Membership

The articles of association determine who will be allowed to join the association and how the admission will take place: In accordance with the articles of association, applications for joining shall be addressed to the general meeting or the committee which shall decide upon acceptance or non-acceptance. In the absence of respective provisions in the articles of association, the general meeting decides upon the acceptance of new members. Associations may decide who to accept as members. However, there are exceptions: Associations that have a dominant market position, such as professional associations, must accept suitable persons.

Question

Are employees of an association automatically deemed to be members of the association?

Answer

As, generally speaking, the individuals concerned are required to provide their consent in order to join an association, it is not possible for association employees to be automatically admitted.

All of the members of an association have the same rights and obligations. If employees are also association members, they have the same voting and electoral rights as the other members and are required to pay the defined annual fee (unless the articles of association state something to the contrary). If employees account for a majority of the members within an association with a low member count, this can be problematic, as the general meeting is deemed to be the associations' most senior body. In this case, the employees could ultimately make decisions regarding the association, which is also their employer.

Membership in an association is closely linked to the member as an individual. It ends upon his/her death unless the articles of association provide for a membership transfer to his/her heirs.

Departure from the association refers to the termination of membership. Notice periods may not exceed six months.

Members may be excluded from the association at any time. The articles of association may determine the reasons for an exclusion or provide for exclusions without stating any reasons. If the latter is the case, an appeal against the exclusion can only be filed on the grounds of formal errors. If the articles of association do determine the reasons for an exclusion, members may only be excluded for important reasons and by a resolution of the association. Important reasons are the violation of the association’s interests or damages to the association. Members must get a hearing before their exclusion (fair hearing).

Prior to any exclusion from the association, the member in question is entitled to a fair hearing, i.e. they will be given the opportunity to express their view. A fair hearing must also be granted for other sanctions, e.g. a disciplinary punishment.

Question

An association member who has been awarded an honorary membership would like to leave the association as they have other interests. Upon handing over her position, my predecessor told me that an honorary member cannot leave the association. Is this true?

Answer

A member can always leave an association, irrespective of the type of membership. The right to withdraw from the association is mandatory and is a personal right. Under Article 70(2) of the Swiss Civil Code (ZGB), the notice period is half a year. This period can be shortened in the articles of association, but cannot be extended. No reasons have to be provided for leaving the association in compliance with the notice period. You therefore have to or may let your honorary member leave without issue.

The opinion of your predecessor is probably based on the fact that in granting an honorary membership the desired intention is to provide recognition for life.

The articles of association determine the entry formalities, e.g. to whom the application for admission is to be addressed and which requirements have to be met in order to become a member of the association.

Joining an association is a legal transaction. By joining an association, rights and obligations are established.

An association is a group of people organised for a joint purpose. Membership refers to the legal relationship between members and the association. Depending on the articles of association, the general meeting or the committee decides on the acceptance of new members. Members have rights and obligations. They may leave the association and must observe the notice period according to the articles of association. If no notice period is specified in the articles, the law provides for a period of six months at the end of the business or calendar year.

Members can defend themselves, for instance against a decision regarding their exclusion, by filing a recourse. If the decision was made by the committee, the member’s recourse shall be addressed to the general meeting. The matter may be brought before a court of law only when all internal possibilities are exhausted.

Question

A member of our association's committee has tendered his resignation, as he is moving away from the area. However, only around 18 months of the four-year term of office have passed. Is it actually permitted for this individual to step down? Where necessary, is the committee itself able to define a new member prior to the next general meeting so that it remains able to perform its function?

Answer

It often occurs that a committee member is unable or does not wish to complete his or her term of office. Committee members also have the right to withdraw from the association. Should a committee member step down at the end of an association year, by-elections usually take place at the next general meeting.

If a committee member stands down during the course of the year and their absence is manageable, it is possible to wait until the next general meeting. However, if the committee is urgently relying on a replacement so that it can continue its business, it is beneficial if the articles of association allow for so-called co-optation. This means that the committee itself can hold a by-election. The corresponding article may then, for example, read as follows: "Vacancies that emerge during the course of a business year can be re-filled by the committee itself prior to confirmation by the general meeting". If this option is not provided for in the articles of association, the committee can hold elections at an extraordinary general meeting. Or it has to see how it can get things done without a replacement. In any case, it is the responsibility of the departing committee member to ensure the careful handover of official business.

Complying with the statutory or legal notice period, resignation from the association must be possible at all times. Notice periods may not exceed six months. For important reasons (if remaining in the association is unacceptable), the member can resign immediately. Where members fail to pay their membership contribution, this does not automatically lead to the resignation or termination of the membership. A notice of termination or a letter of resignation or corresponding statutory actions are required.

Membership with an association may be terminated in different ways: Members may resign or can be excluded subject to a notice period (according to the articles of association or the law). Membership ends automatically upon the death of the member or with the dissolution of the association. Membership is tied to the person and cannot be inherited.

Question

As of when does an association membership enter into effect? Upon the application being submitted? When the membership fee has been paid? After the committee has granted its approval?

Answer

The admission of members is normally governed under the articles of association. Should this not be the case, responsibility for the admission of members lies with the general meeting. The admission of new members is thus to be included in the agenda of the general meeting and submitted to a vote.

It is, however, also permitted to have the committee decide on the admission of members. If the association wants to transfer the relevant authority to the committee, it needs to govern this issue in its articles of association.

Membership generally enters into effect from the moment the member is admitted by the general meeting or the committee.

In the association's articles of association or regulations, however, further details can be formulated, for example that the membership only takes effect following the payment of the membership fee or that it commences or ends with the school or calendar year.

It is important for any association that it is clear at all times who is a member.

The freedom of association also applies to persons who do not have a Swiss passport, i.e. they are allowed to join associations and set up associations. Associations provide great possibilities for integration.

Question

Is it permitted for an association not to charge membership fees?

Answer

Yes, an association is under no obligation to charge membership fees. Under Article 71 of the Swiss Civil Code (ZGB), an association is even only permitted to demand membership fees if this issue is expressly governed in its articles of association. Here, the articles of association may specify a minimum or maximum amount or state a range. Since the liability of members has been excluded by law, it is no longer necessary for a fee amount to be defined in the articles of association.

The setting of a fixed fee amount in the articles of association is not advisable, as the articles of association will otherwise need to be updated each time the fee is amended.

Individual member categories may be exempt from contribution payments where this is provided for in the articles of association. For instance, committee members and honorary members may be exempt from contribution payments.

Members may be exempted from paying membership fees, for instance, because they are contributing or have contributed a lot to the association or because it is an honour for the association to have a certain person as a member.

Question

Our general meeting is taking place next week. A motion from a member has now been received after the deadline stated in the articles of association. The member is proposing that the membership fee amount be left as it is. The committee, on the other hand, is proposing that the membership fee be increased. Are we required to present the member's motion?

Answer

As the business of the "membership fee" has been included under the agenda items, the motion put forward by the member represents a proposal relating to an existing agenda item. The invitation period only applies to motions that request the addition of an agenda item, i.e. relating to a (further) point of business that should be included in the agenda.

The motion that you mention must therefore be put forward and voted on. Members must also have the opportunity to put forward a motion (relating to a scheduled agenda item) at the meeting itself. This is what makes democratic discussions and the formation of opinions at the general meeting possible in the first place.

Question

Our association includes various member categories (individuals, families, associations, companies). What is the situation now with respect to the number of votes? Generally speaking, does each category have a single vote?

Answer

Provided they do not contradict the relevant legal provisions, the association's articles of association are the decisive factor here. The Swiss Civil Code (ZGB) governs a few details under Article 67:
1. All members have equal voting rights at the general meeting. Deviations from this principle must be recorded in the articles of association.
2. Resolutions require a majority of the votes of the members present.

Generally speaking, natural persons and legal entities (e.g. associations) are each entitled to a single vote, i.e. each member can cast one vote. The articles of association may require the representation of a specially designated individual (principle of delegation).

Benefactors do not normally have any voting rights. With respect to families, the question is whether the family as a whole has entered into a single membership or whether it pays a reduced membership fee that is higher than that charged for a single membership. In the first case, only one family member is entitled to vote, while in the second case all present adult members can vote. Ideally, the relevant regulations should be laid down in the articles of association. Example: a family pays the same membership fee as an individual member or a family pays more (e.g. twice the amount). In both cases, all family members are full members of the association and can make use of its services.

Membership fees are used to cover an association’s expenses. They form part of the association’s finances. If membership fees are charged, the articles of association must include a respective provision. The amount of the membership fee may be determined by the general meeting. In other cases, the articles of association only mention a maximum amount and the committee is authorised to set the effective amount as needed. This procedure is especially popular with large associations.

Question

Should the annual/membership fee be included in the agenda items of the general meeting even if it is to remain the same?

Answer

The amount of the membership fee is generally determined by the general meeting. If the exact amount is defined in the articles of association, an increase or reduction can only be implemented by means of an amendment to the articles of association. In such cases, the item of business only has to be added to the agenda items upon a corresponding motion being put forward by the committee or a member.

If the fee amount is not specified in the articles of association, its definition is part of the ordinary business of the general meeting. In such cases, it is advisable to include the "membership fee" agenda item each year. The committee can then, for example, propose that the current fee is maintained. The members can, however, put forward countermotions.

Question

Our committee does a great deal of work and without compensation. Can we at least waive the annual fee for the individual committee members?

Answer

As all association members generally have the same rights and obligations, this also applies to the payment of the annual fee. An exception can only be made if a corresponding provision is contained in the articles of association. For example: "Committee and honorary members are exempted from the membership fee obligation".

Where the articles of association provide for the payment of contributions, which is usually the case, members are obliged to pay them. Without a respective provision in the articles of association, no membership contributions may be charged.

Question

In our association, trainees and students do not pay a membership fee. Are they still entitled to vote?

Answer

As all members have the right to equal treatment, members who are exempted from the payment of a membership fee also have full voting and electoral rights. In fact, equal treatment would also apply to the membership fee. It is, however, possible to govern objectively justified differences in the articles of association.

Persons or organisations for which the association’s purpose is very important can become sponsors by contributing more than the regular membership fees or by donating money on a regular basis.

Question

As of when does an association membership enter into effect? Upon the application being submitted? When the membership fee has been paid? After the committee has granted its approval?

Answer

The admission of members is normally governed under the articles of association. Should this not be the case, responsibility for the admission of members lies with the general meeting. The admission of new members is thus to be included in the agenda of the general meeting and submitted to a vote.

It is, however, also permitted to have the committee decide on the admission of members. If the association wants to transfer the relevant authority to the committee, it needs to govern this issue in its articles of association.

Membership generally enters into effect from the moment the member is admitted by the general meeting or the committee.

In the association's articles of association or regulations, however, further details can be formulated, for example that the membership only takes effect following the payment of the membership fee or that it commences or ends with the school or calendar year.

It is important for any association that it is clear at all times who is a member.

The term capability of judgement refers to the ability to act reasonably. It is independent of age, but should always be examined in relation to a specific situation.

There is no prescribed minimum age for membership in an association. Minors (under age 18) capable of judgement can join an association without the consent of their parents. However, if the membership has financial consequences beyond the means of a young person, minors need parental consent. If an under-age person is to be elected to a committee function, the approval of the legal representatives is necessary because the committee office carries a special responsibility and can imply liability issues.

The ballot vote does not take place in the general meeting, but the members vote in writing. The ballot is only used for particularly important issues and is only allowed if it is provided for in the articles of association. The majority vote decides. On the other hand, the written ballot in accordance with the Civil Code (CC), Article 66 (2), is somewhat different: Here the consent of all members, i.e. unanimity, is required for a valid decision. In this case, too, the written consent can replace a resolution of the general meeting.

A consultative vote clarifies whether or not a particular project should be further pursued. It is not legally binding and cannot be challenged.

If the articles of association provide for electronic voting and all members have access to the required technical equipment, decisions can also be made in this way.

All members shall be treated equally, unless the articles of association provide for different treatment (member categories).

In general, the principle of equality applies: There is one vote per person or member. Deviations are possible, however. If a casting vote is allowed, the chairperson has two votes. Other deviations must be well founded and provided for in the articles of association, for instance, two votes per family.

In general, a distinction is made in polls or elections between an absolute, relative (or simple) and qualified majority. However, the terms are not used consistently. The articles of association determine what type of majority should apply and what the basis for its calculation is. In the absence of a corresponding provision in the articles of association, an absolute majority, i.e. the majority of the votes present (for example, 21 votes if 40 members are eligible to vote) is required. In this case, all votes must be counted, including invalid votes and abstentions. An absolute majority can also be calculated based on the valid votes cast. In the case of a relative (or simple) majority, a motion is adopted if the number of votes in favour exceeds the number of votes against the motion; abstentions are not counted. A qualified majority, on the other hand, is provided for particularly important matters (such as changes to the articles of association) and requires more weighty approval than just the majority, e.g. two thirds or three quarters of valid votes. The articles of association may also determine that very important votes or circular resolutions shall be passed unanimously. Here, too, it should be determined whether unanimity refers to the members present or to all members (universal meeting). The articles of association should also regulate what to do in the event of tied votes. In most cases, the chairperson shall cast the deciding vote. If this is not the case, the motion is rejected because it has not achieved a majority.

Question

Our association includes various member categories (individuals, families, associations, companies). What is the situation now with respect to the number of votes? Generally speaking, does each category have a single vote?

Answer

Provided they do not contradict the relevant legal provisions, the association's articles of association are the decisive factor here. The Swiss Civil Code (ZGB) governs a few details under Article 67:
1. All members have equal voting rights at the general meeting. Deviations from this principle must be recorded in the articles of association.
2. Resolutions require a majority of the votes of the members present.

Generally speaking, natural persons and legal entities (e.g. associations) are each entitled to a single vote, i.e. each member can cast one vote. The articles of association may require the representation of a specially designated individual (principle of delegation).

Benefactors do not normally have any voting rights. With respect to families, the question is whether the family as a whole has entered into a single membership or whether it pays a reduced membership fee that is higher than that charged for a single membership. In the first case, only one family member is entitled to vote, while in the second case all present adult members can vote. Ideally, the relevant regulations should be laid down in the articles of association. Example: a family pays the same membership fee as an individual member or a family pays more (e.g. twice the amount). In both cases, all family members are full members of the association and can make use of its services.

The person-related nature of associations includes, among other things, the right to one vote per person: All members have the same voting rights. However, different regulations in the articles of association are permitted.

Question

In our association, trainees and students do not pay a membership fee. Are they still entitled to vote?

Answer

As all members have the right to equal treatment, members who are exempted from the payment of a membership fee also have full voting and electoral rights. In fact, equal treatment would also apply to the membership fee. It is, however, possible to govern objectively justified differences in the articles of association.

In the context of organisations, the term representation generally means legally binding action for a third party. Any member of an association may be represented by a proxy in the general meeting if that is provided for by the articles of association. The committee may issue a deputising regulation for the members of the committee. However, the general rule is that only those who are present have the right to vote at meetings. When assigning tasks to the committee members, it is important to think of deputies for all functions, so that the committee can fully perform its duties even in the case of long absences of individual colleagues. The committee acts as executive body for the association. Its actions are legally binding for the association. The committee is responsible for the management of the association. It may delegate the management function to the administrative office, for example. In this case, the administrative office acts for the association on behalf of and instead of the committee. The administrative office’s actions, like those of the committee, are legally binding for the association, i.e. the administrative office is responsible. Each committee member is entitled to represent the association externally and to enter into commitments that are binding for the association. If an association wants to prevent this, it must have itself registered in the commercial register and have the right of representation be specified there.

The right to vote is an important right held by members of an association. The election of committee members allows all members to have some influence on the management of the association. The term active suffrage refers to the right to participate in elections by voting. The term passive suffrage refers to the right of a person to establish him/herself as a candidate and to be elected (eligibility).

In the case of tied votes, the chairperson shall cast the deciding vote. This rule applies only if it is provided for in the articles of association or if it corresponds to the customary rights of the association.

Participation in voting is a fundamental right held by members of an association. To be able to exercise this right, members shall be invited to the general meeting in due time. Subject matters are settled by votes in the general meeting. The voting method can be by secret ballot or by open ballot (by raising the hand) of the members present. It is also possible to have a statutory regulation that allows certain members, for example, those who live abroad or have limited mobility, to cast their vote in writing or be represented by someone at a general meeting.

For special issues, a secret ballot can be held in the general meeting. Either this approach is provided for in the articles of association or it can be requested in a procedural motion. In this case, the majority is not determined by raising the hand, which is visible to everybody, but secretly with anonymous ballots.

All members present at a meeting are entitled to vote (unless the articles of association allow only limited or no voting rights for individual member categories). They are allowed to cast their vote regarding the affairs of the association, to vote yes or no or to abstain. The right to vote is an important right held by members of an association. It allows each individual member to influence the destiny of the association. Only if a member or a person close to him in ascending or descending line (grandparents, parents or children, grandchildren) is directly affected by a decision, he/she may not vote and must recuse him/herself.