CYIL vol. 12 (2021)

CYIL 12 (2021) IMPACTS OF THE CJEU CASE LAW ON REGULATORY COMPETITION … deduction if that discriminatory element had been removed or whether he would still not have reached the tax deduction for another (non-discriminatory) reason was, however, again left by the CJEU up to national proceedings. On the basis of the above-mentioned decisions it is therefore possible to state that quite a logical conclusion is that non-profit-making or public service entities are not typical legal entities which would use basic freedoms within the framework of the EU and in relation to the freedom of establishment they are even expressly excluded from application of these concepts by the wording of Article 54 of the TFEU. And yet, however, even non-profit-making entities may carry out side economic activities, and in such a case it is not excluded that their cross-border activities could be protected within the framework of freedom of establishment or other basic freedoms. In any case, non-profit-making entities can unambiguously use freedom of free movement of capital and enjoy prohibition of discrimination by nationality, which is applicable, in a general form, to tax regulations as well (in spite of the fact that the EU powers in this area are otherwise rather limited). Legislative proposals in the field of non-profit-making and public service sectors As far as the civil sector is concerned, the initiatives of the European Commission led also to the arising of two legislative proposals of a multinational non-business (non-profit- making) legal entity, whose aim was to facilitate cross-border mobility and mergers of such entities. The first one was the so-called European association 43 , which was to be a legal entity founded for the purpose of operation of activities in public interest or for the purpose of direct or indirect support of interests of a certain group of persons or professions. A European association could be founded, according to the proposal, at least by 2 legal entities or at least by 7 natural persons. Like in the case of other multinational forms of legal entities in the EU, also in the case of a European association the transformation of an existing legal entity to a European association was to be made possible on the condition of existence of a cross- border element, or even a merger of existing national non-profit-making legal entities from different Member States into a new European association was to be facilitated. The original proposal of the Commission was prepared at first in 1991, after submission to the European Parliament the proposal was modified several times with a final version from 2002. After 15 years of the unsuccessful legislative process when the parties involved did not manage to reach an acceptable compromise solution, the proposal was taken back by the Commission in 2006. 44 With regard to the existing state and acute problems of the EU it is very difficult to estimate when or if at all the original proposal could be reviewed and a modified version of the draft regulation could be submitted to the legislative process, and in a medium-term horizon such a possibility seems to be rather unlikely. Besides associations, the backbone of civil society within the framework of Member States is formed just of foundations. Foundation law was resisting to common European regulation for quite a long time, which was given at first by the focus of the European integration especially on economic aspects, but also by regulation of the freedom of establishment in primary law, 43 Amended proposal for a Council Regulation (EEC) on the statute for a European association COM (1993) 570 final. Available online here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:51993PC0252(01) [citation of 30 June 2020]. 44 It is possible to follow the legislative process development, including withdrawal of the proposal in a detailed manner here: http://eur-lex.europa.eu/legal-content/EN/HIS/?uri=CELEX:51993PC0252(01) [citation of 30 June 2020].

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