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- Art. 3 FC
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- Art. 68 FC
- Art. 75b FC
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- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 11 CO
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- Art. 50 CO
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- Art. 97 CO
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- Art. 143 CO
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- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Art. 67 PRA
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- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
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- Art. 19 FADP
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- Art. 25 FADP
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- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
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- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
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- Art. 69 FADP
- Art. 72 FADP
- 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
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- Art. 26 AMLA
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- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
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. Development, subject matter, and purpose of the standard
- II. Scope
- III. Requirements and result of the amendment
- IV. Procedure
- Bibliography
I. Development, subject matter, and purpose of the standard
1 The “fundamental conflict of all foundation law” between the original intention of the founder, as set out and manifested in the foundation deed when the foundation was established, and the need that may arise later to exercise influence over the “own” foundation has long been resolved in Switzerland strictly in favor of the original intention of the founder. Because this could (in theory) lead to potential founders being reluctant to choose the legal form of a foundation, this conflict of objectives was selectively defused in the course of the parliamentary initiative (00.461) “Revision of foundation law” by (former) Council of States member Fritz Schiesser. The “civil law core” of the amendments to foundation law that came into force on January 1, 2006, as a result of the parliamentary initiative, also provided for a relaxation of the principle of separation and rigidity: under certain conditions, it should now be possible to relax the principle of the immutability of the foundation's purpose by means of a selective reservation. As part of the parliamentary initiative (14.470) “Swiss foundation location. Strengthening” by (former) Council of States member Werner Luginbühl, this reservation option was extended to organizational changes in the same way, i.e., under the same conditions.
2 The introduction of this reservation option was aimed at the core of the Swiss foundation law concept: In classical traditional foundation law such as that in Switzerland (before the reform) and Germany, the principle of separation and rigidity is upheld, and changes to the legal situation once it has been perpetuated are only possible and permissible under strict conditions. This contrasts with the basic concept of so-called private foundation models, such as those underlying the legal systems in Austria or the Principality of Liechtenstein: in these legal systems, founders can secure significant influence over “their” foundation through the privately autonomous granting of so-called founder's rights (such as the right to change the purpose or even revoke the foundation).
3 Art. 86a CC only concerns genuine or authentic founder's rights or founder's rights in the strict sense. This only describes those rights with which the founder can influence the foundation after its establishment because they can revert to the role of founder. Genuine founder's rights are therefore at odds with the central premise of foundation law, according to which the founder separates himself from his assets when the foundation is established and henceforth stands in relation to the foundation as an independent third party, and ultimately allow for subsequent decision-making. If the founder merely reserves rights that could also be granted to any third party (e.g., the right to serve on the foundation board or to appoint organs), these are merely third-party rights. Finally, special rights are rights reserved in favor of individual persons to use, dispose of, or consume the substance or income of the foundation's assets, which are generally reserved (and permissibly so) for this reason so that the establishment of the foundation does not have to be postponed.
4 The aim of the parliamentary initiatives to introduce and extend the reservation of the right to change the purpose under Art. 86a CC was to moderately increase the flexibility of the foundation structure. Unlike in genuine private foundation legal systems, the parliamentary debates also refrained from introducing a right of revocation for the founder and “merely” adopted the possibility of reserving the right to change the purpose as a compromise.
5 In the literature, the introduction of this founder's right was partly welcomed, partly critically questioned due to its potential susceptibility to abuse and low practical necessity. With regard to the possibility of a reservation of the right to change the purpose, it can be said that neither the fears of widespread abuse nor the expectations of great benefits in foundation practice have materialized. On the contrary, this instrument seems to have been used only rarely, at least so far. It remains to be seen whether extending this instrument to organizational reservations will lead to more active use of this option. In practice, however, other instruments have long been used, such as organizational regulations that are easier to modify and can be amended by simple written resolution unless otherwise specified.
II. Scope
A. Personal scope
6 According to the materials and the prevailing opinion in doctrine (which refers to them), Art. 86a CC is exclusively applicable to traditional foundations and not to family and church foundations or employee welfare foundations because this is a case of “qualified silence” on the part of the legislature. The opposing view emphasizes, in our opinion with good reason, that there are hardly any objective reasons for treating family foundations and church foundations differently from traditional foundations and that the exception does not correspond to the usual system of norms for family and church foundations, whose special provisions would otherwise be included expressly in the law (see also OK-Brugger/Humbel, art. 87 CC N. 16). The legislature should remedy this unequal treatment in the upcoming revision of family foundation law.
B. Material scope
7 For systematic reasons (marginal notes I, II, and III on the one hand and marginal note IV on the other), it follows that the amendments within the meaning of Art. 86a CC are, in principle, significant changes to the organization or purpose. Within the scope of the amendment process, a maiore ad minus also an insignificant change within the meaning of Art. 86b CC may be required.
8 The reservation of the right to change the purpose also covers charges and conditions within the meaning of Art. 86 para. 2 CC.
C. Temporal scope
9 With regard to the temporal scope, the question arises as to whether and to what extent reservations regarding changes of purpose and organization can also be introduced retroactively. This concerns, on the one hand, (newly established) foundations that have included such clauses in their statutes between the adoption of the amendment and its entry into force and, on the other hand, pre-existing foundations that wish to introduce this option retrospectively. The former is correctly permissible according to official practice. In our opinion, this should be accepted if the start of the ten-year period is set at the date of entry into force of the amendment. The latter is rejected in part with reference to Art. 1 and 2 SchlT CC and the materials. However, as Sprecher has demonstrated, the relevant references are not relevant, which is why no clear answer can be found in the materials. In agreement with Riemer, in the case of founders who are still alive or legal entities as founders, the risk of circumventing Art. 86 and 86b CC must be emphasized if the subsequent introduction is unreservedly approved. In our opinion, the wording of Art. 86a CC already provides a decisive indication by requiring that the reservation of the right to change the purpose must be included in the foundation deed. In our view, this means that a subsequent introduction of the right to change the purpose should not be possible de lege lata. Insofar as it is argued in doctrine that the reservation of the right to change the purpose pursuant to Art. 86a must be made within the framework of an amendment to Art. 85 ff. CC and must be subject to the fulfillment of its conditions, it should be noted that, in the absence of clear transitional provisions, the authorities are reportedly critical of or even opposed to such subsequent amendments. In our opinion, a legal clarification of the admissibility of a subsequent introduction of the reservation of the right to change the purpose within the framework of the upcoming revision of the law on family foundations would therefore be welcome.
III. Requirements and result of the amendment
10 The requirements for the introduction and exercise of a reservation of the right to change the organization or purpose are relatively low.
11 Firstly, it is required that, when the foundation is established (or, within the scope of what is permissible in the event of a subsequent amendment to the statutes), a corresponding reservation regarding the purpose or organization is included in the foundation deed. The reservation should be made explicitly in order to clarify that a change of purpose or organization within the meaning of Art. 86a CC is possible. In our opinion, however, it is not absolutely necessary to mention the provision, nor is it necessary to specify the direction or content of the changed purpose or organizational provision. The latter may, but need not, be left open; a restriction in the statutes is not necessary and is usually not recommended for planning reasons. Art. 86a CC also allows a traditional foundation to be converted into a family foundation or a church foundation. While the new purpose or organization may therefore differ fundamentally from the original arrangement, para. 2 sets certain content limits: According to this provision, foundations that pursue a public or charitable purpose under Art. 56 lit. g DBG may change their purpose, but the amended purpose must also be public or charitable. This provision is intended to legitimately prevent attempts to circumvent the law, but its anchoring in civil law raises dogmatic questions, especially since tax law has its own instruments for combating circumvention. When granting tax exemption to a foundation, most tax authorities therefore stipulate in the relevant decision that the foundation must fulfill the tax-exempt purpose on a permanent basis.
12 Secondly, the entitled founder(s) must submit a corresponding application to the competent authority to amend the foundation deed or this must be done by means of a disposition of property upon death and the amendment authority must be notified of this by the authority opening the succession (para. 5). It should be noted that, in the event of a reservation and valid exercise of the right to apply, the amending authority has no discretion (unlike under Art. 86 CC) and must order the amendment. The right to apply is highly personal and cannot be inherited or transferred (para. 3, first sentence), but may be exercised by an authorized representative. The highly personal nature of this right means that a founder who is under guardianship but capable of judgment can assert rights of amendment independently (Art. 407 in conjunction with Art. 19c–19d CC).
13 In the case of legal entities, this right expires 20 years after the establishment of the foundation (para. 3, 2nd sentence), whereby, in our opinion, the date of entry in the commercial register is to be used as the reference point. The legislature wanted to prevent perpetuation through the interposition of a legal entity. If there are several founders, they must exercise the right of amendment jointly (requirement of unanimity, para. 4). This requirement is mandatory; if one of the founders dies, the right to make changes can no longer be exercised. According to the legislative concept, the exercise of the right to make changes is not a right to shape the foundation; rather, the change requires the cooperation of the authorities and is therefore revocable by the founder(s) until the actual decision is made.
14 Finally, there is a time requirement that at least ten years must have elapsed since the foundation was established or the last amendment requested by the founder. The purpose of this period is to ensure a certain degree of stability for the foundation and not to expose it to the “whims” of the founder, which could have a negative impact on its activities. The time limit is calculated from the date of entry in the commercial register when the foundation was established and, in the event of subsequent amendments, from the date on which they become legally binding. This applies contrary to the wording (time of the “request by the founder”) and results from the fact that it is not the application but the subsequent decision by the amending authority that amends the foundation deed (see N. 12 above), which is why the time of the application cannot be decisive. In the case of time-delayed changes to the purpose and organization, the time limits can be triggered and run independently of each other (para. 1, last sentence). It is unclear whether a change expressed before the expiry of the ten-year period is valid and whether the authority must keep the application “on hold” until the expiry of the time limit but pending and then decide accordingly. The materials argue in favor of this. Riemer considers such premature applications by the founder to be null and void and requires the authority to reject such applications. The question of the validity of anticipated expressions of intent is particularly relevant where the founder is no longer able to make a decision after the ten-year period has expired, whether due to incapacity or death. Riemer is correct in stating that the intention to change must exist after the ten-year period has expired. Riemer also correctly allows for a disposition of property upon death to be made before the expiry of the ten-year period, provided that the founder dies after the expiry of the period. In our opinion, an authority should proceed in the same way in the event of imminent incapacity to make a decision: if the application is made before the expiry of the ten-year period and the settlor becomes incapable of making a decision after the expiry of the period, the application for amendment should be granted unless there are circumstances indicating that the settlor no longer had the intention to amend at the time of capacity to make a decision.
15 The calculation of the time limit is based on Art. 7 CC in conjunction with Art. 77 para. 1 no. 3 CO and covers ten years; the phrase “at least” cannot be interpreted to mean that a longer period must be observed due to other circumstances. Of course, an application for amendment may also be submitted after (significantly) more than ten years. Amendments are permissible even many years after the foundation was established or the last amendment was made, provided that the persons making the disposition are still legally competent.
IV. Procedure
16 The procedure for an amendment based on a reservation of the right to amend is initiated by an application or the corresponding provision in a disposition of property upon death. Upon receipt of a legally valid application, the competent amendment authority is obliged to make the amendment and issue a corresponding order. The authority has no discretion in this matter: it may only check that the above conditions are met. If the conditions are met, the founder(s) have a corresponding right to a change of purpose or organization.
17 The amendment authority shall notify the competent commercial register of the amendment for entry. The effects of the commercial register entry vis-à-vis third parties are governed by Art. 936b CO.
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