What are the duties of the foundation supervisory authority?
Foundations are subject to supervision by a state supervision authority, which ensures that foundation bodies are using their assets as originally intended by the donors. In order to carry out these duties, the foundation supervisory authority may take preventative and/or repressive measures.
Who is under the supervision of the foundation supervision authority?
In principle, the foundation supervision authority oversees all foundations other than purely family or ecclesiastical foundations (in accordance withart. 87 para. 1, Swiss Civil Code). Pension foundations, investment foundations and vested benefit foundations are governed by the Occupational Pensions Act (BVG) supervisory authority (art. 61, Swiss Occupational Pensions Act). Governmental control is to some extent a substitute for the lack of members who exercise a control function, as is the case in an association. Founders may not, therefore, decide whether the foundation they have founded requires state supervision or not. Founders also cannot leave this decision to the foundation itself, its bodies or the beneficiaries.
Before setting up a foundation, donors should contact the competent authority on their own initiative to discuss the deed of foundation, the purpose and the organisation of the proposed foundation. A foundation will only be entered in the commercial register by the Commercial Registry Office in the presence of written authorisation from the competent supervisory authority (cf. blog post).
Implementation of the Foundation’s purpose is the main task
The main task of the foundation supervisory authority is to ensure that the Foundation fulfils its purpose according to the donor’s wishes, as set out in the deed of foundation . A particular focus is how the Foundation’s assets will be invested and used. Naturally, the Foundation must abide by the law (both private and public). The supervisory authority is also responsible for ensuring this.
Primarily, the supervisory authority must adhere to the requirements of the deed of foundation. However, it is also linked to the Foundation’s implementation decrees and the rules the authority itself lays down, as long as these two things do not contradict the deed of foundation.
Further tasks
Further tasks of the foundation supervisory board include the rectification of foundations that have been incorrectly set up, and the conversion of foundations which can no longer pursue their original purpose. The latter may occur when a foundation’s assets are exhausted, its purpose is no longer in line with current events, or the foundation’s organisation is inadequate.
Resources of the supervisory authority
The supervisory authority is also responsible for evaluating complaints made to it by third parties which concern the legality of the foundation’s activities or the behaviour of the foundation’s bodies.
In order to fulfil its tasks, the supervisory authority may take preventative or repressive measures. Preventative measures include e.g. the adoption of investment regulations and directives, or establishing an obligation for the foundation’s bodies to deliver regular reports. Repressive measures include warnings, suspension or amendment of decisions by the foundation’s bodies, claims for damages and substitution measure.
