In addition to the Board of Directors, the foundation auditor is the second body required by law for private foundations. It is assigned to the Foundation Board as a supervisory body. Its main function as a supervisory body is to compensate for the lack of control at the private foundation due to the lack of owners. Insofar as the foundation does not have a supervisory board, the foundation auditor must be appointed by the court (Section 20 (1) PSG). According to Section 9 (2) (2) PSG, it is possible to include regulations on proposals (here: from the Executive Board) in the foundation deed. However, such a proposal can only result in the court having to consider the proposal when appointing the foundation auditor, but is not bound by it. There is no evidence in the Act that the person entitled to submit a further proposal to the court should this not follow the first suggestion.
Supreme Court 26.3.2025, 6 Ob 2/25z
A private foundation only loses its legal personality when it is deleted from the commercial register.
Supreme Court 27.4.2015, 6 Ob 230/14p
The beneficiary of a private foundation may have a legal interest in determining that the establishment of an additional foundation deed is ineffective.
Supreme Court 19.11.2014, 3 Ob 120/14i
If the founder, the advisory board or another person or an organ which, according to the foundation deed, is responsible for appointing the board of directors of the foundation defaulted on the appointment, the appointment power is not transferred to the board of the private foundation, but to the competent court.
Supreme Court 9.9.2013, 6 Ob 130/13f
A new foundation auditor cannot be appointed as long as another is still validly appointed.
Supreme Court 28.8.2013, 6 Ob 144/13i
The incompatibility provision of Section 23 (2) sentence 2 PSG is also applicable to an advisory board of a private foundation similar to the supervisory board (OGH 6 Ob 42/09h).
Whether there is an Advisory Board similar to the Supervisory Board depends on the scope of duties assigned to the Supervisory Board in Section 25 (1) PSG. This is the case when comprehensive approval requirements have been set in favour of the Advisory Board, which in their entirety largely correspond to the duties of the Supervisory Board and the Advisory Board must also determine the remuneration for the Board of Directors of the Foundation.
Supreme Court 9.9.2013, 6 Ob 139/13d
If an additional foundation qualifies as a donation under civil law, it can be revoked due to gross ingratitude on the part of the recipient — the private foundation. The attribution of a criminal offence to a private foundation as the recipient of the post-foundation must be assessed in accordance with the Association Responsibility Act. As “decision makers”, the private foundation includes not only its board members, but also persons who otherwise exert significant influence on the management of the private foundation (“association”), including, where appropriate, the founder.
Supreme Court 4.11.2013, 10 Ob 22/13b
An unlawful dismissal of members of the board of directors of the private foundation is not immediately effective — as in stock corporation law and GmbH law — but ineffective. It must therefore be fought not with legal structuring action, but with declaratory action. The action must be brought against the private foundation and must be brought within a reasonable period of time (obligation of recourse). [Note: Depending on the circumstances, this period will be approximately one month to six weeks.]
Mediation efforts may justify the postponement of the lawsuit (9 Ob 19/04s, RIS Justice RS0119069).
Supreme Court 28.8.2014, 6 Ob 41/14v
Only current beneficiaries are authorized to file an application for judicial removal of members of the Foundation Board, but not substitute beneficiaries or persons who will only obtain beneficiary status in the future.
Supreme Court 15.11.2021, 6 Ob 179/21y
The purpose of the foundation can no longer be achieved if, according to human judgement, there will be no longer any circumstances in the longer term that make the foundation's purpose achievable.
Supreme Court 22.12.2021, 6 Ob 202/21f
The transactions that the private foundation concludes with members of the foundation board require court approval. According to the purpose of Section 17 (5) PSG, it must be examined, among other things, whether the legal transaction ensures the pursuit of the foundation's purpose and the founder's will with sufficient security in the future (RIS Justice RS0121199). Only an agreement in the interest of the private foundation and in accordance with its best interests may be approved (OGH 6 Ob 155/06x).
Section 17 (5) PSG applies analogously to cases in which the transaction is at least economically equivalent to one with the member of the Foundation Board (OGH 6 Ob 151/20d).
Supreme Court 6.4.2022, 6 Ob 45/22v
The principle of unanimity of founders with regard to the exercise of donors' rights in accordance with Section 3 (2) PSG is of a provisional nature. Amendments to the unanimity principle can — in case of otherwise ineffectiveness — be made exclusively in the foundation deed and not also in the foundation addition deed.
In the absence of uniform use as an umbrella term in the legal text, the term “foundation declaration” cannot be interpreted per se in such a way that it always includes both foundation deed and foundation additional deed.
A founder whose subjective rights are affected by registering an amendment to a foundation certificate is authorized to file an appeal.
Supreme Court 29.8.2022, 6 Ob 100/22g
According to settled case law, a person cannot obtain the status of founder of the private foundation through subsequent “accession” (OGH 1 Ob 166/04z; 6 Ob 78/06y).
It is also impossible for the founder to renounce his foundation (OGH 6 Ob 78/06y; 6 Ob 18/07a), since Section 9 (1) Z 5 PSG states that the legislator intends to “clarify the person of the founder once and for all” when establishing the foundation (OGH 6 Ob 78/06y).
Nor can the foundation sponsor join the foundation in place of the trustee, who has acted as the founder. The trustee is only entitled to mandatory claims against the trustee.
Supreme Court 14.9.2011, 6 Ob 158/11w
If the foundation addition deed provides that contributions to beneficiaries should be omitted if they”Guilty of conduct that constitutes hereditary or disinheritance towards the founders“and instead the descendants of those persons who have set such a “reason for exclusion” whose funding shares are to receive, the guilty beneficiaries lose, according to an objective interpretation, not only their funding shares but also all ancillary rights associated with the status of beneficiaries, such as information and inspection rights.
Supreme Court 25.9.2023, 6 Ob 102/23b
As for the establishment of a private foundation itself, if it is to be carried out by a proxy, a special power of attorney is required to amend the foundation declaration in accordance with Section 1008 sentence 2 of the Austrian Civil Code. This must show unequivocally that it authorises the conclusion of the transaction in question; it must be sufficiently individualized. This requirement is not met if the power of attorney only lists legal transactions covered by it in abstract form.
Supreme Court, 6 Ob 162/23a
.avif)