The Administrative Court of Justice (VGH) Kassel decided (decision of January 27, 2020 – 7 A 2164/17) that the recognition of a foundation as having legal capacity is ruled out if the foundation’s purpose endangers the common good (Section 80 (2) BGB). This should not only be judged on the basis of the purpose of the foundation named in the statutes, but also taking into account the actual intentions of the founder.
Due to the fundamental importance of the question of whether the principles developed for party foundations can also be applied to private foundations, the VGH has approved the revision. As a justification, the VGH states that the prognostic determination of the threat to the common good depends on the foundation and the purpose it pursues. However, the purpose of the foundation should be determined on the basis of the founder’s will.
According to the case law of the Federal Administrative Court, the statements of functionaries must also be used when determining the purpose of the foundation of a political party. Even with the foundation in dispute, it is not just the purpose of the foundation expressed in the statutes that matters. This leaves a wide scope for interpretation.
Therefore, for the question of the threat to the common good, the alleged actual goals of the founder should also be taken into account. These are to be determined taking into account the personality of the founder, the appearance in public and the knowledge otherwise known about the founder.
About the author:
Thomas Krönauer is a partner at Ebner Stolz in Munich, where he works as a lawyer and tax advisor.
This article was published in DIE STIFTUNG 3/2020.
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