Reform of the state foundation laws in the wake of the new foundation (civil) law, here: Baden-Württemberg Background and overview
To date, these have included civil law provisions, which are now to be deleted. As the federal government now regulates foundation civil law completely and uniformly in the German Civil Code, the legislative responsibility of the federal states for such civil law provisions will no longer apply in future. These existing standards would then be unconstitutional (at the latest).
In addition, the federal states - including Baden-Württemberg at present - are taking the opportunity to update procedural and supervisory regulations for the foundation authorities, for which they continue to have legislative responsibility. Furthermore, the state foundation laws are being prepared with corresponding regulations for the introduction of the nationwide central foundation register for foundations with legal capacity under civil law on 01.01.2026.
The draft of the amended Foundation Act for Baden-Württemberg also provides for selective additions and clarifications to the legal supervision of foundations exercised by the foundation authorities.
Legislative process to date for amending the Baden-Württemberg Foundation Act
The draft of the "Act to amend the Foundation Act for Baden-Württemberg and other provisions " (LT-Drs. 17/4737) adopted by the state government of Baden-Württemberg on May 9, 2023 was discussed for the first time on May 25, 2023 in the session of the state parliament of Baden-Württemberg.
The state parliament then referred this bill to its Committee on Internal Affairs, Digitization and Local Authorities for further consultation. This committee consultation is scheduled for its meeting on 14.06.2023.
At the plenary session on 21.06.2023, the state parliament of Baden-Württemberg will then finally discuss the amended Foundation Act and pass the law.
As things stand at present, the amended version of the Foundation Act for Baden-Württemberg should therefore be able to enter into force at the same time as the BGB foundation law reform on 01.07.2023, insofar as this is necessary and planned. Other parts of this law will not come into force until 01.01.2026 or 01.10.2027.
Key contents of the draft of the Foundation Act to be amended for Baden-Württemberg
The draft of the Foundation Act to be amended for Baden-Württemberg essentially has the following content:
In order to implement the legislative responsibility of the federal states for civil foundation law regulations, which will cease in the future, in the Foundation Act for Baden-Württemberg as well, the civil law regulations previously contained therein will be repealed as of 01.07.2023.
This will prevent them from becoming unconstitutional on 01.07.2023. This should provide legal certainty and clarity directly in the legal text of the Baden-Württemberg Foundation Act as to what will apply under civil foundation law from this date.Furthermore, official responsibility regulations in connection with recognition, supervision and approval measures for foundations will be adapted or clarified and, in this context, specific references to the BGB will also be updated.
The legal necessity to now expressly determine some responsibilities in state law arises from the Civil Code's law on foundations that will apply from 01.07.2023.The nationwide central foundation register for foundations with legal capacity under civil law will be introduced on 01.01.2026. This means that the previous registers of foundations will then only be kept for foundations with legal capacity under public law.
The Amending Act to the Foundation Act for Baden-Württemberg already provides for regulations for this, which will come into force on 01.01.2026. It also contains transitional provisions for one year for foundations with legal capacity under civil law that were established before January 1, 2026. These existing foundations are to be given the appropriate time to register with the new foundation register.Some aspects of legal supervision by the foundation authorities will be amended or clarified, in particular the following:
Section 9 (4) of the Foundation Act for Baden-Württemberg introduces a new regulation on the auditing of annual accounts, which is intended to simplify administration. The foundation authority is to refrain from conducting its own audit of the annual financial statements if the annual financial statements have been audited by the administration's own state auditing bodies, an auditing association, an auditor or a sworn auditor.
The new § 11 para. 2 sentence 2 of the Foundation Act for Baden-Württemberg clarifies that the foundation authority can resort to coercive measures in accordance with the State Administrative Enforcement Act in order to enforce its legal supervisory measures.
The notification obligations set out in Section 13 of the Baden-Württemberg Foundation Act prior to the implementation of certain measures do not apply to so-called family foundations pursuant to Section 13 (2). The Amendment Act stipulates that such family foundations are not only - as previously - those that "exclusively serve the welfare of one or more specific families", but also those where this is "predominantly" the case. The wording of this legal definition is supplemented accordingly.
Otherwise, the Amendment Act primarily contains further consequential amendments and clarifications.