2 Zivilrecht, Strafrecht, Administration of Justice » 21 Civil Law » 211 Personal and Family Law

Scope of Application

1 These implementing provisions govern the statutory supervision of private

foundations within the meaning of Art. 80 et seq. ZGB (so-called classical foundations)

which, by their nature, belong to the cantons of Lucerne, Schwyz, Obwalden, Nidwalden, or Zug.

2 They are not applicable to family foundations and ecclesiastical foundations

(Art. 87 ZGB), nor to foundations subject to federal supervision. For

occupational benefit foundations active in the field of old-age, survivors', and

disability benefits, and for institutions that, by their purpose, serve

occupational benefits, the implementing provisions of the ZBSA

on occupational benefits of 16 September 2005 apply.

Supervisory Authority

The supervision of foundations in the sense of Art. 84 para. 1 CC is exercised by the

office of the Concordat on the Central Swiss BVG and Foundation Supervision

(ZBSA; hereinafter referred to as the Supervisory Authority).

Assumption of Supervision

1 When a foundation is registered, the respective cantonal commercial register office ensures that every foundation – with the exception of family foundations and ecclesiastical foundations – is placed under the supervision of the public entity to which it belongs according to its purpose.

2 The commercial register office notifies the supervisory authority it deems competent of the establishment of the foundation by sending a commercial register excerpt and a duplicate or certified copy of the foundation deed and any regulations. After receipt of the supervisory authority's decision regarding the assumption of foundation supervision, the supervisory authority will be entered in the commercial register.

3 If the FOCF deems itself not competent, it transfers the documents to the supervisory authority it believes to be competent.

II. Duties of the Supervisory Authority

General Tasks

1 The supervisory authority is responsible for all tasks assigned to it by federal law and the relevant provisions of the concordat cantons, provided that these cantons have transferred foundation supervision to the Swiss Central Foundation Supervisory Authority (ZBSA). In the execution of legislation, it is responsible for all measures and decisions not expressly reserved for another instance.

2 In accordance with Art. 2 para. 3 of the Concordat, the ZBSA also performs the tasks of the amendment authority within the meaning of Art. 85, 86 and 86a of the Swiss Civil Code (ZGB) for the concordat cantons that have transferred the supervision of foundations to it, regarding cantonal and communal foundations.

3 When exercising supervision, the supervisory authority respects the autonomy of foundations and the personal responsibility of their organs. It takes the necessary measures when the organs do not act within the scope of dutiful discretion.

4 The supervisory authority may issue the instructions and guidelines required for the performance of its tasks.

Specific Tasks

The supervisory authority reviews

a) the organization of the foundations (Art. 83 CC);

b) the use of the foundation assets (Art. 84 para. 2 and 84a CC);

c) the investment of the foundation assets according to the principles of sound

capital investment, particularly security, adequate return, risk diversification,

and liquidity;

d) the conformity of the regulations issued by the board of trustees with the

foundation deed;

e) the requests of foundations for exemption from the obligation to appoint an

auditor (Art. 83b para. 2 CC).

Supervisory Measures

1 If the supervisory authority discovers deficiencies, it shall take the measures necessary to remedy them. For this purpose, it particularly has the following supervisory measures at its disposal

a) the issuance of binding directives to the foundation's bodies;

b) the admonition, warning, and removal of bodies;

c) the appointment of an administrator;

d) the appointment of an extraordinary auditing body;

e) the annulment and amendment of decisions made by the bodies;

f) the ordering of expert opinions;

g) substitute performance;

h) the threat of punishment for disobedience in accordance with Article 292 of the Penal Code;

i) the examination of the management and accounting at the seat of the foundation;

k) the appointment of the missing body.

2 The supervisory authority may, on its own initiative or upon notification by third parties, at any time request information and the surrender of relevant documents from the foundation board.

**III. Tasks of the Foundation**

Reporting and Filing of Accounts

1. Each foundation shall, unsolicited, annually, no later than six months after the close of the financial year, submit the following legally compliant and originally signed documents to the supervisory authority for review and acknowledgement

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

b) the report of the audit body;

c) the report on the activities of the foundation;

d) the approval minutes of the foundation council.

2. The supervisory authority may, if necessary, request further documents and information, and in particular inspect all documents such as books, vouchers, minutes, and correspondence.

Duty to Inform

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

IV. Amendment, Transformation, and Dissolution of the Foundation

Competent Authority

1 Based on Art. 2 para. 3 of the Concordat, the ZBSA is, for those Concordat cantons that have transferred the supervision of classical foundations to it, responsible for the amendment of the organization or purpose of a foundation (Art. 85 et seq. CC) as well as for determining the impossibility of achieving the purpose or for dissolving the foundation (Art. 88 para. 1 CC).

2 For those Concordat cantons that have transferred the supervision of foundations to the ZBSA, the ZBSA also performs the duties of the amendment and conversion authority in the sense of Art. 85 et seq. and Art. 88 para. 1 CC for foundations under municipal supervision. All other amendments are decided by the municipal supervisory authorities.

Decisions

1 Applications concerning the amendment, conversion, or dissolution of a foundation must be submitted to the Federal Supervisory Authority for Foundations (FSAA) for decision. Its ruling has constitutive effect.

2 If it concerns a foundation under communal supervision with its seat in a concordat canton that has transferred the supervision of cantonal foundations to the FSAA, the competent communal authority, as the supervisory authority, receives the foundation's application and submits it to the FSAA with a corresponding proposal for decision.

**V. Administration of Justice**

Decisions of the Supervisory Authority

1 The procedure for the issuance, amendment, or revocation of orders and decisions

of the ZBSA, as well as the appeals procedure, are governed by the provisions

of the canton of Lucerne, where it is located.

2 The appellate body is the Cantonal Court of the Canton of Lucerne.

VI. Fees

Principle

1 The supervisory authority levies fees for its activities.

2 The fees cover costs and consist of

a) an annual supervisory fee,

b) fees for decisions and services.

3 The annual supervisory fee is determined based on the gross assets of the foundation, and fees for decisions and services are calculated according to actual expenditure and invoiced to the foundations or applicants.

Annual Supervision Fee

1 For the annual examination of reports and accounts, a basic fee of 300 Swiss Francs plus 0.1 per mille of the gross assets, rounded down to the nearest whole Franc, but not exceeding 3800 Swiss Francs, shall be levied.

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

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

VII. Final Provisions

Entry into Force

These implementing provisions on foundation supervision shall enter into force on 1 January

2006. They shall be published in the official gazettes of the concordat cantons.

1 GS 21-36 with amendments of 3 June 2019 (GS 25-58) and of 23 May 2022 (GS 26-83).

2 SR 210.

3 SRSZ 211.210.1.

4 Para. 2 as amended on 3 June 2019; Para. 1 as amended on 23 May 2022.

5 SRSZ 211.210.2.

6 Para. 3 as amended on 3 June 2019.

7 Para. 2 as amended on 3 June 2019.

8 Subpara. e as amended on 3 June 2019.

9 Para. 1 Subpara. c as amended and Subpara. k newly inserted on 3 June 2019.

10 Para. 1 Subpara. a as amended on 3 June 2019.

11 Main title as amended on 3 June 2019.

12 Para. 1 as amended on 3 June 2019.

13 As amended on 3 June 2019.

14 Para. 3 as amended on 3 June 2019.

15 Para. 1 as amended on 23 May 2022.

16 Abl 2005 1679; amendments of 3 June 2019 entered into force on 1 September 2019 (Abl 2019 1925) and

of 23 May 2022 entered into force on 1 July 2022 (Abl 2022 1506).