Changing the organisation of a foundation
As a legal form, foundations have an immovable structure. Amendments to the foundation charter are only possible if strict legal requirements are complied with. The basic organisational principles are mostly laid down in the foundation charter, which is why amendments to organisational structure are subject to strict rules.
The foundation’s governing bodies (e.g. the council) have the basic authorisation to manage the foundation but not to decide on its structure. Once a foundation has been established and is valid, the foundation charter cannot simply be changed by the governing bodies or personally amended by the founder.
The organisation of the foundation is regulated at least in outline by the founder in the foundation charter. Detailed organisational provisions may also be set out in regulations (see blog entry).
Request from foundation council
The foundation council must submit a request to the competent supervisory authority if it wishes to amend the organisational provisions in the foundation charter. The supervisory authority must then receive approval from the competent federal or cantonal authority in order for the amendment to be implemented. Amending the foundation charter results in an alteration to the commercial register (Art. 97 Para. 1 HRegV (Commercial Register Ordinance)).
Necessity of the amendment
Subsequent amendments to the provisions in the foundation charter are possible if it is absolutely necessary for the preservation of assets or safeguarding of the purpose (Art. 85 ZGB (Swiss Civil Code)). When doing so, it must be ensured that the organisational structure chosen offers the best chance of realising the purpose and does not hinder it. The time-consuming foundation charter amendment process concerns only the most significant organisational changes. These include the creation of a new governing body, the abolition of a significant organisational element (e.g. the founder’s rights to influence the foundation).
The primary amendment goal is the creation of an organizational structure which will optimally serve the foundation’s purpose. Organisational amendments can also serve to rescue the foundation’s purpose if it is at risk. This is, for example, the case when a complicated division of responsibilities between the foundation’s governing bodies is blocking measures necessary for the preservation of the endowment. However, it should be noted that third party rights, such as rights from work contracts, are not impaired (Art. 86b ZGB).
The conditions for organisational amendments also apply to employee benefits schemes, family foundations and ecclesiastical foundations.
Minor amendments
Minor amendments can be made via a more simplified process but still require the approval of the supervisory authority (Art. 86b ZGB). Amendments can be made even more simply if there are regulations on organisational provisions in the foundation’s regulations. Regulations can be generally altered without the involvement of the authorities. The commercial register does not need to be adjusted if only one organisational regulation is to be altered (Art. 97 Para. 1 HRegV).
