As of 1 January 2016, all new foundations under private law are required to register in the Commercial Register, including church foundations and family foundations that were previously exempt from this requirement.
Therefore, existing family foundations as well as church foundations established before 1 January 2016 have until 31 December 2020 to register with the Commercial Register.
The revision of the law is the result of the recommendations of the Groupe d’Action Financière (“GAFI”) and aims at increasing the transparency of legal entities in the fight agains money laundering, terrorism financing and the financing of weapons of mass destruction.
Registration of existing church or family foundation
1. What a church or family foundation should do?
The church or the family foundation must apply for registration in the Commercial Register of the place of its registered office.
The church or family foundation must submit the necessary supporting documents, in particular the Deed of Foundation or the testamentary disposition to the Commercial Register. Accordingly, the Commercial Register will verify whether the criteria for recognizing the existence of a church or family foundation are fulfilled.
Church foundations benefit from a facilitated registration procedure with regard to supporting documents. Indeed, church foundations whose constitution can no longer be proven by the original Deed of Foundation will be able to obtain their registration on the basis of the Minutes of their supreme body confirming their existence.
The church or family foundation shall refer to its special status to be exempted from the obligations to appoint an auditor. In addition, church and family foundations are exempted from notifying the supervisory authority for foundations.
2. What a church or family foundation should pay particular attention to before the registration?
Prior to registration, a church or a family foundation needs to ensure that the foundation meets the requirement (goals and beneficiaries) to be qualified as such, in particular by checking its Article of Association and/or Deed of Foundation.
Indeed, the family foundation differs from normal foundation in view of its goals and the circle of its beneficiaries which is limited to the members of a single specific family. According to the exhaustive list of goals allowed for a family foundation (Art. 335 para. 1 of the Swiss Civil Code) a family foundation can only be established to cover the costs of education, equipment or support for family members or for similar purposes. In all cases, the aim is to provide financial assistance to family members belonging to the circle of beneficiaries in certain life situations (in adolescence, when founding their own household or existence, in case of need) in order to satisfy the resulting special needs. By similar purposes can only be meant those which also consist in providing the family members in certain life situations with the material help which appears necessary or desirable in these situations (BGE 108 II 393 E. 6a).
Also, it is important to remember that information such as initial share capital, member of the supreme body (if any), and supporting document (in particular the Article of Association) will be made available to the public. Therefore, an amendment of such documentation may be recommended prior to the registration so that certain organizational aspects are provided for in internal regulations (which are not disclosed to third parties).
Additionally, certain questions related to the registration of church and family foundations are not dealt with the Ordonnance. They concern in particular (i) the verification of the ecclesiastical character of a foundation by the Commercial Register, (ii) communications with foundation supervisory authorities and (iii) registration of specific information in the Commercial Register.
Consequences for non-registration
After 1 January 2021, unregistered church or family foundations will retain their status as legal persons and continue to be recognized.
However, the Commercial Register will proceed with an ex officio registration procedure of the church or family foundation. In addition, an unregistered church or family foundation may be subject to a criminal sanction (custodial sentence not exceeding three years or a monetary penalty) for withholding a fact subject to registration to the Commercial Register.
Special features for old family foundations
Special attention must be paid to old family foundations, sometimes called “family funds” or “caisses familiales”. Indeed, “family funds” are qualified as foundations and “caisses familiales” are qualified as associations or funds without legal personality. Only the family foundation is subject to registration.
We strongly recommend to take appropriate measures and to carefully prepare the registration of a church or a family foundation in the competent Commercial Register before 31 December 2020.
Review (and update) the Deed of Foundation and the internal regulations prior the registration is highly recommended to ensure that the church or family foundation is properly registered.
For more information, feel free to reach out to our Legal team or the key contact below.