This week I was fortunate to be able to discuss the legal barriers to cross-border philanthropy in Europe with many of the academics and practitioners who are most experienced in dealing with this issue. I came away with a new appreciation of both this issue’s complexity and the dedication of those seeking to address it. For someone from outside Europe, it was also an opportunity to see how the debates about the future of Europe play out in this important area.
One thing that surprised me was the extent to which people are concerned about the inability of the Member States to agree on a European Foundation Statute. In the United States, charities that work in other countries routinely have to create new, domestic entities in those countries to carry on their philanthropic activities. While the burden of doing so is not trivial, it is not usually perceived to be a major barrier. But what I came to understand this week is how frustrating it is to have rules implementing a single market for for-profit activities while nonprofit, philanthropic activities lack any comparable system.
At the same time, it seemed that tax issues are more significant because of their high financial cost. This impression was confirmed by the lengths to which affected parties have gone to litigate tax issues, and the importance of the ECJ decisions that have applied the non-discrimination principle to both foundations and donors when it comes to tax exemption and other tax benefits. I also came to appreciate the tension between these decisions and the retention by individual European nations of their sovereignty when it comes to tax matters. Indeed, this tension is one facet of the broader, ongoing debates over the extent to which Europe should be united, including with respect to legal matters.
Finally, it would be unwise to ignore new laws seeking to discourage cross-border philanthropy in Europe. Indeed, what initially stirred my interest in these topics was the perception that there is increasingly a ‘closing space’ for civil society organizations engaged in cross-border activities. This global phenomenon has fortunately mostly not made its way to Europe, although there have been laws proposed, and sometimes enacted, that target these activities in Hungary, the Netherlands, Poland, Romania, Spain, and the UK. What is different in Europe is that there appear to be viable legal channels for challenging these laws, including through the ECJ and the European Court of Human Rights. But this week’s discussion made clear that it cannot be assumed that these laws will not emerge in Europe.
Overall, the discussion highlighted how complex these issues are in Europe, especially since they reflect the larger division over the extent of European integration and union. While neither the supporters nor opponents of integration and union appear to have enabling or hindering cross-border philanthropy high on their agendas, their views and efforts have collateral effects on cross-border activities of all types, including philanthropy. It should not be surprising that something as fundamental as seeking to provide public benefit through private efforts should be affected by this larger debate, but the discussion in which I participated was a helpful reminder that the legal barriers to cross-border philanthropy in Europe do not arise in a vacuum. Addressing them therefore requires diligence, creativity, and an appreciation of the larger political context. What gives me hope is that the participants in the discussion, and the organizations they represented, have all of these characteristics. It is their efforts that have led to growing support for philanthropy in Europe, including across borders, as demonstrated most recently by the European Philanthropy Manifesto and the European Economic and Social Committee’s opinion on ‘European philanthropy: an untapped potential’. I am therefore encouraged by these efforts, which will help ensure philanthropy continues to flourish both in Europe and globally.
Lloyd Mayer is Professor of Law at University of Notre Dame Law School
Legal barriers to cross-border philanthropy took place as a pre-conference event at the 9th International Conference of the European Research Network On Philanthropy in Basel. For more see: ernop.eu