Implementing provisions of the ZBSA concerning the supervision of foundations - Scope

1. These implementation provisions regulate the legal supervision of private foundations in accordance with Art. 80 et seq. of the Swiss Civil Code (so-called classical foundations), which according to their purpose belong to the cantons of Lucerne, Schwyz, Obwalden, Nidwalden, or Zug.

2. They do not apply to family foundations and ecclesiastical foundations (Art. 87 of the Swiss Civil Code), nor to foundations that are under federal supervision. For employee benefit foundations operating in the areas of old-age, survivors, and disability insurance, and for institutions that serve the purpose of occupational benefits, the implementation provisions of the ZBSA on occupational benefits dated September 16, 2005, apply.

1. Supervision of the foundations as referred to in Art. 84 para. 1 of the Swiss Civil Code (ZGB) is exercised by the office of the Concordat on the Central Swiss BVG and Foundation Supervision (ZBSA; hereinafter referred to as the supervisory authority).

1. Upon the registration of a foundation, the respective cantonal commercial registry office ensures that every foundation—except for family foundations and ecclesiastical foundations—is subjected to the supervision of the public entity to which it belongs according to its purpose.

2. The commercial registry office notifies the supervisory authority deemed responsible by it of the establishment of the foundation by sending an extract from the commercial register and a duplicate or a certified copy of the foundation deed and any regulations. After the supervisory authority issues an order concerning the assumption of supervision over the foundation, the supervisory authority is entered in the commercial register.

3. If the Federal Supervisory Board for Foundations (ZBSA) deems itself to be not competent, it forwards the documents to the supervisory authority it considers to be competent.

1. The supervisory authority is responsible for all tasks assigned to it by federal law and the relevant provisions of the concordat cantons, insofar as these have delegated foundation supervision to the ZBSA. In the implementation of legislation, it is responsible for all measures and decisions that are not expressly reserved for another instance.

2. According to Art. 2 para. 3 of the concordat, the ZBSA acts for the concordat cantons that have assigned it the oversight of foundations, as the amending authority for cantonal and communal foundations in accordance with Art. 85, 86, and 86a of the Swiss Civil Code (ZGB).

3. In exercising supervision, the supervisory authority respects the autonomy of the foundations and the individual responsibility of their governing bodies. It issues the necessary orders when the bodies do not act within the scope of their proper discretion.

4. The supervisory authority may issue the instructions and guidelines necessary for fulfilling its tasks.

1. The Supervisory Authority examines

a. the organization of the foundations (Art. 83 Civil Code),

b. the use of the foundation's assets (Art. 84 Para. 2 and 84a Civil Code),

c. the investment of the foundation's assets according to the principles of sound capital investment, particularly regarding security, adequate return, risk diversification, and liquidity,

d. the conformity of the regulations issued by the foundation board with the foundation deed,

e. the applications from foundations for exemption from the obligation to appoint an auditor (Art. 83b Para. 2 Civil Code).

1. If the supervisory authority identifies deficiencies, it shall take the necessary measures to rectify them. For this purpose, it has the following supervisory tools at its disposal in particular

a. issuing binding directives to the foundation's governing bodies,

b. reprimanding, warning, and removing members of the governing bodies,

c. appointing an administrator,

d. appointing an extraordinary audit firm,

e. annulling and amending decisions of the governing bodies,

f. ordering expert assessments,

g. carrying out substitute performance,

h. threatening penalties for disobedience in accordance with Article 292 of the Swiss Criminal Code (StGB),

i. inspecting the management and accounting records at the foundation's headquarters,

k. appointing the missing governing body.

1. Every foundation must submit the following legally compliant and originally signed documents to the supervisory authority for review and acknowledgment unsolicited, no later than six months after the end of the fiscal year

a. the annual financial statement (balance sheet, income statement, and notes),

b. the auditor's report,

c. the report on the foundation's activities,

d. the approval protocol of the board of trustees.

2. The supervisory authority may request additional documents and information as needed and may particularly inspect all documents such as books, vouchers, minutes, and correspondences.

1. The supervisory authority must be immediately informed about newly enacted or amended statutes and regulations, as well as the election of members of the bodies.

**1. Pursuant to Art. 2 Sec. 3 of the Concordat, the ZBSA is responsible for those Concordat cantons that have delegated to it the supervision of classical foundations. This includes authority for altering the structure or the purpose of a foundation (Art. 85 et seq. of the Civil Code) as well as for determining the unattainability of the purpose or for the dissolution of the foundation (Art. 88 Sec. 1 of the Civil Code).**

**2. For those Concordat cantons that have delegated foundation supervision to it, the ZBSA also assumes the duties of the authority for modifications and transformations for foundations under municipal supervision, as per Art. 85 et seq. and Art. 88 Sec. 1 of the Civil Code. All other changes are handled by the municipal supervisory authorities.**

1. Applications concerning the amendment, transformation, or dissolution of a foundation must be submitted to the ZBSA for a decision. Its order has constitutive effect.

2. In the case of a foundation under municipal supervision with its headquarters in a concordat canton that has transferred the supervision of cantonal foundations to the ZBSA, the competent municipal authority acts as the supervisory authority, receives the foundation's application, and submits it with a corresponding proposal to the ZBSA for a decision.

1. The procedure for the issuance, amendment, or revocation of orders and decisions by the ZBSA, as well as the appeals procedure, shall be governed by the regulations of the canton of Lucerne.

2. The court of appeal is the Cantonal Court of the canton of Lucerne.

1. The supervisory authority shall charge fees for its activities.

2. The fees shall cover the costs and consist of

a. an annual supervisory fee,

b. fees for rulings and services.

3. The annual supervisory fee shall be based on the gross assets of the foundation, and the fees for rulings and services shall be assessed according to actual expenditure and invoiced to the foundations or the applicants.

1. For the annual review of reports and accounts, a basic fee of 300 francs plus 0.1 per mille of the gross assets, rounded down to the next full franc, is charged, but not exceeding 3,800 francs.

2. If investigations are necessary that exceed the usual extent, the fee may be increased to a maximum of double the amount.

3. In justified cases, the collection of the fee may be waived.

1. These implementing provisions regarding foundation supervision shall enter into force on January 1, 2006. They are to be published in the official publications of the concordat cantons.