European foundation

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The European Foundation (international in Latin also Fundatio Europaea , short FE ) is an idea to create a legal form for cross-border, non-profit foundations in the European Union and in the European Economic Area . The legal form of the foundations should be supranational .

With this legal form, the EU wants ( "FE-Regulation") the creation of Europe-wide non-profit, full of a specific regulation with legal capacity and is capable of action foundations for largely uniform legal principles allow and encourage (see also: European Integration ).

A formal proposal from the European Commission to design the new FE legal form was published in February 2012. After years of negotiations with the European Parliament and the European Council , the European Commission withdrew its proposal in March 2015. The Commission can make a new proposal or review the old proposal. More about the historical development under European Foundation # Background and Development .

Background and development

In 2008 there were around 110,000 non-profit foundations in the EU with estimated assets of 350 to 1,000 billion euros and with spendings of around 83 to 153 billion euros. The foundations employed between 750,000 and 1 million people. Around 2.5 million people volunteer for foundations. In the EU there are "50 different laws in civil and tax law for foundations and numerous complex administrative processes". The laws cause annual consulting costs of around 100 million euros, which “are no longer available for charitable purposes”.

In 2005 the European Foundation Center presented a draft for a “European Foundation Statute”. In 2006, a study of scientists and foundation practitioners followed. In 2007 the European Commission commissioned a feasibility study on the introduction of a European foundation statute. The study was published in 2009. As a result, the study assumes that by “harmonizing” the various foundation laws and / or tax laws in all EU countries, a reduction in annual costs of EUR 138 to 178.7 million is possible. However, this variant was assessed as unrealistic in its implementation and the model of a “European Foundation” with an annual cost saving potential of 91 to 101.7 million euros was proposed instead.

After a public consultation in 2009, further statements followed in 2010 and 2011. An impact assessment process was carried out from October 2010 to 2012. The “Statute for a European Foundation with Automatic Non-Discriminatory Taxation” was selected from four options (“Status Quo”, “Information Campaign”, “Harmonization of Foundation Law” and “European Foundation Statue”). On February 8, 2012, the European Commission's proposal for the design of the new FE legal form was published. After years of negotiations with the European Parliament and the European Council , the European Commission withdrew its proposal in March 2015. The Commission can introduce a new proposal or review the old proposal if it is of the opinion that the political circumstances or conditions for the creation of an FE are more suitable (see Ordinary Legislative Procedure # How the procedure works ).

Importance and advantages of a European foundation

The FE would offer European natural and legal persons the opportunity to appear as a legal entity across Europe. However, certain national differences remained as the FE Regulation refers to national law in certain areas. There will therefore be a certain degree of standardization through the FE regulation, but not completely identical with regard to the individual foundations.

Each FE should also be able to relocate its registered office while maintaining its identity to another Member State, without the need to dissolve in the country of departure or to establish a new one in the country of arrival. This means that, for purely economic reasons, the choice of the seat of the Foundation will be more concentrated in certain Union Member States than in others.

For certain, already existing non-profit institutions, it can play an important role in the future to only deal with one foundation supervisory authority, namely that of the country in which the foundation is based.

Due to the relatively low requirement for the foundation capital of € 25,000, the European Foundation can z. B. as a holding company may also be of interest as a legal form for medium-sized companies (e.g. also to organize company succession more freely with the help of the one- tier system ).

Incorporation and incorporation requirements

According to the draft regulation, the European Foundation should be active in at least two member states or have a corresponding goal in its statutes and have assets of at least € 25,000, whereby the FE's liability should be limited to its assets.

The FE should

  • by a natural person due to death;
  • by a natural or legal person by means of a notarial deed or written declaration;
  • by merging non-profit organizations
  • through a transformation of national non-profit organizations

can be erected. A FE should be able to be set up for an unlimited period of time or, if this is expressly stated in its statutes, for a certain period of at least two years.

Legal basis

European Union

For the European Foundation (FE), according to Art 3 of the draft ordinance, primarily

  • the FE Regulation of the European Union and
  • the internal statutes of the FE are authoritative.

Only in the areas that are not or only partially regulated by the FE regulation or the foundation statutes should the provisions that the Union member states have enacted for the effective application of the FE regulation apply secondarily and tertiary for all other areas, the non-profit Institutions applicable law of the member states of the Union.

In practice, this hierarchy of norms provided for in the draft regulation means that the internal statutes of a KAU take precedence over the laws of the EU member states where the KAU regulation expressly leaves room for maneuver. If the FE regulation or the statutes do not regulate an area or only partially, the law of the respective Union member state also intervenes.

Union member states

In the member states of the Union, one or more laws will probably have to be enacted for certain areas, in which the corresponding regulations will be provided, which have to intervene if the FE regulation or the internal statutes of the foundation do not provide for any regulations or with regard to the tax adjustments, the participation of employees in the decisions of the KAU or the registration of the KAU in the respective Union Member State.

EEA member states

As in the EU member states, the EEA member states Iceland , Liechtenstein and Norway must also enact corresponding regulations.

Switzerland

Switzerland is neither a member of the European Union nor of the European Economic Area. Therefore, according to the previous draft regulation, a European foundation based in Switzerland is not possible. However, Swiss companies can presumably own a European foundation or participate in one through subsidiaries based in the EU or the EEA.

Tax supervision and handling of the FE

Foundation, endowment

European foundations would be assessed according to the tax law of the Union member state in which the FE has its statutory seat. Taxation is to be carried out in the same way as is provided for national non-profit organizations based in this EU member state.

Donor

Persons who give donations to a non-profit European foundation should, according to Draft are treated for tax purposes as if they had given the grant to a national charitable organization in the Member State in which they have their normal place of residence.

Donation to the FE

Donations received by an FE should be taxed in the same way as is provided for by tax law for national charitable foundations in the Union member state in which the donor has his normal place of residence.

Beneficiaries

Donations received by beneficiaries of the FE are to be taxed in the EU member state in which the beneficiaries are domiciled for tax purposes and in the way that tax law also provides for beneficiaries of national charitable foundations.

Foundation supervision

The supervision of the European Foundation should be carried out by the national supervisory authority in which the FE is entered in the relevant register.

The national FE foundation supervisory authorities should work closely together (and also the national tax authorities).

Organizational structure of the FE

The FE consists of at least:

  • the board of directors , sometimes also referred to as the foundation board.

The FE can have the following bodies:

If a European Foundation and its branches within the European Union employ a total of at least 50 employees and at least 10 employees in each of at least two member states, it is provided that the FE has to set up a European works council .

An auditor must be commissioned to audit the annual financial statements, but he is not a body of the FE, unless the statutes expressly provide this.

Economic activities of the FE

The European Foundation should in principle be able to carry out any economic activity, provided that at least 90% of the profits from this activity serve the charitable purpose of the Foundation. The FE's statutes should be able to provide for stricter restrictions in this regard.

The European Foundation can thus also at the forefront of a holding occur any kind of branches / permanent establishments set up and operate and daughter foundations and companies set up and operate.

See also

literature

  • Stefanie Steiner: The European Foundation, perspectives on the standardization of foundation law against the background of selected national regulations. (= European university publications. 5309) Lang Verlag, Frankfurt am Main / Berlin / Bern / Vienna 2012, ISBN 978-3-631-63650-3 .
  • Jung, Stefanie / Krebs, Peter / Stiegler, Sascha: Company law in Europe. Manual. § 8 Project European Foundation (FE - Fundatio Europaea), Nomos, Baden-Baden 2019, ISBN 978-3-8329-7539-5 .

Web links

Individual evidence

  1. ↑ According to Art. 25 draft ordinance, only one European foundation may and must bear the abbreviation FE .
  2. ↑ see Art 5 draft ordinance.
  3. ↑ see Art 9 draft ordinance.
  4. ↑ See Art. 10 draft regulation.
  5. ↑ a b Feasibility Study on a European Foundation Statute. (PDF; 1.7 MB) Max Planck Institute for Comparative and International Private Law, Center of Social Investment and Investigation (University of Heidelberg), February 12, 2009, accessed on April 5, 2016 (English).
  6. ↑ INTERIM REPORT on the proposal for a Council regulation on the Statute for a European Foundation (FE) - A7-0223 / 2013. European Parliament, June 18, 2013, accessed April 5, 2016 .
  7. ^ A b Dominique Jakob: The European Foundation. (PDF; 108 KB) Pan-European alternative for cross-border foundation activities? (No longer available online.) University of Zurich, March 5, 2013, archived from the original on April 5, 2016 ; Retrieved April 5, 2016 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.rwi.uzh.ch
  8. ↑ See Art 12 ff of the draft regulation.
  9. ↑ see Art 45 f draft ordinance.
  10. ↑ See Art 6 to 8 draft regulation.
  11. ↑ For the minimum content of the statutes, see Art 19 draft ordinance.
  12. ↑ see Art 6 to 8 draft ordinance. According to Art. 26 of the draft regulation, liability before the registration of the FE should be based on the law of the respective Union member state in whose register the FE is or is to be entered.
  13. ↑ See Art 12 no. 1, Art 13 ff draft ordinance.
  14. ↑ See Art 12 no. 2 draft regulation.
  15. ↑ Like all regulations of the European Union , the FE regulation becomes directly applicable law, i. H. it did not have to be transposed separately into national law by the EU member states.
  16. ↑ See z. For example, in Germany the law introducing the European Company (SE Introductory Act) for the European Stock Corporation (SE), ( Federal Law Gazette I p. 3675 , Federal Law Gazette I 2009, p. 2479.
  17. ↑ See e.g. B. for the SE the Liechtenstein SE law of 25 November 2005 [1] .
  18. ↑ See Art 49 Draft Ordinance.
  19. ↑ See Art 50 no. 1 draft ordinance.
  20. ↑ See Art 50 no. 2 draft regulation.
  21. ↑ See Art. 51 draft ordinance.
  22. ↑ See Art 45 f draft ordinance.
  23. ↑ See Art 47 draft ordinance.
  24. ↑ See Art 48 Draft Ordinance.
  25. ↑ See Art. 27 ff draft ordinance, at least three members and an uneven number of board members.
  26. ↑ See Art. 30 draft ordinance. The executive board can take over the management of the FE on its own responsibility ( monistic system ), but must appoint one or more responsible managing directors. These can either come from the group of board members (internal managing directors) or they are external persons who do not belong to the foundation's board of directors (external managing directors).
  27. ↑ See Art 31 draft ordinance. According to Art. 32 Draft Ordinance, nobody may be a member of the Management Board and the Supervisory Board at the same time. The founder (s) of the foundation must therefore opt for a dualistic system or a monistic system in the statutes .
  28. ↑ See Art 31 draft ordinance.
  29. ↑ See Art 38 Draft Ordinance. Whether the Council Directive 2001/86 / EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, OJ. No. L-294 of November 10, 2001, pp. 22–32, to which foundations will also apply or to which a separate guideline will be issued, has not yet been clarified.
  30. ↑ See Art 34 Zif. 5 Draft Ordinance.
  31. ↑ See Art. 11 draft regulation.