eESA project. Via a digital link of the foundations subject to supervision with the EasyGov platform, the submission of annual reports will be standardised and supervision will be more data-based. Moreover, communication between the foundation and the supervisory authority (e.g. supervisory services, enquiries, etc.) will take place via EasyGov. Foundations that are not registered on EasyGov must use forms provided by the ESA for reporting and other enquiries. Both the onboarding of foundations to the EasyGov platform and further information on the ESA's digitalised supervision and the use of forms are described in detail in separate fact sheets and on the ESA's website.
Bibliography
Brugger Lukas, Die gemischte Stiftung – Die Stiftung zur Verfolgung unterschiedlicher Zwecke im Lichte des schweizerischen ZGB und des österreichischen PSG, Schriften zum Stiftungsrecht, Band 12, Basel 2019.
Grüninger Harold, Kommentierung zu Art. 84 ZGB, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 7. Aufl., Basel 2022 (zit. BSK-Grüninger).
Jakob Dominique, Kommentierung zu Art. 84 ZGB, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018 (zit. KUKO-Jakob).
Jakob Dominique, Ein Stiftungsbegriff für die Schweiz, Gutachten zum Schweizerischen Juristentag 2013, ZSR 2013 II, S. 185 ff. (zit. Jakob, Stiftungsbegriff).
Jakob Dominique/Brugger Lukas/Humbel Claude, Recht der Non-Profit-Organisationen in a nutshell, Zürich et al. 2023.
Jakob Dominique/Savanovic Ivana, Verpasste Chance zur Stärkung des Stiftungsstandorts Schweiz, abrufbar unter https://www.ius.uzh.ch/de/research/units/stiftungsrecht/Aktuelles/Newsfeed/Verpasste-Chance-zur-St%C3%A4rkung-des-Stiftungsstandorts-Schweiz.html, besucht am 25.3.2023.
Riemer Hans Michael, Berner Kommentar, Schweizerisches Zivilgesetzbuch, Die juristischen Personen, Die Stiftungen, Art. 80–89c ZGB, 2. Aufl., Bern 2020 (BK-Riemer).
Studen Goran, Die Dachstiftung – Das Tragen und Verwalten von Unterstiftungen unter dem Dach einer selbständigen Stiftung, Schriften zum Stiftungsrecht, Band 3, Basel 2011.
Xoudis Julia, Kommentierung zu Art. 84 ZGB, in: Pichonnaz Pascal/Foëx Bénédict (Hrsg.), Commentaire Romand, Code civil I, Basel 2010 (zit. CR-Xoudis).