Founder company merges: do reserved shaping rights pass to the legal successor?

In a merger by absorption, the assets of the transferring GmbH are transferred to the acquiring company. Section 96 GmbHG generally applies sections 220 to 233 AktG to the procedure. Once the merger is registered, the statutory effects of universal succession arise and the transferring company ceases to exist.

The succession covers the transferring company’s assets, liabilities and other property-related positions. A reserved power to shape a foundation must be distinguished from those positions. It is a foundation-law right arising from the foundation declaration, not an interest in the private foundation itself.

The acquiring GmbH therefore does not automatically become a founder with the same amendment, revocation or appointment power merely because of the merger. Section 3(3) PSG provides the decisive limit for those rights.

Section 3(1) PSG allows legal persons to be founders. Subsection 3 sets a separate boundary for the founder’s shaping rights: those rights do not pass to legal successors. This also answers whether a successor organisation may continue a personal shaping position after a merger.

The rule prevents the acquiring GmbH from deriving an amendment or revocation power from the merger alone. A power to appoint governing-body members or to consent to an amendment must likewise not be treated as transferred without reviewing the foundation declaration.

The exact legal character of the clause remains decisive. A provision may be a personal founder right, a continuing power of a body or an internal allocation of responsibility. Only the first category normally raises the transfer issue examined here; the deed must establish the distinction.

Start with the current foundation declaration and every effective supplementary deed. The wording should show who holds the right, which act is authorised and whether the clause refers to the legal person itself or to a particular office.

Then compare the merger agreement, merger resolutions, register extracts for both companies and the exact registration date. The date determines whether the transferring GmbH could still act itself and when the corporate effects arose.

Also record whether a valid declaration was made before registration. A later reliance on universal succession does not answer whether the act was timely, properly made and issued by the correct legal person.

The exclusion of transfer does not dissolve the private foundation. Foundation assets remain with the foundation, and the foundation board retains its statutory and deed-based duties. The merger of the founder company does not change that by itself.

If the merger leaves no valid person or body to exercise a planned power, the existing arrangement must be applied first. An amendment of the foundation declaration must follow its legal route. Section 33(2) PSG does not give the board a free substitute for a founder right that has become unavailable.

A court-approved adjustment requires evidence of the statutory conditions and the changed circumstances. The purpose of the private foundation must be preserved. The merger is therefore an important trigger for review, not an automatic authorisation for a new shaping decision.