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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
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
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Subject matter
- II. Organizational changes (Art. 85 CC)
- III. Changes in purpose (Art. 86 CC)
- IV. Procedure
- Bibliography
I. Subject matter
A. Starting point: Organizational and purpose changes as options for dealing with the “rigidity” of foundations
1 The institutional nature of the foundation and the principle of separation and rigidity (see OK-Brugger, art. 80 CC N. 4 ff.) mean that the founder's will, which is fixed at the time the foundation is established, is in principle irrevocable and must be followed as such by the foundation's organs. It is therefore fundamentally up to the founder to give the foundation as sustainable a structure as possible, enabling it to pursue the founder's will for a long time and, if necessary, long after the death of the person who established it. On the one hand, it is obvious that structures created in this way are relatively rigid (and must be so in order to shield the foundation and the founder's will from third-party influences) and that the foundation's governing bodies primarily have an administrative and implementation function, but no actual decision-making function. However, this also implies risks, because (intended) rigidity can also be disadvantageous if the legal or actual environment of a foundation changes in a way that was not foreseen by the founder. For example, the founders cannot anticipate every social, economic, or other societal change, nor can they foresee radical upheavals such as wars, pandemics, or economic crises. If the foundation has been given a statutory framework that does not allow it to respond adequately to such changes, whether gradual or immediate, its existence is potentially at risk.
2 Swiss foundation law provides foundations with various instruments to proactively mitigate this problem or deal with it retrospectively. While there is no legal and therefore automatic right in Switzerland for the founder, the foundation bodies or third parties to amend the statutes (because this would conflict with the nature of the foundation and the principles of separation and rigidity), the following options are available:
Firstly, the founder is free to regulate organizational arrangements that go beyond the mandatory content of the statutes in easily (or more easily) amendable organizational or foundation regulations instead of laying them down in the statutes (see N. 12 below). Furthermore, the founder is free to design the foundation so that it is not “eternal” by means of statutory provisions and/or appropriate endowment. The freedom of the founder also allows for the foundation to be established for a limited period of time (a so-called temporary foundation) or for its assets to be used up and consumed on an ongoing basis (a so-called consumable foundation). From a practical point of view, it is also conceivable to have so-called dependent foundations, which do not acquire their own legal personality and whose assets are placed under the umbrella of a so-called umbrella foundation, although this may also be subject to conditions.
Secondly, Swiss foundation law allows the founder to reserve the right in the foundation deed to make changes to the organisation or purpose, but the assertion of this right is not unrestricted and is subject to certain conditions (Art. 86a CC, see OK-Brugger/Humbel, art. 86a CC N. 10 ff.).
Thirdly, and most importantly, the provisions on purpose and organization laid down in the statutes are not absolute, even in Switzerland. The legislature has recognized the need for foundations to be adaptable and has therefore introduced provisions in Art. 85 ff. CC, the application of which is, however, subject to objective conditions in order to prevent abuse of the foundation form. Subsequent changes to the organisation are permissible under Art. 85 CC in exceptional cases if they are urgently necessary to preserve the foundation's assets or to maintain the foundation's purpose (see N. 15 ff. below); According to Art. 86 CC, changes to the purpose of the foundation require that the original purpose of the foundation has taken on a completely different meaning or effect, so that the foundation has clearly become alienated from the original intention of the founder. This is, as it were, a legal application of the clausula rebus sic stantibus, which is why strict requirements must also be imposed on its application.
B. Liberalization by the legislature
3 In this context, a steady development from an originally less change-friendly foundation law towards a more modern and dynamic understanding of foundations can be observed. This understanding seems sensible to us, not least from a pragmatic point of view, because foundations are increasingly exposed to rapidly changing normative and fiscal conditions. These are not only connoted by the slow-grinding wheels of the federal government in Bern, but are also shaped by the speed of regulation by inter- and supranational organizations. Against this background, it is logical that the legislature has also provided a dogmatic basis for adapting existing foundation structures to this change. This was achieved, on the one hand, by codifying the praeter legem distinction between material and immaterial changes (Art. 86b CC, see OK-Brugger/Humbel, Art. 86b CC N. 3) and by introducing the possibility of a reservation of purpose (Art. 86a CC, see OK-Brugger/Humbel, art. 86a CC N. 4 f.) as of January 1, 2006. On the other hand, the threshold for insignificant changes within the meaning of Art. 86b CC has recently been lowered again, in that they no longer require “valid” objective reasons and no longer have to be “necessary” but only ‘justified’ or “appear to be justified.”
C. Distinctions
4 Changes in purpose and organization must be distinguished from measures taken by the supervisory authority under Art. 83d para. 1 CC in the event of organizational deficiencies and originally inadequate organizational arrangements, as well as from orders issued by the supervisory authorities under Art. 84 para. 2 CC. The removal of an auditor provided for in the articles of association requires that the conditions of Art. 85 CC and Art. 83b para. 2 CC are met. According to the practice of the supervisory authorities, amendments to the articles of association with regard to the obligation to have an auditor are approved if the conditions of the Ordinance on Auditors for Foundations are met, i.e. if the foundation's balance sheet total is less than CHF 200,000 in two consecutive years, the foundation does not publicly solicit donations or other contributions, and the audit is not necessary for a reliable assessment of the foundation's assets and income.
5 The amendments to Art. 86 CC must also be distinguished from the occurrence of the successive purpose in so-called successive foundations (or – less precisely, because two purposes never coexist at the same time – successive mixed foundations). In such foundations, only one foundation purpose is pursued at the same time; however, the founder may stipulate a specific or objectively determinable event as the reason for the transition from one purpose to the other. At the time of the transition, there is a change of purpose without conversion within the meaning of Art. 86 CC; the change thus takes place by virtue of the foundation deed without the involvement of the founder or the organs. If the time of the transition is not precisely determined (but only objectively determinable), the foundation organs must notify the competent supervisory and commercial register authorities of this circumstance.
6 In the event of a possible dissolution of the foundation within the meaning of Art. 88 para. 1 CC, changes to the purpose or organization take precedence based on the principles of proportionality and subsidiarity.
7 The FusG refers to Art. 86 CC (Art. 78 para. 2 sentence 3 FusG) for changes of purpose in the context of mergers and assignments of assets (Art. 86 para. 2 sentence 1 FusG), but does not comment on organizational changes. However, these may be necessary in the context of mergers or asset transfers in order to adapt the foundation's organization to the new structure and must then be assessed against the general requirements of Art. 85 CC (or, in the case of insignificant organizational changes, Art. 86b CC). Because Art. 78 ff. FusG do not provide for the division or conversion of foundations, circumstances such as transfers of registered offices (insofar as they require an amendment to the statutes, see N. 9) must also be treated within the scope of the provisions on significant or insignificant organizational changes (see N. 8 ff. below).
II. Organizational changes (Art. 85 CC)
A. Scope
8 The personal scope of Art. 85 CC applies not only to “classic” foundations but also to employee welfare foundations and family foundations. In contrast to classic foundations, however, in the case of the latter it is the supreme foundation body that is responsible for verifying that the conditions for change are met.
9 The material scope of Art. 85 CC covers all factors that affect the organization of the foundation and are not of a minor nature. These include, for example, the organization, appointment, and composition of the foundation's governing bodies (professional or personal requirements for accepting a mandate, term limits, age limits, etc.), internal procedural rules, as well as regular rules on the investment or management of assets, rights of influence of the founder, beneficiaries, or third parties, and changes of name and registered office. Some authors argue that name changes and transfers of registered offices should always be classified as insignificant changes under Art. 86b. In our opinion, although it may generally be true that transfers of registered offices are insignificant changes, it must nevertheless be verified in each individual case what significance the transfer of the registered office has within the foundation structure and how the change affects the foundation's assets or the pursuit of its purpose. A change of registered office does not necessarily lead to a change in the competent supervisory authority, especially since the competence of the supervisory authority does not result from the registered office but from the geographical scope of the foundation's activities (see OK-Brugger/Humbel, art. 84 CC, N. 5). Thus, the same supervisory authority (cantonal or federal foundation supervisory authority) may continue to be responsible for the foundation before and after a change of registered office. In our opinion, a change is in any case significant if the foundation is to become a consumptive foundation.
B. Requirements and practical implementation
10 Organizational changes by the supervisory authority require that “the preservation of the assets or the fulfillment of the foundation's purpose urgently requires the change” (according to the previous wording, “urgently necessary”). In practice, high requirements are placed on the necessity of the change, which is assessed differently in the literature. While some of the literature explicitly welcomes or at least accepts the strict case law with reference to the clausula-like nature of this provision, the opposing view holds that it is sufficient if the change is in the interest of fulfilling the foundation's purpose or if it means that the purpose can be achieved “significantly better” than with the previous organizational form. According to von Orelli, when organizational changes are made, it must always be asked whether the change can improve the foundation's effectiveness in line with the founder's intentions, whereby, if there are different options, the one that maximizes the effect intended by the founder must be chosen. In our opinion, how to describe the threshold of necessity ultimately remains a semantic question. However, it is much more important to channel this requirement into practical channels. This situation can be determined on the basis of various – ideally objectively determinable – auxiliary criteria, such as (imminent) blockages of foundation bodies (which are relevant to the pursuit of the purpose); excessive costs caused by a dysfunctional organization that eat into the foundation's assets to such an extent that they are no longer sufficient for the long-term pursuit of the purpose; lack of foundation governance instruments, without which the internal governance of the foundation is called into question.
11 When formulating the modified organizational provisions, the purpose must again serve as a guideline: the modified statutes should eliminate the aforementioned threat to the foundation's purpose and ensure its best possible realization. It also follows a maiore ad minus from Art. 86b CC that the change in the foundation's organization must not adversely affect any third-party rights.
C. Organizational or foundation regulations
12 Against the backdrop of this high threshold set by case law, the practical significance of organizational or foundation regulations should be noted. Under foundation law, it is permissible to establish the organization in whole or in part in regulations below the statutory level. This approach has the advantage of significantly increasing adaptability and speed of implementation compared to a statutory provision: The supreme foundation body can make organizational changes at the regulatory level within its own competence.
13 Whereas supervisory authorities used to routinely request regulations “for approval” as part of their supervisory activities, today this is usually only done “for review,” which is more appropriate, especially since approval by the supervisory authority has no constitutive effect and is not required under foundation law. Changes must be brought to the attention of the supervisory authority so that it can perform its supervisory function, take note of the content of the regulations and, if necessary – i.e. in the event of violations of objective law or the statutory order – intervene.
14 The fact that the supreme foundation body is responsible for amending the organizational or foundation regulations on its own authority does not mean that this is reserved to it. The supervisory authorities also have the authority arising from their supervisory mandate to order amendments to the regulations necessary to protect the foundation's assets and purpose. This follows, on the one hand, a maiore ad minus from the competence of the supervisory authorities to take measures in the event of organizational deficiencies within the meaning of the non-exhaustive list in Art. 83d CC and, on the other hand, from the principle of subsidiarity. A corresponding order would then have to be issued in the form of a contestable decision.
III. Changes in purpose (Art. 86 CC)
A. Scope
15 The personal scope of Art. 86 CC applies not only to “classic” foundations but also to employee welfare foundations and family foundations. As with organizational changes, the supreme body of family foundations must verify that the conditions for change are met.
16 The material scope of the provision relates to the purpose of the foundation, i.e. the actual “core” of the foundation. Any amendment affects the “foundations of the foundation.” The decisive factor with regard to the applicability of Art. 86 CC is that the amendment concerns an element that defines the identity of the foundation. Mere formal or linguistic adjustments (including to the purpose) therefore do not fall within the scope of Art. 86 CC, but must be made under the simplified conditions of Art. 86b CC. Due to this narrow scope of application, cases of changes in purpose are rather rare in practice, with the important exception of older family foundations, which had to adapt their purposes to the case law of the Federal Supreme Court before they could be entered in the commercial register.
17 The scope of application of the provision also covers restrictions and conditions (Art. 86 para. 2 CC) which are laid down in the statutes but outside the actual purpose and which jeopardize the realization of the purpose.
B. Prerequisites and practical implementation
18 Given the importance of the founder's intention as enshrined in the foundation's purpose as a central institution of foundation law, it is right to impose high requirements on a change of purpose. Otherwise, the basic concept of the foundation would be undermined and the institution would be vulnerable to abuse. Before a change of purpose can be considered in more detail, the provisions on the purpose contained in the statutes must be interpreted, whereby the true original intention of the founder must always be ascertained in accordance with the principle of intent. It is initially the task of those involved in the foundation – above all the foundation bodies – to interpret the provisions of the foundation statutes in such a way that the foundation can pursue a genuine activity. In doing so, the foundation bodies must always bear in mind that they are not decision-making bodies, but are solely responsible for carrying out the will of the founder – the foundation is not a corporation, but an institution. For the day-to-day activities of a foundation, this starting point means that the statutes must be constantly interpreted and explained. There are virtually no foundation statutes that anticipate every conceivable option and leave no room for interpretation by the governing bodies as to how the foundation's assets are to be used to achieve the foundation's purpose. Changes in purpose are modifications to the substance of the foundation's legal actions and can therefore only be considered if the raw material has been exhausted and it is no longer possible, or virtually impossible, for the foundation to carry out its activities. One of the greatest difficulties in prudent foundation planning is the realization that the wording chosen today will no longer serve as a guide for the foundation's prosperity in a few decades' time, but will instead prove to be an obstacle if the actual environment changes significantly. It is generally advisable to formulate the purpose of the foundation in broad terms in order to leave the foundation's governing bodies sufficient room for interpretation even decades (or centuries) after the foundation has been established. Particularly in the case of broad foundation purposes, it is helpful to document the considerations and intentions of the founders for future generations of members of the foundation bodies – this can also take the form of legally non-binding foundation documents such as letters of wishes or guidelines, which set out the intentions, values, and wishes and are usually merely supplementary guidance. On the other hand, the purpose of the foundation must be precise enough to specifically reflect the founder's wishes and to bind the organs to the founder's wishes instead of leaving the decision to them (so-called requirement of specificity), and to satisfy tax requirements, which also require a precise classification of the purpose of the foundation.
19 According to Art. 86 para. 1 CC, a change of purpose requires an objective and a subjective component: from an objective point of view, a change in the meaning and effect of the purpose is necessary; from a subjective point of view, the purpose must have clearly deviated from the original intention of the founder. The former is the case if the original purpose of the foundation is nonsensical, completely outdated, or uneconomical, or in situations where the founder's expectations have not been fulfilled. The latter must be answered by asking whether, in view of changed circumstances, the original intention of the founder can still reasonably be realized as set out in the foundation deed. Typical examples of such purposes that are worthy of change because they are outdated, nonsensical, or have already been (largely) fulfilled include the fight against a disease that has since been eradicated, the pursuit of political goals that are obsolete because they have already been achieved (introduction of women's suffrage or abolition of the death penalty in Switzerland) or the promotion of education that is no longer appropriate or has been taken over by state institutions. According to one school of thought, a distorted relationship between ends and means may also suggest an adjustment of the purpose: this may have become economically inefficient, for example, because too many resources are available for a purpose that is too narrow, or too few resources are available for a purpose that is too broad but cannot be divided into sub-purposes, so that an adjustment of the purpose is also justified in this case. Before proceeding with a change of purpose, we believe that, in the event of overfunding, a dynamic interpretation of the foundation's purpose must first be carried out with regard to the primacy of the original intention of the founder. If this fails, further alternative courses of action, such as partial liquidation, should be examined before changing the purpose. If, on the other hand, a foundation has insufficient funds, we believe that other measures within the scope of the purpose, such as mergers or asset transfers, should also be examined before considering modifications to the purpose.
20 The competent body or authorities are not free to formulate the amended purpose of the foundation. Rather, it must be as closely aligned as possible with the previous purpose and also be based on the previous subject area and group of beneficiaries. The guiding principle here is the hypothetical or presumed intention of the founder, which may need to be determined by interpretation; in other words, the question to be answered is what the founder would have decided if he or she had been aware of the current circumstances and conditions. Finally, it should be noted that a change of purpose must be waived and the foundation dissolved (Art. 88 para. 1 no. 1 CC) if an adjustment would not lead to a meaningful result that is in accordance with the (hypothetical) original intention of the founder.
IV. Procedure
21 The procedure for changing the organization and purpose is usually initiated by the highest foundation body, as it is best placed to assess the situation of the foundation. The specific procedure depends on the type of foundation and the nature of the change:
In the case of traditional foundations, responsibility lies with a special “conversion authority,” which is in fact identical to the supervisory authority at both the federal and cantonal levels. This has been the case at federal level since January 1, 2006, when foundations under federal supervision ceased to be converted by the Federal Council and became the responsibility of the FDHA. This development is also reflected at cantonal level. As a result, the legal requirement that the competent conversion authority act at the request of the supervisory authority no longer makes much sense. It is in line with prevailing doctrine and also with the practice of the authorities that the supreme foundation body has not only a right to be heard but also a right to submit proposals not only in the event of changes to the purpose pursuant to Art. 86 CC – where this is explicitly enshrined in the text of the law – but also in the event of organizational changes pursuant to Art. 85 CC. However, in view of the current wording of the law, it is questionable in our opinion whether this is a justiciable claim or – more likely – merely a de facto right of initiative (in the sense of a right of notification, as other parties involved in the foundation are also likely to have). In the authors' experience, virtually all changes to the purpose or organization of a foundation originate from its governing bodies. Accordingly, in our opinion, the unjustified unequal treatment between Articles 85 and 86 CC should be amended de lege ferenda: Firstly, the unequal treatment of these situations is based on an omission on the part of the legislature, which failed to coordinate these two processes. Furthermore, and above all, teleological considerations also argue in favor of a justiciable right of application for the supreme foundation body, even in the event of organizational changes: It is just as important for the foundation and its prosperity that the supreme foundation body be able to respond to organizational shortcomings and prompt the conversion authority to take action. This is currently also possible in the event of a refusal by the supervisory authority to submit an application or, in the normal case where the supervisory and conversion authorities are identical, to issue a decision, but this must be fought for through the appeal process and, in the final instance, through a civil appeal to the Federal Supreme Court. Once the change has been ordered, the supreme foundation body does not have an actual right of veto. However, an appeal procedure is also available here. An appeal is open not only to the foundation bodies, but also to the beneficiaries, who, however, according to Federal Supreme Court case law, have neither party status nor a prior right to be heard in the amendment procedure. In our opinion, however, they should be involved in the amendment process as early as possible in the interests of forward planning and greater legal certainty in order to avoid subsequent appeals.
In the case of family foundations, the older and fundamentally still valid case law of the Federal Supreme Court and the prevailing opinion assume that the foundation board has an independent right to make changes and can decide on changes without prior court approval. However, it remains bound by the substantive requirements of Art. 85 f. CC and by the requirement to exercise its discretion properly. In the event of violations, the supreme foundation body is liable. An older minority opinion is that the court must always be involved in changes to the organization or purpose. In practice, the problem arises that the Federal Office for the Commercial Register (EHRA) also appears to require such a court order, which is not based on the wording of the law, leading to lengthy proceedings and considerable costs for family foundations (see also OK-Brugger/Humbel, art. 57 CC, N. 13 ff.).
According to Art. 62 para. 2 BVG, the competent supervisory authority pursuant to Art. 61 ff. BVG is also the conversion authority within the meaning of Art. 85 ff. CC for those pension funds that are constituted as employee welfare foundations. This is usually the same authority that also supervises foundations at the cantonal or supra-cantonal level.
22 The amendment to the articles of association must be reported to the commercial register (Art. 97 para. 1 lit. c CRO), which in the case of “classic” foundations and employee welfare foundations is done ex officio by the conversion authority itself. Contrary to previous cantonal practice, which required a public document subject to approval by the conversion authority, the amendment decision no longer requires public certification according to the express wording of the law (new Art. 86c CC, see OK-Brugger/Humbel, art. 86c CC N. 2).
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