Founder rights in a later amendment: reservation, interpretation and limits

The starting point is the current, validly executed foundation deed. The planned amendment is broken down into individual regulatory points and compared with that deed. This shows whether the reservation covers the organisation, the beneficiary rules, the purpose or only a particular subject area.

After the private foundation has been established, the founder may amend the foundation declaration only if an amendment right was reserved. If there is more than one founder, the statutory and deed-based rules on exercising the right must also be checked. Several founders generally exercise their rights jointly unless the deed provides otherwise.

The planned adjustment cannot be justified by the founder’s original intention alone. The decisive points are the current version, the wording of the reservation, the person entitled to act and the procedure provided for the amendment.

An amendment reservation is read in the context of the entire foundation declaration. The wording, the position of the clause, the foundation purpose and the other rules on bodies, beneficiaries and exercise of the right all matter.

In 6 Ob 56/24i of 18 February 2025, the Austrian Supreme Court emphasised that corporate provisions are interpreted according to their wording and purpose within their systematic context. A single phrase therefore cannot be used in isolation from the other documents and the structure of the private foundation.

Interpretation has a limit. It can determine an unclear scope and make an existing rule intelligible. It cannot create an amendment right that the foundation declaration does not provide, and it cannot replace an amendment in the required form.

If the reservation does not support the proposed adjustment, the foundation board may not simply take over the founder’s personal power to shape the foundation. Section 33(2) PSG provides a separate and narrower route for changed circumstances. Its statutory requirements, the foundation purpose and court approval must be observed.

The court route is not a substitute for incomplete documentation. First it must be clear which version applies, which circumstances have changed and which specific rule is to be adjusted. Mere convenience or a later wish for greater influence does not establish the legal route.

The distinction from a reserved amendment right affects responsibility, reasoning, documents and procedure. The two routes must therefore remain separate in the amendment file.

If a formal amendment is required, the amendment resolution, deed and authority to act must fit together. Under section 33(3) PSG, the foundation board files the amendment to the foundation deed with a publicly certified copy of the amendment resolution. The amendment takes effect upon registration.

The review therefore needs a clear timeline. A draft, internal consent and signed working paper must be distinguished from the effective version and the register position. Until it takes effect, the new rule cannot be used as the basis for further resolutions.

For an amendment to a supplementary deed, it must also be checked which information is entered in the Companies Register and whether the rule may be placed in that deed under section 10 PSG. The document order belongs in the evidence file even though the content of the supplementary deed is not submitted to the Companies Register court.

The review requires the foundation deed in its current version, all amendment deeds, the supplementary deed and a current Companies Register extract. If there are several founders, the file should also contain the rules on joint or staggered exercise and evidence of entitlement.

The proposed amendment, preparation of the resolution, powers of attorney, earlier filings and any court documents should also be secured. The documents should show which clause is to be changed and whether the measure is already covered by a reservation.

An orderly file prevents a desired solution from being confused with an effective legal basis. It also supports the decision whether interpretation is sufficient or a formal procedure is required.