Foundation (Switzerland)
The foundation law of Switzerland is regulated in Articles 80 to 89 of the Civil Code (ZGB). That is why the foundation is a common legal form in Switzerland . As of January 1, 2019, 17,143 foundations were entered in the commercial register. The time series analysis of the CEPS (Center for Philanthropie Studies of the University of Basel) shows, among other things, how the foundations are distributed across the cantons, how many new establishments have taken place each year and how many liquidations. A foundation under Swiss law is basically "earmarked assets".
Establishment and purpose of a foundation
To set up a foundation, assets ( foundation assets , broken down into base assets and fixed assets ) must be used for a special purpose. The founder has to show his will to set up an independent foundation by means of a deed of foundation, state the investment assets of the foundation and describe the purpose of the foundation. The foundation is entered in the commercial register, unless it is a church foundation or a family foundation.
In principle, they are subject to the supervision of government agencies ( municipality , canton , federal government ). The supervision must follow the will of the founder.
The revised foundation law has been in force since January 1, 2006. It has brought some innovations, for example
- Introduction of an auditor
- Improving the protection of creditors
- Accounting obligation for the foundation
Company pension schemes , also known as pension funds (referred to as the BVG, 2nd pillar ), generally have the legal form of a foundation. Investment foundations are a special type of foundation in the field of old-age provision . They manage the pension funds of Swiss pension institutions and are subject to the supervision of the Federal Social Insurance Office (FSIO).
Separation and solidification principle
A foundation under Swiss law has its own legal personality (e.g. in contrast to an Anglo-Saxon trust ). With the establishment of the foundation, the assets dedicated by the founder become independent and thus completely and finally separated from the assets of the founder (principle of separation). The will of the founder, documented in the foundation statutes and regulations, solidifies in the form of the purpose at the time of establishment (solidification principle). If the foundation is legally established, even the founder can no longer change this now rigid purpose (exceptions: since 2006 there has been the possibility of a very limited reservation of purpose in the statutes, Art 86a ZGB; changes are also possible with insignificant provisions which the purpose not affect). The founder may therefore neither grant himself nor third parties a free right of amendment. The foundation bodies must also not be granted the right to disregard the original will of the founder through their own interpretations. The prohibition of de facto deviation from the will of the founder applies. Even if the founder's will has been deviated from for a long time, if the legal requirements for a formal change of purpose are not met, a return must be made to the latter.
In contrast to a stock corporation, the organs of a foundation do not have to form their own will. Rather, their activities must always and solely be based on the will of the founder at the time the foundation was established. The foundation differs fundamentally from other legal personalities in which purpose and strategy can be changed and adapted by the organs.
From the principle of separation and freezing it also follows that extensions of the purpose of foundations are not or not easily possible under Swiss law, since extensions of purposes usually lead to a change or dilution of the existing purpose. As a rule, therefore, an extension of the purpose must be combined with an additional or subsequent donation, or in no way compete with the existing purposes.
Company foundations
The Swiss foundation law does not recognize the term corporate foundation. It is always a foundation that is linked in some way to one or more companies. The legal nature of the foundation is not critical. It can be a regular foundation, a staff welfare foundation, and in rare cases a family foundation that acts as a corporate foundation. In theory, even a church foundation could function as a corporate foundation.
Types: Holding Foundation, Company Owner Foundation
Two types are distinguished in legal literature: the holding foundation and the corporate sponsor foundation :
The holding foundation : The foundation participates in full, majority or minority in the share capital of a company. Only the company is operational. As a holding, the foundation itself is not operationally entrepreneurial (example: Wilsdorf foundation with Rolex watch group ).
The company support foundation : It is active itself, carries out business, provides services or is generally operational. This type of foundation is particularly found in: retirement and nursing homes, hospitals, health insurance companies, private schools, museums, art galleries, think tanks. In many cases, public or semi-public companies are set up under this type of foundation. (Example: Avenir Suisse)
Legal
The corporate foundation is controversial among legal scholars. Many answer it in the affirmative, but some reject it. However, the highest court in Switzerland, the Federal Supreme Court, confirmed in its judgment of May 18, 2001 that an economic foundation purpose is permissible ( BGE 127 III 337). This means that corporate foundations can continue to be managed and established. The recently carried out minor revision of the foundation law has dropped the originally planned ban on corporate foundations.
The revision of foundation law, in force since January 1, 2006, has led to a number of changes. The revised provisions stipulate the accounting obligation for foundations (Art. 84b ZGB). If the foundation operates a commercial business, the strict provisions of stock corporation law apply mutatis mutandis to accounting (Art. 84b (2) ZGB). Furthermore, an auditor is now basically required (Art. 83a ZGB), whereby under certain conditions the exemption from the obligation to designate an auditor can occur (regulated in the ordinance on the auditor of foundations). Provisions corresponding to stock corporation law on what to do if there is concern about over-indebtedness have been introduced (Art. 84a ZGB). Ultimately, the purpose of the foundation can be changed by the competent authorities if a change of purpose has been reserved in the foundation deed (Art. 86a ZGB).
All foundations are under the supervision of the community (federal government, canton, municipality) to which they belong according to their designation. The supervisory authority must ensure that the foundation's assets are used in accordance with its purposes. However, the supervisory authority does not check the annual accounts.
Tax aspects
Tax authorities deal with corporate foundations. Such foundations are taxed either like a holding company or as a normal foundation , depending on the purpose of the foundation. If the purpose of the foundation is recognized as non-profit , tax exemption can be expected under certain circumstances. However, this presupposes that the distributions of the Foundation purely charitable institutions or projects are supplied. When the foundation is set up, assets of a company or person, often shares, are transferred to it. This process is qualified as a gift by the tax authorities and triggers gift or inheritance taxes in most cantons .
Reasons for erection
For the founder, the main reason for setting up a corporate foundation is likely to be to maintain his company after his death. The entrepreneur or main shareholder has no direct descendants. He is thus transferring his assets to the foundation. Many corporate foundations pursue purely economic purposes, i. H. Increase in the foundation's assets so that distributions in the sense of the foundation's purpose are possible. In many cases, corporate foundations are set up so that employees can share in the profits of the operating company. The shares are then legally held by the foundation, the active employees have a right of usufruct and thus receive part of the dividend distributed. In another variant of the solution, the employees receive the shares held by the foundation in trust. However, if they leave, they have to return them to the foundation. These types of foundations are particularly popular with trust and accounting firms. A founder can also transfer his company to a corporate foundation for family reasons. In this way he can ensure the financial independence of his own family for the time after his death. However, based on Art. 335 (1) ZGB, this purpose is only permissible for the costs of bringing up, equipping or supporting family members. An actual maintenance foundation is not permitted under Swiss law.
Family foundation
Swiss law regulates the family foundation in the Swiss Civil Code in the Family Law section under the Family Assets section (Art. 335 ZGB). There it is stipulated: "A family can be linked to assets by setting up a family foundation in accordance with the rules of personal law or inheritance law to cover the costs of bringing up, equipping or supporting family members or for similar purposes." The Swiss Civil Code recognizes the family foundation as a special type of foundation - it is subject to general foundation law. The family foundation under Swiss law is intended to preserve the family and its assets and, in particular, to counter the problem of the fragmentation of assets. The state set up the institute of the family foundation, since a functioning family organization and the well-being of the family are of interest to the state.
A foundation easily becomes a family foundation if the group of beneficiaries is limited to members of a single, specific family. For the legal qualification of a foundation as a family foundation, it is not decisive whether the name of the foundation or the foundation statutes explicitly mention the term family foundation - or whether the statutes contain a reference to Art. 335 ZGB. The only decisive factor is the fact that the statutes contain some form of purpose limitation to members of a certain family (family destinaries).
Swiss law, however, allows the establishment only for specific purposes that require a specific need: for vocational or other training, upbringing of beneficiaries, equipping or setting up a business, supporting the needy, setting up works or facilities that provide family members with a specific benefit bring or help maintain the sense of family, etc. The family foundation is intended to serve a specific individual need directly, and not general livelihood. The so-called maintenance foundation is not allowed in Switzerland.
The so-called maintenance foundation was banned when the civil code was revised around 1900. One of the authors of the wording in the expert commission, National Councilor Bühlmann, stated in a decisive statement with regard to the ban on maintenance foundations: «Let them (the family foundation, editor's note) also generally be used for economic purposes, for the benefit of individuals People, this is an unjustified favor. If you leave them in favor of many, this leads to a great fragmentation of wealth. "
This statement initially referred to the foundation-like and feudal institute of the Familienfideikommiss . In the case of the Familienfideikommiss, the family assets were assigned exclusively to the eldest son for usufruct over generations, with the exclusion of the compulsory portion protection. This led to the aforementioned "unjustified favoritism" of these family members. The ban on maintenance was intended to preventively prevent such feudal constructs from continuing with the help of family foundations.
If the maintenance purpose had continued to be allowed, but now justly and compulsorily in favor of all descendants of the family, then in the eyes of the legislature this would have led to an almost excessive fragmentation of the foundation's assets. The legislature was not bothered by the “maintenance purpose” per se, but by the feudal preference given to individual family members and the rapid fragmentation of foundation assets. The meaning and purpose of the change in the law at that time was therefore the fair distribution of the foundation's income and the long-term preservation of the family and foundation assets.
But the council was also suspicious of an unreasonable restriction of the permitted purposes of the foundation, as this would have contradicted the fundamental freedom of founders. As a “simple” solution, the legislature chose the wording that “similar purposes” are also permitted.
In any case, however, a family foundation is permissible for the purpose of ensuring the accustomed, traditional standard of living for all family members and always making contributions to them when they are pushed below their usual standard of living due to economic losses. Accordingly, there is nothing to be said against old-age pensions or other benefits in order to enable beneficiaries to lead the way they are used to or to compensate for the deficits resulting from retirement.
If people who are not part of the founder's family are also designated as beneficiaries in a family foundation, or if there are other purposes, then it is a mixed (family) foundation. Subsequent changes to the Articles of Association are only possible under consideration of the separation and freezing principle mentioned .
Church foundation
The church foundations in Switzerland are regulated by Art. 87 ZGB in conjunction with Art. 80ff. ZGB, as well as the basic rules according to Art. 52 ZGB. Where nothing specific is regulated for church foundations, the statutory provisions for general, classic foundations apply.
For all purely private church foundations, according to Riemer and Lampert, public law according to Art. 59 Para. 1 of the Civil Code is not applicable. If there is no provision under public law according to Art. 59 Paragraph 1 of the Civil Code, according to Huber, federal private law always applies. According to Riemer, church foundations can never be legal entities under cantonal private law.
Like the general foundation, the church foundation is neither a society, nor a corporation, nor an institution. But it is a legal person. The foundations with an ecclesiastical and at the same time a general public benefit are usually treated as classic foundations and must be entered in the commercial register of the canton of residence. There are many foundations that are perceived as ecclesiastical, but are not ecclesiastical foundations in the legal sense, but general foundations.
A purely ecclesiastical foundation does not have to be entered in the commercial register, it does not have to have an auditor's office and its supervisory authority is not a state but a church body such as the church council or the diocese. The ecclesiastical foundation, however, is not entirely part of a religious parallel society. A church foundation is established before the state notary. The dissolution of a church foundation is carried out by the competent civil judge at the request of the foundation's supervisory authority.
The ecclesiastical foundation under Swiss private law is linked to a specific religious community. This must provide for the possibility of church foundations and the establishment regulations as a basic requirement in its statutes, so that a church foundation can be associated with it. The central board or church council of the religious community serves as the supervisory authority of the church foundation, because the lower public interest does not require a state supervisory authority. A church foundation has no legal right to be affiliated with a specific church or religious community. The dissemination of a church does not play a role here, it does not have to be recognized by public law, but internally equally organized. Smaller free churches could best achieve this at association level ( Evangelical Alliance or Free Church Association ).
A classic characteristic of the church foundation is that the assets do not serve the general public, but rather a limited group of beneficiaries such as a parish or the members of a particular church. In terms of tax law, church foundations are not considered charitable. Therefore, donations to church foundations cannot be deducted from the calculation of the net income on the tax return. Donations in the sense of the Christian tithe tradition are intended for religious purposes and are made to churches and church foundations, in contrast to the charitable offerings for the poor and the general public, which are also made to classic foundations and are therefore tax deductible.
The ecclesiastical foundations of the Roman Catholic Church are also organized according to the internal requirements of canon law, the Codex Iuris Canonici . There are also numerous dependent church foundations (funds or fondations). In Switzerland there are also non-ecclesiastical foundations in the state-legal sense, but they are nevertheless subject to the canon law of the Catholic Church.
The Greek Orthodox Church in Switzerland has individual parishes, which are usually organized as general and not as church foundations. In Swiss Jewry there are individual general foundations, but no - in the legal sense of the word - church foundations. In the few ecumenically oriented church foundations, one of the churches involved is the supervisory authority. Foundations with an ecumenical purpose are mostly set up as traditional foundations.
In Switzerland there are also church foundations under public law and recognized under public law in the vicinity of the regional churches.
See also
literature
- Hans Michael Riemer: Bern commentary on foundation law. Stämpfli Verlag, Bern 1981.
- Walter Stohler: Donate and earn. Corporate foundations in Switzerland . Parak Verlag, Bottmingen 2006, ISBN 978-3-033-01024-6 .
- Klaus J. Hopt , Dieter Reuter (ed.): Foundation law in Europe. Foundation law and foundation law reform in Germany, the member states of the European Union, Switzerland, Liechtenstein and the USA . Carl Heymanns Verlag, Cologne 2001, ISBN 978-3-452-24942-5 .
Web links
- proFonds (umbrella association of non-profit foundations in Switzerland)
- SwissFoundations (umbrella association of Swiss awarding foundations)
- Federal supervision of foundations
Individual evidence
- ↑ Registered companies per legal form and canton. Federal Office for the Commercial Register.
- ↑ BVS leaflet. Retrieved September 16, 2019 (German).
- ↑ Swiss Civil Code. Swiss Confederation, accessed on February 4, 2020 .
- ↑ Hans Michael Riemer: Bern Commentary on Foundation Law . Stämpfli Verlag, 1981, p. 40.
- ↑ Hans Michael Riemer: Bern Commentary on Foundation Law . Stämpfli Verlag, 1981, p. 42ff.
- ↑ Hans Michael Riemer: Bern Commentary on Foundation Law . Stämpfli Verlag, 1981, p. 72.
- ↑ Hans Michael Riemer: Bern Commentary on Foundation Law . Stämpfli Verlag, 1981, p. 83.
- ↑ Hans Michael Riemer: Bern Commentary on Foundation Law . Stämpfli Verlag, 1981, p. 80.
- ^ A b Franz Gerhard, The Family Foundation according to the Civil Code, in: Journal for Swiss Law, Basel 1930, p. 142.
- ^ Franz Gerhard, The Family Foundation according to the Civil Code, in: Zeitschrift für Schweizerisches Recht, Basel 1930, p. 139.
- ^ Franz Gerhard, Die Familienstiftung according to ZGB, in: Zeitschrift für Schweizerisches Recht, Basel 1930, p. 148.
- ↑ A parish looks forward. Accessed November 2, 2019 (German).
- ↑ a b c Andrea G. Röllin: Church foundations. Dike, Zurich and St. Gallen 2010, ISBN 978-3-03751-258-6 .
- ^ Lampert: civil law. S. 7. / Riemer: Bern Commentary. ST N 229 and 252 / Huber: Bern Commentary. N 239 / Riemer: Personal law. N 478 f. and 481. In: Andrea G. Röllin: Kirchliche Stiftungen. Dike, Zurich and St. Gallen 2010, ISBN 978-3-03751-258-6 , p. 158.
- ^ Andrea G. Röllin: Church foundations. Dike, Zurich and St. Gallen 2010, ISBN 978-3-03751-258-6 , p. 11.
- ^ Andrea G. Röllin: Church foundations. Dike, Zurich and St. Gallen 2010, ISBN 978-3-03751-258-6 , p. 141.
- ^ Andrea G. Röllin: Church foundations. Dike, Zurich and St. Gallen 2010, ISBN 978-3-03751-258-6 , pp. 145–149.