The foundation's charter is the heart of a foundation under foundation law.
Thus, not only its initial drafting, but also its careful maintenance plays a significant role. Amendments to the charter can be useful in order to effectively reflect the founder's wishes in the long term and generate new opportunities for pursuing the foundation's purpose.
Establishment of a foundation under foundation law
A foundation under foundation law is an institution that is either independent or managed by a trustee. The structure and type of foundation used by founders generally depends on the foundation's purpose and structure (see §§80ff. of the German Civil Code; BGB).
A traditional foundation pursues a charitable or self-interested purpose on a permanent and sustainable basis with its endowment assets provided by the founder. When establishing a foundation, the founder must make a declaration directed at pursuing this purpose and bindingly stating their intention to establish the foundation (foundation deed).
The foundation transaction requires the initial establishment of a written foundation charter, which provides the legal framework and specifically dedicates the provided assets to the stated purpose of the foundation (§81 BGB). The charter must contain certain mandatory information, and the founder's will must be evident from it (so-called historical founder's will).
Since the reform of German foundation law, which came into force in June 2023, §83 BGB stipulates that the historical founder's will must be observed throughout the entire operation of the foundation and beyond the founder's death.
In its judgment of November 14th in 2024, the Cologne Administrative Court stated: „Now, pursuant to §83 (2) BGB, the foundation bodies must, in their activities for the foundation, and the competent authorities must, in their supervision of the foundation, observe the will expressed at the time of establishment of the foundation, or alternatively, the presumed will of the founder.“
The foundation charter
Foundation law stipulates certain minimum information that the foundation charter, as the heart of the foundation, must contain (§81 (1) BGB).
First, the foundation charter must state the freely definable name of the foundation. Especially for foundations pursuing non-profit purposes, it is advisable to choose a name that allows conclusions to be drawn about the non-profit status. This can be helpful in acquiring funding.
Furthermore, the registered office of the foundation must be stated. This determines the relevant state foundation law and the competent foundation authority. Foundation law also stipulates that the foundation's governing bodies, in particular the foundation's board of directors, must be regulated.
The foundation's purpose and the assets dedicated to its pursuit must also be stated. The foundation's purpose determines the establishment and operation of the foundation under foundation law. Without it, neither recognition nor the actual pursuit of the foundation's will is possible.
Foundation law provides a high degree of flexibility regarding the purpose. The founder may choose any purpose, except one that is unlawful or immoral, and may decide to pursue multiple, staggered purposes.
The purpose should be formulated in sufficient detail to clearly express the founder's intention. However, flexibility should be maintained so that the founder or the foundation's governing bodies can adapt to changing circumstances and act flexibly.
Amendments to the articles of association by the foundation authority
Foundation law provides for the competent foundation authority's right to change the foundation's purpose and adapt the articles of association accordingly (§87 (1) Sentence 2 BGB). This is possible if fulfilling the foundation's original purpose becomes definitively impossible.
In doing so, the authority must consider the founder's wishes and may not deviate from them more than necessary.
The founder should prepare the foundation's articles of association for a necessary change of purpose by the authority. They can specify their wishes very specifically or determine a procedure that allows the authority to best accommodate them.
Amendments to the articles of association by the foundation's bodies
Foundation law stipulates that foundations generally remain in existence in perpetuity. Thus, the foundation's bodies are essentially bound forever by the foundation's articles of association and the founder's stated wishes (An exception being the Consumption Foundation).
Amendments to the articles of association become necessary over the years due to reforms in foundation law. In addition, updating and adapting the statutes as part of ongoing maintenance can be a useful tool for responding to external developments or changes in the foundation's needs over the years.
When amending the statutes, it is advisable to seek legal advice from experts in foundation law. Every amendment to the statutes should be reviewed to ensure that it complies with legal regulations and is potentially compatible with new and updated regulations and reforms in foundation law.
When seeking legal expertise in foundation law, sensitivity to the founder's wishes should always be ensured. All options should be exhausted to safeguard the founder's wishes and, where appropriate, generate innovative opportunities through new legal amendments.
Legal framework for amendments to articles of association
The reform of German foundation law introduced uniform federal regulations regarding possible amendments to articles of association (§§85 to 85a BGB). The Federal Association of German Foundations states: „The foundation system requires broad legislative scope to allow the individual wishes of the founder to unfold."
In order to be able to adapt the foundation's articles of association flexibly, the board of directors or another body named in the articles of association can make amendments to the foundation. In principle, foundation law stipulates in its procedural regulations that compliance with the originally formulated actual or presumed wishes of the founder is decisive and that approval by the responsible foundation authority is required (§85a (1) Sentence 2 of the BGB).
Which amendments to the articles of association are specifically possible?
In the sections of §85 BGB, foundation law regulates the conditions under which amendments to the articles of association are possible.
The purpose of a foundation can only be fundamentally changed or restricted if the original purpose can no longer be fulfilled permanently and sustainably with the help of the foundation's funds, or if it endangers the common good (§80 (1) BGB).
In practice, it is advisable for founders who wish to pursue multiple foundation purposes to establish a procedure for failing to achieve all of them. For example, individual purposes can be restricted or deleted through a modernization of the statutes if this approach leads to a more efficient achievement of the foundation's other purposes.
For changes to the statutes that are „formative" for the foundation, the circumstances must have „changed significantly after the foundation was established" and they must be necessary to „adapt the foundation to the changed circumstances." Significant changes include those that affect the name, registered office, the manner in which the purpose is fulfilled, and the administration of the foundation's core assets (§80 (2) BGB).
All other amendments to the statutes are possible under foundation law, provided they „serve the fulfillment of the foundation's purpose" (§80 (3) BGB). This catch-all provision allows founders or the foundation's governing bodies to maintain the effectiveness of the foundation's operations.
Extensive flexibility for the founder
Since the reform, foundation law has offered the option of flexible and individual deviations from the statutory provisions in order to adapt to the needs of the foundation. This allows founders to create flexibility for themselves and their foundation board, guaranteeing efficient foundation work in accordance with the founder's wishes even after death.
Foundation law also allows for the exclusion or restriction of any changes to the statutes in advance. On the other hand, the founder can also authorize amendments to the statutes by foundation bodies „in deviation from paragraphs 1 to 3" by including an amendment authorization in the statutes.
This clause must define the scope and content of the authorization for the foundation bodies and thus ensure compliance with the founder's original wishes.
It is therefore worthwhile to address new regulations with the help of experts in foundation law. This applies both to the establishment and ongoing operation of a foundation.
When can amendments to the statutes specifically be useful?
Adjustments to the statutes are useful and offer a helpful tool for responding to new and technological possibilities that could not be considered when the foundation was established. At the same time, the founder's intentions can be pursued more effectively.
The pursuit of a non-profit purpose such as science and research (§51 (2) Number 1 of the German Fiscal Code; AO) can be supported by the statutory integration of digital media by enabling the provision of digital resources.
In the area of art and culture (§51 (2) Number 5 AO, an amendment to the statutes with a view to new digital possibilities is also appropriate, including, for example, continuing education programs, collaborations, and new research opportunities. These can increase the reach and recognition of the foundation's work.
Updating the statutes can also be undertaken with a view to the use of digital governance tools in order to save costs, which can then be channeled into the foundation's work. This also allows the foundation's work to be made more international and new priorities to be established.
Amendments to a non-profit foundation's articles of association
The case of a tax-privileged non-profit foundation (§§51 ff. AO) represents a special case. This is because the founder sets himself the task of exploiting the foundation's charitable potential as efficiently as possible for non-profit purposes in the long term.
Amendments or updates to the articles of association can be helpful in this task, enabling the foundation to respond appropriately to changing social, economic, or tax conditions.
When amending the articles of association, legal expertise in foundation law and non-profit law should be sought. In this regard, sensitivity to the importance of pursuing the foundation's intentions, not only for the founder himself but also for the general public, should be a primary focus of the consultation.
If necessary, the responsible tax office should be involved to confirm the continued non-profit status in the event of an amendment to the articles of association.
Résumé
Careful and proactive maintenance of the foundation's statutes, which goes beyond simply checking for legal compliance, opens up new possibilities and opportunities. Amendments and updates to the statutes can be used to best reflect the founder's original intentions.
„Founders who carefully amend and actively shape their statutes can adapt flexibly to new developments. This allows them to generate additional flexibility for their foundation's work," says dtb-lawyer and expert in foundation law and nonprofit organizations Maximilian Brazel.
Status 09.07.2025