The Law of Third Sector Organizations in Europe: Foundations, Trends and Prospects

Foreword
Preface
Contents
Part I: National Perspectives on the Law of Third Sector Organizations
	Chapter 1: The Third Sector in Belgium
		1 Introduction
		2 Historical Background
			2.1 Summa Divisio Between Companies and Non-profit Associations Prior to 1995
			2.2 Inadequate Legal Framework
			2.3 The Introduction of the Social Purpose Company in 1995
		3 Reforms of 2018-2019
			3.1 Reform of Enterprise Law in 2018
			3.2 Reform of Company and Association Law of 2019
		4 The Non-Profit Legal Persons as an Instrument of the Social Economy
			4.1 Non-Profit Association
				4.1.1 New Definition of the Non-Profit Association
				4.1.2 Convergence of the Rules Governing Non-Profit Associations with those Applicable to Companies
				4.1.3 The Concern to Preserve the Core Specificities and Values of the Associative Form
			4.2 Foundation
			4.3 Mutuals
			4.4 Accounting Rules Applicable to Non-Profit Legal Persons
			4.5 Tax Considerations Linked to Non-Profit Legal Persons
				4.5.1 The Tax Regime Applicable to Non-Profit Legal Persons
				4.5.2 Tax Reductions on Donations to Some Non-Profit Legal Persons
		5 The Company as an Instrument of the Social Economy
			5.1 A New Approach to the Purposes of a Company
			5.2 Should Companies and Non-Profit Associations Be Kept as Separate Legal Forms?
		6 The Cooperative Company and Its Accreditation
			6.1 The Cooperative Ideal
			6.2 The Issue of ``Fake Cooperatives´´ and Their Accreditation as a Solution
			6.3 The Cooperative Company Under the CCA
				6.3.1 Characteristics of the Cooperative Form
				6.3.2 Accreditation of the Cooperative Company
				6.3.3 Accreditation as a Social Enterprise
		7 Conclusion
		References
	Chapter 2: The Diversity of Third Sector Organisations in Denmark
		1 Zooming in on the Organisations Used in the Third Sector
		2 Tax and Other Public Benefits
			2.1 Tax Law
			2.2 Public Funded Schemes That May Favour the Third Sector
			2.3 Public Procurement
		3 The Most Popular Forms of Organisations
			3.1 Associations
			3.2 Foundations
			3.3 Self-Owned Institutions
			3.4 Private Limited Companies
		4 Registered Social Enterprises
		5 Concluding Remarks
		References
	Chapter 3: French Economie Sociale et Solidaire in the Middle of the Ford
		1 Introduction
		2 Identifying the ESS Sector
			2.1 An Inclusive Sector
			2.2 A Hybrid Sector
		3 ESS Organisations Statute
			3.1 Value-Based Community
				3.1.1 A Social Purpose with Social Utility
				3.1.2 Democratic Governance
				3.1.3 Entity´s Limited Profit Motive
			3.2 Diversified Forms
		4 Prospects for the ESS Sector
			4.1 Endogenous Concern Related to ``Social Impact´´ Measures
			4.2 Exogenous Competition from the Private Sector
		5 Conclusion
		References
	Chapter 4: Law in Transition: Reforming the Legal Framework of the Third Sector in Germany
		1 Constituting the Third Sector
			1.1 Organisations Beyond Market and State
			1.2 Non-Profit Vs. Purpose Orientation
			1.3 Relevance and Roots
		2 Lex Lata of Third-Sector Organisations
			2.1 Tax Law as the Organisational Law of the Third Sector
			2.2 Corporate Forms
		3 Lex Ferenda for Social Enterprises
			3.1 National Strategy for Social Entrepreneurship
			3.2 Towards a New Legal Form for Steward-Ownership
		4 Conclusion
		References
	Chapter 5: Third Sector Organisations in Ireland: Assembling the Regulatory Jigsaw Pieces of an Evolving, If Fragmented, Sector
		1 Introduction
		2 Historical Background
			2.1 The Difference Between Being a Non-Profit and Being a Charity
			2.2 What Is a Charity?
		3 Legal Framework and Legal Forms
			3.1 Trusts
			3.2 Companies
			3.3 Unincorporated Associations
			3.4 Cooperatives and Friendly Societies
		4 Legal Reform: Charities Act 2009
			4.1 Tax Treatment
			4.2 Charitable Accountability
		5 Social Enterprises in Ireland
			5.1 National Policy on Social Enterprises
			5.2 Legal Structures
			5.3 Certification
			5.4 Tax Treatment
		6 Conclusion
		References
	Chapter 6: The New Italian Code of the Third Sector. Essence and Principles of a Historic Legislative Reform
		1 Introduction
		2 On the Great Impact of a Historic Legislative Reform
		3 Sources and General Features of the New Legal Framework on TSOs. ``TSO´´ as a Legal Qualification or Status
		4 The Requirements for the Qualification of an Organization as a TSO
			4.1 Activities of General Interest
			4.2 Profit Non-Distribution Constraint, Asset Lock and Prioritization of the Social Mission
			4.3 Registration
		5 Sections of the RUNTS and Particular Types of TSOs
		6 Social Enterprises and Social Cooperatives
		7 Principles of Governance and Transparency
		8 Taxation and Promotional Measures
		9 State Supervision
		10 Conclusions
		References
	Chapter 7: The Legal Infrastructure of the Third Sector and the Social Economy in the Netherlands
		1 Introduction
		2 Defining the Third Sector and Social Economy in the Context of Netherlands Society
		3 The Menu of Business Forms Available for Third Sector and Social Economy
		4 The Ill-Designed Legal Infrastructure of the Social Economy in the Netherlands
		5 Future Business Form of the BVm for Social Enterprises: An Assessment
		6 The Potential of the Cooperative to Incorporate Social Enterprises and Their Activities: The Case of Socio-Labor Insertion
		7 Conclusion
		References
	Chapter 8: Third Sector in the Third Republic: An Overview of the Law and Practice in Poland
		1 Introduction
		2 Mapping the Third Sector in Poland: Typologies, Definitional Problems, History
			2.1 Introduction
			2.2 Polish NGO Law as a Multilayer System
			2.3 Terminology
			2.4 Public Benefit Activity and Cooperation with Public Administration
			2.5 NGOs and Social Economy Actors
		3 Economic and Societal Impact of Third Sector Organisations
		4 Legal Design of Foundations and Associations Under the Polish Law: Structure, Governance, Assets
			4.1 Introductory Remarks
			4.2 Constitutional Law Basis and Regulatory Philosophy
			4.3 Formation Requirements
			4.4 Internal Structure and Governance
		5 Assets, Finance and Funding
			5.1 Asset Requirements
			5.2 Financing Existing Organisations
			5.3 ``1,5%´´ Financing
		6 Conclusions
		References
	Chapter 9: The Legal Regime of the Social Economy Sector in Portugal
		1 Introduction
		2 Constitutional Framework of the Social Economy
		3 Definition, Legal Forms and Guiding Principles of Social Economy
		4 Social Enterprises in Portugal
		5 The Non-Market Sector of the Social Economy. Special Reference to the Private Institutions of Social Solidarity (IPSS)
			5.1 Definition, Object and Activities of the IPSS
			5.2 Form and Legal Nature of the Entities That Can Obtain the IPSS Status
			5.3 Association-Based IPSS
				5.3.1 Social Solidarity Associations
				5.3.2 Mutual Associations
				5.3.3 Brotherhoods of Mercy (Misericórdia)
			5.4 The IPSS with a Foundational Basis
			5.5 The IPSS by Equivalence
				5.5.1 Social Solidarity Cooperatives
				5.5.2 The Casas Do Povo (People´s Houses)
			5.6 The Status of Public Interest
		6 Tax Framework of the Social Economy
		7 Supervision of the Social Economy
		8 Public Procurement and Social Economy
		9 Conclusions
		References
	Chapter 10: Social Economy and Third Sector in Spanish Law. Convergences and Divergences
		1 Introduction
		2 First Legal References to the Social Economy and the Third Sector
		3 The Social Economy in Spain
			3.1 Immediate Background of the Social Economy Law
			3.2 Law 5/2011, of 29 March 2011 on the Social Economy
			3.3 The Concept of Social Economy and Its Guiding Principles
			3.4 Social Economy Entities
				3.4.1 Entities Pursuing General Interest Purposes
					3.4.1.1 Associations
					3.4.1.2 Foundations
					3.4.1.3  Special Entities
				3.4.2 Entities Pursuing the Common Interest of Their Members
					3.4.2.1 Associations Pursuing the Interest of Their Members
					3.4.2.2 Mutuals
					3.4.2.3 Cooperatives
					3.4.2.4 Related Entities
						Agricultural Processing Societies
						Worker-Owned Companies Sociedades Laborales
						Fishermen´s Guilds
				3.4.3 Social Enterprises
					3.4.3.1 Social-Labour Insertion Companies
					3.4.3.2 Special Employment Centres
			3.5 Social Economy Representative Entities
			3.6 Promotion of the Social Economy
			3.7 The Regulation of the Social Economy in the Spanish Autonomous Communities
		4 The Third Sector in Spain
			4.1 Immediate Antecedents of the Third Sector Law
			4.2 Regulation of the Third Sector of Social Action
			4.3 The Concept of the Third Social Sector and Its Guiding Principles
			4.4 Third Social Sector Entities
				4.4.1 Social Initiative Cooperatives
				4.4.2 Volunteer Organisations
				4.4.3 Other Non-Profit Legal Entities
			4.5 Organisations Representing the Third Social Sector
			4.6 Promotion of the Third Social Sector
		5 Convergences and Divergences Between the Social Economy and the Third Sector
		6 Conclusions
		References
Part II: European and Comparative Law of Third Sector Organizations
	Chapter 11: Third Sector Organizations in a European and Comparative Legal Perspective
		1 In Search of the Third Sector
		2 The Italian Code as a Model for Third Sector Legislation
		3 In Search of Equivalent Regulations in Other EU Countries
			3.1 Laws on Public Benefit Organizations
				3.1.1 Charity Status in Ireland
				3.1.2 Public Benefit Status in Germany
				3.1.3 Public Benefit Status in Poland
			3.2 Laws on Social Enterprises
				3.2.1 Social Purpose Cooperatives
				3.2.2 Social Enterprise Status
			3.3 Laws on the Social Economy
				3.3.1 Spanish Law No. 5/2011 on Social Economy
				3.3.2 Portuguese Framework Law No. 30/2013 on Social Economy
				3.3.3 French Law No. 2014-856 on Social and Solidarity Economy
				3.3.4 Polish Social Economy Act of 5 August 2022
		4 Third Sector Organizations in EU Law and Policies
		5 Concluding Remarks
		References
	Chapter 12: The Taxation of Social Economy Entities in the Perspective of EU Law
		1 Introduction: The European Debate on the Taxation of Social Economy Entities and the Link with State Aid Rules
		2 Fiscal Harmonisation of General Tax Regimes in Favour of Social Economy Entities with Respect to State Aid Rules
			2.1 Defining the Concept of ``Enterprise´´
			2.2 Defining the Concept of ``Selectivity´´
		3 Tax Harmonisation at National Level: Case Studies of EU-Compatible National Measures
			3.1 Profiles of Compatibility with EU Law of Property Tax (ICI) Exemption for Properties Used by Non-commercial Entities
			3.2 Profiles of Compatibility with EU Law of the VAT Exemption for Tuition by Amateur Sports Associations
		4 Cross-Border Tax Harmonisation: Taxation of Cross-Border Donations
			4.1 Foreword: General Overview of Cross-Border Philanthropy in the EU
			4.2 The Jurisprudential Developments of the CJEU. From the Stauffer and Persche Judgments to the Principle of Fiscal Comparabi...
			4.3 Tax Harmonisation: National and EU Outlook
		References
	Chapter 13: European Law of Third Sector Organizations from the US Standpoint
		1 Introduction
		2 Traditional Organizational Forms and Designations Under US Law
			2.1 Nonprofit Organizational Forms
				2.1.1 US Federal Tax Law as Nonprofit Regulator
			2.2 Traditional For-Profit Organizational Forms
		3 Specialized Forms and Designations for Social Enterprise
			3.1 Benefit Corporations
			3.2 Delaware Public Benefit Corporations
			3.3 B Corp Designation
			3.4 Potential Unrealized
		4 Only Nonprofit Organizations Qualify for US Financial Incentives Based on ``Third Sector´´ Participation
			4.1 Federal Income Tax Exemption for Nonprofits
			4.2 Federal Tax Benefits for Nonprofit Donors
			4.3 Other Government Benefits for Nonprofits
			4.4 A Dearth of Incentives or Supports for For-Profit Social Enterprises
		5 Potential Explanations for US/European Divergences
			5.1 Why Distribution-Constraints Matter
			5.2 Distribution Constraints and Regulation
			5.3 Distribution Constraints and Public Benefits
		6 Conclusion
		References