Facts
The X. Foundation (Switzerland) in the process of formation has filed an administrative appeal against the decision of the Federal Department of the Interior (DFI) not to assume federal supervision of the foundation. The Federal Tribunal has upheld the appeal. The essential facts are as follows: - The foundation was created for the purpose of carrying out social activities. - The DFI refused to assume federal supervision of the foundation, citing doubts about the reliability of the institution and the proper use of the foundation's assets. - The foundation appealed against this decision to the Federal Tribunal.Considerations
According to case law and doctrine, the competence of the supervisory authority of an ordinary foundation is determined by the purpose of the foundation and its geographical scope of activity. The DFI deviated from these legal criteria by basing its decision on grounds unrelated to the law.
In principle, the creation of an ordinary foundation does not require any authorization from the authority. As soon as the legal conditions are met, the foundation must be registered in the commercial register. The State can only intervene in the constitution of the foundation within narrow limits, in respect of the founder's will.
Although Art. 81(2) CC provides that registration in the commercial register can be done "if necessary on the order of the supervisory authority", this provision is solely intended to allow the…