Foundation (under Italian Civil Code)

1. Collective entities in the Italian Civil Code: a taxonomy.

The Italian Civil Code sets out two macro-categories of collective entities:

- those for profit, governed by Book V, Title V, of the Civil Code;

- those not-for-profit, governed by Book I, Title II, of the Civil Code.

While the legislator has precisely identified the purpose of profit-making companies (the division of profits, according to art. 2247 of the Civil Code), it has not specified the purpose of the entities governed by Book I. However, it is unanimously considered that they may pursue any purpose, as long as it is not for profit (e.g. cultural, political, religious, philanthropic, sporting, ...): they may carry out any type of activity, including economic ones, and even make a profit, which, however, shall not be distributed among the members, hence the term 'non-profit organizations'.

Within the framework of non-profit organizations, a distinction is made between:

- Associations;

- Foundations.

2. Foundations: definition and main characteristics.

According to the earliest classification, associations were defined as 'universitas personarum', as groups of persons brought together for the pursuit of a common purpose, where persons prevailed over assets. In contrast, foundations were defined as 'universitas bonorum', as entities intended by the founder's will to take care of goods linked to a specific work, in which the patrimonial element prevailed. This categorization has, however, been superseded.

A foundation can be defined as a permanent organization established to allocate assets to the pursuit of a purpose. The assets are withdrawn from the disposal of the founder and the trustees to be used solely for the realization of the statutory purposes.

The foundation has legal personality. It has full legal capacity and capacity to act, implemented through its organs.

3. The foundation act.

The foundation is established by a unilateral, non-receptive act, by which the founder (or the founders, if they are a plurality: the act nevertheless retains its unilateral character) manifests the will to establish the foundation by allocating a certain amount of assets to a certain purpose. Founders may be both natural persons and legal entities, including companies.

Article 16 of the Civil Code, which governs the content of the foundation agreement, applies to the foundation agreement.

4. The purpose of the foundation.

In spite of the silence of the Civil Code, it is considered that foundations, like associations, may pursue any purpose as long as it is non-profit making. However, the prevailing doctrine holds that the foundation must pursue purposes of general interest.

5. The administration of the foundation.

The only body provided for by the Civil Code for the administration of the foundation is the board of directors. In its traditional structure, however, there is no assembly body. The administrative body derives its power directly from the foundation act.

The method of appointment and composition of the governing body is generally laid down in the foundation deed, which must also stipulate its powers and functions and indicate to whom powers of representation are conferred.

6. ETS foundations.

Legislative Decree No. 117/2017 (the so-called Third Sector Code) introduced and regulated Third Sector Entities, which now enjoy a more articulated and comprehensive discipline than that traditionally reserved for non-profit entities in Book I of the Italian Civil Code. Third Sector Entities are, in particular, 'voluntary organizations, associations for social promotion, philanthropic entities, social enterprises, including social cooperatives, association networks, mutual aid societies, associations, whether recognized or unrecognized, foundations and other private entities other than companies set up for the pursuit of non-profit purposes, the purpose of which is to promote the development of the economy and the environment, and to promote the development of the economy and the environment,  non-profit, civic, solidarity and socially useful purposes through the performance, exclusively or principally, of one or more activities of general interest in the form of voluntary action or the free provision of money, goods or services, or mutuality or the production or exchange of goods or services, and registered in the single National Register of the Third Sector' (Art. 4, c. 1, of Decree-Law No. 117/2017).

References and Websites.

F. Galgano, Trattato di diritto civile, I, 3° ed., Cedam, Padova, 2015, p. 299 ss.;

A. Trabucchi, Istituzioni di diritto civile, 48° ed., Wolters Kluwer, Milano, 2017, p. 345 ss.;

M. Ferrari, Le fondazioni: la guida completa, 17 May 2021, available at: https://www.altalex.com/guide/fondazioni.