However, the federal government has now presented a draft bill that would postpone the deadline to January 1, 2028, as technical implementation cannot be guaranteed by the originally planned date. To ensure that the registry technology functions reliably, the introduction of the central, nationwide foundation registry is to be postponed by two years. For family foundations in particular, the reform means a significant expansion of transparency requirements.
Registration requirement for new and existing foundations from 2028
From January 1, 2028, the following shall apply: Newly established foundations must be entered in the nationwide foundation register without delay (Section 82b (2) sentence 1 BGB, new version). A transition period has been granted for existing foundations. This period ends on December 31, 2028. By this date at the latest, they must also be fully recorded in the new register.
In the event of a violation of the registration requirements, the obligated party may be subject to a penalty payment of up to EUR 1,000 pursuant to Section 14 StiftRG.
What information and documents are required?
Various details are required for registration in the foundation register in accordance with Section 2 StiftRG. These include the name, registered office, and date of recognition of the foundation, and in the case of consumptive foundations, their duration. In addition, the members of the board of directors and, if applicable, special representatives must be listed with their full names, dates of birth, places of residence, powers of representation, and any restrictions. Subsequent amendments to the articles of association, dissolutions, additions, mergers, and information on insolvency or liquidation proceedings must also be reported.
In addition, pursuant to Section 82b BGB (new version), certain documents must be submitted, such as the recognition decision and evidence of the appointment of the management board and any special representatives. The articles of association are of particular importance here, as they regularly contain confidential and particularly sensitive information.
Full access for everyone
The new foundation register can be viewed by anyone (Section 15 (1) StiftRG). This applies not only to the register itself, but also to the documents submitted, in particular the articles of association.
The articles of association of family foundations in particular often contain highly sensitive information – for example, on family relationships, beneficiaries, or the management of the foundation’s assets. Therefore, the disclosure requirement provided for by law in the future raises considerable security concerns with regard to the disclosure of confidential data.
Unlike newly established foundations, where transparency requirements can be taken into account when setting up the foundation, existing foundations can respond to the new requirements only by amending their statutes. However, subsequent amendments to the statutes usually involve considerable effort and legal hurdles.
According to Section 20 (2) StiftRG, amendments to the statutes that took effect before the Foundation Register Act came into force must be disclosed when registering the foundation. The full text of the amended statutes must be attached to the registration. In addition, pursuant to Section 20 (2) StiftRG, the documents specified in Section 82b (2) sentence 3 BGB, as amended, must also be submitted. The documents include, in particular, the statutes, which, according to the explanatory memorandum to the Act, refers to the founding statutes.
This reference therefore initially suggests that both the amended statutes and the founding statutes must be submitted. However, the wording of the law does not indicate this.
Consequently, it remains unclear whether existing foundations are actually required to submit both sets of statutes – the founding statutes and the amended statutes.
If this were the case, even an early amendment to the statutes would be ineffective, as the original founding statutes would also be disclosed. Existing foundations would then have no way of responding appropriately to the new legal regulations.
Possibility of restricting access
To avoid unwanted transparency, a request to restrict or exclude access is likely to be of considerable interest in many cases.
Section 15 (2) StiftRG allows access to certain documents to be restricted or excluded upon request if there is a legitimate interest on the part of the foundation or an affected third party.
The explanatory memorandum to the law cites, among other things, personal data of founders or beneficiaries and asset management regulations as examples. In these cases, documents may be redacted or completely excluded from access.
The practical implementation is specified in the draft bill for the planned ‘Regulation on the Operation of the Foundation Register’. Section 25 (3) of the draft bill for the statutory order pursuant to Section 19 StiftRG provides that access may be restricted or excluded at the request of the foundation or an affected third party in cases where the foundation’s or a third party’s interest in confidentiality outweighs the public interest in access. As a rule, restricting access should be sufficient to protect the legitimate interests of the foundation.
However, the draft bill does not specify in detail how the application is to be made and when there is an overriding interest in confidentiality.
Foundation register in light of ECJ case law on the transparency register
In view of the ECJ case law on the transparency register, unrestricted access for an unlimited public raises considerable concerns.
In the opinion of the ECJ, general public access to the confidential information of the parties concerned contained in the transparency register is incompatible with EU fundamental rights, as any interference must be limited to what is strictly necessary. The same applies with regard to the national fundamental right to informational self-determination pursuant to Art. 1 (1) in conjunction with Art. 2 (1) of the German Basic Law (GG).
It is not apparent why these EU legal standards should be deviated from with regard to the foundation register.
Conclusion
The reform of foundation law brings with it far-reaching transparency requirements with the introduction of the central foundation register for family foundations. The potential disclosure of sensitive information, for example about beneficiaries, founders or asset management, is particularly critical.
As the postponement of the introduction of the register until 2028 has not yet been finally decided, appropriate measures should be taken at an early stage to be prepared for the introduction of the foundation register.
Foundations should therefore already consider whether it makes sense to apply for restrictions on access. In many cases, it is advisable to submit this application when the documents are filed in order to avoid unwanted publication from the outset.
In the case of newly established foundations foundations, transparency requirements should already be taken into account when drafting the statutes and foundation deed. Existing foundations should also carefully consider whether an amendment to the statutes is legally possible and necessary in terms of content.
Summary of the keyfacts
- Introduction of the foundation register postponed: The launch of the nationwide foundation register, originally planned for 2026, will now take place on 1 January 2028 due to technical delays.
- Significant transparency requirements and disclosure risks: The register will be publicly accessible, including sensitive documents such as statutes, which often contain confidential information. This raises considerable data protection and security concerns for family foundations.
- Need for action for foundations: Foundations should prepare themselves at an early stage, in particular by reviewing and, if necessary, applying for a restriction on access (Section 15 StiftRG). In the case of new foundations, transparency requirements must already be taken into account in the statutes and foundation deed; existing foundations should check whether an amendment to the statutes is legally possible and sensible.
