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- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 13 FC
- Art. 16 FC
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- Art. 20 FC
- Art. 22 FC
- Art. 26 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123a FC
- Art. 123b FC
- Art. 130 FC
- Art. 136 FC
- Art. 166 FC
- Art. 178 FC
- Art. 191 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
- Art. 99 CO
- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- 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
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
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- Art. 15 PRA
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- Art. 29 PRA
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- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
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- Art. 45 PRA
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- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 60 PRA
- Art. 60a PRA
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- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
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- Art. 76 PRA
- Art. 76a PRA
- 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
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
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- Art. 42 FADP
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- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
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- Art. 52 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
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- 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 of standards
- II. Scope of application, prerequisites, and practical implementation
- III. Procedure
- Bibliography
I. Development of standards
1 Art. 86b CC has been shaped by practical needs like hardly any other provision in Swiss foundation law. Originally, against the backdrop of a strictly interpreted principle of separation and rigidity, Swiss foundation law only allowed for very limited possibilities to amend the statutes under the conditions of Art. 85 f. CC (see OK-Brugger/Humbel, art. 85/86 N. 2). However, these provisions were aimed at substantial amendments to the foundation deed or statutes. The correct handling of less far-reaching amendments had not been regulated by law, which led doctrine and practice to assume that there was a genuine gap in the law and, in the sense of finding the law modo legislatoris pursuant to Art. 1 para. 2 and 3 CC, to distinguish between essential and non-essential amendments. The latter were to be permissible if they were in the interest of more effective fulfillment of the purpose, appeared necessary for “valid objective reasons,” and did not infringe on the rights of third parties.
2 The rules established by Art. 85 f. CC for traditional foundations were too restrictive, particularly for employee welfare foundations, as these require a greater ability to adapt to changing circumstances, which could not be achieved under the statutory rules. Notwithstanding this, the Federal Supreme Court recognized the above distinction in a landmark decision concerning a personnel welfare foundation not only in this sub-area, but for all foundations.
3 This praeter legem case law was then incorporated into law for the first time by the Reform Act of October 8, 2004 (Art. 86b CC). In practice, this provision was (and is) used much more frequently than the conversion provisions in the strict sense (Art. 85 and 86 CC), and the conversion authorities took a mostly pragmatic approach to minor changes. In order to cement this liberal stance, the parliamentary initiative of former Council of States member Werner Luginbühl proposed a further simplification in no. 4, second half-sentence. After the Council of States' Legal Affairs Committee deemed this request capable of gaining a majority, the Federal Assembly adopted the version currently in force. According to this, an insignificant change will no longer require “valid” objective reasons and will no longer have to be ‘necessary’ as of January 1, 2024. Rather, it will be sufficient if the change “appears justified.”
II. Scope of application, prerequisites, and practical implementation
A. Scope of application
4 Art. 86b CC applies to all legal and de facto types of foundations. In particular, it applies not only to traditional and personal welfare foundations, but also to ecclesiastical and family foundations (for the procedure, see N. 9 ff. below).
5 In terms of content, the limits of applicability are fluid. The decisive factor for the applicability of Art. 86b CC is that the adjustments do not fundamentally alter the nature of the foundation and leave its identity-defining characteristics unchanged. Because this cannot be verified ex ante across the board, it must be determined individually in each case whether the change is actually insignificant. Of course, various case groups have emerged in practice in which an insignificant change is likely to exist. These include changes of name and registered office (see, however, OK-Brugger/Humbel, art. 85/86 N. 9), the introduction of an auditor due to changes in legal requirements (introduction of Art. 83b CC), the adaptation of liquidation provisions to changes in tax law, minor modifications to procedural steps (convening deadlines, quorums for resolutions, recording of minutes, remuneration, etc.) and clarifications of the circle of beneficiaries (e.g. in the context of an adjustment of the circle of beneficiaries to changed social views, as expressed, for example, in the PartG and “marriage for all,” but only if these correspond to the original or hypothetical intention of the founder). According to certain authors, changes to provisions in deeds regarding the non-depletion of the foundation capital (in order to continue pursuing the foundation's purpose in the event of a sharp decline in investment income) and the expansion of welfare purposes in personnel welfare foundations are also insignificant. In our opinion, however, this depends heavily on the individual case in these potentially consequential areas and must therefore be carefully verified. In such situations, the founder's intention is particularly worthy of protection.
B. Requirements
6 According to the new wording of the law, insignificant changes are permissible under the following conditions: First, they must appear justified for factual (i.e., objective) reasons. The interests worthy of protection required by the Federal Supreme Court in BGE 103 Ib 161 are always given if there is an objective reason. They therefore do not constitute an independent prerequisite.
7 Secondly, it is still necessary that the amendment does not affect the rights of third parties. According to case law, this also includes the rights of beneficiaries or special options. In practice, due to this requirement, discussions are often held with affected third parties in advance of a change and their written consent to the amendment of the articles of association is obtained.
8 In connection with mergers and asset transfers, a reservation as required by Art. 86 CC was necessary because the requirements for a merger (pursuant to Art. 78 para. 2 FusG) and a transfer of assets (pursuant to Art. 86 para. 2 FusG) correspond in substance to those for an insignificant amendment to the deed pursuant to Art. 86b CC. This requires that the merger (or transfer of assets) be “objectively justified and, in particular, consistent with the purpose of the foundation” and that it preserve the “legal claims of the beneficiaries of the foundations involved.” However, such a process cannot counteract a deliberate decision by the founder (as evident from the foundation deed) to establish separate entities instead of making an endowment to an existing foundation. In such cases, the discretion of the acting foundation bodies naturally remains bound by the original intention of the founder, the amendment of which would in turn have to satisfy the requirements of Art. 86 CC.
III. Procedure
9 The procedure depends on the type of foundation: In the case of traditional foundations and employee welfare foundations, it is up to the supervisory or conversion authority to make the change after consulting the highest foundation body and then officially registering it with the commercial register authorities. In practice, however, the initiative usually comes from the supreme foundation body, whose right to be heard is already guaranteed by an approving amendment order.
10 In the case of family foundations, the power to make amendments rightly lies with the supreme foundation body according to established case law and in our opinion. This body is responsible for independently verifying that the conditions for amendment are met and then implementing the amendment.
11 Finally, the procedure for ecclesiastical foundations is governed by the rules applicable to them (approval by ecclesiastical bodies may be required, for example).
12 The amendments must also be entered in the commercial register, whereby – as with amendments under Art. 85 and 86 CC – a new version of the statutes must be submitted (see Art. 22 para. 3 and Art. 97 para. 1 CRO, see also OK-Brugger/Humbel, art. 85/86 CC n. 22).
13 The same legal remedies are available against the amendment order as against amendments under Art. 85 or 86 CC and against orders of the supervisory authority under Art. 84 CC.
Bibliography
Amadò Flavio/Manfredi Valentina, Il diritto svizzero delle fondazioni in vigore dal 1° gennaio 2023 e dal 1° gennaio 2024 – Le recenti novità legislative riferite alle fondazioni di diritto svizzero, Novità giuridiche 1 (2024), S. 31 ff.
Grüninger Harold, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, Art. 1–456 ZGB, 7. Aufl., Basel 2022.
Jakob Dominique, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar ZGB, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018.
Riemer Hans Michael, Berner Kommentar, Schweizerisches Zivilgesetzbuch, Die juristischen Personen, Die Stiftungen, Art. 80–89c ZGB, 2. Aufl., Bern 2020 (zit. BK-Riemer).
Riemer Hans Michael, Stämpflis Handkommentar, Vereins- und Stiftungsrecht (Art. 60–89bis ZGB) mit den Allgemeinen Bestimmungen zu den juristischen Personen (Art. 52–59 ZGB), Bern 2012
(zit. SHK-Riemer).
Schönenberger Wilhelm, Abänderung von Stiftungssatzungen nach schweizerischem Zivilrecht,
ZSR 66 (1947), S. 41 ff.
Sprecher Thomas, Vom Recht des Stifters, «seine» Stiftung auf den Kopf zu stellen,
Jusletter vom 13. März 2023.
Sprecher Thomas, Die Revision des schweizerischen Stiftungsrechts, Zürich 2006
(zit. Sprecher, Revision).
Von Orelli Lukas, Zur Auslegung des Stifterwillens, Basel 2019.