Philanthropy in Europe
By Dr. Volker Then
Every nation in Europe has some legal form of foundation or a functional equivalent thereof. Despite sharing common historical roots, foundation law has developed very differently from one country to the next. This holds true both for legal norms and for the function of foundations in society.
The Netherlands occupies one end of the spectrum, with liberal legislation allowing anyone to start a foundation for any legal purpose with no minimum capital and little state regulation, while, at the same time, pursuing more or less any form of economic activity. With its strict regulations, France represents the other end of the spectrum. In France, foundations must have a purpose that serves the common good and significant minimum capital of at least €762,000. In addition, foundations are closely monitored by state authorities.
The different legal forms foundations can take throughout Europe can be grouped into four main areas: by their orientation toward objectives that benefit the common good; by whether they are a legal entity in their own right; by limitations placed on economic activities; and by whether multiple legal forms exist within each country for setting up a foundations.
Under these conditions, harmonizing laws across Europe that govern foundations and foundation taxes hardly seems desirable, since any attempt at harmonization under existing conditions would lead to restrictions in at least a few EU countries. This would clearly conflict with the goal of promoting civic engagement independent of the state. Nevertheless, the Bertelsmann Stiftung is calling for a common legal framework for philanthropic activities in Europe for several reasons:
- A growing number of donors have wealth located in several EU member states, thanks to the integrated European economy. They want their funds to serve the common good in a number of countries and need a legal form to enable them to do it.
- Companies active on an international or even global level are looking for an organizational form that will allow them to assume their social responsibilities for the entire European market.
- More than ever before, foundations are tackling issues that span national borders, issues that require an efficient organizational form.
- Organizations at the European level that are active in the areas of culture, science, research and societal issues need a legal form that is recognized in every EU member state.
- Workarounds, such as creating several legal entities in different countries as “friends-of” organizations, are inefficient and reduce the amount of funding that could be dedicated to benefiting the common good.
- Within the EU, capital, labor, goods and services can generally move freely across borders, something that is not generally true for resources related to philanthropic activities.
For this reason, the creation of a “European foundation” (Fundatio Europaea) as a legal entity has been proposed, an option that should stand alongside those legal forms already existent in each country. For tax purposes, moreover, it should be accorded standard nonprofit status.