A brief overview of the new foundation law from 2024

By January 19, 2024 No Comments
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Changes in foundation law allow for a little more flexibility

Switzerland is considered a popular and traditional location for foundations worldwide. In the canton of Zurich alone, more than 2000 foundations with an estimated total assets of 18 billion are based. The canton of Zug is also popular as a location and has seen a steady increase in new foundations, especially in the FinTech and blockchain sector.

On 1 January 2023, as part of the revision of company law, the legislator amended foundation law in the area of imminent insolvency and over-indebtedness (cf. Art. 84a of the Swiss Civil Code; Thomas Müller, New Foundation Law: Strengthening Creditor Protection (Art. 84a Swiss Civil Code?, in: Jusletter 11 September 2023) and the disclosure of remuneration (Art. 84b Swiss Civil Code).

With the aim of expanding the already advantageous framework conditions in the Swiss foundation system, a parliamentary initiative was therefore submitted in 2014. In 2021, Parliament then decided on a corresponding revision of the foundation law, so that the revised foundation law will now enter into force on 1 January 2024 with the following amendments.

Further changes to the law could follow. At the moment, Thierry Burkart’s motion is pending in Parliament. Thierry Burkart’s motion provides for the lifting of the ban on maintenance foundations (Art. 335 of the Civil Code). The Council of States adopted the motion in December 2023 and the matter is now up for debate in the National Council.

For the coming year, the following new law must be observed:

Extension of the reservation of amendment (Art. 86a nZGB)

Founders can now reserve the right to make any future changes to the organisation in the foundation deed or in the disposition upon death. The previous law had only provided for a reservation for changes to the foundation’s purpose. In the previous foundation law, however, it was exceptionally possible to change the organisation of the foundation if this was urgently necessary for the preservation of the foundation’s assets or the preservation of the foundation’s purpose.

According to Art. 86a of the German Civil Code, founders can now adapt the organisation of the foundation more flexibly and in a more targeted manner to changing circumstances. For example, by means of organizational changes, founders can appoint new foundation bodies, revise the existing regulations for the management of the foundation’s assets, as well as convert a foundation that was originally intended for eternity into a consumable foundation. As in the past, in the case of a change of purpose, it must be borne in mind that at least ten years must elapse between the establishment of the foundation or an earlier change of organisation for a change of organisation. In addition, a change in organisation can only be requested by the donors themselves. Likewise, only new foundations can benefit from this additional reservation option.

Simplification of amendments to the foundation deed (Art. 86b nZGB)

In the future, insignificant changes can be made to the foundation deed if they appear justified for objective reasons and no rights of third parties are impaired as a result. Until now, “valid” objective reasons had been required for this.

In addition, Art. 86c of the German Civil Code stipulates that changes to the foundation deed pursuant to Articles 85-86b of the Civil Code shall be made without public certification and that these shall be decreed by the competent supervisory authorities.

Statutory complaint against the supervisory authority of foundations (Art. 84 para. 3 nZGB)

An exhaustive catalogue of persons entitled to lodge a complaint (beneficiaries or creditors of the foundation, founders, co-founders, as well as former and current members of the foundation board) will now be introduced, who can lodge a complaint with the supervisory authority against acts and omissions of the foundation’s organs that violate the statutes or are unlawful. This foundation supervisory complaint was explicitly not regulated in the previous law and the new conclusive catalogue of persons entitled to appeal has already been critically examined by the academic profession (further explanations of the foundation supervisory complaint can be found in our earlier magazine article).

Appreciation

Although the revision brings some relief and a little more flexibility with the manageable changes, it is unlikely to noticeably change the traditional foundation system in Switzerland. This also applies to the new law, which came into force at the beginning of 2023 – there is still a lack of effective rules on capital and creditor protection and the liability of the board of trustees. The funding of the family foundation (Motion Burkart) is a step in the right direction – but the need for revision goes beyond this issue. MME’s foundation law team is therefore committed to a comprehensive revision and liberalisation of Swiss foundation law.

Our foundation law team at our two offices in Zurich and Zug will be happy to assist you if you would like appropriate advice on foundation law.