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The International Journal of Not-For-Profit Law The International Journal of Not-for-Profit Law Volume 11, Number 1 November 2008 A Quarterly Publication of The International Center for Not-for-Profit Law 1126 16th Street, NW, Suite 400 Washington, DC 20036 (202) 452-8600 www.icnl.org Publisher International Center for Not-for-Profit Law 1126 16th Street, NW, Suite 400 Washington, DC 20036 (202) 452-8600 www.icnl.org Editor: Stephen Bates Senior Editor: Douglas Rutzen Contributing Editor: Stephan Klingelhofer Production Editor: Ivan Gan The International Journal of Not-for-Profit Law, ISSN 1556-5157, is a forum for the discussion of civil society, philanthropy, nongovernmental organizations, and the law, published quarterly by the International Center for Not-for-Profit Law, www.icnl.org . Based in Washington, D.C., the International Center for Not- for-Profit Law promotes an enabling environment for civil society and public participation around the world. Views expressed here do not necessarily reflect those of the International Center for Not-for-Profit Law, its affiliates, or its funders. Except where otherwise noted, all contents copyright 2008 by the International Center for Not-for-Profit Law. The International Journal of Not-for-Profit Law Volume 11, Number 1 November 2008 Letter from the Editor ………………………………….…………………………............ 4 EUROPE A Comparative Overview of Public Benefit Status in Europe David Moore, Katerina Hadzi-Miceva, and Nilda Bullain .................................... 5 Defining “Charity” and “Charitable Purposes” in the United Kingdom Nuzhat Malik …………...........…….................................................................... 36 Charities and Restrictions on Political Activities: Developments by the Charity Commission for England and Wales in Determining the Regulatory Barriers Alison Dunn …….….….….…….….….….……..……..………………............. 51 Financial Reporting in European NPOs: Is Now the Time for a Common Framework? Claudio Travaglini …………...........……............................................................. 67 Why Is the European Foundation Statute Needed? Gerry Salole …………...........……...................................................................... 75 ARTICLE The Development of NGO Support Organizations: The Early Years of the Australian Council for Overseas Aid Patrick Kilby …...........……................................................................................. 84 International Journal of Not-for-Profit Law / vol. 11, no. 1, November 2008 / 4 Letter from the Editor This issue of the International Journal of Not-for-Profit Law features a special section on Europe. First, David Moore, Katerina Hadzi-Miceva, and Nilda Bullain analyze and compare public benefit status in various European countries. Next, Nuzhat Malik discusses the evolution and current state of the United Kingdom’s legal definitions of “charity” and “charitable purposes.” Alison Dunn considers NGO law in the United Kingdom from another angle, by assessing the restrictions on political activities imposed by the Charity Commission for England and Wales. Claudio Travaglini finds common ground in financial reporting requirements in the United Kingdom, Spain, and Italy and speculates on the possibility of a common framework across the European Community. Finally, Gerry Salole explains the importance and ideal operation of a European Foundation Statute. We also feature an article by Patrick Kilby on organizations that provide support to NGOs, in particular the Australian Council for Overseas Aid. For this wide range of perspectives on civil society, we are, as always, grateful to our authors. Stephen Bates Editor International Journal of Not-for-Profit Law [email protected] International Journal of Not-for-Profit Law / vol. 11, no. 1, November 2008 / 5 Europe A Comparative Overview of Public Benefit Status in Europe ∗ David Moore, Katerina Hadzi-Miceva, and Nilda Bullain ∗∗ I. INTRODUCTION The legal framework for civil society organizations (CSOs) 1 typically permits organizations to be created in different forms to pursue any legitimate aim, including both private benefit and public benefit aims. In most countries, however, the state does not want to extend benefits to all CSOs indiscriminately; instead, the state typically extends benefits to a subset of these organizations, based on their purposes and activities. In return it requires a higher level of governance and accountability for these organizations. By providing benefits, the state seeks to promote certain designated activities, usually related to the common good. CSOs pursuing such activities are given many different labels, including “charities” and “public benefit organizations.” Moreover, in some countries, there may be no explicit status defined in the law, but certain purposes and activities are nonetheless linked to state benefits (tax benefits, state grants etc.). In this article, we use the term “public benefit” to refer to this special status – however described in the national context – and the term “public benefit organization” (or PBO) to refer to organizations legally recognized as having this status. The practice of distinguishing PBOs from those that are established for private interest and facilitating their activities is deeply rooted in European society. Codification of the common law system dates back to 1601 and the English Statute of Charitable Uses, whose purpose was to enumerate charitable causes and to eliminate abuse. Over time, the notion of public benefit was expanded beyond the relief of poverty to include caring for the sick, training of apprentices, building of bridges, maintaining roads and other related purposes. In the civil law tradition, foundations – which were dedicated to a public benefit purpose – existed in Europe in the fifth century BC. Today, most civil law countries extend tax preferences to both foundations and associations, contingent upon public benefit purposes. ∗ David Moore is Program Director of the European Center for Not-for-Profit Law (ECNL), where Katerina Hadzi- Miceva is Legal Advisor and Nilda Bullain is Executive Director. The first version of this article was prepared and published in 2005 by ECNL, the National Foundation for Civil Society Development in cooperation with the Academy for Institutional Development with the support of the United States Agency for International Cooperation/Croatia. The first version of this article was also published by the International Center for Not-for- Profit Law (ICNL) in 2005 in “Selected Procedures for Granting Charitable, Public Benefit, and Tax-Exempt Status Around the World” with the support of United States Agency for International Development, Save the Children, and the Institute of Urban Economics, Moscow. The current revised and updated version of the article is prepared by ECNL for the Macedonian Center for International Cooperation (MCIC). 1 The term CSO in this article will refer to associations, foundations and non-profit companies. The article will also refer to other entities country specific laws give them the right to obtain PBO status. 5 International Journal of Not-for-Profit Law / vol. 11, no. 1, November 2008 / 6 This article seeks to present an overview of European practices for regulating organizations with public benefit status. 2 In analyzing the status, we will focus on the (1) characteristics and rationale, (2) regulatory approaches; (3) criteria; (4) decision-making authority; (5) procedures and conditions for certification/registration; (6) state benefits; and (7) obligations of PBOs, supervision and accountability issues. II. CONCEPT AND RATIONALE In most continental European countries, recognizing a certain organization to be of “public benefit” indicates that the organization has obtained a “status” and not that it has been registered as a separate legal form. Public benefit status is granted after the organization has been registered as a legal entity (most commonly in the form of an association or a foundation). 3 If the public benefit organization ceases to fulfill the conditions for having this status, it would lose the status and the benefits associated with it, but it could still continue to operate. 4 Public benefit status is generally considered to be voluntary . Having public benefit status might be required to obtain certain benefits, but its existence in the legal framework generally does not inhibit the right of individuals to establish an organization for private purposes and does not prevent an organization to operate without having such status, even if it is established for public benefit purposes. 5 The approach to public benefit is different in the United Kingdom, in that all organizations with exclusively public benefit purposes are considered “charities.” 6 In England and Wales, those charities with income above 5,000 British pounds are required to register with the Charity Commission for England and Wales (with some small exceptions). Those with income below 5,000 British pounds may voluntarily choose to register. In Scotland they are registered with the Office of the Scottish Charity Regulator. Charities based in Northern Ireland do not, and indeed cannot, register; they need to apply to the Inland Revenue to obtain a charitable status for tax purposes. 2 All laws in this cited in this article can be found in ICNL’s online library: www.icnl.org 3 Depending on the legal framework, an organization can apply for public benefit status at the same time when it submits the documents for registration as a legal entity, and it will obtain the status once registration
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