German Foundation Register commencement date deferred by two years to 1 January 2028

The German Foundation Register (Stiftungsregister), which was originally scheduled to go live on 1 January 2026, will now commence two years later.

The federal government has submitted a draft bill providing for its entry into force to be deferred to 1 January 2028. The reason given is that the technical systems required to operate the register will not be ready by 1 January 2026. To ensure that the necessary technology is reliably available, the commencement date is being postponed. According to the federal government, this postponement is unavoidable.

Postponements of effective dates in the Foundation Register Act and associated legislation

The postponement will be implemented by amending two statutes.

In the Act to Standardise Foundation Law and to Amend the Infection Protection Act (Gesetz zur Vereinheitlichung des Stiftungsrechts und zur Änderung des Infektionsschutzgesetz) of 16 July 2021, the provision governing commencement (Article 11(1)) will be replaced, thereby postponing the effective date by two years.

Furthermore, the transitional provisions in the Foundation Register Act of 16 July 2021 (Stiftungsregistergesetz – StiftRG) will be amended as follows:

Foundations that were established prior to 1 January 2028 and have not been dissolved or terminated by that date will have to be registered in the Foundation Register no later than 31 December 2028 (section 20(1)).

Charter amendments that take effect prior to 1 January 2028 will not need to be registered with the Foundation Register by these foundations (sentence 1 of section 20(2)).

Immediately after 31 December 2028, the foundation authorities responsible under federal state law for the recognition of foundations will have to transmit to the register authorities a list of all foundations existing and established before 1 January 2028 within their jurisdiction (sentence 1 of section 20(3)).

The complete governmental draft can be found on the Federal Ministry of Justice’s website: BMJV - Gesetzgebung - Gesetz zur Änderung der Vorschriften über die Einführung der elektronischen Akte in der Justiz und die allgemeine Beeidigung von Gerichtsdolmetschern sowie zur Änderung des Stiftungsregisterrechts (only available in German).

Notification obligations set out in the German Civil Code remain substantively unchanged

The general notification obligations, as set out in the German Civil Code (Bürgerliches Gesetzbuch – BGB), remain unaffected by the postponement and, in summary, are as follows:

• Initial registration including submission of the recognition notice, the foundation’s charter and the documents confirming the appointment of the executive board and any authorised special representatives (section 82b(2) of the German Civil Code)
• Notification of changes regarding the executive board and special representatives (section 84d of the German Civil Code)
• Notification of charter amendments (section 85b of the German Civil Code)
• Notification of transfers of assets to or mergers with other foundations (section 86i of the German Civil Code)
• Notification of dissolution, termination or liquidation of the foundation (section 87 of the German Civil Code)

These notification obligations will only take effect at a later date, namely from 2028 onwards.

Inspection and restriction of access to the register

Also, the postponement does not affect the provisions governing the inspection of the register or the possibility of restricting such access.

As a general rule, anybody is able to inspect the Foundation Register and the documents submitted to it (sentence 1 of section 15 of the Foundation Register Act).

Inspection of submitted documents may only be restricted or refused where a “legitimate interest of the foundation or of third parties” is demonstrated (sentence 2 of section 15 of the Foundation Register Act).

Accordingly, the draft of the Regulation on the Operation of the Foundation Register (Verordnung zum Betrieb des Stiftungsregisters – StiftRV) provided that, upon application by the foundation or any affected third party, inspection of certain documents may be restricted or entirely denied, “in particular, where a confidentiality interest on the part of the foundation or an affected third party in relation to the documents outweighs the public’s interest in accessing the documents” (Article 25(3) of the Regulation on the Operation of the Foundation Register).

The latest public draft of the regulation is available on the Federal Ministry of Justice’s website: BMJV - Gesetzgebung - Verordnung zum Betrieb des Stiftungsregisters (StiftRV) (only available in German).

Conclusion

The postponement is appreciated as it protects the legitimate interest in having a foundation register platform that works properly and is, above all, secure. It is important to protect the data of foundations and their board members, as well as the information regarding founders and beneficiaries which can sometimes be inferred from a foundation’s charter.

On the other hand, certain positive aspects of the Foundation Register will also be delayed, such as the intended reliance protection for a foundation’s representation arrangements. However, this is not a significant setback for the legal practice. In the meantime, foundation authorities (at least for charitable foundations) may continue to issue representation certificates (also known as “certificates of legitimation”). Alternative solutions are available for private-benefit foundations.