The Non Profit Law Yearbook 2017 contains a number of significant lectures that were held at the Hamburger Tage Conference on the law of foundations and non-profit law at the Bucerius Law School on 10 and 11 November 2017. The Yearbook is regularly complemented by international contributions, the annual review of important developments in the entire field of non-profit law and a comprehensive bibliography of German law on non-profit organisations, with individual references to international publications. The editors are pleased to announce that the Yearbook series is now being published by C.H.Beck and hope that it will be widely disseminated and have a lively reception. Conference attendees are given a copy of the Yearbook free of charge.
The first contribution to the 2017 Non Profit Law Yearbook is the Hamburger Rede, the speech delivered by Michael Borgolte “Die Guten und die Toten. Ein weltgeschichtlicher Kommentar zur ‘kreativen Philanthropie’ des 21. Jahrhunderts” (The Good and the Dead. A global history commentary on ‘creative philanthropy’ of the 21st Century) at the opening of the Hamburger Tage Conference on the law of foundations and non-profit law 2017. Building on the findings of the research project FOUNDMED on foundations in medieval societies, Borgolte draws attention to their intention to apply indefinitely and to the significance of the will of the founder since the very beginning of the oldest-known types of foundation dating back to 3000 BC.
The creation of a transparency register and the introduction of an obligation for economic beneficiaries of foundations and associations to register has given rise to considerable unrest and uncertainty in the third sector. In the public law section of the Yearbook, Manfred Orth meticulously sounds out the “Bedeutung des Transparenzregisters für Stiftungen” (Significance of the transparency register for foundations) and offers initial solutions for cases of doubt.
The civil law section is opened by Reinmar Wolff who presents the tragedy of village shops, caught between a cooperative society, commercial association and legislation on child day-care, under the title “Kein Gesetz zur Erleichterung unternehmerischer Initiativen aus bürgerschaftlichem Engagement?” (No legislation to facilitate entrepreneurial initiatives born of civic commitment?)
Friedrich von Schönfeld, last year’s winner of the W. Rainer Walz Prize for his outstanding scientific work in the field of non-profit law, presents central theses of his award-winning doctoral dissertation entitled “Leitungs- und Kontrollstrukturen in gemeinnützigen Organisationen” (Management and control structures in charitable organisations) under the title “Zur Notwendigkeit eines Aufsichtsorgans in großen gemeinnützigen Organisationen” (The need for a supervisory body in large charitable organisations).
In the tax law section, Hans-Hermann Heidner provides an overview of the German Federal Tax Court’s current case law on non-profit law entitled “Aktuelle Rechtsprechung des BFH zum Gemeinnützigkeitsrecht”. Following a change in the rules of procedure of the German Federal Tax Court, this now falls within the remit of the V. Senat which has handed down judgments on a motley assortment of cases such as the (lack of) non-profit status for Freemasonry, the night of all nights in the Rhineland Carnival season, tournament bridge and on the liability of a riding club’s boarding-house for horses to pay value added tax.
A comprehensive presentation of “Die Reform des Investmentsteuergesetzes – praktische Auswirkungen für gemeinnützige Organisationen” (The reform of the Investment Tax Act – practical impacts on charitable organisations) is provided by Christian Kirchhain. He clarifies how charitable foundations have had the need to act since 1.1.2018 so as to ensure that the receipt of their capital gains still remains fully tax-free.
In the Yearbook’s international section, Jonas Kipfer-Berger presents an initial evaluation of the most recent reform of foundation law in Switzerland in his contribution “Die wesentliche Zweckänderung bei Stiftungen nach schweizerischem Recht” (The fundamental change of purpose in foundations under Swiss law) which is also of significance in Germany, considering the respective proposals made for a reform of the German law.
Finally, in their report “Aus Gesetzgebung, Rechtsprechung und Verwaltungsanweisungen zum Dritten Sektor im Jahr 2017 in Deutschland” (Legislation, Jurisdiction and Administrative Orders on the Third Sector in Germany in 2017), two young colleagues, Dirk Schauer and Jasper Stallmann, provide an overview of the most recent legal developments in the third sector.
The editors would like to thank the staff of the Institution for Foundation Law and the Law of Non-Profit Organisations of the Bucerius Law School in Hamburg for their valuable collaboration on this year’s Non Profit Law Yearbook, Dr. Emily Plate-Godeffroy for her circumspect editorship of the written contributions, Mr. Philipp Heller for his careful preparation of the bibliography on non-profit law in the year 2017 and Mrs. Rosalind Kessler for her speedy translation of some summaries and the Foreword.
Hamburg, July 2018
Birgit Weitemeyer, Rainer Hüttemann, Peter Rawert, Karsten Schmidt
