• David Kjølby Larsen
  • Lars Østerstrand Andersen Mikkelsen
4. term, Laws, Master (Master Programme)
Danish foundations law is an area of the law being thoroughly discussed during the past years. Among other things, the poor transparency as to the activities of the foundations, the requirement for increased supervision and control and the tax aspects are subjects which have all been debated. In continuation thereof, the Danish Commercial Foundations Authority presented in December 2012 a report with a proposed regulation in future of the commercial foundations.

By reference to this report, the Danish Minister of Business, Industry and Growth introduced on 12 March 2014 a Bill no. L 154, which will presumably, with minor amendments, become the new Danish Act on Commercial Foundations.

This thesis aims at comparing the duties and responsibility for the management in commercial foundations under current law with the proposed new rules of L 154. The thesis focuses on managerial duties, prohibitory injunctions, civil liability and penalty sanctions of the Board of Directors and the Executive Board. Focus is on the impact of the amendments contemplated by the Bill no. L 154 and the Commercial Foundations Authority’s report of December 2012.

The managerial duties under current law and the principles in relation to foundations law are considered on the basis of case law and legal literature on the subject. By reference to this study, the provisions of the bill on the managerial duties are subject to a comparative critical analysis for the purpose of evaluating the existence in the bill of any amendments on a point of fact for the management.

The bill refers to a set of recommendations on professional foundation management to be considered by the management. The recommendations are not in the nature of legally binding rules of law, although they are not to be ignored without any consequences by the management.

The thesis concludes that the major part of the proposed provisions reflect codifications of current rules of law. Basically, the bill does not aim at a tightening of the rules. Nevertheless, certain provisions of the bill may be deemed to imply a tightening under current law.

The bill implies a clear tightening particularly in two specific areas. First, it is proposed that the management will be punishable by a fine for less serious violations than under current law. Second, the bill should make it easier for the authorities to remove unqualified members of the Board of Directors.

The recording in writing of unwritten legal doctrine – notwithstanding the intention – is deemed to be important to the management’s misconduct and neglect.

Further, it is concluded that any neglect of recommended professional foundation management as a legal construction may be ascribable to importance when judging the managerial responsibility, provided the management does not from a commercial point of view submit a well-founded explanation of its deviations. In their present form, the recommendations do not, however, contain any innovations for the management’s duties and assignments.
Publication date13 May 2014
Number of pages78
ID: 197598989