The International Journal
of Not-for-Profit Law
VOLUME 11, ISSUE 1, NOVEMBER 2008
By Gerry Salole
As the foundation sector continues its growth and internationalization, it is becoming increasingly evident that foundations need a European-level legal tool, the European Foundation Statute, in order to operate effectively with optimal impact on public good. Recent research suggests that there are currently no fewer than 95,000 public benefit foundations in 24 EU Member States.2 Foundations in the EU have seen dramatic growth over the past 15 years. In nine countries (Belgium, Estonia, France, Germany, Italy, Luxembourg, Slovakia, Spain and Sweden), 43% of foundations were set up during the last decade.3 The current operating environment does not, however, take into account the enormous growth of the sector and its internationalization in our globalized society.
The European Foundation Centre (EFC) demands a debate on improving the sector’s environment, taking into account the specific needs of foundations and their funders. Foundations’ characteristics and needs should be understood before a new legal instrument can be discussed. While even within the EU each Member State has a slightly different understanding of what foundations are, the EFC has developed a functional definition of foundations. Foundations are independent, separately constituted nonprofit bodies with their own established and reliable sources of income. They are usually but not exclusively funded by an endowment, and have their own governing boards. They have been given goods, rights, and resources to perform work and provide support for public benefit purposes, either by supporting organizations or individuals or by operating their own programs. They do not have members, but associate private resources for public interest purposes.
Like other entities, foundations are increasingly working across borders, and have every right to operate on a European-level playing field. In 2007 two-thirds of EFC members were working across borders and active outside their country of origin.4 Individual and corporate donors are more mobile, and increasingly have assets or investments in several countries. The internationalization of foundations’ work stems from the international nature of the complex problems that foundations seek to address. Issues such as migration, global health, and the environment do not stop at national borders. The international interest of founders, their rising geographical mobility during their working lives and upon retiring, and the related increased geographical spread of their assets across Europe and beyond also mean that foundations are more likely to be working and investing across borders. But laws are not keeping up with these trends. Foundations often have to open branches in several countries. Europe should allow foundations to pool resources for public benefit projects. The European Foundation Statute could foster the removal of national barriers to foundations. Since EFC’s creation in 1989, increasing numbers of foundation members have launched joint projects and programs. EFC’s members are important drivers of European civil society, fueling organizations on the ground and contributing to EU policies which promote and develop civil society.
The foundation sector also has considerable economic weight in terms of its asset base, expenditure, and employment rates, which were examined in a recent EFC study.5 A sample of 55,552 foundations in 15 countries found combined assets of some €237bn, an average of €4m per foundation, based on 2005 data.6 The 58,588 public benefit foundations surveyed in 14 EU countries reported total spending of €46bn, an average of €1m per foundation.7 The foundation sector plays an important role in the labor market for both salaried and voluntary workers. Not only do they act directly as employers themselves, but by funding organizations and individuals in the non-profit sector they indirectly support employment and voluntary engagement in their areas of interest. In ten EU countries (Belgium, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Italy, the Netherlands, and Spain), according to figures mostly from 2005, some 34,400 foundations employ a total of 311,600 staff, which makes an average of nine employees per foundation.8 Volunteering remains an important feature of the foundation sector. The 31,800 foundations sampled in seven EU countries (Belgium, Finland, France, Germany, Hungary, Italy, and Spain) have 231,600 volunteers, an average of seven volunteers each. We also need to bear in mind that the figures do not include the total employment created or sustained by foundations. Many foundations give grants or provide capital support to employment-creating and sustaining initiatives in the fields in which they operate. Their contribution to employment creation should therefore be interpreted in this larger context.
Barriers to foundations’ work
Foundations that could in terms of their asset base and international orientation make a difference to public good at the European level currently face the frustration of administrative, legal, and fiscal barriers to their work. The EFC has examined the differences in European foundation laws and concluded that the operating frameworks of foundations in the EU are diverse.9 This is a richness deeply rooted in the legal traditions as well as cultural and socioeconomic development of the countries concerned. At the same time it gives rise to operational barriers and hindrances to cross-border work and cooperation of foundations and their funders, who have to struggle with very different national and even regional foundation laws. Barriers to foundations’ work within the EU exist despite the fact that the EC Treaty explicitly provides individuals and economic entities the possibility to move within the EU and benefit from the single market.10
Legal uncertainty over recognition
One of the barriers faced by foundations in their cross-border work is the legal uncertainty over foreign foundations’ legal personality and public-benefit status. In principle, a foundation’s legal personality status is ordinarily accepted by most EU countries. However, we are aware that the legal recognition in other EU Member States has caused problems for some foundations. As a general rule, a domestic registration is required, and some countries even require a special recognition, such as Estonia and Italy.11 In Poland and Bulgaria, foreign foundations need to go through special recognition procedures and set up representative offices. In some countries, such as Hungary, branches of foreign foundations may not be set up. In those countries where foundations are defined as pursuing certain public benefit purposes only, foreign foundations that pursue different purposes may face difficulties. Previous solutions set up to address the issue of recognition of nongovernmental organizations12 have failed, as not enough states became party to them. The most efficient solution would therefore be the European Foundation Statute.
Increased administrative costs
The lack of recognition of foreign foundations results in increased cost linked to the creation and administration of several “recognized” legal entities in the countries where a foundation needs to operate to fulfill its objectives, and use of available assets/funds which otherwise would have been distributed as grants or used for program activities. There are also additional costs arising from the legal advice that is needed from multiple sources on a regular basis in order to establish and maintain foundation branches in several EU Member States. Having to operate under several legal entities also creates added difficulties with maintaining a common and effective policy strategy among the various legal entities. Foundations have had to set up several local organizations to operate in different countries.
The EFC is aware of many foundations that face practical obstacles and added costs in their everyday cross-border activities. The Carpathian Foundation International is based in Hungary, with additional national organizations established in Hungary, Poland, Romania, Slovakia, and Ukraine.13 Naturally there are considerable costs arising from the establishment of several national organizations. Running offices in five different countries is expensive, and there are also costs resulting from having to consult legal advisors in all the countries in question, during the setting-up phase of the organization and on a regular basis thereafter, to keep up with the changing legal environment in each country.
Each national entity is also required to have a different governance structure in line with national rules, which complicates things further. The German Körber Foundation has considered setting up several national foundations for the EUSTORY network because of the lack of a European Statute.14 The network, which supports teaching history to young people across several EU Member States, is suffering from the lack of a European framework for its activities. Some foundations also struggle to find the appropriate legal structure when they have a pan-European public interest objective and are therefore forced to establish themselves as national entities despite their pan-European mission. An example of a foundation encountering this type of problem is the RISE Foundation for rural development.15 The mission of the RISE Foundation covers all aspects of conservation and development of the rural world, promoting private investments, the advancement of private property, and cooperation between land managers and rural communities. It currently operates across all 27 EU Member States and has reported to the EFC that it faced a number of challenges during its setting-up phase. Problems were faced in dealing with different legal systems, in drafting the articles of incorporation, in fundraising, and in supporting transnational projects. The administrative barriers resulting from non-recognition of foundations’ legal forms is best solved through a specific legal form like the European Foundation Statute.
In addition to the administrative and legal barriers, problems are also found in foundations’ domestic and/or foreign fiscal environments. Non-resident foundations are discriminated against in most EU countries as regards income tax. This was brought to light in the recent European Court of Justice (ECJ) “Stauffer” case,16 where German tax law did not grant the same tax treatment on rental income for property owned by a foreign public benefit foundation. Foundations also face non-refundable withholding tax on cross-border investments, as well as national gift and inheritance tax. Unlike resident foundations, foreign foundations in most countries are unable to receive tax-deductible individual or corporate donations.
European Foundation Statute vs. other solutions?
While most scholars in the field of foundation law agree that change is needed and foundations need to be included in the single market, there have been a variety of opinions on what is the best approach.
According to a recent publication by Ineke Koele, national governments are rightfully concerned about the flow of charitable donations due to security concerns, and a practical solution should be found in order to determine the equivalency of a foreign philanthropic organization to a domestic one.17 Foreign foundations should be required to meet the essential requirements for tax exemption, as asking them to comply with national tax laws to the letter would practically mean that no foreign foundations would qualify for tax incentives. Koele suggests that a solution could be found through cooperation between legal counsels based in donor and recipient countries comparing the application of various national laws impacting foreign foundations. While such an approach could provide a pragmatic solution to the fiscal barriers that foundations encounter, it would not solve the administrative and legal barriers faced by foundations in their cross-border work.
Oonagh Breen’s recent article in the International Journal of Not-for-Profit Law18 suggests how to improve the laws governing the charitable sector, favoring the judicial approach over the legislative. Here one may raise the question of who should drive reform of foundation laws: the foundation sector itself, judges, or legislators? The EFC is of the opinion that legislators must act on several fronts to respond to EU reality and to ensure that national laws do not conflict with the EC Treaty. The EFC believes that a European Foundation Statute, drafted by European legislators, will enable cross-border work free of red tape. This legislative approach must obviously work in parallel with the courts that are currently challenging national tax laws and their legislators. However, an EU-level regulation would be a quicker and more effective approach to solving the problems faced by foundations in their day-to-day activities. Current judicial proceedings focus on tax problems while the European Foundation Statute would offer an appropriate tool for cross-border cooperation.
What can we expect from court decisions? While the ECJ, in its ruling on the Stauffer case, stated that discriminatory German tax law is against the EC Treaty, and thus provided a precedent for infringement procedures against other EU countries with discriminatory tax laws, the process is far too slow to guarantee a fair treatment for public benefit foundations across the EU. It can take years for a case to clear the ECJ as with the Stauffer case and the ongoing Persche case.19 The Stauffer case, concerning an Italian foundation receiving rental income from Germany, subject to German corporate tax, was launched in 1997. The ECJ’s decision on the case was only given in 2006. A ruling on the Persche case, which concerns the tax deductibility of a cross-border in-kind donation made in 2003, is expected in 2009. In the light of a recent ECJ ruling on Lidl Belgium,20 the ECJ seems to be applying the EC Treaty more strictly to cross-border company and non-profit activity. While it is hoped that the outcome will open doors for cross-border giving in the EU, this is in no way guaranteed. It is therefore not sensible to leave the future of cross-border foundation work to judges, but preferable to encourage private giving and support through a specific legal tool.
In addition, the implementation of such court decisions takes even longer, and respective national legislators may find different and sometimes unexpected ways to react. For example, the German government has just suggested a rather non-international approach to bringing German foundation law in line with the EC Treaty. The current law proposal introduces tax incentives for foreign-based organizations as long as they benefit the German public, but with the possibility that activities that benefit Germany’s reputation abroad would also be deemed to benefit the German public.21
Before the European Commission brings cases to the ECJ, it tries to encourage Member States to act through so-called infringement procedures. If the Commission is of the opinion that a national rule is in conflict with the EC Treaty, it will start a procedure against that Member State. There are currently infringement procedures against countries that tax foreign foundations in a discriminatory way – Belgium,22 Ireland,23 and the UK24 are under the scrutiny of the Commission. While the infringement procedures are slowly making Member States one by one change their national foundation tax laws in a direction that is more cross-border friendly, the process can be very time-consuming. So far, only Poland, Finland, Slovenia, and the Netherlands have opted to bring their laws in line with the EC Treaty regarding cross-border giving to public benefit foundations. In addition to the slow pace of the infringement procedures and ECJ procedures, the main problem again is that they only address the tax issue and do not provide solutions to the administrative and legal barriers that foundations face. The EFC says foundations need positive laws as the courts only fix problems after they occur. This is why the EFC has always advocated a specific legal tool for foundations as well as mutual recognition and equal tax treatment.
What kind of Statute is needed?
The kind of European Foundation Statute that the EFC advocates would for the first time enable the creation of real European foundations. It is clear that a Statute addressing the needs of foundations is required and the existing pan-European company forms do not fit foundations’ and European funders’ needs. The Statute would offer European citizens the opportunity to use their capital to benefit the European public good and to shape Europe without having to deal with 27 different legal regimes and too much red tape. European initiatives are at the moment often hobbled because founders have to choose one “legal” home for the foundation. The Statute should offer an innovative European tool, including a common framework for issues like foundations’ legal capacity, governance, and accountability in cross-border work, particularly given national concerns over financing terrorism. Unlike the European Company Statute (Societas Europaea)25 created in 2001, EFS would not be a lowest-common-denominator of national foundation laws, providing only some superficial rules and referring to the 27 different national laws and complex provisions. Only few companies have adopted the SE due to its complex nature, and this is not what the foundation sector wants. The EFS should be more comprehensive, as is seen in the recent European Commission proposal for the European Private Company Statute,26 designed to help small and medium-sized enterprises’ cross-border activities. This new tool is more European and simpler than Societas Europaea.
The European Foundation Statute should be comprehensive and clear. The EFC has put together a proposal for a European Foundation Statute.27 A European Foundation should have a legal personality, which is acquired upon registration. It should also be defined as an organization with an independent governance structure and a source of income, possibly from an endowment. It should pursue public benefit purposes and be supervised by a public authority. European Foundations should be required to have minimum capital upon registration to indicate a level of seriousness about their activities; however, the minimum capital should be small enough to make it feasible for new initiatives to establish themselves as a European Foundation. The European Foundation should be able to benefit from the same tax treatment as a local public benefit organization in all 27 EU Member States.
Additional benefits of the European Foundation Statute
In addition to providing solutions to the barriers that foundations encounter in their cross-border work, a Foundation Statute would also provide further benefits to the foundation sector. The EFS would help to clarify terms and the concept of foundations as organizations with their own resources and independent governance. It would also help to develop a common definition of “public benefit purpose” foundations, as currently the term “foundation” is much too loosely used. The governance systems of foundations in EU Member States are subject to different levels of state supervision and therefore to different levels of responsibilities of supervisory authorities. With regard to transparency and publicity requirements and related auditing issues, no general publicity regime applies in any EU country, while many Member States ensure that interested parties are provided, upon special request, with access to documents of foundations or of supervisory authorities. The European Statute for Foundations can be seen as a benchmark and quality label in terms of governance, transparency, and accountability in cross-border work and financing, at a time when the prevention of terrorism financing is of key concern to national governments as well as European and multilateral institutions.
A European Foundation Statute would also provide new opportunities regarding EU citizenship and have a positive impact on EU policy. A number of EFC members are involved in initiatives promoting European citizenship, and the Statute would create an EU tool for doing so.28 The Statute could be a new legal instrument of support for citizens’ action and participation at the European level in their various fields of interest, including public health and consumers’ rights, rule of law, and cultural and other fundamental rights.
A prominent trend is also the increase in private giving for the public good, and ample evidence suggests that the newly wealthy give to philanthropic causes across borders. Individuals such as Bill Gates and George Soros give extensively to international causes. Many wealthy individuals in the US and elsewhere are pooling their resources for public benefit projects.29 According to a study by Barclays Wealth in 2007,30 a growing number of wealthy individuals in the UK transfer a large slice of their wealth to public benefit causes already in their lifetimes, and they are often willing to give internationally due to globalization and breakdown of barriers to international business. This trend also occurs in other Member States. A European Foundation Statute could help channel this newly created private wealth to public benefit activities across Europe.
The Statute would also help to underpin EU competitiveness: knowledge society, research, and innovation. A large number of foundations in Europe operate in the field of education, including informal education and vocational training. They have also been at the forefront of funding fellowship and scholarship schemes for teachers and students to underpin their mobility, skills, and competence. While funding equal access to learning, foundations also support excellence in research and technological development (R&D). For instance, France has important research players such as Institut Curie and Institut Pasteur, both of which are operating foundations. Foundations’ contributions to R&D accounted in 2002 for about 0.04% of GDP, with a gross expenditure in R&D/GDP ratio in France equal to 2.2% (according to 1999 Eurostat data).31 A European Foundation Statute would be a new instrument for pooling expertise and resources for European-level work in these areas, which require increased scaling up of funds. European foundations active in the field of science and research can contribute to achieving the EU’s goals regarding competitiveness and building a more effective European research area.
Some issues are cross-border in nature, such as migration, which European foundations address in their work. Effective work on such issues requires the appropriate legal tool. Across the EU, countries’ experiences and approaches to migration issues are characterized by certain national specificities. Countries are experiencing different stages of migration and minorities’ development processes. The current stage is primarily dominated by post-migration and integration challenges. Foundations active in the field see the need to come together to address the challenges of managing migration, including refugees and asylum-seekers, the development of cohesive and integrated communities, and advance work to combat trafficking in human beings, including children and women, in the enlarged Europe and abroad. Many foundations are involved in funding such projects in a cross-border context32 and some have also established networks to pool resources in this area. An example of such an initiative is the European Programme for Integration and Migration, initiated in 2005 by a group of foundations from seven different countries, aiming to improve the lives of migrants.33 The Roma Education Fund, a cross-border initiative supported by foundations from four different EU Member States, supports the inclusion of Roma in national education systems.34 The European Foundation Statute could aid foundations and funders in reaching their goals in this important area.
It is imperative to make cross-border work easier given the complex global problems foundations face, such as environmental issues and climate change, global health, migration, and intercultural dialogue. The growth of foundations and their professionalization have been partly addressed nationally. But we now need to take full account of the European dimension.
How does a Statute fit into the EU agenda?
The European Commission launched a study in 2007 to examine regulatory differences, internal market barriers, and their costs. The study assesses the foundation sector’s scale and economic weight plus the impact a European Foundation Statute would have on the sector and Europe’s economy. It will consider how to remove barriers, including regulatory measures. The study, carried out by the Max Planck Institute for International Private Law (MPI) and the Centre for Social Investment (CSI) at the University of Heidelberg, will conclude in 2008. Following the results of the study, foundations will ask the European Commission to submit a proposal on the European Foundation Statute Regulation for the European Parliament and Council to review.
The EFC has been advocating for a specific legal form for public benefit foundations since 2001. Work on the European Foundation Statute has been looking more promising after 30 years of deadlock in the field of company law, following the introduction of new legal forms: the European Company Statute adopted in 2001, the European Economic Interest Grouping35 and the European Co-operative Society adopted in 200336, and the more recent proposal for a European Private Company Statute (Societas Privata Europaea, SPE).37 Following these European law developments, there seems to be little doubt that the legal basis of the EFS would be the same as for the other European Statutes. The legal basis for all the forms mentioned above is Article 308 – the “catch-all” Article, with the recognized difficulty being that this Article requires the unanimous approval of the Member States. Article 95, which would require a qualified majority at the Council and a co-decision in the European Parliament, seems to be out of question for the European Foundation Statute, as the ECJ ruled in 2006 against Article 95 as the legal basis for the European Co-operative Society.38
All this is part of the wider revision of European Company Law. In 2001 the European Commission set up a High Level Group of Company Law Experts to review current trends in the field of European company law as well as the need for new European legal forms. Following the public consultation on revision of company law39 by the high-level group and the group’s conclusions40, the Commission announced a plan for modernising company law in 2003.41 The Directorate-General Internal Market undertook a further public consultation on the issue in 2005,42 in which a considerable number of individual foundations as well as the EFC participated and stressed the added value of a European legal form for foundations. In November 2006, Commissioner Charlie McCreevy mentioned in a letter to the EFC that the Commission “will continue to pursue its reflection” on the Statute and in spring 2007 a call for tenders for the feasibility study on a European Foundation Statute was finally launched.
It is easy to forget that donors and public benefit foundations are pursuing specific missions. Neither their objectives nor the problems they address always stop at national borders. Foundations and their funders should therefore be permitted to carry out their work in order to maximize public good across the EU, and the European Foundation Statute is the most effective tool for ensuring this.
1 Gerry Salole is Chief Executive of the European Foundation Centre.
2 “Foundations in the European Union: Facts and Figures,” May 2008, p.7, available at https://www.efc.be/ftp/public/EU/EURweb/EFC-RTF_EU%20Foundations-Facts%20and%20Figures_2008.pdf. Lithuania, Malta and Romania do not yet have their figures.
3 “Foundations in the European Union: Facts and Figures,” May 2008, p.8
4 Based on the information in EFC member profiles for approximately 200 members.
5 “Foundations in the European Union: Facts and Figures,” May 2008, pp.6-7
6 Id., p.5
7 Also based mostly on 2005 figures. Id., p.6
8 Id., p.7
9 “Foundations’ Legal and Fiscal Environments – Mapping the European Union of 27,” 2007
10 Articles 39 to 55 of the EC Treaty regarding free movement of people and services and articles 56 to 60 concerning free movement of capital
11 Gallop., B. in “Foundations in Europe: Society, Management and Law,” 2002, p. 752
12 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations 1986, https://conventions.coe.int/treaty/en/Treaties/Word/124.doc
13 Based on an interview with Janos Lukacs, the Executive Director of the Carpathian Foundation, 8 May 2008. Additional information is available on the organization’s website at www.carpathianfoundation.org
14 More information on the network: EFFECT magazine, vol. 2, issue 1, Spring 2008, p. 25, https://www.efc.be/ftp/public/Communications/EFFECT/Spring2008/effectspring08creativity.pdf
16 ECJ case number C-386/04
17 Ineke Koele, International Taxation of Philanthropy, 2007, pp. 364-367
18 “EU Regulation of Charitable Organizations: The Politics of Legally Enabling Civil Society,” International Journal of Not-for-Profit Law Issue 3 Vol 10, June 2008 https://www.icnl.org/knowledge/ijnl/vol10iss3/special_3.htm
19 ECJ case number C-318/07
20 ECJ case number C 414/06
21 Proposal for German tax law revision 2009 https://rsw.beck.de/rsw/upload/Beck_Aktuell/Regierungsentwurf_JStG.pdf
22 European Commission press release IP/06/1879 https://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1879&format=HTML&aged=0&language=en&guiLanguage=en
23 European Commission press release IP/06/1408 https://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1408&format=HTML&aged=0&language=en&guiLanguage=en
24 European Commission press release IP/06/964 https://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/964&format=HTML&aged=0&language=EN&guiLanguage=fr
25 Council Regulation 2001/2157/EC of 8.10.2001
26 Proposal for a Council Regulation on the Statute for a European private company COM(2008) 396/3 https://ec.europa.eu/internal_market/company/docs/epc/proposal_en.pdf
28 Foundations’ Support of European Citizenship – A Snapshot, 2006, https://www.efc.be/ftp/public/EU/CIT/EuropeanCitizenshipSupport.pdf
29 Looking out for the future: an orientation for twenty-first century philanthropists, Katherine Fulton, Andrew Blau: Monitor Company Group, 2005, https://www.futureofphilanthropy.org/files/finalreport.pdf
30 Barclays Wealth insights white paper: the changing face of philanthropy: today, tomorrow and beyond. London: Barclays Wealth, 2007, https://www.barclayswealth.com/files/Barclays_Wealth_White_Paper_Changing_face_of_philanthropy.pdf
31 Giving More for Research in Europe : The role of foundations and the non-profit sector in boosting R&D investment , European Commission (2005), https://ec.europa.eu/invest-in-research/pdf/download_en/rec_5_7800_giving_4_051018_bat.pdf
32 The Contribution of the Voluntary Sector to Migrant Integration in Europe, Study by Centre on Migration, Policy & Society, https://www.efc.be/ftp/public/EU/Eurob/MiG/COMPAS_Report.pdf , pp. 13-14
35 Regulation (EEC) No 2137/85 on the European Economic Interest Grouping
36 Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)
37 Proposal for a Council Regulation on the Statute for a European private company COM(2008) 396/3
38 ECJ case number C-436/03, ruling of 2 May 2006, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:143:0004:0004:EN:PDF
39 The consultative document of the High Level Group of Company Law Experts,https://ec.europa.eu/internal_market/company/docs/modern/consult_en.pdf
40 Report of the high-level group of company law experts on a modern regulatory framework for company law in Europe, 4 November 2002, https://ec.europa.eu/internal_market/company/docs/modern/report_en.pdf
41 Communication from the Commission to the Council and the European Parliament – Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward, COM 2003/0284, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52003DC0284:EN:HTML
42 Public consultation on future priorities for the Action Plan on the Modernisation of Company Law and Corporate Governance, https://ec.europa.eu/internal_market/company/docs/consultation/consultation_en.pdf