1. Releasing philanthropic potential
Constraints and opportunities in the operating environment

2. Hanna Surmatz and James Magowan
EFC / DAFNE STUDY
Hanna Surmatz and James Magowan
Member concerns over closing space
Scoping Study
Academic research
Practical applications / advocacy agenda
DAFNE member evidence
EFC knowledge / expertise
Evidence based policy making

3. Releasing philanthropic potential
Constraints and opportunities in the operating environment
Dr. oonagh B. breen, sutherland School of law, UCD.

4. How big is the space for philanthropy in Europe?
How is it changing? ?
And what can we do to enlarge it?

5. 1. Differences between civic and philanthropic space
2. Mapping the Existing Legal Infrastructure for Philanthropy
3. Categorising the Tools – regulatory, fiscal and soft law options
4. Unpacking International and National Regulatory Efforts: From FATF to SNRA
5. Talking Tax
6. Soft Law Options
Scoping Study
January – June 2017

6. 1. Differences between Civic and Philanthropic Space
“The enabling environment for donors who wish to use private wealth for the public benefit free from undue political interference or legal/administrative obstruction”
The focus is on institutional philanthropy
“Independent, separately constituted bodies with their own established and reliable source of income, usually but not exclusively from an endowment, and their own governing board. Set up to distribute financial resources for public benefit purposes either by supporting charities, associations, individuals or by operating their own programmes.” (EFC, 2001)

7. 2. Legal Infrastructural Challenges of Regulating for European Philanthropy
Lack of
Treaty Basis
Without firm legal foundations, any legal structure
you build will fall through the cracks . . .
Problems getting EU Council Unanimity
Multiple Failures to pass enabling EU legislation

8. 2. Legal Infrastructural Challenges of Regulating for European Philanthropy
Problems in Europe but responses directed at external relations
Stauffer, Hein Persche, Missionwerk
Free Movement of Capital
Non-Discrimination Principle

9. Possibilities under consideration . . .
Alternative legal bases to Article 352 for promulgating EU legislation
Commission Framework to strengthen the Rule of Law
Council Rule of Law Dialogue
The political influence of the Venice Commission
Council of Europe Expert Council on NGO Law

10. Making Sense of the Enabling Space for Philanthropy in Europe
1. Regulations
2. Fiscal Measures
3. Soft Law &
Administrative
Guidance

11. 1a. Regulatory Efforts – FATF & EU SNRA
FATF Recommendation 8 implementation
EU Supra national risk assessment
Required under 4 AMLD “assessment of risks of ML and TF affecting internal market and cross border activities”
Commission Report due in June with recommendations to Member States
Risk based approach – 2016 Action Plan.
2017 Road map for SNRA implementation
Commission consultations with Civil society in Feb and Nov 2016 and March
Revised Typologies Report (2014) , BPP (2015) and significant revision of R8 (2016);
Involvement of Nonprofit Platform in FATF Consultation processes;
Work of Nonprofit Platform in preparing nonprofit sectors to participate in Country Mutual Evaluations (in 2016 regionally and in Denmark, Sweden, and Ireland).

12. Free Movement of Capital?? Post EFS – Remaining Barriers
1b. Regulatory Efforts - National Case Studies
Free Movement of Capital??
Post EFS – Remaining Barriers
Cross Border Transfer of Foundation’s registered seat
Cross Border Merger Issues
New Challenges: Hungarian Restrictions on Foreign Funding: Draft Law on Transparency of Organisations Receiving Support from Abroad

13. FATF SNRA 1c. Regulatory Implications for Philanthropy? Risk ID
“Effectiveness”
Private
Sector Consultative
Forum
SNRA
Risk ID
Risk Mitigation

14. 2. Fiscal Measures
2014
2017
Next Steps?

15. Others? Tax Solutions under consideration . . .
Better training for MS tax staff?
Luxembourg Model – simple certification?
Dutch Model – ABNI registration with Tax Authority?
MS take a common principled approach rather than rule based comparability approach?
Provide greater public information on equal tax principle and its application to cross border philanthropy?
Others?

16. Is Soft Law strong enough to enhance philanthropic space in Europe?
2011
EU Commission Use of Soft Law
re philanthropic institutions?
Comm
Discussion Paper on NP Guidelines
2010
Nonprofit Code of Conduct Framework
2005
SNRA
Report
2017?

17. Foreign Funding Restrictions The role & potential of Self Regulation
Counter Terrorism & Anti-Money Laundering
The role & potential of Self Regulation
Effective Tax Philanthropy
Business Models & Venture Philanthropy – a new way forward?

18. Over to you . . . Current State of Play in the operating environment:
Challenges?
Opportunities?
What is/could be done to improve the philanthropic environment:
Nationally?
At EU level?
What is the priority action that needs to be taken:
by the philanthropic sector?
by policymakers?