Facts

The appellant is a foundation registered in the commercial register of the Canton of Zug within the meaning of Art. 80 ff. CC. Its purpose is to promote animal, environmental and landscape protection as well as charitable projects in the fields of renewable energy and organic production.

[B.] was the sole shareholder of [C. AG] . By contract of 19 December 2017, he undertook towards the foundation, subject to the condition that the name and purpose of the foundation be changed, to transfer all shares of [C. AG] free of charge. The shares were transferred by deeds of 18 and 28 December 2017.

On 1 February 2018, [B.] initiated conciliation proceedings and applied for a declaration that the gift was void or non-binding. The authorisation to sue was issued on 6 April 2018 but was not used by [B.] .

The Swiss Federal Foundation Supervisory Authority (ESA) appointed a receiver on 27 March 2018. Based on his report, the ESA ordered on 3 July 2018, among other things, that no foundation assets may be used to conduct the proceedings relating to the gift. In the event that the foundation council nevertheless wished to conduct the civil proceedings, it was to provide security for the presumed litigation costs of CHF 5.5 million.

The Federal Administrative Court initially dismissed the appeal on 21 October 2019. The Federal Supreme Court set aside that judgment by judgment 5A_955/2019 of 2 June 2020 and remitted the matter. The Federal Administrative Court dismissed the appeal again on 27 August 2020. It held that the order was justified because the proceedings were futile given [B.] 's lack of capacity to form judgment at the time of the gift.

By appeal in civil matters of 5 October 2020, the foundation applied for the annulment of the lower court's judgment and of items 1-4 of the ESA's ruling. The Federal Administrative Court waived a response, and the ESA maintained its position.

Considerations

The appeal in civil matters is admissible, as it concerns a public-law decision in direct connection with civil law (Art. 72 para. 2 lit. b no. 4 FSCA), which is of a pecuniary nature and reaches the amount in dispute of CHF 30'000 (Art. 74 para. 1 lit. b FSCA). The appellant has standing under Art. 76 para. 1 FSCA to appeal, at least with respect to the order prohibiting litigation. The purely cassatory request is admissible, as an adverse order is being challenged.

Under Art. 84 para. 2 CC, the supervisory authority must ensure that foundation assets are used in accordance with the foundation's purpose. In doing so, it must observe the principles of proportionality and subsidiarity as well as the limits of the legal order (Art. 5 para. 1 Cst.). The order raises a question of law, which the courts review freely, without any margin of discretion for the supervisory authority.

The supervisory authority may only direct a foundation to acknowledge a claim if that claim is clearly established without further inquiry. Where doubts exist, the decision is reserved for the civil court. Intervention remains the exception, since contested civil matters must be adjudicated by the civil courts (Art. 1 lit. a CPC; Art. 6 no. 1 ECHR; Art. 30 para. 1 Cst.). This also applies to an instruction not to carry out legal acts vis-à-vis third parties.

The Federal Administrative Court based the futility finding on two judgments from the Canton of Zurich. However, these do not concern the capacity of the donor to form judgment or the validity of the promise of gift, but rather the restriction on transfer of the shares and an assessment for a precautionary mandate, respectively. They therefore do not support the finding of futility.

The Federal Administrative Court also relied on an expert report from the…