Founding an association
Question
Three of our founding members have stepped down from the committee with the intention of establishing their own association. They claim that they can use the logo jointly developed at the time the association was founded for their new group. Do these founding members have the right, to simply "take" the name and logo of the existing association with them?
Answer
The association is an independent (legal) entity. This means that it can perform legal actions and own property, material assets, etc. Objects and funds do not belong to individuals, but rather the association as such. Founding members do not have any special rights in this regard.
The logo therefore unequivocally continues to belong to the original association. This is, of course, as long as nothing has been agreed to the contrary.
Question
Is it admissible for an association to consist of committee members only?
Answer
An association that has no members other than committee members is legitimate, too. In this case, the general meeting consists of the committee members only. It is important that such an association comply with the legal provisions governing associations: It has to convene a general meeting, hold elections, adhere to democratic processes, observe obligations to refrain from voting, etc. For such an association it is particularly important to choose one or two auditors in order to provide supervision and some sort of protection for the executive committee, because the committee cannot relieve itself.
It may be stipulated in the articles of association that the executive committee shall decide on the admission of new members. The executive committee thus determines whether further members are to be admitted or whether membership remains limited to members of the executive committee.
Question
My partner and I work in the therapeutic field. We would like to shift the focus of our services to people with disabilities. We want to set up an association for this purpose. I have read that only two people are needed for an association. Can my partner and I set up an association and provide therapy within the scope of the association?
Answer
An association must not operate for the purpose of generating a profit (Art. 60 ZGB). If the association is intended to enable its members to earn a living or a part thereof, it is by definition profit-driven. Associations are given preferential treatment with regard to taxes and liability. Any circumvention is therefore punishable by law. In your situation, a different legal form should be chosen, or the association should be organised differently.
However, associations are generally permitted to employ people to fulfil their non-profit objectives. Pursuant to Article 68 of the Swiss Civil Code, its members must recuse themselves from any transactions concerning themselves, their spouses and cohabiting partners and close relatives. This means that you, in your function as a representative of the association, cannot appoint yourself or your partner, nor can you hire yourselves.
However, you could formulate an idealistic or charitable objective in the purpose of the association (e.g. reduction of costs for affected people). This would allow you to recruit people who value the focus on people with disabilities and who are willing to take on responsibility as board members in the association. The Board of Directors could hire or commission you as a superior body on behalf of the association. You yourself could be represented on the Board in an advisory capacity.
Question
How many founding members are required in order to establish an association? Can I form an association as an individual?
Answer
Under Article 60 of the Swiss Civil Code (ZGB), associations are a "corporate group of persons". A single individual is therefore unable to establish an association; it is not possible to form an association with yourself. Two people is the absolute minimum number required.
However, we advise against establishing and running an association with just two people. There are repeatedly decisions to be taken, even at the foundation stage. In a stalemate situation, it is not possible for two people to pass resolutions. The term "association" itself also makes apparent that the body is a group and that it is not possible for a single person to establish an association.
Question
I would like to found a Swiss association together with several persons who are residing abroad. May these persons be founding members and may they be elected to an office?
Answer
Persons with residence in a foreign country may be founding members, committee members and/or future members of an association domiciled in Switzerland. An association domiciled in Switzerland is governed by Art. 60 ff. of the Swiss Civil Code; it can be founded as such if it has any relation to Switzerland: area of activity (also) in Switzerland, open (also) to members from Switzerland. For associations with an international background it makes sense to have at least one committee member who is a Swiss resident.
If a Swiss association has (committee) members with residence in a foreign country, it must ensure that these members are able to assume their rights and duties. To this end, it can hold the committee meetings/general meetings via an online conference room (e.g. via Skype) provided all members are invited in time, receive the necessary documents and access data, etc. The articles of association must provide for general meetings (and/or committee meetings) to be held online.
