Experience and expertise within funds, foundations and self-governing institutions
Foreign enterprises wishing to cooperate with, acquire or merge with Danish foundation-owned enterprises are often taken aback by the special rules applicable to Danish foundations (also seen referred to as funds or self-governing institutions).
In Denmark, a foundation is considered a separate legal entity which has no owner and no beneficial owners like in UK trusts. Danish foundations must have an object set out in the bylaws. The board of directors of the foundation, which has to be independent of the founder, must comply with the bylaws, including the object of the foundation; the object is very difficult - if not impossible - to change, unless it can no longer be achieved. Both changes to the object and extraordinary transactions on behalf of a foundation that may entail a risk of violation of the bylaws must be approved by a public supervisory authority.
It is therefore important to understand the Danish rules governing foundations and foundation-owned enterprises and to team up with a legal adviser like Horten with in-depth expertise in foundation law.
Our experience is based on many years' representation of commercial foundations, family foundations, charitable foundations and self-governing institutions and advice on the organisation and structuring of activities in which foundations may be applied with advantage. Our experience is also based on previous employment with the Danish Commerce and Companies Agency (now the Danish Business Authority) as the registration and foundation authority for commercial foundations as well as extensive participation in boards of directors of foundations.
Our expertise embraces all aspects of foundation law and foundations whether established on a private or public law basis, e.g. with a view to owning large or small enterprises or handling assignments based on separate agreements with public authorities.
We have considerable experience within the special areas which are subject to supervision by the foundation authorities and frequently require a sometimes intensive dialogue with the foundation authorities. This applies both to the supervision under current foundation legislation which is carried out by the Danish Business Authority and the Department of Civil Affairs under current foundation legislation and to the supervision carried out by other authorities under other regulations.
Due to our wide experience in foundation law and company law, we have frequently acted as a legal investigator of transactions in foundations and foundation-owned enterprises to establish whether claims for damages could be raised against third parties, including previous members of boards of directors and/or executive boards.