Can Tax Authorities Scrutinise the Ideas of Foreign Charities? The ECJ's Persche Judgment and Lessons from US Tax Law
The European Court of Justice's (ECJ's) recent Persche judgment poses important questions about the relationship between taxation of gifts and charitable purposes in the light of EC law requirements. This article argues that by applying its established case-law to the matter of donors to foreign recipient bodies, the ECJ takes a position on the social role of both charities and tax deduction. Moreover, the position of the ECJ clearly paves the way for tax authorities to check the objectives and the values pursued by recipient bodies seeking tax-preferred status, a situation that recalls a similar power recognised under specific circumstances of the US Internal Revenue Services. Arguably, the ECJ case-law has more profound consequences on charitable action, since it seems that the power accorded to tax authorities of the Member States to check the purposes of charitable organisations leads to a cosmopolitan apprehension of charitable action while it pushes charities to enhance transparency in their activities.
Some Reflections on Freedom of Establishment of Non-profit Entities in the European Union
This article deals with the exclusion of non-profit-making entities from the right of freedom of establishment of Articles 49 and 54 TFEU. It analyses the historical reasons for this exclusion. It is argued that the exclusion from freedom of establishment is no longer justified on the basis of two elements. Firstly, the development of the jurisprudence of the European Court of Justice in the fields of competition law, free movement of capital and tax law makes such exclusion systematically no longer tenable. Secondly, a law and economics treatment of non-profit firms as organisations that efficiently provide services in alternative to for-profit firms weakens the reasons for the exclusion. The article proposes a uniform, European notion of non-profit entity based on a law and economics analysis of this type of firm for the purposes of Article 54 TFEU as opposed to possible different national notions. This is followed by a brief analysis of the hypothesis of regulatory competition among jurisdictions for the law regulating the corporate governance of non-profit entities.
Independent administrative authorities and the standard of judicial review
Recent developments in European competition and electronic communications law have led to an increased focus on, and importance of, independent administrative authorities. The competences available to these authorities are often wide-ranging, at times encompassing elements of all three of Montesquieu's powers. These competences typically embody a considerable degree of discretion to allow the balancing of the - opposing - interests of various groups of stakeholders, such as consumers, competitors and manufacturers. This raises the question how the independence of administrative authorities can be counterbalanced by a certain degree of accountability for their actions. The aim of the present article is to review how three Member States - the Netherlands, the United Kingdom and France - have shaped the judicial accountability of the independent administrative authorities. On the basis of an analysis of some important cases the article attempts to assess whether there are commonalities between the ways the national courts in these Member States review the exercise of discretionary powers by independent administrative authorities. The article will also ascertain the influence of EC law and the European Convention on Human Rights, notably Articles 6 and 13 thereof, on the standard of review applied in the Member States.