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European Parliament resolution of 2 July 2013 on the proposal for a Council regulation on the Statute for a European Foundation (FE) (COM(2012)0035 — 2012/0022(APP))

OJ C 75, 26.2.2016, p. 11–23 (BG, ES, CS, DA, DE, ET, EL, EN, FR, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

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Official Journal

26.2.2016

Official Journal of the European Union

C 75/11

P7_TA(2013)0293

Statute for a European Foundation

European Parliament resolution of 2 July 2013 on the proposal for a Council regulation on the Statute for a European Foundation (FE) (COM(2012)0035 — 2012/0022(APP))

(2016/C 075/03)

The European Parliament,

—	having regard to the proposal for a Council regulation (COM(2012)0035),

—	having regard to the Commission’s impact assessment accompanying its proposal for a Council regulation on the Statute for a European Foundation (FE),

—	having regard to the Declaration of the European Parliament of 10 March 2011 on establishing European statutes for mutual societies, associations and foundations (1),

—	having regard to the feasibility study on the introduction of a Statute for a European Foundation carried out in 2008 by the Max Planck Institute for Comparative and International Private Law and the University of Heidelberg,

—	having regard to the judgments of the European Court of Justice in Cases C-386/04, Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften (2), C-318/07, Hein Persche v Finanzamt Lüdenscheid (3) and C-25/10, Missionswerk Werner Heukelbach eV v Belgian State (4),

—	having regard to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (European Citizenship) (5),

—	having regard to the opinion of the Economic and Social Committee of 18 September 2012 (6),

—	having regard to the opinion of the Committee of the Regions of 29 November 2012 (7),

—	having regard to Rule 81(3) of its Rules of Procedure,

—	having regard to the interim report of the Committee on Legal Affairs and the opinion of the Committee on Culture and Education (A7-0223/2013),

A.	whereas there are more than 110 000 foundations with a public benefit purpose in the Union, with estimated combined assets of approximately EUR 350 billion, spending a total of approximately EUR 83 billion and employing between 750 000 and 1 000 000 European citizens;

B.	whereas, however, a proportion of the staff of foundations are volunteers who are not paid for their time;

whereas the existence and activities of foundations operating in the Union for the public good are crucial in the fields of education, training, research, social and health provision, historical memory and reconciliation between peoples, protection of the environment, youth and sport, as well as arts and culture, and whereas many of their projects have an impact far beyond national borders;

whereas, in civil law and tax law throughout the Union, there are more than 50 different pieces of legislation applicable to foundations, as well as a host of complicated administrative procedures, which give rise annually to advisory costs estimated to amount to as much as EUR 100 million — money that thus becomes unavailable for public benefit purposes;

E.	whereas legal, tax-related and administrative barriers, which give rise to expensive and lengthy procedures, as well as a lack of appropriate legal instruments, mean that foundations refuse, or find it difficult, to embark on or develop activities in another Member State;

F.	whereas, in a time of tight national budgets, particularly for cultural and artistic activities, education and sport, the financial and social commitment of foundations is essential, although they can only complement, and cannot replace, the state in the pursuit of public benefit purposes;

whereas, with regard to taxation, it is not tax-law harmonisation that is being proposed, but rather application of the rule of non-discrimination, under which, automatically and as a matter of principle, European foundations and their donors are subject to tax provisions and advantages that are identical to those that apply to national entities with a public benefit purpose;

H.	whereas the introduction of a common Statute for a European Foundation could make it much easier for foundations to package and transfer resources, expertise and donations and to pursue their activities throughout the EU;

I.	whereas the European Parliament welcomes the Commission’s proposal as a major step towards making it easier for foundations to support public benefit purposes across the EU;

J.	whereas the proposed statute is an optional European legal form which will be available for foundations and funders with activities in more than one Member State, but will neither replace nor harmonise existing foundation laws;

K.	whereas in times of economic difficulty it is increasingly important that foundations have the right tools to enable them to pursue public benefit purposes at European level and to pool resources, while also reducing costs and legal uncertainties;

L.	whereas it is crucial that European Foundations (FEs) operate on a sustainable and long-term basis and are truly active in at least two Member States, as otherwise their specific status would not be justified;

M.	whereas some of the terminology and definitions in the Commission proposal require clarification;

whereas some additions and adaptations to the Commission proposal appear necessary in order to enhance the trustworthiness and credibility of an FE, for instance as regards compliance with legal and ethical rules, the exclusiveness of the public benefit purpose, the cross-border component, the minimum assets and the need to maintain these in principle throughout the lifetime of the FE, a rule on timely disbursement, the minimum duration, and the payment of remuneration to Members of the governing board or bodies of the FE;

O.	whereas creditor protection and employee protection are crucial and need to be maintained throughout the lifetime of an FE;

whereas, as regards representation of employees, the reference to Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (8) should be strengthened in order to make clear that the procedural rules under that Directive apply; whereas, furthermore, there should be greater sanctions on infringements, for instance by making the registration of an FE conditional on fulfilment of the requirements under Directive 2009/38/EC, in line with Article 11(2) of Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (9); whereas, beyond this, provisions are necessary regarding the involvement of employees in the bodies of an FE, in line with Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees (10), so that the form of an FE cannot be misused for the purpose of depriving employees of rights to employee involvement or withholding such rights;

Q.	whereas a provision regarding the representation of volunteers in the FE is to be welcomed, given that 2,5 million volunteers are active in the sector;

whereas the increasing representation and valuable contribution of volunteers in the work of foundations contribute to the objectives of general interest pursued by them; since, especially, more and more young people have to volunteer in order to collect their first work experience, it may be worthwhile for foundations to consider forms and instruments that will allow them to access the information needed to work in a more effective way, for example through the European Workers Council;

whereas it is necessary to clarify that the registered seat and the central administration of an FE shall be in the same Member State, in order to prevent the dissociation of the registered seat and central administration or principal place of activities, and also in order to facilitate supervision, given that an FE will be supervised by the supervisory authority of the Member State in which it has its registered office;

T.	whereas it should not be the purpose of the FE to finance European political parties;

whereas, concerning taxation, the application of the non-discrimination principle as developed by the European Court of Justice needs to be the starting point; whereas it has been acknowledged by the sector that the proposed approach of granting automatic application of equal tax treatment would increase the attractiveness of the FE statute by considerably reducing the fiscal and administrative burden, making it more than a mere civil law instrument; whereas, however, the approach appears to be very contentious in Council, with Member States being reluctant to allow interference with their domestic tax laws; whereas it therefore appears appropriate not to discard possible alternative scenarios;

V.	whereas it is important that negotiations on this important piece of legislation move forward quickly in order to provide the foundation sector with this new instrument that it is obviously urgently awaited;

Encourages the Member States to use the existing momentum to work for the swift introduction of the Statute on a comprehensive basis, with all guarantees of transparency, so that barriers to foundations’ cross-border work can be dismantled, and new foundations can be set up to meet the needs of the people living in the EU or to work in the public good or further the interests of society; stresses that establishing the Statute would contribute to the implementation of genuine EU citizenship and pave the way for a statute for a European organisation;

Emphasises that the FE should contribute to the development of a truly European culture and identity;

Points out that, while the legal form of the FE would be new, the proposal is that it should be applied through structures that already exist in the Member States;

Welcomes the fact that the Statute lays down minimum standards in terms of transparency, accountability, supervision and use of funds, which can, in turn, serve both citizens and donors as a form of quality label and thereby secure confidence in FEs and prompt the development of their EU activities for the benefit of all citizens;

Highlights the potential offered by foundations in providing jobs for young people, among whom unemployment is reaching alarming levels;

Calls for the regulation to stipulate that the Member State with financial authority over the foundation shall be responsible for ensuring that it is, in practice, managed strictly in accordance with its statute;

Notes that the possibility of merging existing FEs has not yet been established;

Notes that, in order to underpin confidence in FEs, the sustainability, seriousness and viability of foundations, as well as the effectiveness of their supervision, must be core criteria and, with this in mind, requests the Council to take into account the following recommendations and modifications:

(i)	the minimal level of assets of EUR 25 000 should be maintained throughout the lifetime of the foundation;

(ii)

the existence of an FE in any Member State should be open-ended or, where expressly laid down in its statutes, set for a specified period of time of not less than four years; placing a shorter time limit of not less than two years on it should be permissible only where there is sufficient justification for doing so, and where the foundation’s purpose would thereby be fully safeguarded;

(iii)

amendments to a foundation’s statutes, where the existing statutes have become inappropriate for the functioning of the FE, should be allowed if they are made by its governing board; where the FE has other bodies in accordance with Article 31, these bodies should be involved in the decision on the amendments to the statutes.

(iv)

to avoid conflicts of interest within foundations vis-à-vis bodies independent of the founder, i.e. that do not have a business, family or other relationship with the founder, provision should be made along the lines proposed by the Commission, but it should be recognised that foundations may be set up in a family context, in which a high degree of trust between founder and committee members is a prerequisite, so that the founder knows that the purpose of the foundation will be secure after his or her death;

(v)	the threshold for foundations that are required to have their accounts audited should take into account the total assets, the annual income and the number of employees of that foundation; for foundations under this threshold, an independent examination of the accounts is sufficient;

(vi)	the Statute should provide for information of volunteers; the Statute should also encourage volunteering as a guiding principle;

(vii)

a provision should be added whereby any remuneration paid to members of the governing board or other bodies of the FE is to be reasonable and proportionate; specific criteria should be established to determine the reasonableness and proportionality of the remuneration;

(viii)

as regards the representation of employees, the negotiation procedure which, under Articles 38 and 39 of the proposal, refers only to the information and consultation of employees within the EU, should be extended to cover participation by employees in the bodies of the FE; in parallel with the reference currently made in Articles 38 and 39 of the proposal to the procedures for the establishment of a European Works Council, reference should be made, for the purpose of involvement of employees in the bodies of the FE, to the procedures under Council Directive 2001/86/EC;

(ix)	the provision on representation of employees in Article 38 of the proposal should be maintained; the notion of volunteers and volunteering activities should be further clarified;

(x)	in the interests of effective supervision, the registered office and the administrative headquarters of an FE should be in the Member State in which it is established;

(xi)

the proposal should be limited — as proposed by the sector — to a civil law instrument, while reinforcing — in line with Parliament’s proposal — a number of the core elements of the public benefit concept as found in the Member States, so as to facilitate the recognition of equivalence within Member States;

(xii)

The proposal for a Council regulation should be modified as follows:

Modification 1

Proposal for a regulation

Recital 15 a (new)

Text proposed by the Commission

Modification

(15a)

The members of the governing board should ensure compliance with the obligations set out in this regulation and the statutes, and with all legal and ethical rules of conduct relevant to the FE. To that end they should devise organisational structures and internal measures to prevent and detect breaches of the rules.

Modification 2

Proposal for a regulation

Recital 18

Text proposed by the Commission

Modification

(18)	In order to enable the FE to reap the full benefits of the single market, it should be able to transfer its registered office from one Member State to another.

(18)	In order to enable the FE to reap the full benefits of the single market, it should be able to transfer its registered seat from one Member State to another.

(This modification applies throughout the text.)

Modification 3

Proposal for a regulation

Article 2 — point 1

Text proposed by the Commission

Modification

(1)	‘assets’ means any tangible or intangible resource capable of being owned or controlled to produce value;

(1)	‘assets’ means any tangible or intangible resource capable of being owned or controlled to produce economic and/or social value;

Modification 4

Proposal for a regulation

Article 2 — point 2

Text proposed by the Commission

Modification

(2)	‘unrelated economic activity’ means an economic activity of the FE, not serving directly the public benefit purpose of the public benefit purpose entity;

(2)	‘unrelated economic activity’ means an economic activity, excluding normal asset administration such as investment in bonds, shares or real estate, of the FE, not serving directly the public benefit purpose of the public benefit purpose entity;

Modification 5

Proposal for a regulation

Article 2 — point 5

Text proposed by the Commission

Modification

(5)	‘public benefit purpose entity’ means a foundation with a public benefit purpose and/or similar public benefit purpose corporate body without membership formed in accordance with the law of one of the Member States;

(5)	‘public benefit purpose entity’ means a foundation with an exclusively public- benefit purpose and/or similar public- benefit purpose corporate body without membership formed in accordance with the law of one of the Member States;

Modification 6

Proposal for a regulation

Article 4 — paragraph 2 — point b a (new)

Text proposed by the Commission

Modification

(ba)	the names of the managing directors appointed in accordance with Article 30;

Modification 9

Proposal for a regulation

Article 5 — paragraph 2 — subparagraph 2 — introductory wording

Text proposed by the Commission	Modification
It may be created only for the following purposes, to which its assets shall be irrevocably dedicated:	It may be created only for one or more of the following purposes, to which its assets shall be irrevocably dedicated:

Modification 7

Proposal for a regulation

Article 5 — paragraph 2 — subparagraph 2 — point s a (new)

Text proposed by the Commission

Modification

(sa)	support for victims of terrorism and violence;

Modification 8

Proposal for a regulation

Article 5 — paragraph 2 — subparagraph 2 — point s b (new)

Text proposed by the Commission

Modification

(sb)	promotion of interreligious dialogue.

Modification 10

Proposal for a regulation

Article 5 — paragraph 2 a (new)

Text proposed by the Commission	Modification
	2a. The FE shall not benefit any person through disproportionate compensation or through expenses that are not in pursuance of the public benefit purpose. The FE does not fulfil its public benefit purpose if it only serves the benefit of a limited number of individuals.

Modification 11

Proposal for a regulation

Article 6

Text proposed by the Commission

Modification

At the time of registration, the FE shall have activities or a statutory objective of carrying out activities in at least two Member States.

The FE shall have activities or at least a statutory objective of carrying out activities in at least two Member States. If, at the time of registration, the FE merely has a statutory objective of carrying out activities in at least two Member States, it must convincingly demonstrate at that time that within two years it will carry out activities in at least two Member States. This time limit shall not apply where it appears justified and proportionate, with a view to pursuing its purpose, for the FE to take up its activity later. At any rate the FE shall be required to begin and maintain activities in at least two Member States during its lifetime.

Modification 12

Proposal for a regulation

Article 7 — paragraph 2

Text proposed by the Commission	Modification
2. The FE shall have assets equivalent to at least EUR 25 000.	2. The FE shall have assets equivalent to at least EUR 25 000. It shall maintain these minimum assets throughout its lifetime unless it has been established for a specified period of time under Article 12(2) .

Modification 13

Proposal for a regulation

Article 7 — paragraph 2 — subparagraph 1 a (new)

Text proposed by the Commission	Modification
	The FE shall spend 70 % of the income received in a financial year within the following four years, unless a specific project is identified in the statutes which will be executed in the following six years.

Modification 14

Proposal for a regulation

Article 12 — paragraph 2

Text proposed by the Commission	Modification
2. The FE shall be set up for an indefinite period of time or, where expressly laid down in its statutes, for a specified period of time of not less than two years.	2. The FE shall be set up for an indefinite period of time or, where expressly laid down in its statutes, for a specified period of time of not less than four years. In cases where a limited period of time is appropriate to achieving the objectives of the FE and this is reasonably justified, the FE may be set up for a period of time of not less than two years.

Modification 15

Proposal for a regulation

Article 15 — paragraph 2 — point d a (new)

Text proposed by the Commission

Modification

(da)	information on the procedures whereby arrangements for employee involvement are determined pursuant to Directive 2009/38/EC.

Modification 16

Proposal for a regulation

Article 15 — paragraph 3

Text proposed by the Commission

Modification

3. Each competent authority shall treat the request for a merger in accordance with the same procedures and principles as if it had been a request for a merger resulting in a national public benefit purpose entity. The responsible authority shall refuse the request for a cross-border merger mandatorily and exclusively on the grounds that the documents referred to in paragraph 2 are not in conformity with this Regulation or that the rights of creditors and employees are not sufficiently protected.

Modification 17

Proposal for a regulation

Article 17 — paragraph 1

Text proposed by the Commission	Modification
1. The FE may be formed by conversion of a public benefit purpose entity legally established in a Member State, provided that it is permitted under the statutes of the converting entity .	1. The FE may be formed by conversion of a public benefit purpose entity legally established in a Member State, provided that this is not specifically prohibited under the statutes and does not contradict the wishes of the founder .

Modification 18

Proposal for a regulation

Article 18 — paragraph 3

Text proposed by the Commission

Modification

3. The competent authority shall treat the request for conversion in accordance with the same procedures and principles as if it had been a request to amend the statutes of the public benefit purpose entity. The responsible authority shall refuse the request for conversion mandatorily and exclusively on the grounds that the documents referred to in paragraph 2 are not in conformity with this regulation or that the rights of creditors and employees are not sufficiently protected.

Modification 19

Proposal for a regulation

Article 20 — paragraph 1

Text proposed by the Commission	Modification
1. Where the existing statutes have become inappropriate for the functioning of the FE the governing board may decide on amendment to the statutes.	1. Where the existing statutes have become inappropriate for the functioning of the FE the governing board may decide on amendment to the statutes. Where the FE has other bodies in accordance with Article 31, these bodies must be involved in the decision on the amendments to the statutes.

Modification 20

Proposal for a regulation

Article 23 — paragraph 1 — subparagraph 1 — point g

Text proposed by the Commission

Modification

(g)	the names, purposes and addresses of founding organisations where these are legal entities, or similar relevant information as regards public bodies;

(g)	the full names and addresses of the founders where these are natural persons; the names, purposes and company seat of founding organisations where these are legal entities, or similar relevant information as regards public bodies;

Modification 21

Proposal for a regulation

Article 23 — paragraph 2 a (new)

Text proposed by the Commission	Modification
	2a. An FE cannot be registered until it has been shown that it complies with the obligations under Chapter V of this regulation on employee involvement in the FE.

Modification 22

Proposal for a regulation

Article 32 — paragraph 1

Text proposed by the Commission	Modification
1. The founder and any other board members who may have a business, family or other relationship with the founder or with each other, that could create an actual or potential conflict of interest such as to impair his/her judgment, shall not constitute the majority of the governing board.	1. The founder and any other board members who may have a business, family or other relationship with the founder or with each other that could create any conflict of interest such as to impair his/her judgment, shall not constitute the majority of the governing board.

Modification 23

Proposal for a regulation

Article 32 — paragraph 3

Text proposed by the Commission	Modification
3. No benefit , direct or indirect, may be distributed to any founder, governing or supervisory board member, managing director or auditor, nor extended to any person having a business or close family relationship with them, unless it is for the performance of their duties within the FE.	3. No benefit may be distributed to any founder, governing or supervisory board member, managing director or auditor, nor extended to any person having a business or close family relationship with them, unless it is for the performance of their duties within the FE.

Modification 24

Proposal for a regulation

Article 34 — paragraph 2

Text proposed by the Commission	Modification
2. The FE shall draw up and forward to the competent national registry and to the supervisory authority annual accounts and an annual activity report within six months from the end of the financial year.	Does not affect the English text.

Modification 25

Proposal for a regulation

Article 34 — paragraph 4

Text proposed by the Commission

Modification

4. The annual accounts of the FE shall be audited by one or more persons approved to carry out statutory audits in accordance with the national rules adopted pursuant to Directive 2006/43/EC of the European Parliament and of the Council.

(a)	an annual income of EUR 2 million; or

(b)	assets of EUR 200 000; or

(c)	an average of 50 employees during the financial year.

For FEs that do not exceed any of these criteria, an independent examiner may be used instead of an auditor.

Modification 26

Proposal for a regulation

Article 34 — paragraph 5

Text proposed by the Commission	Modification
5. The annual accounts, duly approved by the governing board, together with the opinion submitted by the person responsible for auditing the accounts, and the activity report shall be disclosed.	5. The annual accounts, duly approved by the governing board, together with the activity report, shall be disclosed. The opinion submitted by the person responsible for auditing the accounts shall be disclosed in accordance with the rules of the Member State in which the FE has its registered offices.

Modification 27

Proposal for a regulation

Article 35

Text proposed by the Commission	Modification
The FE shall have its registered office and its central administration or principal place of activities in the European Union.	The registered office of an FE shall be located within the European Union , in the same Member State as its central administration or principal place of activities. While the FE shall have activities in at least two Member States, including relevant activities in the Member State with the registered office and central administration, the FE may also pursue activities outside the EU.

Modification 28

Proposal for a regulation

Article 37 — paragraph 2 — point e a (new)

Text proposed by the Commission

Modification

(ea)	any consequences of the transfer for employee participation.

Modification 29

Proposal for a regulation

Article 37 — paragraph 5 — subparagraph 2

Text proposed by the Commission	Modification
The competent authority of the host Member State can refuse the transfer only on the grounds that the conditions referred to in the previous subparagraph are not met.	The competent authority of the host Member State can refuse the transfer only on the grounds that the conditions referred to in the previous subparagraph are not met ; it shall further refuse the transfer if the rights of creditors and employees are not sufficiently protected .

Modification 30

Proposal for a regulation

Article 38 — paragraph 2 — subparagraphs 1 and 2

Text proposed by the Commission	Modification
The FE with up to 200 employees shall establish a European Works Council on the request of at least 20 of its employees in at least two Member States or representatives of those employees.	The FE shall establish a European Works Council on the request of at least 10 % of its employees in at least two Member States or representatives of those employees.
The FE with more than 200 employees shall establish a European Works Council on the request of at least 10 % of its employees in at least two Member States or representatives of those employees.

Modification 31

Proposal for a regulation

Article 38 — paragraph 2 — subparagraph 3

Text proposed by the Commission	Modification
The national measures on the subsidiary requirements set out in subpoints (a) to (e) of point 1 of Annex I to Directive 2009/38/EC of the European Parliament and of the Council shall apply to the establishment of the European Works Council.	Articles 5 and 6 of Directive 2009/38/EC and the national measures on the subsidiary requirements set out in subpoints (a) to (e) of point 1 of Annex I to Directive 2009/38/EC of the European Parliament and of the Council shall apply to the establishment of the European Works Council.

Modification 32

Proposal for a regulation

Article 38 — paragraph 3

Text proposed by the Commission	Modification
3. Representatives of volunteers engaged in formal volunteering activities in the FE for a sustained period shall be given an observer status in the European Works Council.<BR>The number of such representatives shall be of at least one per Member State in which at least 10 such volunteers are present.	deleted

Modification 33

Proposal for a regulation

Article 44 — paragraph 2

Text proposed by the Commission	Modification
2. Once the creditors of the FE have been paid in full, any remaining assets of the FE shall be transferred to another public benefit purpose entity with a similar public benefit purpose or otherwise used for public benefit purposes as close as possible to those for which the FE was created.	2. Once the creditors of the FE have been paid in full, any remaining assets of the FE shall be transferred to another public benefit purpose entity based in the same Member State in which it is registered, with a similar public benefit purpose, or otherwise used for public benefit purposes as close as possible to those for which the FE was created.

Modification 34

Proposal for a regulation

Article 45

Text proposed by the Commission	Modification
Each Member State shall designate a supervisory authority for the purpose of supervising FEs registered in that Member State and notify the Commission thereof.	Each Member State shall designate one or more authorities of its choice that are responsible for the effective supervision of FEs registered in that Member State and notify the Commission thereof.

Instructs its President to forward this resolution to the Council and the Commission.

(1) OJ C 199 E, 7.7.2012, p. 187.

(2) ECR 2006, p. I-8203.

(3) ECR 2009, p. I-359.

(4) ECR 2011, p. I-497.

(5) OJ L 158, 30.4.2004, p. 77.

(6) OJ C 351, 15.11.2012, p. 57.

(7) OJ C 17, 19.1.2013, p. 81.

(8) OJ L 122, 16.5.2009, p. 28.

(9) OJ L 207, 18.8.2003, p. 1.

(10) OJ L 294, 10.11.2001, p. 22.

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