Foundation template adds yearly owner check, drops Civilstyrelsen

Boards of Danish commercial foundations (erhvervsdrivende fonde) must check at least once a year whether the registered information on the foundation's beneficial owners (reelle ejere) has changedErhvervsstyrelsen, and present the result at the foundation's annual accounts meeting (årsregnskabsmødet). That duty in erhvervsfondslovens section 21 a(4) is now written into Erhvervsstyrelsen's revised model articles with commentaryErhvervsstyrelsen.

If the review shows nothing has changed, the result is a confirmation that the registered information on the board and any specially favoured persons, or the group of persons in whose main interest the foundation was set up or operates, remains accurate and current. If the foundation learned of changes during the year or in the annual review, for example to the board, it must register the changed information in Erhvervsstyrelsen's IT system as soon as possible after learning of it. Registration must not wait until the review is presented at the annual accounts meeting.

The revised commentary also rewords the board-independence rule where the foundation was set up by a company. Previously the guidance said the majority of the founder company's management could not, without Erhvervsstyrelsen's consent, form the board majority together with closely connected persons. It now covers the founder company's management as a whole: the management cannot together with persons connected to its members by family relationship in the direct ascending or descending line or the collateral line as close as siblings form the board majority without the agency's consent. Under administrative practice Erhvervsstyrelsen rarely grants such consent.

On remuneration, the guidance maintains that all board members must receive the same pay, now citing both UfR 1990.271 Ø and UfR 1997.1475 H, unless individual members have specifically waived pay. But function-based higher pay may now go to the chair and any vice-chair (næstformand) where the nature and scope of the work warrant it; previously only the chair was named. References to the 2019 EY analysis and Deloitte studies of foundation board pay have been removed.

Finally, the model articles reflect that Civilstyrelsen's consent role has goneErhvervsstyrelsen. An article amendment now requires only Erhvervsstyrelsen's permission, except for capital increases, which the board decides aloneErhvervsstyrelsen. The same applies to dissolving the foundationErhvervsstyrelsen. Likewise, a request to approve the sale of shareholdings named directly in the foundation's purpose is handled under erhvervsfondslovens section 89 as a purpose amendment with permission from Erhvervsstyrelsen alone, without Civilstyrelsen consent.

The legal basis is lov om erhvervsdrivende fonde (erhvervsfondsloven), section 21 a on beneficial owners, section 40 on board independence, section 49 on board remuneration and section 89 on amending the articles and dissolution.