Foreword
Once again the Non Profit Law Yearbook 2016/2017 collates a number of lectures held at the Hamburger Tage Conference on the law of foundations and non-profit law at the Bucerius Law School on 11 and 12 November 2016. In the first contribution, the written version of the Hamburger Rede, the speech held to open the Hamburger Tage Conference on the law of foundations and non-profit law 2016, Frank Adloff addresses the “Homo donator: Geben zwischen Hierarchie und Solidarität” (Homo donator: Giving between hierarchy and solidarity). Adloff looks into the sociological effects of giving, on the basis of the reflections made by the sociologist and ethnologist Marcel Mauss, drawing the foundations’ attention to the fact that a one-sided support relationship should be avoided and that foundations should rather employ the relationship-engendering effect of gifts.
Jörn Block and Florian Hosseini present the results of diverse studies investigating “Stiftungsunternehmen als hybride Organisationen: Auswirkungen auf die Unternehmensperformance” (Foundation-owned firms as hybrid organizations: Impacts on corporate performance) and conclude that the financial performance of companies owned by foundations is no poorer than that of other enterprises, despite the conflicting interests of the foundation owning the firm and different groups of stakeholders.
In the public law section Dirk Schauer provides a comprehensive opinion in “Zum Bericht der Bund-Länder-Arbeitsgruppe `Stiftungsrecht´ betreffend die Zulegung und Zusammenlegung von rechtsfähigen Stiftungen” (The report of the working group of the Federation and Federal States on foundation law relating to the amalgamation and merger of foundations with legal capacity) on the basis of his dissertation and evolves his own more extensive draft act which takes greater account of the protection of creditors.
Matthias Uhl and Benjamin Momberger, the two winners of the W. Rainer Walz-Prize in 2016 for their outstanding academic work in the field of non-profit law, present the results of their research. Uhl illustrates the “Perspektiven und Grenzen von Stiftungskooperationen aus rechtlicher Sicht” (Perspectives and limitations of cooperation by foundations from a legal perspective) establishing that current foundation law does not oppose an association of foundations akin to a society in the form of a partnership under the German Civil Code (GbR), but that there are special fiduciary duties. In his contribution “Neue rechtliche Rahmenbedingungen für Social Entrepreneurs erforderlich?“ (Are new legal frameworks required for social entrepreneurs?) Momberger draws attention to new legal forms and frameworks for enterprises with social orientation engaged in economic activities in the USA, England, Belgium and Italy, which have been quicker than Germany to take account of the burgeoning “fourth sector” between enterprises in the second sector (alongside the state as the first sector) and the charitable organizations of the third sector.
In the tax part of this volume Harald Bott takes stock of the manner in which current tax policy is dealing with the refugee problem in the context of “Kooperationen zwischen Non-Profit-Organisationen und der öffentlichen Hand im ländlichen Raum und zur Aufnahme und Integration von Flüchtlingen und die Bedeutung des § 2b UStG” (Cooperation between non-profit organizations and the public sector in rural areas and in the reception and integration of refugees, and the significance of sec. 2b German VAT Act).
Caroline Heber reports from the research project “Umsatzsteuer für den Nonprofitsektor” (Value added tax for the non-profit sector) led by Markus Achatz, Stephan Schauhoff and Birgit Weitemeyer on the section with important practical relevance that she was responsible for, namely on “Spenden und Sponsoring im Mehrwertsteuerrecht” (Donations and sponsoring in VAT law) and she evolves a solution which takes account of both national VAT law and of the European Directive on the common system of value added tax.
The contribution by Niek Zaman, Cees de Groot and Martijn van Steensel in the international part of the volume examines “Foundations in the Netherlands: present and proposed legislation and their role in the economy” showing how under Dutch law, unlike German law, a foundation can be implemented very flexibly, and the special regulations created for implementing the foundation in the semi-public welfare sector.
And finally, in their report “Aus Gesetzgebung, Rechtsprechung und Verwaltungsanweisungen zum Dritten Sektor im Jahr 2016 in Deutschland” (Legislation, Jurisdiction and Administrative Orders on the Third Sector in Germany in 2016) Nils Krause and Florian Haase present, in their habitually reliable manner, an overview of the most important legal developments in the third sector.
Sample Reading: Abstracts of the articles published in the Non Profit Law Yearbook 2016/2017
