Articles from Volker Rieger

Stiftungen stehen immer wieder vor wichtigen Weichenstellungen – von Compliance bis Anlagerichtlinien.

Die 2023 in Kraft getretene Stiftungs(zivil)rechtsreform hat erstmals bundeseinheitliche und zwingende gesetzliche Regelungen zur Zulegung und zur Zusammenlegung von Stiftungen gebracht. Seitdem hat die Praxisrelevanz dieses speziellen »Umwandlungsrechts« für rechtsfähige Stiftungen bürgerlichen Rechts zugenommen: Die Zulegung erfreut sich wachsender Beliebtheit bei Gestaltungslösungen.

Der Bundestag hat am 26.09.2024 das Bürokratieentlastungsgesetz IV beschlossen. Auch Änderungen des BGB, die sich nach der Gesetzeslage auf die Vereins- und Stiftungspraxis digitalisierungsfreundlicher als bisher auswirken, was zum Bürokratieabbau beitragen soll, wurden darin nun umgesetzt.

As the reform of foundation (civil) law will come into force on July 1, 2023 and a completely uniform federal civil foundation law will therefore apply for the first time, it is necessary for the state foundation laws to be adapted accordingly.

So something is happening after all, at least a little, regarding the now permanently applicable legal regulations for meetings and assemblies held digitally or electronically at associations and foundations. The German Civil Code has been amended with the provisions contained in Section 32 (2) BGB (new version), which came into force on 21.03.2023. These are intended to allow meetings and assemblies to be held "by means of electronic communication" even without corresponding provisions in the articles of association, unless the articles of association provide otherwise, but what has been regulated by this new law? And what has not been regulated? Do regulations in the articles of association still make sense or are they still needed? In which cases?

We are delighted that our short article on this topic has been published in BW Bank's "Stiftungsmanagement Impulse" magazine, which appeared today. You will find this article on pages 18-19 and we hope you enjoy reading this article and the magazine as a whole!

At the turn of the year 2020/21, the federal legislator once again took action and also adopted further legal measures in association and foundation law to combat the effects of the COVID-19 pandemic.

In the article on the VOELKER homepage "Current legal regulations in association and foundation law to combat the effects of the COVID-19 pandemic" of March 26, 2020, we provided information on how and with what civil law content the federal legislator reacted quite quickly to the COVID-19 pandemic in association and foundation law, as well as an initial assessment at the time.

On July 2, 2020, the Bundestag passed the federal government's draft bill to strengthen intensive care and medical rehabilitation in statutory health insurance (IPReG for short) as amended by the Health Committee. The resolution in the Bundesrat is currently still pending. Patient associations had already criticized the government draft in advance and amendments were made in the Bundestag. Nevertheless, numerous questions remain unanswered, particularly with regard to practicability:

Associations and foundations (with legal capacity) are typical legal forms in which non-profit organizations - and thus, for example, numerous social enterprises - are organized. In view of the existing infection control measures aimed at preventing the further spread of the coronavirus pandemic, general meetings, advisory board meetings, committee meetings and board meetings of associations in the familiar, traditional sense, where people come together directly and physically, are currently not possible for the foreseeable future. The same applies to meetings of the board of directors and, if applicable, the foundation council, board of trustees and similar bodies of foundations with legal capacity.

If a provider of integration assistance negotiates with the KVJS about the investment amounts of newly built facilities before they are put into operation, the actual or ultimately recognizable construction and other initial costs are usually not yet known at this time. The necessary operating investment costs to be recognized under performance law are usually only finally and bindingly determined by the proof of use to be provided as part of the funding procedure. For this reason, in practice the service providers often initially agree notional investment amounts with the KVJS on the basis of the planned construction costs, taking into account the construction price index. However, if the actual construction costs ultimately exceed the planned indexed construction costs, the fictitious investment amount leads to a considerable financing deficit. Such a financing deficit can be compensated for by increasing the investment amount retroactively to the start of negotiations by means of an arbitration award or an agreement.

Fee increases in the care home contract always require the consent of the resident in order to be effective. This also applies if the resident receives benefits in accordance with SGB XI or XII (BGH, judgment of May 12, 2016 - III ZR 279/15 -)