‘If you do what you always did, you will get what you always got’ – Albert Einstein
De Donors and Foundations Networks in Europe (DAFNE) en het European Foundation Centre (EFC) hebben het onderzoek De ruimte voor Europese filantropie vergroten gepubliceerd. Het onderzoek, uitgevoerd door hoogleraar Oonagh Breen, tracht de knelpunten te laten zien op het gebied van ‘crossborder philanthropy’ in Europa. DDB Expert Ineke Koele, die promoveerde op het Engelstalige International taxation of philanthropy, is kritisch over de analyse van Breen c.s. en laat haar eigen licht schijnen over dit onderwerp.
The Donors and Foundations Networks in Europe (DAFNE) and the European Foundation Centre (EFC) have commissioned Dr. Oonagh Breen from the UCD Sutherland School of Law in Dublin to publish a report on the regulatory and political challenges philanthropy is facing and to elaborate ways forward that European donors and foundations can apply to work jointly with EU institutions and national governments to resolve the still existing obstacles for international philanthropy within Europe. The Press Release on this report looks very exciting where it promises to deliver possible ways for facilitate philanthropy across Europe.
Since I have spent my PhD on this theme in an international context and the conclusions of my research and thesis ‘how to resolve international obstacles for international philanthropy’ appear to remain very actual in the majority of European jurisdictions, my attention was caught immediately.
The report however disappointed me, in the sense that it repeated a lot of the mistakes and ‘lessons learnt’ in the past and reiterated to a large extent on earlier reflections from the perspective of a top down policy view by the respective bodies of the European Union.
The title of the Report refers to the trend that internationally has been framed as ‘the Closing Space for Civil Society’, pointing at the increased legal restrictions that governments around the world impose on the registration, operation and funding of non-governmental organisations (NGO’s) and public interest pursuing organizations in general. These restrictions vary from fiscal and administrative regulations such as (overly) restrictive counter-terrorism financing measures and international expenditure control at one hand to politically inspired undemocratic restrictions on the flow of charitable funds across borders in countries like India, Mexico and China and in Europe also in Hungary and Poland on the other hand. The drivers behind the last mentioned, political inspired restrictions include the global loss of democratic momentum, the rising power of political systems and leaders opposed to universal values, and the fear of many power-holders of the capacity of independent civil society to challenge and hold to account entrenched regimes.
Framing all these very distinctive drivers as ‘the closing space’ for international philanthropy is in my view a rather dangerous thing to do, since it stipulates these factors as a ‘trend’ which implies that nobody really is accountable or responsible for each and individual measure – following the trend is a typical and seemingly innocent human behaviour. The recent developments in Hungary are political in nature and hopefully, the legal attack on independent non-profit organizations receiving funds from foreign sources under the ‘Foreign Agents’ legislation cannot be viewed as part of an ongoing trend of reducing democratic freedom. In any respect, this new law is in clear contradiction with the existing EU Treaty provisions and accordingly, the European Commission has launched a so-called infringement procedure against Hungary as per 13 July 2017 whilst simultaneously, the ‘nuclear option’ of article 7 of the Treaty on the European Union on withdrawing membership of the EU has been initiated.
The DAFNE/EFC Report basically refers to the first-mentioned category of drivers, the fiscal and administrative restrictions. It points basically at two categories of restrictions, those following from anti-terrorism financing regulations and those from discriminatory tax treatments. However, as I will explain hereunder, in this area there is in my view not a trend to make things more burdensome or where governments indeed maintain other points of view or arguments than before. The solutions to overcome the existing barriers do not have to come from ‘top-down’ legalistic innovations but instead, should work on the underlying rationale of these restrictions and obstacles.
 I.A. Koele, International Taxation of Philanthropy, International Bureau of Fiscal Documentation 2007.
 Ariadne/ EFC/International Human Rights Funders Group, challenging the closing Space for Civil Society, 2012.