Keeping the supplementary foundation deed confidential: disclosure in proceedings and evidentiary value

Section 10(1) PSG provides that the foundation declaration must be notarised. It may consist of a foundation deed and a supplementary foundation deed. Section 10(2) allows the supplementary deed to contain provisions going beyond the minimum content of section 9(1) PSG. Certain provisions from section 9(2) numbers 1 to 8 PSG may not be placed there.

The Act therefore separates filing with the commercial register court from the legal existence of the supplementary deed. Its contents are not submitted when the foundation is registered. Section 13(3) number 3 PSG nevertheless requires the date of the supplementary deed and the date of an amendment to be entered. The register can therefore show that a supplementary deed exists, but not its complete regulatory content.

Confidentiality does not mean that the deed may be withheld from every information request. Section 30 PSG links the inspection right to the status of a beneficiary and to information about fulfilment of the foundation purpose. The requester’s status, the deed needed and the existence of a specific court order must be assessed separately.

Section 30(1) PSG identifies the beneficiary as the person entitled to request information from the private foundation and to inspect the annual accounts, management report, audit report, books, foundation deed and supplementary foundation deed. The provision creates a right of inspection for a beneficiary. It does not order publication for every interested person.

The requester’s status must therefore be established before documents are released. Where a beneficiary is named expressly or determined by a body, the foundation declaration, relevant resolutions and the actual determination of beneficiaries may be important. The request should identify the period, the version and the specific purpose for which inspection is sought.

The private foundation should answer the request in a documented way. It may arrange inspection, provide the relevant documents for an appointment or explain which version is available. If the beneficiary status or the scope of inspection is disputed, the facts should be clarified before disclosure.

If the private foundation does not comply within a reasonable period, the beneficiary may apply to the court under section 30(2) PSG. The court may order inspection and, where appropriate, arrange it through an accounting expert. Sections 385 to 389 of the Austrian Code of Civil Procedure apply by analogy.

The application should explain the applicant’s status, the earlier request, the response or absence of a response and the inspection sought. A general request for every document makes the assessment more difficult. The supplementary deed, relevant version and provision needed for the dispute should be identified as precisely as possible.

The court decides on the basis of the specific proceedings. The reference to the Code of Civil Procedure does not turn the deed into a generally published document. The scope, form and practical implementation of inspection follow the court’s order. Where sensitive parts are unnecessary for the question, inspection should be limited to the necessary scope.

An effectively executed supplementary deed can establish which provision formed part of the foundation declaration. Its evidentiary value therefore depends on the deed’s authenticity, the correct version, the required form of execution or amendment and its connection with the specific private foundation. The date in the commercial register confirms a registered fact. It does not replace examination of the deed itself.

A dispute requires several levels to be kept separate. The deed can prove the wording of a provision. Its legal effectiveness also depends on statutory requirements, the contemplated form of execution and an effective amendment. The effect of the provision on the proposed measure follows only after interpreting it together with the rest of the foundation declaration.

A scan with no clear provenance, an old working version or an isolated passage may therefore be only an indication. A reliable assessment should bring together the original or certified version, amendment records, the register extract and the circumstances in which the document was created. Evidentiary value comes from a traceable document chain, not from confidentiality alone.

The complete supplementary deed, the foundation deed, every related amendment and the current commercial register extract should be collected. Where several versions exist, earlier extracts and filings belong in the document chain as well. This makes it possible to trace which version was used at a particular time.

The determination of beneficiaries, relevant resolutions of foundation bodies, proof of service, earlier inspection requests and the measure in dispute may also matter. Each document proves a different point. A resolution may establish what a body decided, but it does not replace the deed from which that body’s authority is derived.

Where a discrepancy is alleged, the relevant passages should be set out alongside one another and the origin of each version recorded. Drafts must be marked as drafts. This shows whether the dispute concerns content, effectiveness, interpretation or access to a document.