According to § 21 StiftG, STIFA verifies the accuracy of the deposited notifications of formation and amendment in the case of private-benefit foundations not subject to the registration requirement. For this purpose, information may be demanded from the foundation, and the foundation documents may be inspected through the controlling body (§ 11 StiftG) or, if no such body has been set up, through an authorised third party.
The controlling body/third party verifies whether all notifications (notifications of formation or amendment) have been made and have been submitted to the Commercial Register with accurate content. If there is no reason for objection, it is sufficient to provide written confirmation to STIFA that the foundation is not pursuing an illegal or immoral purpose and is not subject to the obligation to register and/or STIFA supervision. If the verification indicates that the notification of formation or amendment is inaccurate, this must be noted accordingly, and duplicates or copies of the files must be drawn up and handed over to STIFA. STIFA decides on the necessary measures and whether to apply to the Court of Justice for penalties in accordance with § 66c of the Final Heading of the PGR.
Deposition of private-benefit foundations not subject to the registration requirement under the new foundation law:
Under the old law until 31 March 2009, private-benefit foundations not subject to an obligation to register had to deposit their articles with the Commercial Register upon formation. The deposition itself merely was a declaratory act, not a constitutive act as is the case for the registration of a foundation subject to the obligation to register, which obtains legal personality only upon entry in the Commercial Register. Instead, the private-benefit foundation not subject to an obligation to register was constituted already with the transaction establishing the foundation, thereby obtaining legal personality already upon issuance of the foundation deed and fulfilment of the formal requirements.
Entry into force of the new foundation law on 1 April 2009 did not change the principle that private-benefit foundations are not subject to an obligation to register and that these foundations obtain legal personality already with the declaration of establishing the foundation. What has changed, however, is the model of deposition itself, which according to the new foundation law is no longer tied to deposition of the articles of the foundation, but rather to deposition of a “notification of formation” upon formation of a private-benefit foundation not subject to the obligation to register.
According to § 20 StiftG, such notification of formation must be deposited with the Commercial Register within 30 days following formation, for the purpose of monitoring the obligation to register and prevention of foundations with an illegal or immoral purpose as well as for preventing the circumvention of possibly required supervision. The notification of formation must contain information about the foundation as enumerated in the law itself. If information contained in the notification of formation changes, a notification of amendment must be deposited again within 30 days. On the application of the foundation, the Commercial Register issues an official confirmation of each deposition of a notification of formation or amendment.
The new deposition model has a multilevel control system based on confirmations of the accuracy of information by representatives of qualified professional groups. Penal provisions for omissions and false confirmations (§ 66 Final Heading of the PGR) also exist.
Article 1 of the transitional provisions of the new foundation law provides for a gentle transformation of already existing foundations to the new deposition model. Every existing foundation must, when the first change of circumstance occurs that would require a notification of amendment under the new law, submit a first report to the Commercial Register containing the information required for a notification of formation (“notification of transformation”).
In practice, implementation of this transitional provision also allows the precautionary deposit of a notification containing all the information required for a notification of formation even without any change of circumstance, for the purpose of transforming the existing foundation to the new deposition model.