Contribution to the European Foundation Statute Public Consultation April 2009

Transcription

1 Contribution to the European Foundation Statute Public Consultation April 2009 Information about the respondent A. Name of the foundation and your function King Baudouin Foundation Rue Brederodestraat Brussels Belgium Managing Director : Luc Tayart de Borms Website : Contact person : Ludwig Forrest Philanthropy Advisor forrest.l@kbs-frb.be T: B. Address and register ID number of registered organisations 1 2 Not Applicable C. The legal form, field of activity and country of origin of your organisation Legal form : Public utility Foundation Belgium Field of activity : Our activities are grouped around activity domains in which we can make a difference. Poverty & Social Justice Identifying new issues Fighting poverty and social injustice Children and youth Elderly Climate change and social justice Health Health inequalities Engaging patients Informing patients Quality of life for patients Mental health Medical and scientific research 1 The Commission asks organizations who wish to submit comments in the context of public consultations to provide the Commission and the public at large with information about whom and what they represent. If an organization decides not to provide this information, it is the Commission's stated policy to list the contribution as part of the individual contributions. (Consultation Standards, see COM (2002) 704, and Communication on ETI Follow-up, see COM (2007) 127 of 21/03/2007) To register go to EC register of interest representatives 2 The Commission asks organizations who wish to submit comments in the context of public consultations to provide the Commission and the public at large with information about whom and what they represent. If an organization decides not to provide this information, it is the Commission's stated policy to list the contribution as part of the individual contributions. (Consultation Standards, see COM (2002) 704, and Communication on ETI Follow-up, see COM (2007) 127 of 21/03/2007) To register go to EC register of interest representatives

2 Democracy in Belgium BELvue: democracy meets history Prince Philippe Fund Democracy in the Balkans Minority rights Student mobility Victims of human trafficking Readmission European integration Heritage Nature and heritage sites Historical objects Historical buildings History and archeology Cultural Heritage Fund Philanthropy Centre for Philanthropy Belgian networks KBFUS Venture philanthropy Specific projects Migration Role of civil society Debates on migration and integration Migration issues in the media Development King Baudouin International Development Prize HIV/AIDS in Central Africa Dimitra: rural women in Africa Benchmarking philanthropy in Africa Philanthropy in Asia and Latin America Philanthropy in developing countries in general Leadership Innovative ideas from private individuals Entrepreneurial qualities in young Belgian professionals Fostering talent Local engagement Community development Local philanthropy Funds for local philanthropy 2/11

3 Partnership or exceptional support for projects Partnership with the European Policy Centre The European Citizens Consultations Brussels, Europe s capital city The German-speaking community Exceptional support for projects D. If you are answering for a foundation: 1. Does your foundation conduct cross-border activities in the EU/EEA area? If yes, in which form does your foundation conduct these activities (e.g. foreign foundations, branches, subsidiaries, provision of services, export/direct sales of goods, fund raising, grant making)? The King Baudouin Foundation is conducting several projects having a European dimensions. Examples are : European Citizen consultation - The European Citizens Consultations 2009 are run by a unique consortium of more than 40 independent European partner organisations, led by the Belgian King Baudouin Foundation. These include foundations, NGOs, universities and think-tanks from all 27 European Union Member States, who will organise the European Citizens Consultations in each Member State. European fund for the Balkans : A consortium of European foundations supports projects to train civil servants, young people and working groups, with a view to encouraging rapprochement between the Balkan countries and the European Union. EPIM - European Integration and Migration Programme : Consultation on European immigration policies and support to NGOs. Funding NGOs working on immigrant integration in Europe : Transnational Giving Europe : Transnational Giving Europe covers 13 countries and is at European level the only existing practical solution to support a beneficiary located in a foreign country with all the tax advantages in the country of residence of the donor. Donors can give their gifts to the national TGE partner that will transfer the gift to the foreign beneficiary and provide all the national fiscal advantages to the donor (income tax deductibility, ). Thanks to TGE, fundraising organisations can ensure income tax deductible gifts for their foreign donors and launch tax efficient fundraising campaigns in other TGE countries. Funding projects all across Europe through calls for projects and grants by our Funds created by donors within the KBF and managed by the KBF. Advising European minded donors or non European foundations wanting to be active or fund projects in Europe 3/11

4 2. Does your foundation plan to expand its activities to other Member State(s) in the foreseeable future? If yes, in which form (e.g. foreign foundations, branches, subsidiaries, provision of services, export/direct sales of goods, fund raising, grant making)? We constantly expand our activities according to our strategic plans and to wishes of donors (individuals and companies). For examples, through our hosted funds, we do support and make grants to projects and organizations all across Europe. The KBF has several partnerships with other foundations and organizations as it is the best way to operate for the moment. Please indicate to which Member State(s). We are active in most of the member states through projects, grants and partnerships. 3. Please indicate the approximate yearly expenditure of your foundation. 40 million 4. Please indicate whether the purpose of your foundation is (1) public benefit only, (2) mixed public benefit and private or (3) private only. (1) Public benefit only Question 1) Barriers to the cross-border activities/establishment of foundations Q 1.1) The study identifies four categories of civil law barriers/difficulties for the cross-border activities of foundations in Europe (pp ): 1) Recognition of foreign foundations (pp ), 2) Recognition of trusts (p. 107), 3) Cross-border transfer of the Real Seat (pp ), 4) Cross-border transfer of the Registered Seat (pp ). Do you agree with these findings? The KBF does agree with the legal barriers, which are listed in the study concerning existing barriers to the cross-border activities/ establishment of foundations. We insist on the difficulties of cross-border giving, of the different treatments of grants and on the difficulty huge European minded donors face while having to choose where to establish their foundation in Europe. Several donors are abandoning their project due to the difficulties to understand national regulations and to the problems relating with existing barriers. This represents a clear loss of public interest initiatives and supports in Europe. Q 1.2) Do you see any further civil law barriers/difficulties? Please specify. Apart from these legal and administrative burdens, the King Baudouin Foundation wants to stress the following administrative barriers: Administrative burden and cost to foundations of dealing with a diversity of national rules. We have to review national legislations before making some specific grants Administrative burden and cost to foundations of the setting up several branches in other countries, which requires continuous legal advice. 4/11

5 - Partnerships is an alternative but as it is not as easy to find a partner in every country so this is a clear barrier to some initiatives. For example, we cover 14 countries with Transnational giving Europe but are struggling to find partners in other EU countries to extend the advantages of the network to individuals and organisation in the remaining countries. - Again, donors from outside Europe wanting to act in several European countries cannot find their way and are reluctant to open several branches. They would prefer to open one European foundation. Lack of trust in foreign-based foundations. The ability to operate under a foundation form known and recognised in all Member States would be seen as easing EU-wide operations. I would also easy choices for donors to establish foundations and it would help for equivalence tests that since the Persche Case will become a crucial issue for cross-border philanthropy within Europe. Q 1.3) Please rank the civil law barriers in order, starting with the one you find the most important. Difficulty in recognising foreign foundations legal personality recognition procedures exist in several Member States. We are experiencing it in France. Lack of possibility of transfer of seat to another Member State either the real seat or the registered seat and the difficulty to open a local branch. Legal insecurity over national recognition of general interest nature or public benefit status of resident foundations cross-border work. Q 1.4) If you are answering for a foundation, please give concrete examples of the civil law barriers and/or difficulties you have encountered. How do you deal with these barriers/difficulties? Have they influenced your plans to conduct cross-border activities? The KBF had to look for partners or to take advice in some circumstances. Q 1.5) If you are answering for a foundation and have tried to transfer your real or registered seat cross-border, have you experienced any problems? Please specify your reasons for wanting to transfer the seat and the problems experienced, if any. Although we have several activities across Europe, we have never tried to transfer our seat in another country. Due to needs of some of our donors we have registered the KBF in the Netherlands and we are in the process of being recognised as equivalent to a French foundation to be able to accept a legacy from a French resident. Q 1.6) The study identifies eight categories of tax law barriers/difficulties for the crossborder activities of foundations in Europe (pp ): 1) Income taxation of foreign foundations (pp ), 2) Income taxation of domestic foundations operating abroad (pp ), 3) Income taxation of domestic donors of foreign foundations (p. 116), 4) Income taxation of foreign donors of domestic foundations (p. 117), 5) Income taxation of foreign donors of foreign foundations (pp ), 6) Income taxation of affiliated beneficiaries (p. 118), 7) Inheritance taxation (pp ), 8) Further taxes (pp ). Do you agree with these findings? If not, please explain why. 5/11

6 The KBF does agree with the findings of the study and stresses the unequal treatment of national and cross-border giving. There are three clear infringements of the fundamental freedoms of the EC treaty, especially freedom of establishment and free movement of capital on following three issues : no tax incentives for donations to charities established in other Member States higher inheritance or gift tax for legacies and gifts to charities in other Member States and higher taxation of foreign-sourced income of charities Progresses have been booked in some countries but cross-border philanthropy is still very difficult in Europe. Please check our dedicated website on this and Q 1.7) Do you see any further tax law barriers/difficulties? Please specify. No Q 1.8) Please rank the tax law barriers in order, starting with the one you find the most important? Major tax barriers are as follows: no tax incentives for donations to public benefit foundations established in other Member States higher inheritance or gift tax for legacies and gifts to charities in other Member States higher taxation of foreign-sourced income of public benefit foundations Q 1.9) If you are answering for a foundation, please give concrete examples of the tax law barriers and/or difficulties you have encountered. How do you deal with these barriers/difficulties? Have they influenced your plans to conduct cross-border activities? May we use the TGE example, The Transnational Giving Europe network is a private initiative that facilitates cross-border philanthropy : The European population is more mobile and there is a growing dispersal of property. Donors wish to implement their philanthropy at an earlier age and have a growing interest in causes that go beyond national borders. As a result, European citizens are willing to make cross-border gifts, donations or legacies to help international causes and foreign charities but often face a complicated legal and fiscal framework as well as national barriers since this matter remains largely outside the scope of European treaties. More and more are using Transnational giving Europe as the only alternative to this situation. Figures for the Transnational Giving Europe network are in a steady progression. Figures will grow again in 2008 over 3,2 million transferred with the help of TGE (versus in 2006 and 2 Million in 2007). This trend will certainly continue with a growing number of beneficiaries and donors across Europe being informed by the TGE possibility. We also see that both our foundation as well as others have cross-border investments (foreign sourced income) and are therefore taxed at a higher lever than local organisations in most Member States. 6/11

7 And that it is difficult to attract foreign donors/funders from different Member States because of the lack of tax deductibility of cross-border donations and the less favourable gift-and inheritance tax treatment. Registration is not always an easy process and it takes time and means. Q 1.10) Do you consider the civil law barriers or the tax law barriers more important? Both civil law and tax barriers are important. Current judicial rulings and infringement procedures focus on tax problems while the European Foundation Statute would offer an appropriate tool for cross-border cooperation free of red tape. Q 1.11) Why do foundations set up additional organisations/structures in other Member States in your view? To avoid barriers. Foundations set up branches in other Member States for policy, managerial as well as legal and fiscal reasons. Because foreign foundations are either not equally treated in certain circumstances, not legally recognized or they lack the trust of citizens/companies/authorities in the other Member States, foundations have decided to set up additional legal structures. Q 1.12) The study seems to identify tax barriers as the main reason for foundations setting up additional organisations/structures in other Member States (p. 122). Do you agree with this finding? If not, what do you think is the main reason for foundations setting up additional structures/organisations in other Member States? Tax barriers are clearly a very important reason to set up branches in different Member States where they have donors or where they want to set up public initiatives. Question 2) What solutions would be most appropriate Q 2.1) The study assesses five different options to deal with the barriers/difficulties identified. The options assessed are (p ): 1) Status quo combined with soft law instruments 2) Harmonization 3) Bilateral or multilateral treaties 4) A European Foundation Statute without tax elements, and 5) A European Foundation Statute with tax elements What other options for solving the problems do you see if any? The KBF does agree with these different options to solve the problems. Q 2.2) The study suggests that of the above options, the European Foundation Statute seems to be the preferable policy option (p. 1). Do you agree? Why/why not? The KBF does fully agree with the conclusion of the study. The European Foundation Statute is the preferable policy option. Other options would leave foundations and their funders with existing barriers. Harmonisation of foundation laws is neither wanted nor feasible. The Treaty option (bi-lateral or multilateral) is unrealistic as experience shows that not all countries choose to sign such treaties. 7/11

8 Q 2.3) If you do not agree, what do you consider as the preferable policy option? Why? N/A Q 2.4) Would you consider a European Foundation Statute which does not include tax elements (for instance a tax-exempt status in all EU Member States, p.191) as a useful/attractive instrument? Why/why not? Certainly. A European Foundation Statute not including tax elements will enable cross-border work free from red tape and will improve grant-making and operations in the EU Member states for those foundations and donors that are willing to do so. It will help non European donors to establish foundations in Europe. Also for staff, partners and beneficiaries of foundations, working for, partnering with or being supported by a European foundation is different than working for a national foundation. As en example, since our board has decided that the KBF should become an European foundation in Belgium instead of a Belgian foundation in Europe, all staff and partners have experienced a European vision and we did implement several European projects. A European statute would definitively have that side effect as well.. It will also facilitate the equivalence tests that will gain importance due to the Persche judgement. Of course, including tax elements would also be relevant if they improve equal treatment of national and European foundations. Q 2.5) Do you believe that an accreditation system (pp ) could be a proportionate solution to the problems for cross-border activities that foundations face today? Why/why not? We do not believe that information campaigns or soft law approaches such as codes of conduct or accreditation models could reduce costs. Such approaches would in the case of cross-border operations not provide the necessary legal certainty. Q 2.6) What added value do you think a "European label" (obtained for instance through a European legal form like the European Foundation) would bring for the foundations? The European label that such a European legal form would imply, would: help foundations and their donors to extend their cross-border work and cooperation. increase the trust into foundations. set a benchmark in terms of accountability, transparency and good governance. help clarify the concept of foundation and provide a common definition of public benefit purpose foundations across the EU. Improve the equivalence test when required. Q 2.7) In your view, the benefits attached to a "European label" for foundations: Can only be achieved through a specific European legal form (European Foundation Statute) Can be achieved through an accreditation system 8/11

9 Can already be achieved through national foundations (e.g. through their names, statutes, marketing) Can be achieved through other means, which ones? We do not believe that a European label could be achieved by other means than a European Foundation Statute. An accreditation system or any other soft law system would in the case of crossborder operations not provide the necessary legal certainty. Question 3) Content and form of a possible statute for a European Foundation Q 3.1) According to the study the European Foundation should have the following five main characteristics (p.194): 1) Legal personality 2) Promotion of a public benefit purpose 3) No membership 4) State supervision, and 5) Establishment by registration Do you agree that a European Foundation should have these five characteristics? If not, please explain why. Yes, the KBF supports these five basic elements outlined by the feasibility study. Q 3.2) How detailed should the European Foundation Statute be? Should it be as comprehensive as possible (as is the case for the Commission proposal for a European Private Company Statute) or should it only contain basic rules and refer to national laws on other issues (as is the case for the European Company Statute) (pp )? We are of the opinion that the statute should be comprehensive as regards most aspects of foundation law and should only refer to national law in as few legal fields as possible (e.g., labour law, insolvency law). Q 3.3) Should an initial endowment be required (p. 199)? If yes, how large an endowment should be required? We are of the opinion that a certain minimum amount of capital could indeed be a sign of the seriousness of the purpose of the European Foundation, and could strengthen trust in a European Foundation. Such a minimum capital should however not prevent smaller initiatives to start operations. Q 3.4) What should be the rule on economic activities by the European Foundation itself (p. 204)? We believe that a European Foundation of general interest should be able to undertake economic activities either directly or through another legal entity provided that any income or surpluses are clearly and directly used in pursuance of its public benefit purposes. Q 3.5) How should the supervision of a European Foundation be arranged (pp )? A European state supervisory authority would be able to acquire a good reputation and could develop a uniform standard in its supervisory practice. Alternatively, the oversight over European Foundations could be delegated to the national level. Q 3.6) On what conditions should an existing foundation be able to transform itself into a European Foundation (p 184)? Most likely the process would be similar to the merger of existing national foundations or the conversion/transformation of foundations to other types of public benefit entities or the amendment of statutes. 9/11

10 Q 3.7) If you think that the European Foundation should have other characteristics, please specify which ones. There are good arguments in favour of a European dimension: a mere national foundation will not carry out cross-border activities and therefore does not need a European legal form which aims to overcome barriers to cross-border activities. With regard to governance, the I am of the opinion that clear basic governance requirements should be drafted for the European Foundation, which could serve as a benchmark for the whole foundation sector in Europe and beyond. It should then be up to the founder/the board to structure details of internal governance rules in the bylaws of the EF. Question 4) Potential transformation of existing foundations into a European Foundation If a European Foundation Statute were introduced, the possibility of transforming existing foundations into a European Foundation would seem to depend on several factors e.g. the statutes of the foundation ("will of the founder"), the agreement of the board of the foundation, the approval of the supervisory authority, the scope of cross-border activities and existing barriers, as well as on the content of a possible European Foundation Statute (p.184). Q 4.1) If you are answering for a foundation, would you consider transforming your foundation into a European Foundation if possible? Yes, we would directly transforming our Foundation into a European foundation. Q 4.2) On what criteria would the decision of the board depend? According to our current activities and the added value that the European foundation statute will/would provide. Q 4.3) What do you think the benefits and drawbacks of a transformation in the case of your foundation would be? The administrative efforts to undergo such a transformation would not be an issue because it would help the KBF. To extend European activities To advise donors, families and organisation outside of Europe to implement a European foundations that would perfectly match their needs. It would facilitate the equivalence test in case of legacy or donation to the KBF from a donor resident in another EU Member state. A uniform and flexible structure, which would be recognised in all Member States An appropriate tool for cooperation with partners also from other Member States More trust and recognition by partners and funders/co-funders Q 4.4) Would the possibility to transform itself into a European Foundation be decisive in order for your foundation to expand its activities to other Member States? Why/why not? Yes, such a transformation would go hand in hand to continue to expand activities to other Member States and to advice European minded donors to do the same 10/11

11 Q 4.5) In case your foundation already operates cross-border, would this possibility lead to a substantial increase of cross-border activities? Certainly. Question 5) Any other comments I have no other comments. 11/11