CYIL vol. 12 (2021)

tomáš křivka CYIL 12 (2021) which did not relate to non-profit-making entities. The European Union, however, started to be gradually perceived not only as an economic union, but more as a community of states with common roots also in other areas, including grounds of civil society. 45 Together with the influence of the above-analysed case law of the CJEU it was therefore possible to register, in 2007, particular steps during preparation of a multinational form of a European foundation. From several possibilities of innovation of foundation law regulation analysed by the Feasibility study on the introduction of a statute for a European foundation, 46 the Commission selected at the end a model of introduction of common concepts of basic elements of a European foundation, but without a uniform tax regime which was originally proposed as well. In 2012, the Commission submitted a proposal for a regulation dealing with issues of a European foundation (Fundatio Europea), 47 when the legal basis of this regulation was, like in case of regulations dealing with multinational business corporations, Article 352 of the TFEU. Legal regulation of a European foundation built upon the concepts used at multinational business corporations, i.e. creation of a common framework regulation at the level of Union law in the form of a regulation provided that a European foundation would be subject, on a subsidiary basis, to national law of the Member State in which the European foundation would have its seat. While discussing various aspects of the regulation, however, the parties involved did not manage to reach an agreement among the Member States, and the Commission then withdrew its proposal on 7 March 2015 after three years of a frozen legislative process. 48 Not even in this case is it possible to foresee whether it means a definitive end of that proposal or if it could be possible to reach a basic agreement among the Member States meaning that the proposal could be modified. Under favourable conditions it is realistic to foresee some activities following up to this unsuccessful legislative proposal, nevertheless in nearest years the EU is quite likely to be busy about priorities other than creation of multinational non-profit-making or public service legal entities. That is why one can conclude that although legal regulation of primary law was originally quite clear according to the will of the Member States in the issue of non-profit-making legal entities, it is possible to state that the CJEU did not limit itself to a grammatic interpretation in the field of non-profit-making (non-business) legal entities either, which is fully in line with the spirit of its traditional proactive pro-EU perception and interpretation of Union law. Just through consistent assessment of their activities it arrived at a conclusion that even such entities can enjoy protection within the framework of freedom of establishment, or at least use their right to free movement of capital and even treatment and non-discrimination. The CJEU decision making process is then in a contrast with the destiny of legislative proposals for creation of multinational non-profit-making legal entities, whose approval the Member States persistently continue to refuse referring to protection of their national systems of legal entities and associated specific tax legislations. This means that if one could expect an impulse 45 RONOVSKÁ, K. et al. Metamorphoses of foundation law in Europe and in the Czech Republic at the beginning of the 21 st century . Brno: Masaryk University, 2015. p. 61. 46 The study is available online from: http://ec.europa.eu/internal_market/company/doEN/eufoundation/ feasibilitystudy_en.pdf [citation of 30 June 2020]. 47 Proposal for a Council Regulation on the statute for a European foundation (FE) COM (2012) 35 final. Available online from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2012:0035:FIN [citation of 30 June 2020]. 48 It is possible to follow the legislative process development online here: http://eur-lex.europa.eu/legal-content/ EN/HIS/?uri= COM:2012:0035:FIN [citation of 30 June 2020].

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