Split legal processes – a weakness of German foundation law?

In summer 2022, doctoral candidate and research assistant at the Institute for Foundation Law and Non-Profit-Law Maximilian Steffen spent two research stays of four weeks each in Zurich and Vienna.

Research & Faculty |

What is your doctoral thesis about?

My field of research is foundation law (Stiftungsrecht). Under German law, foundations take on a Janus-faces legal form as they waver between civil and public law. On the one hand, they are governed by the German Civil Code (BGB) and are thus closely linked to private law. On the other hand, the foundation frameworks provided by the sixteen German federal states contain important public-law regulations.

This duality in substantive law continues in procedural law. In case of a legal dispute, stakeholders can recourse to civil courts, for example, if the dispute concerns the relationship of the foundation's bodies to each other, their competences, responsibilities, or the validity of resolutions. In other cases, the foundation must choose administrative legal action, for example when challenging adverse decisions made by the foundation’s supervisory authority or when seeking favourable measures.

Consequently, two important legal processes exist in German foundation law. At this point, I raise the question if this division of legal processes between civil and administrative courts is a weakness of German foundation law.

 

Why is the answer to this question relevant?

There are currently some 24,650 legally capable foundations in Germany – with this number being on the rise. Furthermore, it is becoming increasingly common for disputes involving foundations to be settled in court. Prominent examples in recent years have been the disputes in the “ALDI Nord” and “Zeppelin” foundations.

These cases have shown not only that the right to sue is underdeveloped in foundations, but also that the coexistence of civil and administrative proceedings can lead to uncertainty for the parties involved and needs to be thoroughly examined.

 

What motivated you to pursue a research stay in Zurich and Vienna?

The two stays were intended to serve the parts of my dissertation examining legal policy reform considerations for a unified legal process in German foundation law. The aim was to find out whether the adverse consequences of a split legal process in Germany could be mitigated or avoided altogether in future legislation. I therefore looked at approaches in Switzerland and Austria, as these jurisdictions are also attractive for German benefactors and share basic character traits with German foundation law.

Despite our Institute´s library being very well equipped, I wanted to have an even more comprehensive access to court decisions, books and experts in the respective jurisdictions. Prof. Birgit Weitemeyer, who has been my supervisor for the last two years, helped me to get in touch with Prof. Dominique Jakob, Center for Foundation Law, UZH Zurich and Prof. Susanne Kalss, Institute for Corporate Law, Vienna University of Economics and Business. Both are also members of the Advisory
Board of our Institute.

 

What results did you bring back from your research visits?

The stay in Switzerland was very useful for me, especially because Swiss foundation law is in many respects very similar to German foundation law. This particularly applies to the involvement of the state in the foundation system. Like Germany, Switzerland relies on state supervision of foundations and there may therefore also be split legal processes. Family foundations have a special role – here, civil courts can be a controlling authority in certain cases.  

There is, however, one major difference: Swiss foundation law recognises a foundation supervisory complaint (also legally anchored in Art. 84 para. 3 ZGB as of 1 January 2024). By means of this complaint, certain persons - namely beneficiaries or creditors of the foundation, the founder and the sub-founder as well as former and current members of the foundation council - can induce the foundation supervisory authority to take action.

This increases the number of administrative court proceedings in Switzerland. Judicial decisions are often initiated by a foundation supervision complaint. By contrast, original civil court decisions appear to be rare.

Nonetheless, as in Germany, legal conflicts between civil and administrative courts also exist in Switzerland. I was able to identify four constellations: Requests for information, donations by third parties, defects in resolutions and claims by beneficiaries. In all these cases, there is a "duplication of legal proceedings" in the sense that both the civil law route and the route via the foundation supervisory complaint are possible.

In contrast to Switzerland, Austrian foundation law (in particular the regulation of private foundations) differs in many respects from German foundation law. There is no state supervision of foundations. Instead, the commercial register court exercises selective control. Calls for reform that have long been made in Germany (more judicial control instead of official supervision of foundations) have been implemented in Austria. Notably, Austrian foundation law only permits legal recourse to the civil courts.

Nevertheless, there remains some uncertainty with regard to the legal process, due to the fact that there are three different types of civil proceedings in Austria (the contentious proceedings, the non-contentious proceedings and the commercial register proceedings). Although problems of delimitation rarely arise, there are conflict situations between these types of proceedings that have not yet been resolved.

 

Could you share some impressions from your time abroad? How did you find the experience?

In Zurich, I had a wonderful workplace in the library of the Institute of Law, designed by Santiago Calatrava, which provided a very good working atmosphere. For further academic research, I visited the Centre for Foundation Law (only a few hundred metres away from the library) once a week. I was also able to discuss my topic with Prof. Jakob on several occasions. His suggestions, especially during the first week, considerably steered my research in the right direction.

He also put me in contact with postdoctoral students and other PhD students, so I had a very enjoyable and informative stay in Zurich. I was just back in town for a conference (6. Zürcher Stiftungsrechtstag) and was very happy to see them all again. I can highly recommend the city of Zurich itself, especially in the summer months. I will remember the bicycle tours in the wonderful area and the river baths (Zurichers call them “Badis”) in the middle of the city for a long time.

At the Vienna University of Economics and Business Administration, I was directly integrated at the chair of Prof. Kalss' and shared an office with her academic staff. My colleagues were extremely helpful, especially in obtaining literature. Prof. Kalss was also very committed, enabling me to present my dissertation topic to about twenty people as part of a larger staff meeting.

Furthermore, she arranged meetings with practicing foundation lawyers as she was convinced that my topic was of practical relevance and that I could benefit substantially from conversations with practitioners. As a result, I spoke with eight lawyers within two weeks. Nevertheless, visits to museums, theatres and coffee houses were not neglected.

I am extremely grateful that the funding from Bucerius Law School has given me the opportunity to undertake two research stays abroad at renowned universities in fantastic cities and that Prof. Jakob and Prof. Kalss and their research assistants welcomed me so kindly.

 

Author

Maximilian Steffen

Hamburg