Sharing knowledge and results, developing solutions together and continuously improving them: to structurally anchor such an open, collaborative and equal approach to cooperation between companies – including competitors – based on the open source approach, a corporate law framework that offers legal certainty is required. The dual structure of the Open Logistics Foundation – a foundation established by four leading international logistics service providers on the one hand, and a support association with initially ten and now more than 50 member companies on the other – is not a common or widespread model and was therefore carefully examined by the in-house and corporate lawyers of the founding members. As a result, the combination of a foundation and a support association not only enables the sustainable development and provision of open source software for the logistics industry but also offers a suitable, legally robust framework for trust-based cooperation between companies.
The foundation: Independent custodian of shared open source assets
In principle, a foundation is nothing more than a state-recognised, ownerless entity with rights and obligations that has its own assets at its disposal. It can therefore be the owner of tangible and intangible economic assets, including newly developed software. It may carry out the related legal transactions within the scope of its respective statutory purpose. The purpose of the Open Logistics Foundation, against the backdrop of the legal framework for non-profit organisations, is to promote science and research in Germany and abroad, particularly in the field of logistics and the science and economy that serve the field of logistics. This purpose is achieved, in particular, through the Open Logistics Repository, which is an open and neutral platform for the joint development, use and public provision of open source software.
The foundation is organised as a corporation, similar to a public limited company. It has a board of directors, a board of trustees and, optionally, a supplementary management board.
Financing remains a key challenge for foundations. As a first step, the foundation is therefore endowed with initial capital by its founder(s) upon its establishment, which can be supplemented by additional donations. Naturally, this will not last forever; at some point, the foundation must stand on its own two feet financially, otherwise it could slide into financial difficulties and insolvency, as a public limited company or a limited liability company might. Since self-financing through the sale of open source software is naturally out of the question, and altruistic contributions in the form of donations and endowments from market participants are likely to be rather limited, a supplementary structure has been created that allows for a certain degree of participation as well as long-term financing of the foundation.
The support association: Platform for participation and funding
The support association (Open Logistics Foundation e. V.) is the second element of the dual structure, namely an association under civil law in which the project sponsors become members with certain rights and obligations and can exercise a certain degree of indirect participation. The association’s purpose is based on the foundation’s purpose. Like any other association, the association itself has a general meeting and a board of directors that is responsible for its business. In this case, both the foundation and association are structured as non-profit organisations, but this is not mandatory.
The organisational framework: cooperation between the foundation and the association
A key connecting element between the foundation on the one hand and the association on the other is a long-term cooperation agreement. This agreement sets out, in detail, the mutual obligations of cooperation and support, financing issues, and other aspects, such as voting recommendations for the appointment of committee members. Within this framework, an open exchange of ideas between all members of the association and between the association and the foundation is possible – even in a committee environment that can be designed to be quite flexible. The organisational framework is also flexible if set up correctly. For example, the cooperation can be extended to other institutions, and existing cooperation agreements can be adapted to the future needs of those involved.
The dual structure is therefore particularly well-suited to promoting open decision-making processes and community-driven idea development and implementation. Overall, it can be considered exemplary when companies, organisations, and private individuals want to jointly develop solutions in a specific field and make them available to a wider public – i.e. for the common good – without individual interests having too great a negative influence on their development and use. In principle, companies and individuals from other industries or sectors can also consider adopting a similar approach, for example, in the field of artificial intelligence. The initiators of such projects should, in any case, individually examine their specific needs, their industry-specific framework conditions and, above all, the legal and tax limits of their own project.
In doing so, they must always be aware that antitrust and competition law, in particular, sets very strict limits on cooperation and the exchange of certain information between the parties involved. All competition law restrictions must be strictly observed during the preparation, implementation and operation of such a concept. Above all, information relevant to competition law and trade secrets of individual association members, other stakeholders and competitors must not be exchanged under any circumstances. All of this makes the implementation, operation and monitoring of such a concept challenging and therefore continues to involve a considerable amount of effort after its implementation.
The foundation’s independence protects it from outside influence
Since a foundation has no shareholders, it cannot be unilaterally influenced, either as a legal entity or in the projects it runs, by the particular interests of individuals, such as disruptive shareholders. It is also protected from outside influence, such as from unfriendly investors. This means that, from the founders’ perspective, the software developed by the foundation cannot fall into the ‘wrong hands’ in the normal course of business. In this respect, the foundation is structurally superior to all other possible legal forms, such as public limited companies, limited liability companies, cooperatives, limited partnerships, general partnerships, etc.
In addition, the Open Logistics Foundation’s corporate law approach avoids legal forms subject to stricter regulation and that require greater effort in terms of registers, authorities and administration. At the same time, it circumvents all legal forms that tend to entail higher liability risk for persons acting in executive bodies (e.g., due to capital maintenance regulations), thereby reducing all risks that cannot be completely avoided to a relatively low level. Finally, this legal structure allows for the desired multi-level and variable body and organisational structure, which is why it is fundamentally superior to many other legal forms, especially those with very strict articles of association (e.g., public limited companies), particularly with regard to the drafting of the articles of association.
