8.

Notes that, in order to underpin confidence in FEs, the sustainability, seriousness and viability of foundations, as well as the effectiveness of their supervision, must be core criteria and, with this in mind, requests the Council to take into account the following recommendations and modifications: (i) the minimal level of assets of EUR 25 000 should be maintained throughout the lifetime of the foundation; (ii) the existence of an FE in any Member State should be open-ended or, where expressly laid down in its statutes, set for a specified period of time of not less than four years; placing a shorter time limit of not less than two years on it should be permissible only where there is sufficient justification for doing so, and where the foundation’s purpose would thereby be fully safeguarded; (iii) amendments to a foundation’s statutes, where the existing statutes have become inappropriate for the functioning of the FE, should be allowed if they are made by its governing board; where the FE has other bodies in accordance with Article 31, these bodies should be involved in the decision on the amendments to the statutes. (iv) to avoid conflicts of interest within foundations vis-à-vis bodies independent of the founder, i.e. that do not have a business, family or other relationship with the founder, provision should be made along the lines proposed by the Commission, but it should be recognised that foundations may be set up in a family context, in which a high degree of trust between founder and committee members is a prerequisite, so that the founder knows that the purpose of the foundation will be secure after his or her death; (v) the threshold for foundations that are required to have their accounts audited should take into account the total assets, the annual income and the number of employees of that foundation; for foundations under this threshold, an independent examination of the accounts is sufficient; (vi) the Statute should provide for information of volunteers; the Statute should also encourage volunteering as a guiding principle; (vii) a provision should be added whereby any remuneration paid to members of the governing board or other bodies of the FE is to be reasonable and proportionate; specific criteria should be established to determine the reasonableness and proportionality of the remuneration; (viii) as regards the representation of employees, the negotiation procedure which, under Articles 38 and 39 of the proposal, refers only to the information and consultation of employees within the EU, should be extended to cover participation by employees in the bodies of the FE; in parallel with the reference currently made in Articles 38 and 39 of the proposal to the procedures for the establishment of a European Works Council, reference should be made, for the purpose of involvement of employees in the bodies of the FE, to the procedures under Council Directive 2001/86/EC; (ix) the provision on representation of employees in Article 38 of the proposal should be maintained; the notion of volunteers and volunteering activities should be further clarified; (x) in the interests of effective supervision, the registered office and the administrative headquarters of an FE should be in the Member State in which it is established; (xi) the proposal should be limited — as proposed by the sector — to a civil law instrument, while reinforcing — in line with Parliament’s proposal — a number of the core elements of the public benefit concept as found in the Member States, so as to facilitate the recognition of equivalence within Member States; (xii) The proposal for a Council regulation should be modified as follows: Modification 1 Proposal for a regulation Recital 15 a (new) Text proposed by the Commission Modification (15a) The members of the governing board should ensure compliance with the obligations set out in this regulation and the statutes, and with all legal and ethical rules of conduct relevant to the FE. To that end they should devise organisational structures and internal measures to prevent and detect breaches of the rules. Modification 2 Proposal for a regulation Recital 18 Text proposed by the Commission Modification (18) In order to enable the FE to reap the full benefits of the single market, it should be able to transfer its registered office from one Member State to another. (18) In order to enable the FE to reap the full benefits of the single market, it should be able to transfer its registered seat from one Member State to another. (This modification applies throughout the text.) Modification 3 Proposal for a regulation Article 2 — point 1 Text proposed by the Commission Modification (1) ‘assets’ means any tangible or intangible resource capable of being owned or controlled to produce value; (1) ‘assets’ means any tangible or intangible resource capable of being owned or controlled to produce economic and/or social value; Modification 4 Proposal for a regulation Article 2 — point 2 Text proposed by the Commission Modification (2) ‘unrelated economic activity’ means an economic activity of the FE, not serving directly the public benefit purpose of the public benefit purpose entity; (2) ‘unrelated economic activity’ means an economic activity, excluding normal asset administration such as investment in bonds, shares or real estate, of the FE, not serving directly the public benefit purpose of the public benefit purpose entity; Modification 5 Proposal for a regulation Article 2 — point 5 Text proposed by the Commission Modification (5) ‘public benefit purpose entity’ means a foundation with a public benefit purpose and/or similar public benefit purpose corporate body without membership formed in accordance with the law of one of the Member States; (5) ‘public benefit purpose entity’ means a foundation with an exclusively public- benefit purpose and/or similar public- benefit purpose corporate body without membership formed in accordance with the law of one of the Member States; Modification 6 Proposal for a regulation Article 4 — paragraph 2 — point b a (new) Text proposed by the Commission Modification (ba) the names of the managing directors appointed in accordance with Article 30; Modification 9 Proposal for a regulation Article 5 — paragraph 2 — subparagraph 2 — introductory wording Text proposed by the Commission Modification It may be created only for the following purposes, to which its assets shall be irrevocably dedicated: It may be created only for one or more of the following purposes, to which its assets shall be irrevocably dedicated: Modification 7 Proposal for a regulation Article 5 — paragraph 2 — subparagraph 2 — point s a (new) Text proposed by the Commission Modification (sa) support for victims of terrorism and violence; Modification 8 Proposal for a regulation Article 5 — paragraph 2 — subparagraph 2 — point s b (new) Text proposed by the Commission Modification (sb) promotion of interreligious dialogue. Modification 10 Proposal for a regulation Article 5 — paragraph 2 a (new) Text proposed by the Commission Modification 2a. The FE shall not benefit any person through disproportionate compensation or through expenses that are not in pursuance of the public benefit purpose. The FE does not fulfil its public benefit purpose if it only serves the benefit of a limited number of individuals. Modification 11 Proposal for a regulation Article 6 Text proposed by the Commission Modification At the time of registration, the FE shall have activities or a statutory objective of carrying out activities in at least two Member States. The FE shall have activities or at least a statutory objective of carrying out activities in at least two Member States. If, at the time of registration, the FE merely has a statutory objective of carrying out activities in at least two Member States, it must convincingly demonstrate at that time that within two years it will carry out activities in at least two Member States. This time limit shall not apply where it appears justified and proportionate, with a view to pursuing its purpose, for the FE to take up its activity later. At any rate the FE shall be required to begin and maintain activities in at least two Member States during its lifetime. Modification 12 Proposal for a regulation Article 7 — paragraph 2 Text proposed by the Commission Modification 2. The FE shall have assets equivalent to at least EUR 25 000. 2. The FE shall have assets equivalent to at least EUR 25 000. It shall maintain these minimum assets throughout its lifetime unless it has been established for a specified period of time under Article 12(2) . Modification 13 Proposal for a regulation Article 7 — paragraph 2 — subparagraph 1 a (new) Text proposed by the Commission Modification The FE shall spend 70 % of the income received in a financial year within the following four years, unless a specific project is identified in the statutes which will be executed in the following six years. Modification 14 Proposal for a regulation Article 12 — paragraph 2 Text proposed by the Commission Modification 2. The FE shall be set up for an indefinite period of time or, where expressly laid down in its statutes, for a specified period of time of not less than two years. 2. The FE shall be set up for an indefinite period of time or, where expressly laid down in its statutes, for a specified period of time of not less than four years. In cases where a limited period of time is appropriate to achieving the objectives of the FE and this is reasonably justified, the FE may be set up for a period of time of not less than two years. Modification 15 Proposal for a regulation Article 15 — paragraph 2 — point d a (new) Text proposed by the Commission Modification (da) information on the procedures whereby arrangements for employee involvement are determined pursuant to Directive 2009/38/EC. Modification 16 Proposal for a regulation Article 15 — paragraph 3 Text proposed by the Commission Modification 3. Each competent authority shall treat the request for a merger in accordance with the same procedures and principles as if it had been a request for a merger resulting in a national public benefit purpose entity. 3. Each competent authority shall treat the request for a merger in accordance with the same procedures and principles as if it had been a request for a merger resulting in a national public benefit purpose entity. The responsible authority shall refuse the request for a cross-border merger mandatorily and exclusively on the grounds that the documents referred to in paragraph 2 are not in conformity with this Regulation or that the rights of creditors and employees are not sufficiently protected. Modification 17 Proposal for a regulation Article 17 — paragraph 1 Text proposed by the Commission Modification 1. The FE may be formed by conversion of a public benefit purpose entity legally established in a Member State, provided that it is permitted under the statutes of the converting entity . 1. The FE may be formed by conversion of a public benefit purpose entity legally established in a Member State, provided that this is not specifically prohibited under the statutes and does not contradict the wishes of the founder . Modification 18 Proposal for a regulation Article 18 — paragraph 3 Text proposed by the Commission Modification 3. The competent authority shall treat the request for conversion in accordance with the same procedures and principles as if it had been a request to amend the statutes of the public benefit purpose entity. 3. The competent authority shall treat the request for conversion in accordance with the same procedures and principles as if it had been a request to amend the statutes of the public benefit purpose entity. The responsible authority shall refuse the request for conversion mandatorily and exclusively on the grounds that the documents referred to in paragraph 2 are not in conformity with this regulation or that the rights of creditors and employees are not sufficiently protected. Modification 19 Proposal for a regulation Article 20 — paragraph 1 Text proposed by the Commission Modification 1. Where the existing statutes have become inappropriate for the functioning of the FE the governing board may decide on amendment to the statutes. 1. Where the existing statutes have become inappropriate for the functioning of the FE the governing board may decide on amendment to the statutes. Where the FE has other bodies in accordance with Article 31, these bodies must be involved in the decision on the amendments to the statutes. Modification 20 Proposal for a regulation Article 23 — paragraph 1 — subparagraph 1 — point g Text proposed by the Commission Modification (g) the names, purposes and addresses of founding organisations where these are legal entities, or similar relevant information as regards public bodies; (g) the full names and addresses of the founders where these are natural persons; the names, purposes and company seat of founding organisations where these are legal entities, or similar relevant information as regards public bodies; Modification 21 Proposal for a regulation Article 23 — paragraph 2 a (new) Text proposed by the Commission Modification 2a. An FE cannot be registered until it has been shown that it complies with the obligations under Chapter V of this regulation on employee involvement in the FE. Modification 22 Proposal for a regulation Article 32 — paragraph 1 Text proposed by the Commission Modification 1. The founder and any other board members who may have a business, family or other relationship with the founder or with each other, that could create an actual or potential conflict of interest such as to impair his/her judgment, shall not constitute the majority of the governing board. 1. The founder and any other board members who may have a business, family or other relationship with the founder or with each other that could create any conflict of interest such as to impair his/her judgment, shall not constitute the majority of the governing board. Modification 23 Proposal for a regulation Article 32 — paragraph 3 Text proposed by the Commission Modification 3. No benefit , direct or indirect, may be distributed to any founder, governing or supervisory board member, managing director or auditor, nor extended to any person having a business or close family relationship with them, unless it is for the performance of their duties within the FE. 3. No benefit may be distributed to any founder, governing or supervisory board member, managing director or auditor, nor extended to any person having a business or close family relationship with them, unless it is for the performance of their duties within the FE. Modification 24 Proposal for a regulation Article 34 — paragraph 2 Text proposed by the Commission Modification 2. The FE shall draw up and forward to the competent national registry and to the supervisory authority annual accounts and an annual activity report within six months from the end of the financial year. Does not affect the English text. Modification 25 Proposal for a regulation Article 34 — paragraph 4 Text proposed by the Commission Modification 4. The annual accounts of the FE shall be audited by one or more persons approved to carry out statutory audits in accordance with the national rules adopted pursuant to Directive 2006/43/EC of the European Parliament and of the Council. 4. The annual accounts of the FE shall be audited by one or more persons approved to carry out statutory audits in accordance with the national rules adopted pursuant to Directive 2006/43/EC of the European Parliament and of the Council if the FE exceeds one of the following criteria: (a) an annual income of EUR 2 million; or (b) assets of EUR 200 000; or (c) an average of 50 employees during the financial year. For FEs that do not exceed any of these criteria, an independent examiner may be used instead of an auditor. Modification 26 Proposal for a regulation Article 34 — paragraph 5 Text proposed by the Commission Modification 5. The annual accounts, duly approved by the governing board, together with the opinion submitted by the person responsible for auditing the accounts, and the activity report shall be disclosed. 5. The annual accounts, duly approved by the governing board, together with the activity report, shall be disclosed. The opinion submitted by the person responsible for auditing the accounts shall be disclosed in accordance with the rules of the Member State in which the FE has its registered offices. Modification 27 Proposal for a regulation Article 35 Text proposed by the Commission Modification The FE shall have its registered office and its central administration or principal place of activities in the European Union. The registered office of an FE shall be located within the European Union , in the same Member State as its central administration or principal place of activities. While the FE shall have activities in at least two Member States, including relevant activities in the Member State with the registered office and central administration, the FE may also pursue activities outside the EU. Modification 28 Proposal for a regulation Article 37 — paragraph 2 — point e a (new) Text proposed by the Commission Modification (ea) any consequences of the transfer for employee participation. Modification 29 Proposal for a regulation Article 37 — paragraph 5 — subparagraph 2 Text proposed by the Commission Modification The competent authority of the host Member State can refuse the transfer only on the grounds that the conditions referred to in the previous subparagraph are not met. The competent authority of the host Member State can refuse the transfer only on the grounds that the conditions referred to in the previous subparagraph are not met ; it shall further refuse the transfer if the rights of creditors and employees are not sufficiently protected . Modification 30 Proposal for a regulation Article 38 — paragraph 2 — subparagraphs 1 and 2 Text proposed by the Commission Modification The FE with up to 200 employees shall establish a European Works Council on the request of at least 20 of its employees in at least two Member States or representatives of those employees. The FE shall establish a European Works Council on the request of at least 10 % of its employees in at least two Member States or representatives of those employees. The FE with more than 200 employees shall establish a European Works Council on the request of at least 10 % of its employees in at least two Member States or representatives of those employees. Modification 31 Proposal for a regulation Article 38 — paragraph 2 — subparagraph 3 Text proposed by the Commission Modification The national measures on the subsidiary requirements set out in subpoints (a) to (e) of point 1 of Annex I to Directive 2009/38/EC of the European Parliament and of the Council shall apply to the establishment of the European Works Council. Articles 5 and 6 of Directive 2009/38/EC and the national measures on the subsidiary requirements set out in subpoints (a) to (e) of point 1 of Annex I to Directive 2009/38/EC of the European Parliament and of the Council shall apply to the establishment of the European Works Council. Modification 32 Proposal for a regulation Article 38 — paragraph 3 Text proposed by the Commission Modification 3. Representatives of volunteers engaged in formal volunteering activities in the FE for a sustained period shall be given an observer status in the European Works Council.<BR>The number of such representatives shall be of at least one per Member State in which at least 10 such volunteers are present. deleted Modification 33 Proposal for a regulation Article 44 — paragraph 2 Text proposed by the Commission Modification 2. Once the creditors of the FE have been paid in full, any remaining assets of the FE shall be transferred to another public benefit purpose entity with a similar public benefit purpose or otherwise used for public benefit purposes as close as possible to those for which the FE was created. 2. Once the creditors of the FE have been paid in full, any remaining assets of the FE shall be transferred to another public benefit purpose entity based in the same Member State in which it is registered, with a similar public benefit purpose, or otherwise used for public benefit purposes as close as possible to those for which the FE was created. Modification 34 Proposal for a regulation Article 45 Text proposed by the Commission Modification Each Member State shall designate a supervisory authority for the purpose of supervising FEs registered in that Member State and notify the Commission thereof. Each Member State shall designate one or more authorities of its choice that are responsible for the effective supervision of FEs registered in that Member State and notify the Commission thereof.