NATIONAL AND INTERNATIONAL MECHANISMS OF FUNDING CIVIL SOCIETY
INTERNATIONAL PRACTICES ON CONFIDENCE-BUILDING MEASURES BETWEEN THE STATE AND CIVIL SOCIETY
KYIV-2011 УДК 347.73:061.2 ББК 67.402 Н35
National and International Mechanisms of Funding Civil Society. International Practices on Н35 Confidence-Building Measures between the State and Civil Society.– К.: Phoenix, 2011.– 304 p. ISBN 978-966-651-917-7
This book contains a compilation of three research studies conducted by the OSCE Project Coordinator in Ukraine (PCU) during 2010-2011 and provides analysis and examples of best practices from the OSCE region on enhancing sustainability of civil society organizations through funding frameworks and improving dialogue between the state and civil society.
The views herein expressed are solely those of the author and contributors and do not necessarily reflect the official position of the OSCE, OSCE institutions, OSCE Project Co-ordinator in Ukraine and the Foreign & Commonwealth Office.
Published by the OSCE Project Co-ordinator in Ukraine Striletska str., 16 Kyiv, 01034, Ukraine www.osce.org/ukraine © OSCE 2010
ISBN 978-966-651-917-7 Foreword 3
This book contains a compilation of three research studies conducted by the OSCE Project Coordinator in Ukraine (PCU) during 2010-2011 and provides analysis and examples of best practices from the OSCE region on enhancing sustainability of civil society organizations through funding frameworks and improving dialogue between the state and civil society. These analyses have been prepared by one national and two international experts engaged by the OSCE PCU for this work. The Institute for Rural Development, an Ukrainian NGO, carried out a research study of the existing practices and legislation of Ukraine in the area of funding of civil society organizations by government bodies, local authorities and the private sector; Ms. Albena Kuyumdzieva studied international practices on confidence building measures between the state and civil society organizations, and Mr. Balazs Sator was the author of the study on international practices on funding civil society organizations. The Secretariat of the Cabinet of Ministers of Ukraine also contributed to the development of this research and provided valuable recommendations and reviews. In 2010 the OSCE PCU was asked to provide and facilitate capacity-building assistance to Ukraine regarding the implementation of OSCE commitments related to civil society development. In partnership with the Secretariat of the Cabinet of Ministers of Ukraine, the OSCE PCU developed and launched two separate but related projects, “Civil Society – International Best Practice Research” and “Developing Institutional Framework of Funding Civil Society Organizations in Ukraine,” which focused on assisting in improving the legal and institutional framework related to the civil society funding and determining a suitable funding model. The projects attempted to analyze the legal framework regulating state and non-state civil society funding schemes based on best national and international practices, and to identify best international examples of confidence building measures between the state and civil society organizations. The case studies of existing models of civil society organization funding and measures on promotion dialogue and confidence in selected European countries, contained in the research, are not meant as turn-key solutions for strengthening the sustainable development of civil society in Ukraine. Rather, they are narrative examples whose lessons can be replicated in part or in whole for Ukraine. The research reports also included the results and feedback of discussions facilitated by the OSCE PCU among the major project stakeholders dealing with civil society on the national and regional levels. Regional roundtable discussions took place in five cities across Ukraine, which were selected to provide a geographically-balanced representation: Simferopol, Odessa, Lviv, Kiev, and Donetsk. More than 230 participants representing local executive authorities, the civil society sector and the business community took an active part in discussions of the interim research findings and in their turn presented the existing regional practices regarding civil society funding mechanisms as well as suіccessful examples of sustainable and efficient relations between the state and the civil society organizations based on trust and mutual confidence. The OSCE PCU would like to express its deep gratitude to the Foreign & Commonwealth Office of the United Kingdom for financing the implementation of the “Developing Institutional Framework of Funding Civil Society Organizations in Ukraine” Project, under which this book has been published. The book is addressed to public officials and legislators from the relevant ministries dealing with the civil society issues, representatives of Ukrainian and international civil society organizations, the Ukrainian business community, research institutions, consultancies and relevant experts, as well as international organizations working on the development of the civil society in Ukraine.
The research studies are also available online at www.osce.org/ukraine 4 Table of contents
TABLE OF CONTENTS
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Table of contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Research of the existing practices and legislation of Ukraine in the area of funding of civil society organisations by government bodies, local authorities and the private sector
1. Introduction to problems and relevance of the research . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Analysis of applicable laws that regulate funding of civil society organisations in Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2.1. Funding from government bodies and local authorities . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2.2. Funding from the private sector and individual citizens . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2.3. Funding from delivery of paid services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 2.4. Funding from other sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 2.5. Analysis of applicable laws of Ukraine on civil society organisations’ participation in the consultation process and decision-making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2.6. Interim conclusions based on the analysis of applicable laws . . . . . . . . . . . . . . . . . . . . . 45
3. Analysis of the existing practices of funding of civil society organisations in Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 3.1. Characteristics of the interviewed respondents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 3.2. Problems of funding by government bodies and local authorities . . . . . . . . . . . . . . . . . . 48 3.2.1. Main problems of the existing government funding system and their importance for imrovement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 3.2.2. Respondents’ perception of the government funding model . . . . . . . . . . . . . . . . . 54 3.2.3. Main problems of the existing local government funding system . . . . . . . . . . . . . . 57 3.2.4. Respondents’ perception of the local government funding model . . . . . . . . . . . . . 59 3.3. Problems of funding from the private sector and individual citizens . . . . . . . . . . . . . . . . 60 3.4. Problems of funding from delivery of paid services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 3.5. Problems of funding from other sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 3.6. Positive examples of funding of civil society organisations . . . . . . . . . . . . . . . . . . . . . . . . 67 3.7. Proposals on improvement of CSO funding based on interviews and regional round table discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 3.8. Interim conclusions derived from the analysis of interview and round table discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4. Impact of the Tax Code of Ukraine #2755 as of 2 December 2010 on financial state of CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
5. Recommendations as to improvement of the existing regulatory framework of Ukraine in the area of funding of civil society organisations. . . . . . . . . . . . . . . . . . 84 5.1. Funding from government bodies and local authorities . . . . . . . . . . . . . . . . . . . . . . . . . . 84 5.2. Funding from the private sector and individual citizens . . . . . . . . . . . . . . . . . . . . . . . . . . 89 5.3. Funding from delivery of paid services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 5.4. Public Monetary Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Table of contents 5
Appendix 1. References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Appendix 2. Questionnaire to study existing practices of government and non-government funding of civil society organisations (CSOs . . . . . . . . . . . . . 100
International Practices on Funding Civil Society Organizations
ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
II. Understanding the Financing Framework of CSOs. . . . . . . . . . . . . . . . . . . . . . . . 117 II.1. Models of CSO sector development in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 II.2. Financial viability of CSOs in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 II.3. Mapping the Funding Sources for CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 II.4. State Financing of CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 II.5. Private Funding of CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 II.6. Individual funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 II.7. Earned Income of CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
III.General Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
IV.Country Specific Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 IV.1. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 IV.2.Croatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 IV.3.Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 IV.4.United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 IV.5.Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
V. Conclusions Based on Country Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
VI. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Bibliography and references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
International practices on confidence-building measures between the state and civil society organizations
Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
I. Introduction and methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
II. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
III. Overview of the major international instruments and policies . . . . . . . . . . . . . . . 225 3.1. The role of the civil society in the provision of democratic governance . . . . . . . . . . . . . 225 3.2. European instruments for better civic involvement (EU and CoE) . . . . . . . . . . . . . . . . . 226 3.3. International framework for citizens participation in the decision-making process (OECD, UN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 6 Table of contents
IV. European best practices facilitating active civic participation . . . . . . . . . . . . . . 236 4.1. Openness and Transparency – provision of information . . . . . . . . . . . . . . . . . . . . . . . . . 236 4.2. Participation – citizens involvement in the decision-making process . . . . . . . . . . . . . . 252 4.3. Accountability – monitoring mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 4.4. Implementing good governance principles in the organisational 278 strategies of CSOs – international trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
VI. Proposals and recommendations on promotion confidence between the state and CSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 EXISTING PRACTICES AND LEGISLATION OF UKRAINE IN THE AREA OF FUNDING OF CIVIL SOCIETY ORGANISATIONS BY GOVERNMENT BODIES, LOCAL AUTHORITIES AND THE PRIVATE SECTOR
NGO “INSTITUTE OF RURAL DEVELOPMENT” 8 National practices and legislation on funding CSOs...
1. INTRODUCTION TO PROBLEMS AND RELEVANCE OF THE RESEARCH
Civil society is a social space outside governmental, business-oriented, and family relationships and activities, where individuals come together voluntarily to advocate their common interests. In a broader sense, civil society entities may include civil society organisations, charities, business associations, people’s self-organisation bodies, media, trade unions, employer organisations, faith-based organisations, citizen activist groups, etc1. Ukraine’s movement towards the development of democracy depends directly on the level of development of civil society and its ability to actually influence socio-economic and political processes in the country. Today’s activities of civil society organisations (CSOs) focus on consultations and building effective solutions to particular problems; provision of social services not delivered by the business because of their unprofitability; enhancement of charities; public monitoring and participation in combating corruption – that all covers a great number of issues that positively influence economic and social conditions of the community, either directly or indirectly. Therefore, CSOs are effective partners to the state in solving humanitarian and socio- economic problems. As such they take over some functions of the state, and should be offered additional financial incentives in exchange for more transparency and control of their activities by the state and society. Currently, however, Ukrainian CSOs are mainly funded by solitary local providers and foreign donors (75-85%). The annual budget of a typical Ukrainian civil society organisation is about 50,000-60,000 hryvnias, with only 2-3% of the budget funded by state. This parameter positions Ukraine next to Philippines, Pakistan and Kenya. The annual budget of a CSO in EU member countries in Eastern Europe is equivalent to 560,000–670,000 hryvnias, with 40- 60% of the amount coming from the state2. The lack of state funding of Ukrainian CSOs is the main, but not a single problem. Only 12 out of 65 central executive agencies fund certain types of CSOs. Those that can rely on government support are all-Ukraine organisations of disabled people, youth and children, Chornobyl eliminators’ organisations, art groups, ethnic minority organisations and sports federations. It should be noted that there is no funding for activities of law and advocacy, environment and monitoring CSOs. The available scant amounts of money are not always used in an effective and transparent way. Only three executive agencies of Ukraine – the Ministry for Family, Youth and Sports, the Ministry of Labour and Social Policy, and the State Committee for Television and Radio Broadcasting – allocate money on a competitive, transparent basis. But the Ministry for Family, Youth and Sports, for instance, allocated only 5 million hryvnias out of 10 million hryvnias received in 2009 to support youth organisations among competitors, the rest of money was allocated nontransparently, without an open tender exercise. The government procurement process is still complicated and contradictory. In the first half of 2009, the state undertook a tender exercise to procure works, goods and services that amounted to 58.4 billion hryvnias, while only 2.5 million hryvnias were spent on services procured from (only three!) civil society organisations. Programmes to tender for local project funding are lacking. Only 8 of 25 oblast centres have such CSO funding programmes: councils of Odesa, Chernivtsi, Kyiv, Khmelnytsky, Mykolayiv, Lviv, Kharkiv, Chernihiv, Poltava3. In accordance with applicable laws, civil society organisations may support statutory activities using not only the budget, but also other sources of funding – money from interested citizens,
1 М. Latsiba. Government policy and the level of development of civil society in Ukraine / Ukrainian Centre for Independent Political Research. – Kyiv, 2006. 2 Government funding of civil society organisations. How will European standards be implemented? / [О. Vinnikov, D. Kovryzhenko, А. Krasnosilska et al.]; Ukrainian Centre for Independent Political Research. – Kyiv, 2010. 3 Government funding of civil society organisations. How will European standards be implemented? / [All-Ukraine conference papers (Kyiv, 2010)]. [Available electronically from http://gurt.org.ua/news/conferences/5535] National practices and legislation on funding CSOs... 9
enterprises, entrepreneurs. However, business is only beginning to perceive CSOs as partners in tackling social problems, an agent of social influence on government bodies. In some cases, business promotes creation, almost without exception, of civil society associations within its sectors and funds their activities. An example may be such sectoral organisations as the Agricultural Chamber of Ukraine and the Ukrainian Agrarian Confederation whose members are from farms and the farms themselves. Laws of many countries let individuals donate larger portions of their incomes exempt from taxes than legal persons. For example, the USA have set it at 50%, and Spain at 20-30%. This may be explained by a need to reinvest naturally limiting legal persons in giving a part of their profit. Donations of a large size exempt from taxes in such countries lead to the emergence of strong charities that provide significant financial and other support to other non-profit civil society organisations and the most vulnerable groups of citizens. Besides lack of financial support provided by the government for CSOs, state regulation in place in our country failed to create incentives for citizens and the business to financially support civil society social projects and activities of civil society associations and charities. Poor national funding framework and critical dependence on international donors create considerable risks to activities of CSOs owing to which CSOs have not as yet become the main partner to the state in solving social problems, and most citizens do not think civil society organisations to be of any use and need. In general, neither government bodies nor the private sector has enough experience and skills to apply diverse forms and mechanisms of giving financial support to CSOs that exerts direct influence on sustainable development of the third sector. The existing practices of providing financial support to CSOs by the state, the business and private persons need to undergo scrutiny and analysis. Therefore, the aim of this paper is to research the existing experience and legislation of Ukraine in the area of funding of civil society organisations by government bodies, local authorities and private sector, and provide consolidated recommendations as to improvement of the existing legislative framework of Ukraine in the area of CSO funding, from the point of view of its compliance with the best international practices, fostering sustainable development and financial independence of civil society organisations. Particular problems of development of civil society organisations and some of their types (charitable, voluntary organisations) have been studied by many researchers and stakeholders4. In our paper, we research theoretical (legislative) and practical (survey-based) challenges in funding civil society entities of all types. That is, we thoroughly investigate the existing legislative framework of Ukraine that regulates funding of CSOs from government bodies, local authorities, the business sector and other sources, as well as experience in the area of government and non-government funding of civil society organisations, in line with aims of the research component of the project titled “Developing Institutional Framework of Funding Civil Society Organisations in Ukraine”. Our research is composed of the three interrelated parts. The first part is a desk top research undertaken to provide an overview and detailed analysis of applicable Ukrainian laws regulating CSO funding and taxation issues, focusing on problematic issues relating to application of legislative provisions and their relevance. The analysed sources of funding include government 4 The level and the dynamics of development of non-governmental organisations in Ukraine. 2002-2006: Study Report / [L. Palyvoda, О. Kikot]; Counterpart Creative Centre;. – Kyiv: Makros, 2006. – p. 35; Shevchuk Т. Non- governmental organisations in social life of Rivne area [Available electronically from http://postua.info/news. php?nid=6]; Stepanenko І. Conceptual uncertainty of civil society in Ukraine: Possible ways to overcome / Development of democracy in Ukraine [International science conference papers (Kyiv, 29 September – 1 October 2000)]. – Kyiv: Centre for Education Initiatives, 2001. – p. 593; Derzhalyuk О. The dynamics and expansion of the scope of activities of civil society organisations as a component of democratisation of Ukrainian society [Available electronically from http:// www.niss.gov.ua/Monitor/May08/03.htm]; Reva S. Participation of the public in the process of making and implementation of government policy // Political management. – 2006. – No. 3 (18). – p. 7; Assessment of the system of government funding of civil society organisations in Ukraine: Analytical study report / UNITER/PACT. – Kyiv, 2010. 10 National practices and legislation on funding CSOs...
bodies and local authorities (supporting statutory activities of CSOs, grants to carrying out specific activities (project tenders, procurement of services); the private sector (procurement of services, charitable activities); individual citizens (charitable activities); paid services commissioned by CSOs and other sources of funding. The first part will also include a close analysis of national legislation in respect of creation of an environment by the state to foster gaining active incomes by CSOs from provision of paid services aimed at carrying out statutory activities, and participation of CSOs in the process of consultations and decision-making, building co-operation and interface with governing structures in the area of promoting development and strengthening financial capacities of CSOs. At the end of the first part, we will provide interim conclusions to serve as a basis for providing recommendations as to improvement of the existing legislative framework of Ukraine in the area of CSO funding. The second part of the research deals with the analysis of government and non-government CSO funding practices existing in Ukraine, identification of weaknesses and successes. Today’s CSO funding practices were studied by interviewing 300 respondents from different regions of Ukraine. An important input in highlighting this issue came from the discussion of CSO funding problems and practices by participants in regional round table discussions that represented local authorities, civil society and stakeholders. At the end of the second part, we will provide interim conclusions as to the existing practices of CSO funding by government bodies, local authorities and the private sector. The third part of the research provides recommendations as to improvement of the existing regulatory framework of Ukraine in the area of funding of civil society organisations, from the point of view of its compliance with the best international practices, consistency and effectiveness in fostering sustainable development and financial independence of CSOs. The recommendations are provided in co-operation with the research component of the Unified Budget Project “Civil Society International Best Practice Research”, based on materials of the desk top and field studies.
Research methodology The research of the applicable legislative framework of Ukraine that regulates funding of civil society organisations (CSOs) from government bodies, local authorities, the business sector and other sources, as well as the experience in the area of government and non-government funding of civil society organisations in line with aims of the research component of the project aimed at “Developing Institutional Framework of Funding Civil Society Organisations in Ukraine” includes, in fact, the three parts: desk top, field studies and provision of recommendations.
Desk top study The desk top research of applicable laws of Ukraine in the area of CSO funding by government bodies, local authorities and the private sector is conducted by the method of analysis of documents. At the stage of the desk top overview, we will focus on the analysis of legislation regulating CSO funding and opportunities for their participation in the process of consultations and law-making. The regulatory function of the state becomes apparent both in Laws of Ukraine and a variety of by-laws, from Resolutions of the Cabinet of Ministers of Ukraine to innumerable letters and explanations of ministries and fiscal bodies. Therefore, the analysis of the national regulatory framework that regulates CSO funding covers, firstly, the Constitution of Ukraine, Civil, Economic and Budget Codes of Ukraine; laws of Ukraine regulating activities of citizens’ associations, people’s self-organisation bodies and local authorities, trade unions and art groups, civil society charitable, youth- and children organisations; CSO state registration, legal status and taxation. Secondly, Resolutions of the Cabinet of Ministers of Ukraine that regulate participation of the public in making and implementation of government policy, ensuring transparency of action of National practices and legislation on funding CSOs... 11
government bodies, etc. are analysed. Thirdly, to understand the problem fully, the respective decrees, explanatory notes and references of the Ministry of Justice of Ukraine and the State Tax Administration of Ukraine (STA), other by-laws and judicial practice of settling tax disputes between STA agencies and CSOs are analysed. There is a practice when state funds some civil society organisations while functioning of the other is fuelled by their own activities and money from other sources. The Law of Ukraine “On State Budget” contains yearly allocations to support particular non-profit organisations, especially, organisations of disabled people, Ukrainian deaf society (UTOG) and Ukrainian blind society (UTOS), etc. However, non-profit organisations are currently provided with real opportunities to be partners in implementation of local programmes, and a degree of independence of local budgets from the state, with deputies of local councils being able to influence their setting, raises hope of an increase in the number of social programmes implemented together with non-profit organisations. Therefore at the stage of the desk top overview, we attract attention to characteristics of and problems arising in the process of CSO funding by government bodies and local authorities (supporting statutory activities, grants for carrying out particular activities (project tenders), carrying out some activities based on socio-economic development programmes approved by local governments, procurement of services, inter alia, from special CSOs: youth-organisations, trade unions, disabled people, veterans organisations, etc.). At the stage of the desk top overview, legal problems relating to CSO funding by the private sector and individual citizens (for example, procurement of services; charitable activities; non- refundable financial assistance) will also be analysed. Pursuant to applicable laws, money voluntarily transferred to the State Budget of Ukraine or local budgets, non-profit organisations referred to in the Law of Ukraine “On Enterprise Profit Tax”, article 7, section 7.11, during a reporting year, money transferred to legal persons including non-profit organisations that are founders of a permanent arbitration court, exceeding 2%, but not exceeding 5% of taxable income gained in the preceding reporting year (Law of Ukraine “On Enterprise Profit Tax”, section 5.2.2.) are incorporated into total costs. This relief is insignificant and does not result in a significant transfer of money from business entities to non-profit organisations. The problem with giving money by the business to non-profit organisations can not be currently solved by simply raising this limit by 1-2%, a practice generally accepted in our country, because this 5% includes voluntary transfers to the budget, and besides, a large part of the business is not gaining any profits practically at all or pays a fixed (single) tax (small business). Should the proposed version of the Tax Code that heavily infringes upon rights of, especially, the small business, be adopted, most small enterprises and private entrepreneurs will stop to exist. The desk top research will also include the analysis of opportunities of applicable laws for creation of an environment to foster gaining active incomes by CSOs from provision of paid services aimed at carrying out statutory activities. Non-profit organisations of Ukraine do not engage in any business practically at all. Charities may carry out economic activities in any form, however, provided that they are aimed at performing statutory work. But if a charity carries out economic activities on its behalf, without creating its own entrepreneurial structure, it will at once lose the status of a non-profit organisation and will have to pay a profit tax. The lawmaker allowed NPOs to found business entities that may use a part of their profits to make charitable donations and provide other types of assistance to CSOs, however, this assistance, without prejudice to the financial position of a business entity, is limited to 5%, as discussed above. At the stage of the desk top overview, legitimate opportunities for using other sources of CSO funding and available secondary sources of information on these topics – analytical studies and statistics – will also be analysed, for example: The level and the dynamics of development of non-governmental organisations in Ukraine. 2002-2006: Research report / [L. Palyvoda, О. Kikot]; Counterpart Creative Centre. – Kyiv: Makros, 2006. – p. 35; Stepanenko І. Conceptual 12 National practices and legislation on funding CSOs...
uncertainty of civil society in Ukraine: Possible ways to overcome / Development of democracy in Ukraine [International science conference papers (Kyiv, 29 September – 1 October 2000)]. – Kyiv: Centre for Education Initiatives, 2001. – p. 593; Shevchuk Т. Non-governmental organisations in social life of Rivne area [Available electronically from http://postua.info/news.php?nid=6]; Derzhalyuk О. The dynamics and expansion of the scope of activities of civil society organisations as a component of democratisation of Ukrainian society [Available electronically from http:// www.niss.gov.ua/Monitor/May08/03.htm]; Reva S. Participation of the public in the process of making and implementation of government policy // Political management. – 2006. – No. 3 (18). – p. 7; Government funding of civil society organisations. How will European standards be implemented? / Ukrainian Centre for Independent Political Research. – Kyiv. – 2010; Assessment of the system of government funding of civil society organisations in Ukraine: Analytical research report / UNITER/PACT. – Kyiv. – 2010, etc.
Field research Before starting the field research, we developed approaches to identify expert assessment units and territorial units used in the research, defined the structure of division of respondents on the basis of their belonging to a group of expert assessment units and a territorial unit used in the research, determined field research tools. The field research of the existing experience in the area of CSO funding by government bodies, local authorities and the private sector is conducted by the method of a structured expert interview with 300 suitable respondents in 5 representative regions of Ukraine, in particular: 1. Eastern (Donetsk oblast); 2. Western (Volyn oblast); 3. Southern (Odesa oblast); 4. Northern (Kyiv oblast); 5. Central (Poltava oblast and Kyiv), visiting organisations and a face-to-face contact with the respondents. The above oblasts are characteristic within the regions in terms of not only geographical and historical proximity, but also the level and the structure of economic sectors. Respondents participating in the survey included those from legislative and executive agencies at the national and local levels, civil society organisations, civil society and business experts. Twenty per cent (20%) of respondents were interviewed in rural areas. The reason is that, along with difficulties faced by rural CSOs (limited knowledge and resources including information for bidding for funds), there are interesting examples of close co-operation and funding of rural CSOs by local authorities and entrepreneurs, technical inputs (labour, tools, equipment) provided by community members to CSOs to carry out socio-economic community development projects and statutory activities. It is such inputs that reduce dependence of local CSOs on grant funding by both local governments and international donors. Rural survey will complement the research of the experience in the area of government and non-government CSO funding and make it more representative all over Ukraine. Sociological data obtained at the field stage by interviewing 300 respondents will be processed using SPSS.
Recommendations In co-operation with the research component of the Unified Budget Project “Civil Society International Best Practice Research”, based on materials of the desk top and the field studies, recommendations were provided with respect to improvement of the existing regulatory framework of Ukraine in the area of funding of civil society organisations, from the point of view of its compliance with the best international practices, consistency and effectiveness in fostering sustainable development and financial independence of CSOs. The research of the existing experience and legislation of Ukraine in the area of funding of civil society organisations by government bodies, local authorities and the private sector is the research component of the project titled “Developing Institutional Framework of Funding Civil National practices and legislation on funding CSOs... 13
Society Organisations in Ukraine”. Analytical data, experimental materials and conclusions of the national research provided a basis to inform designing activities aimed at improvement of institutional development of the CSO funding system. Results of this research will directly influence the development of an integral system and institutional mechanisms of funding of the civil society in the national dimension, which will ensure that the research uses the cross-region and cross-sector approaches. It is also important that the research that involves national (ministries, central executive agencies) and local (local authorities) budget distributors and private sector representatives allows for different CSO funding sources and forms. The research has strategic value as its results will promote a transparent and sustainable civil society funding system and provide a long-term perspective on its institutional development. Put into lawmaking practice, the obtained analytical and empirical results of the national research that are part of other international comparative studies will significantly influence the dynamics of processes of Ukraine’s integration into the global community. 14 National practices and legislation on funding CSOs...
2. ANALYSIS OF APPLICABLE LAWS THAT REGULATE FUNDING OF CIVIL SOCIETY ORGANISATIONS IN UKRAINE
Over the years of independence, Ukraine has made remarkable progress toward creation of democratic institutions and strengthening of democratic procedures. In its 2009 report, the Freedom House that has ranked Ukraine as a “free” country starting from 2005 described Ukraine as a dynamically developing democracy in the region valuing fundamental human rights and freedoms5. Civil society organisations belong to the very democratic institutions that help citizens exercise their fundamental rights and freedoms and provide a powerful tool to create and legitimise an effective state’s governance system by more broadly engaging CSOs in making and implementation of government policy. The research of problems relating to the development of civil society in Ukraine, especially, such as attraction of CSOs funding of different types, seeking possible ways to improve co- operation and strengthen the framework of interaction of government bodies with the public largely benefited from efforts made by experts and research institutions. Considerable attention to highlighting problems relating to activities and development of non-governmental organisations (NGOs) is paid by the Counterpart Creative Centre (CCC). CCC researchers estimate that the number of active organisations in Ukraine (59,321 as estimated by the Single State Register of Enterprises and Organisations of Ukraine (EDRPOU) in early 2009)6 may be around 4,000-5,0007. A large number of registered organisations exist only formally or function episodically. Based on their criteria, NGOs may be deemed to be active only when they function for at least two years, have experience in carrying out two and more projects and are well known in their region. According to the annual CCC survey, in 2006 the overall organisational capacity of Ukrainian NGOs first exceeded the average level (scored 2.9 on a five-point scale), although in 2007 it descended to 2.65. The concept of NGO organisational capacity is integrated with the assessment of strategic management, governance system, leadership and management system, NGO fundraising strategies, compliance of financial management with international accounting standards, standards of human and financial resource management. The existence of comparatively few active NGOs can be explained not only by scant financial resources generated through government programmes, grants, and in some cases, membership subscriptions (which mainly applies to trade unions), but also, unfortunately, the lack of demand for activities of non-governmental organisations. Citizens of Ukraine are almost unaware of a role, functions and capacity of NGOs and do not participate in their activities practically at all. According to the Razumkov Centre survey, 4.7% of citizens are actively involved in volunteering in Ukraine, whilst 82.6% of the respondents are not. As regards membership, 69.3% said they do not belong to any organisations, 21.2% are members of trade unions, 3.6% of parties, and 3% of clubs. Such disappointing results suggest that the state fails to pay due attention to strengthening capacities of civil society in order to achieve its objectives and goals. And, unfortunately, attempts of the government at creating a sophisticated state’s governance system have not so far allowed for a role played by civil society organisations in the state’s governance system. Therefore, in fact, CSOs are currently outside of the process of transformation of the Ukrainian society on its way towards democratisation. As discussed above, current government funding of CSOs in Ukraine is quantitatively inadequate, and activities of civil society organisations are mainly supported by foreign donors and local givers. Citizens’ and business opportunities of charitable giving are limited by unavailability of
5 [Available electronically from http://tsn.ua/ukrayina/.html]. 6 The number of EDRPOU entities by legal forms as assessed on 1 January 2009 [Available electronically from http://www.ukrstat.gov.ua/]. 7 The level and the dynamics of development of non-governmental organisations in Ukraine in 2002-2009: Study report / CCC. – 2009. [Available electronically from http://ccc-tck.org.ua/file/biblioteka/CSO_2009UA.pdf]. National practices and legislation on funding CSOs... 15
free money, legislative tangle and practically total lack of tax reliefs. The society holds a stereotype that charitable activities of CSOs should not be paid, and thus feeds a categorical users’ approach to receiving support and services from non-governmental organisations. On the other hand, civil society organisations do not have any resources and investments to run fundraising campaigns and prefer an organised and rather cheap source of resources – international donors. This thought is confirmed by results of the research conducted by the Counterpart Creative Centre8. In particular, the NGO funding sources situation in 2008 is shown in fig. 1: percentage characterises the number of organisations receiving funding from the specified sources. CCC experts also studied the dynamics of the structure of annual NGO budgets (table 1). Analysing data from 2008, they reached conclusions on a budget of an average NGO. Assistance provided by the business was mentioned by 45% of the surveyed NGOs, but donations made by the business account for only 18% of the organisation’s budget.
Fig. 1. Structure of sources of funding of Ukrainian NGOs
The number of NGOs that received funding from international donors is comparatively greater and accounts for 55% of the surveyed NGOs, however, grants from international organisations make up 41% of the annual budget.
Table 1 Dynamics of the structure of budgets of Ukrainian NGOs,% Source 2002 2003 2004 2005 2006 2008 Charitable donations of citizens 11 11 12 11 12 14 Grants from local organisations 3 3 4 5 17 15 Membership subscriptions 12 14 12 9 15 12
Core business such as social entrepreneurship 4 3 4 4 4 6
State budget 11 10 9 10 13 15 Business donations 20 21 19 19 17 18 Other sources 4 6 3 4 4 5 Grants from international organisations 35 32 37 38 45 41
8 The level and the dynamics of development of non-governmental organisations in Ukraine in 2002-2009: Study report / CCC. – 2009. [Available electronically from http://ccc-tck.org.ua/file/biblioteka/CSO_2009UA.pdf]. 16 National practices and legislation on funding CSOs...
Similarly, 36% of the respondents are funded by the state, but this accounts for only 15% of NGO budget. Citizens make donations to 42% of the surveyed organisations, and they account for only 14% of the budget. Local organisations give grants to 15% of NGOs that also make up 15% of the budget. Core business is the source of funding to 10% of the respondents, but they account for only 6% of the budget. Despite general compliance of laws of Ukraine in the area of attraction of resources by CSOs with international principles and standards, they’ do not work’ because of imperfection of the regulatory framework, inconsistency and complexity of its interpretation, lack of key regulations9.
2.1. Funding from government bodies and local authorities Civil society organisations’ entitlement to financial support from the state is established by the Law of Ukraine “On Citizens’ Associations” (article 8)10 and the Budget Code of Ukraine (article 87)11. The current system of legal regulation of CSO funding by the state can be split into: – regulation of CSO activities; – regulation of state budgets (including the Budget Code) and targeted government programmes; – regulation of the use of funds provided by the State Budget and targeted government programmes (in particular, resolutions of the Cabinet of Ministers of Ukraine, decrees of respective Ministries); – regulation of the process of government-launched tenders for social projects and direct funding of activities of, and projects for CSOs. Moreover, laws regulating government funding of CSOs undergo frequent and sporadic changes. Both users and providers often misunderstand them or fail to keep abreast of changes made to them. As a consequence, they need to be explained by competent government bodies. Today, though, a system is already in place where the state provides financial support for Ukrainian CSOs using several mechanisms. Subsidies, a form of government funding aimed at supporting CSO activities in general rather than particular projects. In Ukraine, subsidies are given only to some civil society organisations, for example, veterans organisations. Grants, an allocation of government money on a competitive basis, based on identified priorities. The tendering system is rather new to Ukraine so far. Social contracts, when contracts are used in the area of social policy, for example, in case of disabled people civil society organisations. Government procurement of works and services based on respective regulations. Participation of CSOs and their representatives in actions of government bodies. There are two CSO funding planes – the national and the local. The legal basis for such funding is the Budget Code of Ukraine, Laws of Ukraine covering annual state budgets, Resolutions of the Cabinet of Ministers of Ukraine, regulations of central executive agencies recognising particular CSOs (on a competitive and non-competitive basis).
9 Kuts S. “Percentage philanthropy” as a guarantee of the development of civil society, a way toward involvement of citizens and civil society support, a resource of and for civil society in Ukraine. Analytical note on analysis of government policy in the area of funding of civil society organisations / Centre for Philanthropy. [Available electronically from http:// philanthropy.org.ua/chi-mozhliva-vidsotkova-filantropiya-v-ukra%D1%97ni/]. 10 Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12]. 11 Budget Code of Ukraine 2542-ІІІ dated 21 June 2001 [Available electronically from http://zakon.rada.gov.ua/ cgi-bin/laws/main.cgi?nreg=2542-14&p=1288600175262795]. National practices and legislation on funding CSOs... 17
At the national level, the system of budget funding, in particular, of CSOs is approved by the Verkhovna Rada of Ukraine through the Budget Code of Ukraine, special laws including Laws of Ukraine covering annual state budgets. The Verkhovna Rada of Ukraine establishes the rules of providing financial support for CSOs by local authorities and its possible level (by determining amounts to be retained by local authorities and adopting assumptions with respect to whether interbudget formulae should account for financial relationship between CSOs and local government). Laws of Ukraine covering the state budget annually make specific allocations to support CSOs at the national level. In most cases, however, the Verkhovna Rada of Ukraine does not identify particular CSOs or make specific allocations for the state to support the same and, instead, determines types of organisations entitled to it. In a similar way, the system operates at the local level where local councils identify particular CSOs to be supported only sometimes. It should be noted that the Verkhovna Rada of Ukraine recognises around 10 CSOs of different types yearly, and local councils identify, on average, from 2 to 20 organisations, depending on a region and local finance. At the local and national levels, executive agencies determine the procedure and the level of financial support to be given to any CSOs on their own, and tender exercises seem to be formal or even avoided. Government bodies usually decide to support any organisations in general only sometimes. As a rule, such a decision is made by a government subdivision, and the government only approves the funding procedure. At the local level, the situation is roughly similar – a particular CSO to be supported is identified by an executive department or division of a government body. Furthermore, funding at the both levels involves the State Treasury of Ukraine as a support regulator that performs two main functions by checking CSO documents directly in the process of funding and prioritising funding by items, based, in particular, on “protected” budget items. Current laws of Ukraine do not precisely define particular characteristics of funding, financial support to be provided to projects of civil society organisations. In general, though, the legislation addresses this in the Law of Ukraine “On Citizens’ Associations”: “the state approves the list of all-Ukraine civil society organisations in receipt of its financial assistance”. In fact the law imposes status-based limitations on civil society organisations (that have three status types – international, all-Ukraine and local) entitled to financial assistance (it appears to mean subsidies from or statutory funding by the State Budget). This law says that statutory activities of a civil society organisation may be supported only in case it has the all-Ukraine status and does not currently mention any other forms of support for civil society organisations as the main CSO type. This form is thought by most legal experts to mean that the state uses the mechanism of approval to provide financial assistance to CSOs whose activities are needed by the state and meet its interests. Therefore, the basic provision of the law provides the basis necessary to identify priorities of co-operation of the state and CSOs, as well as the basis for the development of the tender mechanism. The Budget Code of Ukraine recognises three types of CSOs to which state funding can be allocated, in particular: – disabled people and veterans civil society organisations having the all-Ukraine status; – civil society youth organisations that are supported to carry out national programmes and activities targeted at children, youth, women, family; – civil society culture and art groups having the national status. However, it should be noted that, despite the absence of express references thereto in the Budget Code of Ukraine, other, e.g. Chornobyl organisations (founded by Chornobyl victims) are also funded. In this case, government bodies provide funding based on provisions of other laws permitting the same. 18 National practices and legislation on funding CSOs...
Analysis of the Law of Ukraine “On State Budget of Ukraine 2010”12 shows that it considers spending on CSOs as follows: – amounts of funding of particular CSOs in 2010; – levels of funding of particular CSO types in 2010; – money to launch CSO project tenders in 2010; – amounts of funding of actions of government bodies in which, though, CSOs can participate. Therefore, the State Budget, being the main financial instrument of the state, currently opens the following areas of co-operation between the government and civil society organisations: direct financial support to particular CSOs, CSO funding using special mechanisms, their indirect and potential involvement through co-operation with government bodies. As regards the use of government money, practical legal instruments currently in force usually are by-laws approved based on the existing system of laws and codes, and resolutions of the Cabinet of Ministers of Ukraine usually establish the procedure of funding activities of any types of CSOs. As a rule, money from the State Budget of Ukraine is allocated for: – paying wages and remuneration; – paying fees to international organisations (for example, the Red Cross Society); – renting premises and equipment, use of public services and energy resources; – paying transport costs, use of transport services and owned vehicles; – purchase of low-value or perishable products, materials, equipment and tools; – maintenance and repairs of equipment; – maintenance of office equipment, installation and maintenance of software, maintenance of computer programmes, cartridge and toner refill services; – use of banking, legal, printing services; – participation in short-term workshops, meetings, training; – use of mailing, wire, telephone, email services; – routine repairs; – insurance and guarding of premises including maintenance of intruder and fire alarm systems; – covering costs of promoting functionality and activities of institutions of civil society organisations and associations, and improvement of technical condition of premises; – organisation of mass events, competitions, promoting learning and training process, organisational, methods building and other activities linked to implementation of approved programmes. These by-laws include a series of Resolutions of the Cabinet of Ministers of Ukraine, decrees of the Ministry of Culture and Tourism of Ukraine, Ministry of Regional Development and Construction of Ukraine, State Committee of Ukraine for Nationalities and Religions, etc. Also it should be noted that, besides direct funding, the State Budget of Ukraine-2010, similarly to preceding years, allows state and community owned property to be rented outside tendering, if state or community owned property is hired out to culture and art organisations (including national art groups and their members setting up their art studios); veterans organisations; disabled people organisations; centres for occupational and social rehabilitation of the disabled and centres for early social rehabilitation of handicapped children entitled to assistance from the state pursuant to the Law of Ukraine “On the Principles of Social Protection of the Disabled in Ukraine”, articles 14-1 and 14-213. The Ministry of Labour and Social Policy of Ukraine uses all opportunities provided by applicable laws for CSO funding. Pursuant to the Budget Code of Ukraine, article 87, the ministry uses
12 Law of Ukraine 875-12 “On the Principles of Social Protection of the Disabled in Ukraine” dated 21 March 1991 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=875-12]. 13 Resolution 236 of the Cabinet of Ministers of Ukraine “On Approval of the Procedure of Use of State Funds As Financial Support to Organisations of the Disabled in 2008” dated 26 March 2008 [Available electronically from zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nreg=236-2008-%E]. National practices and legislation on funding CSOs... 19
allocations to the State Budget to provide direct financial support to all-Ukraine disabled people and veterans civil society organisations. Since 2009, money for disabled people organisations has been distributed employing a semi-competitive mechanism. Furthermore, in 2010 the Law of Ukraine “On State Budget of Ukraine 2010” introduced direct support for Ukrainian deaf society (UTOG) and Ukrainian blind society (UTOS). The support mechanisms themselves are regulated by the Procedure of Use of Funds established by Resolution 236 of the Cabinet of Ministers of Ukraine “On Approval of the Procedure of Use of State Funds As Financial Support for Organisations of the Disabled in 2008” dated 26 March 200814 and Resolution 285 of the Cabinet of Ministers of Ukraine “On Procedure of Use of State Funds As Financial Support for Veterans Organisations and to Visit Military Cemeteries and Memorials in 2008” dated 2 April 200815. Resolution 32 of the Cabinet of Ministers of Ukraine “On Procedure of Use of State Funds to Carry Out Particular Programmes in 2009” dated 14 January 200916 extended these resolutions into 2009. Pursuant to Resolution 411 of the Cabinet of Ministers of Ukraine dated 9 June 201017 and decree 89 of the State Treasury of Ukraine dated 25 May 200418, these documents remain in force in 2010. In accordance with this Procedure, recipients of budget funding are disabled people civil society organisations identified in the Law of Ukraine “On the Principles of Social Protection of the Disabled in Ukraine”, article 12, that have the all-Ukraine status, their local (oblast) divisions, non- production enterprises and divisions of UTOG and UTOS, as well as enterprises and associations of the said societies that use such funding to promote activities of sociocultural subdivisions. Pursuant to the above Resolution, funding received from the state is used for: – holding congresses, symposia, meetings, conferences, plenary meetings, rallies, providing trainings, training courses, training workshops, holding festivals, staging exhibitions, concerts, sports events, competitions, provided that disabled people account for at least 60% of the total number of participants, holding round table discussions, events to mark the International Disabled People’s Day (excepting smorgasbords and banquets), and participation of representatives of civil society organisations in these and similar international events; – training of a chairperson and members of tender committees (maximum 6) of disabled people civil society organisations procuring goods, works and services in a manner prescribed by the law; – carrying out activities of disabled people civil society organisations as decreed by the President of Ukraine; – domestic contractual publication of books, manuals, guides, booklets, leaflets, especially, using the braille code, in specialised languages and put to sound, as well as newspapers and magazines dealing with social protection of the disabled, money from selling which is used only for the purposes mentioned in this section; – supporting non-production enterprises and divisions of UTOG and UTOS, as well as enterprises and associations of the said societies that use such funding to promote activities 14 Resolution 285 of the Cabinet of Ministers of Ukraine “On Procedure of Use of State Funds As Financial Support for Veterans Organisations and to Visit Military Cemeteries and Memorials in 2008” dated 2 April 2008 [Available electronically from zakon.nau.ua/doc/?code=32-2009-p]. 15 Resolution 32 of the Cabinet of Ministers of Ukraine “On Procedure of Use of State Funds to Carry Out Particular Programmes in 2009” dated 14 January 2009 [Available electronically from zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=32-2009-%EF]. 16 Resolution 411 of the Cabinet of Ministers of Ukraine “On Procedure of Use of Funding Allocated under Some Budget Programmes to the Ministry of Labour and Social Policy in 2010” dated 9 June 2010 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=411-2010-%EF]. 17 Decree 89 of the State Treasury of Ukraine “On Approval of the Procedure of Servicing State Budget Expenditures, Lending and Repayment of Loans” dated 25 May 2004 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=z0716-04]. 18 Decree 89 of the State Treasury of Ukraine “On Approval of the Procedure of Servicing State Budget Expenditures, Lending and Repayment of Loans” dated 25 May 2004 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=z0716-04]. 20 National practices and legislation on funding CSOs...
of sociocultural subdivisions, and incentivising of employees at a level not exceeding (including bonuses) 80% of the total funding provided to the said societies; – supporting disabled people groups within the structure of the all-Ukraine disabled people civil society organisation that provide day care services to people with mental health problems on a special list agreed with the ministry of labour; – as well as for: • renting equipment, tools and spaces; • use of public services based on average rates of consumption; • use of mailing and electronic communication services; • routine repairs of tools and premises; • creation, use and maintenance of a civil society organisation’s website, helps, information and accounting programmes, access to email; • purchasing stationery; • subscription to and purchase of periodicals, reference, information, analytical and methodical guides on social protection and rehabilitation of the disabled, activities of civil society organisations and accounting; • incentivising of organisation’s employees (at a level not exceeding (including bonuses) 35% of the total funding provided to the civil society organisation), • spending on this, however, not more than 20% of the total funding given to the civil society organisation. The State Veterans Committee of Ukraine provides support from the State Budget by directly funding statutory activities of veterans organisations and visits to military cemeteries and memorials. Funding allocated to CSOs is a non-refundable assistance for organisations’ activities. Actual monitoring of the use of funding per se is lacking, because there is a general understanding that money is allocated for statutory CSO support. An amount of funding given to a particular organisation is determined solely by political loyalty of the management of a veterans organisation to the government. A size and a number of members of the organisation are a secondary factor19. The Ministry of Ukraine for Family, Youth and Sports distributes funding between youth- and children organisations solely on a competitive basis. The tender exercise is undertaken on the basis and in a manner prescribed by Resolution 1062 of the Cabinet of Ministers of Ukraine “On Approval of Tender Procedure for Programmes Drafted by Civil society organisations Aiming Children, Youth, Women, and Family” dated 25 July 200220. Presently there is a serious problem resulting from violation of provisions of the Law of Ukraine “On Youth and Children Organisations”21 by the said resolution: it contains discrimination provisions that prevent youth organisations having the international and local statuses from participating in the tender exercise, which reduces competition between the participants materially, and thus adversely affects the quality of the proposed drafts. Nevertheless, the number of tendering organisations and the number of submitted drafts increases every year. The Ministry of Culture and Tourism of Ukraine also uses all 4 lines of funding by directly and indirectly supporting art groups and respective projects of respective civil society organisations and charities. In line with article 87 of the Budget Code of Ukraine, section 10, paragraph c, State Budget allocations undertaken by the ministry include spending aimed at government support to civil
19 Assessment of the system of government funding of activities of civil society organisations in Ukraine: Analytical study report / UNITER/PACT. – Kyiv, 2010. 20 Resolution 1062 of the Cabinet of Ministers of Ukraine “On Approval of Tender Procedure for Programmes Drafted by Civil society organisations Aiming Children, Youth, Women, and Family” dated 25 July 2002 [Available electronically from www.uazakon.com/document/spart09/inx09550.htm]. 21 Law of Ukraine 281-XIV “On Youth and Children Organisations” dated 1 December 1998 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=281-14]. National practices and legislation on funding CSOs... 21
society culture and art organisations having the national status, especially: National Union of Artists of Ukraine, National Union of Local Lore Experts of Ukraine, National Choreographic Union of Ukraine, National Union of Photographers of Ukraine, National Union of Theatre Workers of Ukraine, National Union of Composers of Ukraine, National Union of Kobza Players of Ukraine, National Union of Cinematographers of Ukraine, National Union of Folk Artists of Ukraine. The Law of Ukraine “On State Budget of Ukraine 2010” extended the timescale of two budget programmes – “Actions Aimed At Revival of Culture of Ethnic Minorities and Provision of Financial Support to Newspapers in Minority Languages” and “Actions Aimed At Implementation of European Charter for Regional or Minority Languages”. The main distributor of money of these budget programmes is the State Committee of Ukraine for Nationalities and Religions. The Committee allocates funding to support culture and education activities of ethnic minority organisations. Therefore, it can be said that currently the committee gives financial support to civil society organisations using only one instrument – budget funding. The State Committee of Ukraine for Nationalities and Religions considers government support to be a practical mechanism of implementing government policy in the area of preservation of ethnic identity of minorities. In particular, supported by the state, ethnic minorities have the opportunity to hold culture and art festivals, celebrate days of national culture, organise minority language competitions, stage exhibitions of fine arts, hold conferences, congresses, workshops, publish dictionaries, manuals, guidelines for Sunday schools, handbooks in different languages, compendiums providing information on and analysis of national and cultural development, etc. At the same time, the list of government funding priorities appears not to include other areas of social life the Committee is responsible for as a government body. Similarly to other government bodies, the State Committee of Ukraine for Television and Radio Broadcasting uses not only competitive, but also a series of other financial support tools. Pursuant to Law of Ukraine 554/97-VR “On Professional Artists and Artistic Unions” dated 7 October 199722, within the framework of the budget programme titled “Financial Support to Artistic Unions in the Area of Mass Media”, the said committee provides financial support to the National Union of Journalists of Ukraine, in particular, for statutory activities of the Union’s oblast groups. Similarly to other programmes, decisions are approved by the management of the Committee. The adopted rules and procedures for approval of any spending are limited only by the funding procedure. Within the framework of another budget programme – “Informing and Cultural Promotion of Crimeans in the Area of Revival and Development of Cultures of Crimean People” – pursuant to Law of Ukraine 2117-XII “Principles of Culture Legislation” dated 14 February 199223, resolution 636 of the Cabinet of Ministers of Ukraine “On Measures In Order To Solve Political, Legal, Socio- Economic and Ethnic Problems in the Autonomous Republic of Crimea” dated 11 August 199524 and resolution 1570 of the Cabinet “On Creation of the All-Ukraine Culture Information Centre in Simferopol” dated 28 December 199625, the State Committee of Ukraine for Television and Radio Broadcasting funds the above budget-based programme. There are multiple ongoing tendering programmes on the national level in the area of provision of social services, mini grants and funding of projects/programmes of civil society and charitable organisations, especially: 22 Law of Ukraine 554/97-VR “On Professional Artists and Artistic Unions” dated 7 October 1997 [Available electronically from zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=554%2F97]. 23 Law of Ukraine 2117-XII “Principles of Culture Legislation” dated 14 February 1992 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2117-12]. 24 Resolution 636 of the Cabinet of Ministers of Ukraine “On Measures In Order To Solve Political, Legal, Socio- Economic and Ethnic Problems in the Autonomous Republic of Crimea” dated 11 August 1995 [Available electronically from zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=636-95-%EF]. 25 Resolution 1570 of the Cabinet of Ministers of Ukraine “On Creation of the All-Ukraine Culture Information Centre in Simferopol” dated 28 December 1996 [Available electronically from zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=1570-96-%EF]. 22 National practices and legislation on funding CSOs...
1) grants for gifted youth (Decree 945/99 of the President of Ukraine dated 2 August 200026); 2) tenders launched for programmes mapped out by children, youth, women’s and family organisations (Resolution 1062 of the Cabinet of Ministers of Ukraine dated 26 July 200227); 3) tenders for funding to deliver social services (Resolution 559 of the Cabinet of Ministers of Ukraine dated 29 April 200428); 4) tenders launched for projects and programmes of civil society organisations in the area of informing the public on European integration (Resolution 956 of the Cabinet of Ministers of Ukraine dated 30 October 200829). A weakness of the above regulations is that they determine a tendering process rather schematically. The most precise outline is given of the process of tenders for funding to deliver social services. At the same time, practically all the analysed documents expect the respective central executive agency, in particular, ministries, to adopt specific instruments for their implementation (evaluation criteria, forms of tenders, etc.). The common feature of the above regulatory instruments is delegating functions in the area of running tender exercises to government bodies other than a body that issues such an instrument. All the above documents anticipate periodic launching tenders. In line with the above resolutions of the government, tender exercises are clearly linked to the budgeting process – their announcement is preceded by approval of national or local budgets that does not always meet today’s pressing challenges. Tenderers are different from case to case. Potential recipients of grants of the President of Ukraine are citizens of Ukraine. When social services are funded from the budget, tenderers are legal persons (except for state and community owned specialised enterprises and institutions and organisations delivering social services) and natural persons entitled to deliver social services professionally. Applicants for carrying out programmes targeted at children, youth, women and family, as well as informing the public on European integration are civil society organisations registered as legal persons. It should be also noted that the analysed regulatory instruments mostly fail to answer the question, what evaluation criteria for winners actually are, in a clear and unambiguous way. Recipients of grants of the President of Ukraine and winners of tenders for projects and programmes targeted at children, youth, family and women are funded from the State Budget of Ukraine. Winners of tenders for funding to deliver social services and inform the public on European integration are funded both from the central and respective local budgets. At the local level, NGOs receive budget funding using the following procedures: – social contracts; – tenders launched for social projects (programmes); – tenders launched for socio-cultural projects; – tenders launched for projects of civil society and charitable organisations; – tenders launched for projects and programmes of non-profit organisations. It should be noted that close co-operation between CSOs and government bodies on the ground is impossible without political will of local authorities and adequate support from a community. 26 Decree 945/99 of the President of Ukraine “On Grants for Gifted Youth” dated 2 August 2000 [Available electronically from zakon.rada.gov.ua/cgiin/laws/main.cgi?nreg=945%2F2000]. 27 Resolution 1062 of the Cabinet of Ministers of Ukraine “On Approval of Tender Procedure for Programmes Drafted by Youth, Children Civil society organisations and Their Associations Aiming Children, Youth, Women, and Family” dated 25 July 2002 [Available electronically from uapravo.net/data2008/g2002/list8.htm]. 28 Resolution 559 of the Cabinet of Ministers of Ukraine “On Approval of Rules of Tendering for Funds to Deliver Social Services” dated 29 April 2004 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=559-2004-%EF]. 29 Resolution 956 of the Cabinet of Ministers of Ukraine “On Approval of Civil society organisations Tendering to Carry Out Projects and Programmes In the Area of Informing the Public on European Integration” dated 30 October 2008 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=956-2008-%EF]. National practices and legislation on funding CSOs... 23
In practice, however, issues related to local budget funding of projects of civil society and charitable organisations often arise. If a community fails to develop and adopt particular targeted programmes that are mostly not referred to in respective provisions/guidelines and instruments regulating tendering process, the grounds for funding projects of entities that neither allocate budget funding nor implement targeted programmes appear to be doubtful. At the level of Ukrainian cities, documents are presently approved and in force, that widely vary in their complexity, structure and quality – from rather detailed and complex descriptions of procedures to declarative documents that do not regulate any procedural issues practically at all. Models of social contracting and municipal grants currently widespread in Ukraine are aimed at providing both general support to community beneficial activities of NGOs that often follow social lines and support to specific target groups, especially, young people, or direct involvement of NGOs in delivery of social services. Hence, local NGO funding models in force in Ukraine can be conditionally split into implementation of the system of municipal grants and use of social contracting mechanisms. One of the main mechanisms ensuring implementation of strategies and concepts of the country’s socio-economic development is, in particular, development, approval and carrying out of targeted programmes at different levels. They are used for fulfilment of the regulatory requirement for planning and prediction of delivery of social services, tackling of particular problems on the ground requiring central and local budget funding. At the regional level, the existence of a problem requiring use of budget funding, co- ordination of combined activities of local executive agencies and local authorities, enterprises, institutions and organisations, provision of real resources for carrying out planned activities by the local budget make it possible to implement respective local programmes at oblast, region, city or town levels. The Procedure for Engaging Citizens in Making and Implementation of Government Policy approved by Resolution 10 of the Cabinet of Ministers of Ukraine dated 6 January 201030 introduces mandatory public consultations on national and regional economic, social and cultural development programmes, implementation status decisions. Therefore, the state aims at engaging citizens and CSOs in making and implementation of government policy, monitoring of activities of government bodies, access to information. The issue of funding targeted programmes in Ukraine is regulated by the Law of Ukraine “On Targeted Government Programmes”31 saying that the Targeted Government Programme is a system of interconnected actions aimed at coping with the most important challenges in development of the state, particular economic sectors or administrative units, that is funded from the State Budget of Ukraine and agreed in terms of its timelines, implementers, resources. Aiming at implementation of provisions of the above law, the ministry of economy of Ukraine developed the relevant decree32 approving recommendations as to methods of mapping out targeted regional programmes, their monitoring and reporting. This provision says that the targeted regional programme is an aggregate of interconnected tasks and actions agreed in terms of its timelines and resources with all implementers and aimed at coping with the most important challenges in development of the region or particular economic or socio-cultural sectors of the region, that is funded from the local budget and is a component of respective annual programmes of socio-economic development of the Autonomous Republic of Crimea, oblasts, Kyiv and Sevastopol Cities.
30 Resolution 10 of the Cabinet of Ministers of Ukraine “On the Procedure for Engaging Citizens in Making and Implementation of Government Policy” dated 6 January 2010 [Available electronically from zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=10-2010-%EF]. 31 Law of Ukraine 1621-IV “On Targeted Government Programmes” dated 18 March 2004 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1621-15]. 32 Decree 367 of the Ministry of Economy of Ukraine dated 4 December 2006 [Available electronically from http:// www.yurist-online.com/zakoni/007/04/012399.php]. 24 National practices and legislation on funding CSOs...
The programme is deemed to be integrated, if it combines multiple related programmes within the respective sector and provides for their funding under multiple codes of functional classification of local spending. The initiator of development of programmes can be a local executive agency, local authority. The programme is developed based on: • existence of a regional problem requiring use of budget funding, co-ordination of combined effort of local executive agencies and local authorities, enterprises, institutions and organisations, provision of real resources for carrying out planned activities by the local budget make it possible to implement respective local programmes at oblast, rayon, city levels; • provision of real resources for carrying out planned programme activities by the local budget and meeting regional development priorities by the aim of the programme. Priorities for involvement of civil society organisations in regional development programmes can be: – mobilisation of local communities and transformation of their needs into programmed provisions; – organisation of protection of user rights; – development of regional trade unions in line with EU standards; – monitoring of policy and practice of local authorities and donors; – implementation of socially-oriented projects, delivery of social services; – analysis of needs of local communities and making them known to government bodies, proposals of respective projects and their implementation. Having outlined the legal ground where process of CSO funding by government bodies and local authorities is regulated, we can not ignore practices and problems arising in the process of government funding. On 16 December 2009 in Kyiv, the Ukrainian Centre for Independent Political Research conducted a thorough research – in-depth interview “Assessment of the system of government funding of activities of civil society organisations”33 the main objective of which was to research the assessment of problems arising in the process of government funding of projects and programmes of civil society organisations by their heads. The target group of this focus group research was selected civil society organisations having experience of receiving government funding for their projects. The organisations’ representatives were selected from civil society organisations that, according to information placed on websites of central executive agencies of Ukraine, received government funding in 2007-2009. General discussion confirmed that ministries and other executive agencies prioritise CSO project funding based on purely departmental responsibilities. Participants said that project selection criteria and transparency of ministerial decision-making remained obscure to most organisations. For example, the Ministry of Emergencies of Ukraine does not invite CSOs to tender, and continually works with a few all-Ukraine civil society organisations. A particular amount of funding is considered based on the annual application by the organisation and consultations with representatives of the ministry. Allegedly in order to ensure intended use of money and prevent duplication of assistance, the said ministry requires each individual receiving government assistance to be a member of the All-Ukraine organisation, Chornobyl Union of Ukraine, and submit membership application in the individual’s home rayon or city. Such a requirement directly contravenes the applicable Law of Ukraine “On Citizens’ Associations”34, article 2, but protects partners of the ministry against competition. 33 In-depth interview “Assessment of the system of government funding of activities of civil society organisations” [Available electronically from http://www.ucipr.kiev.ua/modules.php?op=modload&name=News&file=index&catid=26 &topic=] / Ukrainian Centre for Independent Political Research. – 2009. 34 Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12]. National practices and legislation on funding CSOs... 25
At the beginning of the year, the tender commission of the Ministry of Labour and Social Policy of Ukraine reviews funding proposals (tenders). Composition of the commission is approved by the minister’s decree. The tender commission includes one annually rotating representative of civil society organisations; other members of the commission are from respective departments of the ministry. The Law of Ukraine “On the Principles of Social Protection of the Disabled in Ukraine”35 binds the state to provide financial support to all-Ukraine disabled people civil society organisations. In order to select some of dozens of such organisations, the Ministry of Labour and Social Policy of Ukraine analyses the work of applicant civil society organisations over the preceding year. Furthermore, the Ministry of Justice of Ukraine is requested to prove their all-Ukraine status, and should the status of some organisations not be proved, they might not be entitled to government funding. The largest part, especially, means for incentivising employees, continually falls to UTOG and UTOS, and other civil society organisations are thought by participants in the discussion to be funded by the Ministry of Labour and Social Policy of Ukraine applying the residual principle. Besides tenders, each organisation receiving government funding from the said ministry should write questionnaires for their own programmes. As a rule, the ministry support unique activities, and if similar activities are proposed by multiple organisations, the ministry decides whom to support at its discretion. According to those interviewed, composition of the tender commission of the Ministry of Ukraine for Family, Youth and Sports is changed every year by the minister’s decree. The commission should include representatives of civil society youth organisations. Representatives of organisations submitting projects were previously banned from participation in the tender commission, but this ban, in fact, is not complied with. In the process of tenders launched for youth organisations, projects are submitted and justified to the tender commission by managers of organisations or projects personally. At the same time, participants in the discussion confirmed that the number of allocations of government funding to organisations that did not receive it previously increases every year. As a rule, ministries other than the Ministry of Ukraine for Family, Youth and Sports do not contract with CSOs whose projects were supported. For example, the Ministry of Labour and Social Policy of Ukraine issues a decree approving the checklist on the budget programme. The first deputy minister approves plans of the use of funding for the civil society organisation (the third counterpart of the document is delivered to the treasury). As regards possible improvement of the procedure, the ministries do not have any “one-stop shop” for the tender process, therefore, documents are to be visaed by different officials and even at different offices. Furthermore, an excessive number of documents are to be notarised. This takes a lot of time and even sometimes hampers tendering. Those interviewed also repeatedly confirmed that government funding of CSO projects significantly differs from procedures prescribed by law. At the same time, government funding procedures are departmentally specific on such important issues as payment timelines, CSO contribution requirements. For example, at the beginning of the year the Ministry of Labour and Social Policy of Ukraine issues an allocation plan, an approval of the checklist on the budget programme, and a limitation. On official request, the Ministry of Finance of Ukraine transfers money to a CSO account. If budget money is not received on the account, it becomes the organisation’s accounts payable, but this does not help CSO activities in any significant way. Furthermore, budget allocations are rather conditional: only 50% of the budgeted amounts is paid actually. Advances are not currently applied, though in 2007-2008 such a practice was usual, which undoubtedly suited most CSOs.
35 Law of Ukraine 875-XII “On the Principles of Social Protection of the Disabled in Ukraine” dated 21 March 1991 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=875-12]. 26 National practices and legislation on funding CSOs...
Participants in the discussion also confirmed that no ministry covers 100% of costs of civil society organisations, and it has been continually emphasised that CSOs can receive grants, set up subsidiaries, and have other sources of additional funding. Therefore, their own contribution is virtually critical for receiving government finding. As a rule, contribution of CSOs accounts for 25% of funding of youth organisations, and organisations have to carry out some activities using only their own money. In some projects, such a contribution is too large. The Ministry of Ukraine for Family, Youth and Sports requires the contribution to be in the form of money rather than volunteering, use of equipment, etc. For example, CSO contribution can be accepted as rent by the organisation or its partners. A significant problem also arises from lack of periodic budget tranches (in contrast to grants from international organisations) which compels organisations to use their own money much of the year or even all year long. Budget funding is distributed without assessing needs of disabled people and other target groups, and organisations simply try to break down annual allocations month by month. Furthermore, the above interview conducted by the Ukrainian Centre for Independent Political Research confirmed that the State Treasury applies daily limits to funding of the so called “unprotected” expenditure. Budget classifiers do not place government support given to programmes and projects of civil society organisations among protected expenditures, and thus, CSOs have to divide maximum possible costs between such protected items as wages (code 1111), public services (code 1160), catering provided to participants, etc. This reduces effectiveness of many activities significantly. For example, the Procedure for Use of State Funds to Provide Financial Support to Disabled People Civil Society Organisations36 allocates up to 35% of budget funding to incentivising employees of the organisation. But respective code – 1310 – of the budget classifier does not belong to protected expenditures, therefore, CSOs can not virtually use this money before the end of financial year. Treasury agencies can retain notes to pay unprotected expenditures for up to 10 days, until the permission is given, which prevents organisations from carrying out many activities practically at all. The above Procedure imposes many unreasonable restrictions on uses of funding. For example, it recognises only renting, and not purchase and repairs of fixed assets (code 2000), office equipment, etc. It is also problematic to civil society organisations to fulfil some other requirements of the Procedure, such as participant quotas fixed at minimum 60% of disabled people. Currently, there are also wide differences in departmental practices of reporting, control, monitoring and assessment of CSO projects. In particular, quarterly and annual reporting to the Ministry of Emergencies of Ukraine is assumed to be simple and quite adequate, and does not result in any conflicts between CSOs and ministerial departments. Reporting to the Ministry of Labour and Social Policy of Ukraine allows government officials to understand CSO activities in general, evaluate effectiveness of the use of money and outcomes of particular activities. However, it is much more in scope than in case of the Ministry of Emergencies. Reporting requirements of the Ministry of Ukraine for Family, Youth and Sports are neither excessive. On the ministry’s website, there is a special electronic page where civil society organisations receiving state funding publish their reports on their own. Such a condition is included in contracts, and copies of what organisations publish on the page should be attached to their reports. Organisations submit mandatory reports at the end of projects – due to special timelines of state funding the reporting takes place as a rule in the second half of the year. If projects are limited to
36 Resolution 236 of the Cabinet of Ministers of Ukraine “On Approval of the Procedure for Use of State Funds to Provide Financial Support to Disabled People Voluntary Organisations in 2008” dated 26 March 1998 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=236-2008-%EF]. National practices and legislation on funding CSOs... 27
particular activities (conferences etc.), reports are submitted in one-two months. Project reports are often published by civil society organisations or their partners on their own websites. Websites of all the above ministries contain plans of actions determining participation of particular CSOs. Participants in the discussion confirmed that the Ministry of Finance of Ukraine’s Control and Audit Department continually controls the use of budget funding pursuant to law. Programmed (operational) control mainly covers particular activities involving representatives of ministries producing their own reports. However, due to limited funding of similar expenditures from the budget, this control is rather formal. For example, whilst CSOs did not previously provide the Ministry of Labour and Social Policy of Ukraine with any information to be used in assessment of effectiveness of activities, now provision of information on activities carried out is mandatory, in the same way as invitation of the ministry’s representatives writing separate conclusions. However, the assessment of effectiveness of activities is rather formal, uses a score system and does not deal with qualitative changes. Currently, the prevalent view among CSOs is that a special resolution of the Cabinet of Ministers is needed for all the ministries to use a common tendering process to be based on approved priorities. But, although unified rules must also allow for moves of individual ministries to some extent, the problem is how to avoid duplication of departmental functions. Importance of the research and use of practical experience of European countries in the area of state funding of projects of civil society organisations has been emphasised more than once already, but Ukraine continues to fund networks of such organisations or cover protected expenditures rather than delivery of particular services by CSOs.
2.2. Funding from the private sector and individual citizens Civil society organisations receive around one-third of funding in the form of money and property given by private donors – legal and natural persons – as a non-refundable financial assistance (see table 1). CSO incomes from non-refundable assistance varies very immaterially, for example, they slightly increase in years of presidential or parliament elections or decrease when tax reliefs cease to be given on other CSO incomes. Pursuant to applicable laws (Law of Ukraine “On Enterprise Profit Tax”, article 1, section 1.22)37, non-refundable financial assistance to CSOs includes: 1) money transferred under gift and other contracts not requiring compensation or repayment of money (except for budget grants and subsidies), or without entering into these contracts; 2) bad debts repaid after their writing off, if these bad debts were previously incorporated into total costs of the lender; 3) debts to another person not recovered within time limits allowed for claims (as a rule, these are three years); 4) a loan or deposit given without setting time limits for repayment of the principal sum, other than loans secured with unlimited bonds and call deposits with banks, including interest on the loan or deposit; 5) interest conditionally charged on refundable financial assistance not repaid by the end of the reporting quarter at a rate fixed by the National Bank of Ukraine on the day of actual use of such non-refundable financial assistance. Sometimes donor enterprises want their contribution to CSO activities to be publicised. However, it has been not decided so far, whether income from sponsorship – publicising the name or trademark of the sponsoring enterprise – should be regarded as non-refundable financial assistance. 37 Law of Ukraine 334/94-VR “On Enterprise Profit Tax” dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 28 National practices and legislation on funding CSOs...
Though it is funding in the form of money that prevails in Ukraine, its specific type is also distinguished – goods and services delivered to CSOs free of charge (Law of Ukraine “On Enterprise Profit Tax”, article 1, section 1.23)38, that include: 1) goods delivered as gifts and under other contracts not requiring monetary or any other compensation of value of tangible and intangible assets or their return, or without entering into such contracts; 2) works and services delivered without requiring compensation of their value; 3) goods put in trust that are used by CSOs in their production or business turnover. CSO representatives and experts have again and again pointed out that inadequacy and instability of tax incentives created for local private donors, especially, legal persons, are the main obstacle to fundraising by CSOs. Pursuant to the Law of Ukraine “On Enterprise Profit Tax”, total costs of enterprises paying income tax at the standard rate may incorporate value of money or property delivered to CSOs free of charge that amounts to 2-5% of taxable profit gained in the previous reporting year, as well as up to 10% of taxable profit in case of providing assistance to enterprises of all-Ukraine associations of Chornobyl victims in which employment of such persons is at least 75%, and charitable activities of such associations39. However, the above reliefs given to donors are a necessary, though apparently insufficient move of government policy, should its expected outcome be more stable funding of Ukrainian CSOs by local donors. At the same time, the Tax Code that passed its first reading this year and virtually destroys the simplified taxation and accounting system and thus jeopardises the very existence of small and a large part of medium business will result in the closure of over 60% of private entrepreneurs (as shown by the survey on the Private Entrepreneur website40), which would adversely affect contributions from private donors as a source of CSO funding. Furthermore, giving money or property does not currently change tax liabilities of legal persons and entrepreneurs that chose to use the simplified taxation system. That is, they can fund CSOs only using their net profit. Nevertheless, before adoption of the law on the simplified system of taxation of small businesses, government policy is unlikely to undergo any changes, though profit accounting and taxation need to be more specific (e.g. profits from tours and other charity events CSOs benefit from). In Ukraine, many entrepreneurs and enterprises state zero profits or losses every year. Contributions to CSOs may not be incorporated into losses or total costs where profit is not gained, therefore, a large group of local donors can not legally fund CSOs by making charitable donations altogether. Should government policy be aimed at achieving not only short-term fiscal outcomes but also more transparency in financial activities of CSOs, such a situation can not be justified. In general, international experience shows that actual level of support given to charities and non- profit organisations by the business does not depend on provision of tax reliefs and the presence of stated profit. However, transparency and possible monitoring of intended use of this assistance mainly depend on adequate government policy. In our country, business structures would better make charitable donations from their own net profit than use such reliefs. In many countries, CSO funding benefited from regulations incorporating CSO contributions amounting to 0.2-0.3% of total income of donor enterprises into their total costs. The similar option based on donor’s costs as paying wages and remuneration is already in place in Ukraine pursuant to the Law of Ukraine “On Enterprise Profit Tax”, but it applies only to contributions to employers’ organisations that also have civil society status. This relief can be also used by making 38 Law of Ukraine 334/94-VR “On Enterprise Profit Tax”, article 5, section 5.2., dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 39 Law of Ukraine 334/94-VR “On Enterprise Profit Tax”, article 5, section 5.2., dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 40 [Available electronically from http://www.chp.com.ua/persp_43.php]. National practices and legislation on funding CSOs... 29
charitable contributions to CSOs and budget-funded organisations and institutions that also have non-profit status. Therefore, in fact, CSOs have often to compete for limited resources with budget-funded institutions, which does not only undermine their financial stability, but also can give rise to negative attitudes towards co-operation between CSOs and government bodies and cause a conflict of interest within some government bodies. Given practical experience of co-operation between Ukrainian CSOs and their local donors, relatively more effective means for fundraising are those provided by social marketing, that is, selling goods and services with deducting a part of the price for specific social projects of CSOs. In particular, they include different charity events, such as raffles, sellouts to the highest bidders, discount and debit cards, bonuses and tickets promoting aims and logos of CSOs in the process of selling goods and services by business companies or entrepreneurs41. Article 1 of Law of Ukraine 531-97/VR “On Charity and Charitable Organisations” dated 16 September 199742 says that charitable activities are voluntary non-profit donations by natural and legal persons to provide material, financial, organisational and other charitable assistance to recipients; specific charitable activities are patronage and sponsorship. Imposition of value added tax on charity transactions will depend on what type of organisations receive charitable assistance from the enterprise – non-profits or profits. If charitable contributions go to profit organisations, tax is charged on charitable contributions in the same way as in case of delivery free of charge. However, since goods (works, services) are purchased for charitable purposes, based on the Law of Ukraine “On Value Added Tax”43, subsection 4.4, there will not be any entitlement to a tax credit equal to value added tax (VAT) on the value of these goods will not arise. Subsection 5.1.21 of the VAT Law gives a tax relief on charitable contributions to non-profit organisations listed in the Law of Ukraine “On Enterprise Profit Tax”, subsection 7.11.1, paragraphs “a”, “b”, “f”. Charitable delivery of goods, works, services to such organisations is exempt from VAT. However, this relief is given subject to meeting certain conditions. Firstly, the provided charitable assistance should not have any implications of compensation by its recipient. Otherwise, this will be considered to be deliberate avoidance of taxation by the provider of charitable assistance. Secondly, recipients of charitable assistance shall comply with the requirements of the Procedure for Distribution of Goods Received as Charitable Assistance and Control Over Targeted Distribution of Charitable Assistance in the Form of Delivered Services or Performed Works approved by resolution 1295 of the Cabinet of Ministers of Ukraine dated 17 August 199844. VAT exemption does not apply to charitable donations of excisable goods (works, services), securities, intangible assets and goods (works, services) destined for business use, as well as those imported into the customs area of Ukraine, except for goods under international treaties that were given assent by the Verkhovna Rada of Ukraine. Based on subsection 7.4.2 of the VAT Law, an enterprise that donates goods and has VAT credit is not entitled to VAT credit on purchase of these goods. In case goods are purchased for the purpose of their further use in taxable transactions that are part of the taxpayer’s business, and to further provide charitable assistance to non-profit organisations referred to in subsection 5.1.21 of the VAT Law, and VAT is incorporated into the VAT 41 Analytical report “Funding of Civil Society Organisations (CSOs) in Ukraine”, 2006 [Available electronically from http:// www.ucipr.org.ua/modules.php?op=modload&name=News&file=article&sid=5368&mode=thread&order=0&thold=0]. 42 Law of Ukraine 531-97/VR “On Charity and Charitable Organisations” dated 16 September 1997 [Available ele ctronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97-%E2%F0&p=1288600175262795]. 43 Law of Ukraine 168/97-VR “On Value Added Tax” dated 3 April 1997 [Available electronically from http://zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nre g=168%2F97-%E2%F0&p=1288600175262795]. 44 Resolution 1295 of the Cabinet of Ministers of Ukraine “On Approval of the Procedure for Distribution of Goods Received as Donation and Control Over Targeted Distribution of Donations in the Form of Delivered Services or Performed Works” dated 17 August 1998 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=1295-98-%EF]. 30 National practices and legislation on funding CSOs...
credit, then in accordance with the last paragraph of the VAT Law’s subsection 7.4.1, this tax is charged on standard price of goods delivered as charitable assistance. If an enterprise states VAT as a component of a VAT credit as buying materials to be used in making of finished products that will be delivered as a charitable assistance, VAT is charged on a part of materials used to make products delivered for charitable purposes. The taxpayer’s total costs include money or value of goods (works, services) voluntarily transferred (delivered) to the State Budget of Ukraine or local budgets, non-profit organisations referred to in the Law of Ukraine “On Enterprise Profit Tax”45, section 7.11, in the reporting year, money transferred to legal persons including non-profit organisations that are founders of a permanent arbitration court, exceeding 2%, but not exceeding 5% of taxable income received in the preceding reporting year, except for contributions referred to in subsections 5.6.2 and 5.2.17 of the law. Pursuant to subsection 7.11.1 of the above law, non-profit institutions and organisations include: а) government bodies of Ukraine, local authorities and institutions or organisations that are established by them and rely on funding from respective budgets; b) charities established in a manner prescribed by law to carry out charitable activities, including civil society organisations created in order to carry out environmental, recreation, amateur sports, cultural, educational and research activities, as well as art groups and political parties, disabled people civil society organisations and their local groups set up pursuant to the Law of Ukraine “On Citizens’ Associations”46, research institutions and accredited universities (levels 3 and 4) that are on the State Register of State-Supported Scientific Institution, preserves, museums; c) legally established pension funds, credit unions; d) legal persons other than those referred to in paragraph “b” of this subsection, whose activities are not aimed at gaining profit in line with provisions of respective laws; e) unions, associations and other groups of legal persons that are established to represent interests of their founders, rely solely on contributions by such founders, and do not conduct any business, except for receiving passive income; f) legally registered faith-based organisations; g) legally set up housing co-operatives, groups of co-owners of blocks of flats; h) legally established professional groups, their associations and trade unions. Depending on the status of a non-profit organisation, subsections 7.11.2-7.11.14 of the Law of Ukraine “On Enterprise Profit Tax” identify types of income exempt from profit tax. Therefore, an enterprise that gave money or goods, works, services is entitled to incorporate these into total costs, provided that they exceed 2% and not exceed 5% of taxable income received in the past reporting year. The donor can refer to “relief-giving” subsection 5.2.2 of the Law of Ukraine “On Enterprise Profit Tax” subject to the evidence of the recipient’s non-profit status. Non-profit evidence is a copy of a decision to put the organisation (institution) on the Register of Non-Profit Organisations (institutions), remove it from or not to put it on the Register (hereinafter called the Decision) made in a form shown in appendix 2 to the Provision on the Register of Non-Profit Organisations and Institutions approved by decree 232 of the State Tax Administration of Ukraine dated 11 July 199747. Charitable activities of private persons in Ukraine are gradually beginning to develop due to fundraising actions and campaigns undertaken by civil society organisations48. Unfortunately, quite
45 Law of Ukraine 334/94-VR “On Enterprise Profit Tax” dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 46 Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12]. 47 Decree 232 of the State Tax Administration of Ukraine “On Approval of the Form of Report on the Use of Money of Non-Profit Organisations and Institutions and the Guidance on Filling It Out” dated 11 July 1997 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=z0290-97]. 48 Whether percentage philanthropy is possible in Ukraine [Available electronically from philanthropy.org.ua/chi- mozhliva-vidsotkova-filantropiya-v-ukraїni] / Centre for Philanthropy. National practices and legislation on funding CSOs... 31
few citizens are interested in social life because of a low standard of living, though people’s interest in civil society is growing, in the first place, due to brisk political life of Ukraine. Private charitable activities are carried out in several ways: those from rich groups establish their own charitable structures mainly aimed at promoting their own image. In contrast, some rich citizens engage in charitable activities anonymously. However, resources of such funds are generally inaccessible to civil society organisations because donors are willing to contact with recipients directly. Another way is to engage in charitable activities through small donations by wide groups of people, which takes place at the level of a community and is often stirred in response to social crises or organisations’ moves. One more way that can not be termed charitable activity in the true sense of the word is membership subscriptions (some CSOs, especially, trade unions rely on membership subscriptions). Unfortunately, receiving private donations is rather complex procedure, technically. There are only two ways available to organisations to collect donations – cashless, when money is transferred to the organisation’s settlement account, or in cash, when money is given to the cashier of the organisation. The both ways are technically embarrassing, especially, to donors. The state supports private charitable activities by giving a tax relief amounting to 2-5% of the annual taxable income to natural persons49. However, this provision is limited to taxpayers, applies only to wages and does not allow for interests of the retired, non-working people, natural persons conducting business. This provision neither applies to non-profit membership subscriptions. Therefore, donating natural persons do not exercise their right to be given a tax relief on their donations and other contributions to CSOs practically at all. Taking into account low income tax rates set for natural persons and their absolute incomes in the form of wages, tax reliefs given to donating natural persons in Ukraine are not considered to be critical for CSO funding. This also applies to Ukraine’s potential use of provisions covering the so called “percentage philanthropy” widespread in Central and Eastern Europe. Here a natural person may ask tax agencies to deduct a percentage of a tax charged on the person’s income in favour of community benefit organisations recognised by law. Furthermore, natural persons provide assistance to CSOs mainly in the form of free-of-charge services and volunteering that are not currently included in tax returns and national statistics. Ukraine has already a few regulations in force that cover volunteers. However, a special Law is still lacking, in contrast to, for example, Spain, despite attempts to pass it. In particular, the draft Law of Ukraine “On Volunteering” was introduced to the Verkhovna Rada of Ukraine in 2007. So far, the legal status of volunteers is in fact uncertain and brings CSO staff, elected officials and providers of free-of-charge services under the same category. The Civil Code of Ukraine provides CSOs with strong funding opportunities also under succession law (wills, claims and contracts of succession, as well as will-based establishments)50. But since 2004 when this code came into force, too little time has passed for the practice to become common in Ukraine.
2.3. Funding from delivery of paid services Tackling CSOs’ financial sustainability problems is negatively affected in a considerable way by de facto prohibition (with some nuances) of conduct of business. The Law of Ukraine “On Citizens’ Associations”51 allows civil society organisations to engage in business activities only by establishing self-governing institutions and organisations having
49 Law of Ukraine 889-IV “On Personal Income Tax”, article 5, section 5.3.2, dated 22 May 2003 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=889-15&p=1288600175262795]. 50 Civil Code of Ukraine 435-IV dated 16 January 2003 [Available electronically from http://zakon.rada.gov.ua/cgi- bin/laws/main.cgi?nreg=435-15&p=1288600175262795]. 51 Article 24 of Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12]. 32 National practices and legislation on funding CSOs...
the legal status. At the same time, while this is allowed by the Economic Code of Ukraine, CSOs shall use the gained profit for statutory purposes. In practice, this sometimes results in an one- sided interpretation of applicable legislation by tax agencies, and thus some CSOs lose their non-profit status. In its turn, this limits sources of funding and undermines financial sustainability of organisations. Complicated process of registration of business activities of civil society organisations departs from the practice of advanced countries where non-profits are entitled to the same subject to the use of profits for statutory activities, without any other limitations and interpretations. As addressing issues related to regulation of CSO activities and their taxation, one should very precisely know what such activities are. CSOs can have a bank account, investments in securities and other investments producing income in the form of dividends and increase in market value. There are also periodic activities such as charity lotteries and auctions. However, the above activities are considered to be a sort of attracting contributions and are also non-business. For example, museum entry fees or charges for services of a charity medical centre are not seen as a trade or business activities, and mostly are token. Tax laws of some countries expressly state that incomes from such sources are non-business, and though other laws say nothing about it, it is a tradition. As regards business in such areas as selling goods and delivery of services, it is difficult to determine whether such activities are not-for-profit. For example, work for physically handicapped persons is aimed at employment rather than conduct of business and gaining profit. Furthermore, increasingly more organisations work under contracts binding them to deliver goods and services to third parties (for example, educational programmes), and these organisations themselves see these activities as principal. In some countries, for instance, in Poland, non-business and business activities can be carried out by the same organisation, whilst in other countries, for example, in Great Britain, only a CSO’s subsidiary can have business activities. But anyway, profit tax is not paid. French CSOs can not engage in business activities, so there is simply no taxation. In most countries, CSOs are allowed to conduct business to support their principal activities, however, subject to two conditions being met: the organisation’s profit is not distributed and is used for principal activities; the organisation is established and exists in order to achieve non- business aims. A criterion proposed to assess when NPO can engage in business activities is termed the “principal aim”. Based on this criterion, NPO conducting business that accounts for more than one half of its activities loses its status and reliefs52. An alternative is the “income aiming”. According to this criterion, the organisation would be given reliefs as long as the income from business activities is used for achievement of humanitarian aims. The latter concept has been traditionally thought to be better, because it becomes possible to develop the non-profit sector of transitional economies. However, the problem is nothing but taxation, the global practice of taxation covers the whole spectrum of possibilities, from prohibition of business activities to allowing them without any limitations. In Bulgaria, business profit is taxed irrespective of its use; in Poland, profit used for achievement of NPO aims is non-taxable. Allowing non-governmental organisations to conduct business in order to support their statutory activities is very important, especially, in countries with underdeveloped private capital. The conduct of business permission can considerably support the non-profit sector in the recession. The main problem with regulation of taxation of NPO activities is defining limits and scope of activities a non- profit organisation can engage in. In general, non-profits compete with businesses not only in the market, but also for government contracts. The main argument against tax reliefs on non-principal activities of NPOs is the risk of undermining activities of the business sector.
52 Legislative regulation of activities of non-profit organisations: Global experience and recommendations for Ukraine [Available electronically from http://www.parlament.org.ua/index.php?action=publication&id=8&ar_id=42&as=0] / Laboratory for Legislative Initiatives. – 2001. National practices and legislation on funding CSOs... 33
An important source of financial strengthening of CSOs can become delivery of paid services, especially, to the state. Government procurement processes can involve any legal persons including CSOs. These processes are mandatory, if the procurement cost exceeds 100,000 hryvnias (goods), or 300,000 hryvnias (works) (Law of Ukraine 2289-IV “On Government Procurement” dated 1 June 201053). Currently, CSOs participate almost solely in open tendering processes having a regulatory framework that is the largest among six legal processes (closed tenders, two stage tenders, quotations, single contractor schemes). Involvement of CSOs in the tendering process is limited by several factors. Firstly, contractor qualification requirements allow most CSOs to be directly or indirectly excluded from tendering based on territorial status, the number of staff or non-provision of a tender guarantee (a percentage of the procurement cost). Great number of business activities are also subject to licensing or certification by the state and are to be entered in special state registers which does not always allow CSOs to remain non-profit. One of conditions to government funding of CSOs that deliver social services or participate in processes of government procurement of other services are the absence of debts to the budget and availability of an auditor’s opinion. Writing off and delayed paying debts to budgets and targeted government funds being prohibited, it is not so easy for small CSOs to comply with these quite justified requirements. The Law of Ukraine “On Amending Some Laws of Ukraine Aimed At Simplifying Conduct of Business in Ukraine”54 repeals particular provisions of the Law of Ukraine “On Social Services”, especially: • “non-government entities willing to professionally deliver social services relying on their own money, attracted money or funding from the central and local budgets, shall deliver them under a license in a manner prescribed by the Cabinet of Ministers of Ukraine”; • “professional activities in the area of delivery of social services are subject to licensing in a manner and order prescribed by the Cabinet of Ministers of Ukraine”. This law creates more favourable environment for CSOs, enterprises and institutions set up by them to deliver social services than it was previously thanks to the following changes: • reduction of the minimum level of chartered capital of limited liability companies from 100 minimum wages to one (from 66,900 hryvnias to 907 hryvnias (as of 1 October 2010)), which correlates with the European approach; • setting a minimum five-year period for renting state and community owned property (except when a tenant proposes a lesser period); • establishing a moratorium on increase of the current state property rental by January 2011; • change in licensing business activities involving some civil society organisations and their enterprises since 28 February 2010; • cancellation of the requirement for licensing of CSO activities in the area of social services; • limitation of the period of issue of permissions (to 10 business days); • applying the following principle to all the permissions: when a permission or ineligibility notice is not issued within ten days, the permission is deemed to be obtained without the receipt of a respective document. Certainly, these changes are positive, but they do not suffice to create an environment that would favour CSO functioning and activities aimed at delivery of these services. It should be noted that information on charity events and social services is not recognised as social advertising, and thus is not exempt from taxes. The Law of Ukraine “On Renting State and Community Owned Property”55 requires all CSOs, excepting culture and art groups, veterans and disabled people 53 Article 2 of Law of Ukraine 2289-IV “On Government Procurement” dated 1 June 2010 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2289-17&p=1288600175262795]. 54 Law of Ukraine 1759-IV “On Amending Some Laws of Ukraine Aimed At Simplifying Conduct of Business in Ukraine” dated 15 December 2009 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1759-17]. 55 Law of Ukraine 2269-12 “On Renting State- and Community-Owned Property” dated 10 April 1992 [Available electronically from http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2269-12]. 34 National practices and legislation on funding CSOs...
civil society organisations, to tender for renting state and community owned property they will use to carry out their activities. CSOs that won project tenders are not allowed to rent premises they need in order to engage in their activities without an additional tender exercise. Furthermore, governmental standards and provisions covering quality of delivery of social services are lacking so far, and there are not government programmes in place to provide training and certification of volunteers delivering social and community benefit services on the long-term basis56, which, in its turn, also hampers the development of the market of social services. Ukrainian budget laws leave delivery of social services to government institutions a priori. Consequently, the whole budget policy is aimed at maintaining budget-funded institutions and their orientation to the needs of citizens, though, there are some positive trends in funding CSOs willing to deliver such services. However, the legislation and political will of deputies limit CSO’s access to government funding (in fact, it mostly comes only through local budgets), and thus the state budget does not provide for conditions and size of subventions aimed at carrying out targeted social service delivery programmes. Only 10% of Ukrainian cities fund CSOs delivering social services by launching social project tenders, which ensures more transparency and effectiveness of their activities and their orientation to the citizens’ needs. Other communities distribute money “manually”57. Major weaknesses of the social contracting system are also associated with lack of necessary reliable information. On the one hand, not having enough resources, civil society organisations do not inform the general public about social services they deliver, and on the other hand, some parties to social co-operation are not interested in dissemination of particular information (for example, related to consulations on budget items between local authorities and charitable activities of business structures). Exchanges of information, knowledge and experience will promote development of each of them58. We would also like to pay attention to two important problems faced by CSOs as delivering paid services. Pursuant to amended Law of Ukraine 2642-IV “On Value Added Tax” dated 3 June 2005, non-profit organisations shall register for VAT as soon as the total income from delivery of goods (services) taxable pursuant to the Law, including using the local or global computer network, paid (given) to such a person or third persons as liable exceeds 300,000 hryvnias (excluding the value added tax) in the last twelve calendar months. The first problem likely to arise is the organisation’s ceasing to be non-profit, and the second is not exceeding the 300,000 hryvnias’ limit that requires the organisation to continually control regularity of paying for services within 12 calendar months. Because, if money is received irregularly or a lump sum is paid for a large scope of services, a CSO can lose the chance to deliver services for rather a long time, up to 11 months. The capacity to carry out business activities independently belongs to general civil capacities of non-government legal persons including non-governmental non-profits. This capacity is secured by Recommendation СМ/Rec(2007)14 (7) of the Council of Europe’s Committee of Ministers to member states (adopted by the Committee of Ministers on 10 October 2007 at the 1006th meeting) on the legal status of non-governmental organisations (NGOs) in Europe: “NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and should be subject to the administrative, civil and criminal obligations and sanctions generally applicable to those legal persons”59.
56 Government funding of civil society organisations. How will European standards be implemented? / [All-Ukraine Conference Papers]; Ukrainian Centre for Independent Political Research seconded by UNITER Project and National Endowment for Democracy (NED). – [Available electronically from http://gurt.org.ua/news/conferences/5535/]. 57 Interaction between government bodies and civil society organisations: Study / National Institute for Strategic Studies. – [Available electronically from http://www.niss.gov.ua/Monitor/juli/23.htm]. 58 Interaction between government bodies and civil society organisations: Study / National Institute for Strategic Studies. – [Available electronically from http://www.niss.gov.ua/Monitor/juli/23.htm]. 59 Civil society in the EU-Ukraine Association Agreement [Available electronically from eu.prostir.ua/.../civil%20 society%20in%20EU-Ukraine%20association%20agreement.pdf]. National practices and legislation on funding CSOs... 35
More specific provisions covering the capacity to engage in business activities are given in section 14 of the Recommendation: “NGOs should be free to engage in any lawful economic, business or commercial activities in order to support their not-for-profit activities without any special authorisation being required, but subject to any licensing or regulatory requirements generally applicable to the activities concerned”. Only seven of 27 EU member states currently tax incomes gained by community benefit or- ganisations from business activities. Germany exempted even incomes from non-principal or non-statutory activities amounting up to EUR 35,000 per year, Hungary set the limit at EUR 41,000, Great Britain at EUR 60,000, and Lithuania even at EUR 300,00060. Other countries, such as Czech Republic and Slovakia, exempt incomes from charity cultural and educational events, social services, sports competitions, auctions and lotteries. Can Ukrainian organisations engage in similar activities? After all, the recession significantly limits opportunities to receive private donations and other voluntary contributions61. However, Ukrainian NGOs have to rely on these very donations, since they receive little money from delivery of services or other business activities: less than 12% of the total income as compared with 47% in Hungary or 90% in Italy and 96% in Japan. Even gaining income in the process of government procurement of goods and services including social ones requires clear guarantees of the capacity to engage in business activities, especially, for civil society organisations. Such guarantees are lacking, moreover, Ukrainian courts again and again would not allow organisations to engage in such activities or take out the necessary licenses in cases prescribed by law, even where law, for example, the Law covering social services62, expressly says that it is non-profit organisations that should deliver these services, rather than their enterprises. Issues relating to charity auctions and lotteries are also unsolved. The main legislative regulation problem remains contradiction between provisions of articles 8 and 24 of the current Law of Ukraine “On Citizens’ Associations”. On the one hand, the law deals allow civil society organisations to conduct business not only through subsidiaries, but also directly. However, administrative and judicial practice strictly follows the limiting interpretation of the law and requires engagement in any activities having any potential to produce profit through participation in other enterprises. Laws of most countries that became EU members by 2004 (Austria, Great Britain, Greece, Denmark, Ireland, Iceland, the Netherlands, Germany, Portugal, France and Sweden) do not impose any special restrictions on business activities of NGOs. Among the recent member countries, the general capacity to engage in such activities is recognised by laws of Estonia and Latvia63. As before, a justification for bureaucratic attention to business activities of NGOs is provided by article 24 of the Law of Ukraine “On Citizens’ Associations”: civil society organisations are allowed to engage in “business and other commercial activities by establishing self-governing institutions and organisations with legal personality, setting up enterprises in a manner prescribed by law”. The rest appears not to comply with the laws of Ukraine, which leads to numerous problems referred to above. Fiscal bodies mostly think business activities to include delivery of services free of charge. Consequently, a stalemate ensues when NGOs can in no way avoid virtual violation of prohibition of business activities. Section 1.32 of the Law of Ukraine “On Enterprise Profit Tax”64 expressly states that 60 Comparative charts of foundation laws (2009). – European Foundation Centre, 2010. 61 According to the Ministry of Economy of Ukraine, in the first half of 2009 profit of Ukrainian enterprises was 20.6 billion hryvnias as compared to 193 billion hryvnias in 2008. This means, in particular, that in 2010 enterprises could incorporate contributions to NGOs not exceeding 800 million hryvnias into their total costs. However, in 2008 such donations were around 2,600 million hryvnias. 62 Law of Ukraine 966-IV “On Social Services” dated 19 June 2003 [Available electronically from http://zakon.rada. gov.ua/cgi-bin/laws/main.cgi?nreg=966-15]. 63 Civil Society Journal. – 2010. – Issue 2(13). – p. 28. – [Available electronically from http://www.eternityclub.kiev. ua/pdf/gr_obsh_2.pdf]. 64 Law of Ukraine 334/94-VR “On Enterprise Profit Tax” dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 36 National practices and legislation on funding CSOs...
business activities are “any activities aimed at gaining income in the monetary, tangible or intangible form”, and NGO’s participation in developing such activities is regular, continual and essential, inter alia, in case these activities are carried out by representatives acting on behalf of the NGO. Section 1.31 of the same law is more specific and says that free-of-charge delivery of outcomes of works and services is also considered to be a sale, that is, earning of income, at any rate, in intangible form. Contradictions can also be found in article 904 of the Civil Code of Ukraine allowing free-of- charge delivery of services to be contracted – not for advertising but for the clients to recover all associated costs to the provider of particular services, including NGOs, which is equivalent to earning money. However, many lawyers firmly believe that provisions of the Constitution and other framework laws covering fundamental freedoms and rights become valid only when they are regulated by special laws or even by-laws. But as conducting business, NGOs again and again ignore the fact that the above Law of Ukraine “On Citizens’ Associations” is framework rather than special and covers exchanges, housing co-operatives, political parties, foundations, and even trade unions and art groups. Instead, special laws allow civil society organisations to directly engage in independent business activities. These are not only disabled people or Chornobyl victims’ organisations. This capacity, in particular, is affirmed by laws “On Co-Operation” (article 23)65, “On Professional Artists and Artistic Unions” (article 9)66, “On Employer Organisations” (article 11)67, “On Credit Unions” (article 21)68, as well as “On Charity and Charitable Organisations” (article 20)69. The list of special laws is being extended every year. Since May 2004, fees for services of arbitration courts not creating a legal person such as CSO, inter alia, within all-Ukraine civil society organisations, are exempt from profit tax. Such incomes are not considered to be from business activities. Article 36 of the Constitution of Ukraine guarantees equality of all civil society organisations before the law. As per article 8 of the Constitution, its provisions apply directly, which was affirmed by the Constitutional Court that revoked discrimination provisions of laws “On Youth and Children Organisations” and “On Trade Unions, Their Rights and Guarantees”. If the special law allows civil society organisations of each type to have business activities, the direct applicability of article 36 of the Constitution will also mean unconstitutionality of general prohibition of business activities of such organisations. Article 42 of the Constitution guarantees the right of each person to engage in entrepreneurship that is a special right in terms of business activities. This capacity of NGOs is specified in article 86 of the Civil Code: “non-entrepreneurial societies and institutions, along with their principal activities, can engage in entrepreneurship, unless otherwise stated by law and provided that these activities meet and support the aim they were established with”. Transitional provisions of the Constitution (section 1) say that laws and other regulations adopted before it came into force apply as far as this does not contravene the Constitution. The Civil Code of Ukraine and special NGO laws passed in 1997-2004 do not contravene the Constitution and Ukraine’s international treaties, while the application of article 17 of the Law of Ukraine “On Citizens’ Associations” passed in 1992 contravenes them fundamentally70. 65 Law of Ukraine 1087-IV “On Co-Operation” dated 10 July 2003 [Available electronically from http://zakon.rada. gov.ua/cgi-bin/laws/main.cgi?nreg=1087]. 66 Law of Ukraine 554/97-VR “On Professional Artists and Artistic Unions” dated 7 October 1997 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=554%2F97-%E2%F0]. 67 Law of Ukraine 2436-ІІІ “On Employer Organisations” dated 24 May 2001 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2436-14]. 68 Law of Ukraine 2908-ІІІ “On Credit Unions” dated 20 December 2001 [Available electronically from http://zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2908-14&p=1288600175262795]. 69 Law of Ukraine 531/97-VR “On Charity and Charitable Organisations” dated 16 September 1997 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97-%E2%F0]. 70 Vinnikov О. Memo on NGO’s capacity to engage in independent business activities [Available electronically from http:// www.ucipr.org.ua/modules.php?op=modload&name=News&file=article&sid=4035&mode=thread&order=0&thold=0]. National practices and legislation on funding CSOs... 37
Simultaneously with the Civil Code, the Economic Code of Ukraine71 distinguishes non- commercial business activities as independent and systematic business activities not aimed at making profit business entities, that is, any registered legal persons other than government bodies and local authorities (articles 52-55) engage in. Entrepreneurial activities of legal persons can be prohibited only in specific areas explicitly defined by law (article 43). It is important that article 167 of the Economic Code clearly distinguishes having corporate rights (including NGO subsidiaries) as a kind of business activities and entrepreneurship.
2.4. Funding from other sources Membership subscriptions A large number of non-governmental organisations use membership subscriptions as a source of funding for their activities. At the same time, if we follow the logic of tax officers and laws, they should be taxable. This was the point of the State Tax Administration in its explanation 16884/10/15-109/244 dated 10 August 2009 to letter No. 0907 of the Centre of Civic Advocacy dated 8 July 200972. Tax agencies are not currently concerned only with taxation of membership subscriptions of trade unions. The Law of Ukraine “On Enterprise Profit Tax”73 providing the basis for exemption of respective incomes of non-profit organisations mentions membership subscriptions not in all of its sections. Respective parts of this law identify sources of income to be exempt from tax for non-profits of each type. Most charities and civil society organisations are among organisations listed by the Law “On Enterprise Profit Tax”, article 7, section 7.11.1, paragraph “b”, in particular: charitable foundations and organisations set up legally to provide charitable assistance, including by civil society organisations created in order to engage in environmental, recreation, amateur sports, cultural, educational and research activities, as well as art groups, disabled people civil society organisations and their local groups set up pursuant to the Law of Ukraine “On Citizens’ Associations”74. Correspondingly, the Law (article 7, section 7.11.3) identifies incomes of the said non-profit organisations to be exempt from tax that, to be more specific, are incomes earned in the form of: • money or property supplied free of charge or as non-refundable financial assistance, or voluntary donations; • passive incomes; • money or property coming to such non-profits from their principal activities subject to provisions of subsection 7.11.11 of this article; • grants or subsidies from the central or local budget, targeted government funds or as part of charitable activities, including humanitarian or technical assistance provided to such non-profits under international treaties that were given assent by the Verkhovna Rada of Ukraine, except for grants aimed at regulating prices for paid services delivered to such non-profits or through them to their recipients in line with law, in order to lower the prices. As interpreted by the State Tax Administration, “…pursuant to the Law of Ukraine “On Enter- prise Profit Tax”, article 7, section 7.11, subsections 7.11.6-7.11.7, exempt incomes of non-profit organisations are those gained in the form of membership subscriptions referred to in paragraphs “e” (unions, associations and other groups of legal persons), “f” (housing co-operatives, groups of co-owners of blocks of flats) and “g” (legally established trade unions, their associations and organisations)”. 71 Economic Code of Ukraine 436-IV dated 16 January 2003 [Available electronically from http://zakon.rada.gov. ua/cgi-bin/laws/main.cgi?nreg=436-15&p=1288600175262795]. 72 Socio-legal portal. – [Available electronically from http://www.pilga.in.ua/node/763]. 73 Law of Ukraine 334/94-VR “On Enterprise Profit Tax” dated 28 December 1994 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795]. 74 Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12]. 38 National practices and legislation on funding CSOs...
Today, therefore, fiscal bodies think that, if an organisation belongs to non-profits other than a union, association and group of legal (not natural) persons, housing co-operative, group of co- owners of blocks of flats, trade union, association, its membership subscriptions are taxable. Furthermore, fiscal bodies believe that a non-profit gaining income from sources other than those identified by respective subsections 7.11.2-7.11.7 of this section should pay income tax identified as a sum of incomes earned from such other sources less a sum of costs associated with gaining such incomes, however, not exceeding the sum of such incomes. Organisations and lawyers attempted to place membership subscriptions among “money and property coming to non-profits from their principal activities’, however, as pointed out in the explanation, such a “theory” is unsupportable. Presently, in order to avoid problems as- sociated with possible charges of non-paying taxes liable on membership subscriptions and arguments with tax agencies, organisations not belonging to the types with exempt member- ship subscriptions may state such contributions as “voluntary donations” of natural persons rather than membership subscriptions, which currently became a practice many NGOs ac- tively engage in. Such a type of sources of income is exempt for civil society organisations and charities be- longing to those covered by the Law of Ukraine “On Enterprise Profit Tax”, article 7, section 7.11.1, paragraph “b”. Unions, associations and other groups of legal persons that are established to represent the interests of their founders, rely solely on contributions by such founders, and do not conduct any business, except for receiving passive income, can be included in the Register of Non-Profit In- stitutions and Organisations pursuant to the Law of Ukraine “On Enterprise Profit Tax”, article 7, section 7.11, subsection 7.11.1, paragraph “e”. This law (article 7, section 7.11, subsection 7.11.6) applies exemption from profit tax to incomes of such organisations earned in the form of one-off and periodic contributions from founders and members; passive incomes; grants and subsidies from the central or local budget, targeted govern- ment funds or as part of charitable activities, including humanitarian or technical assistance provid- ed to such non-profits under international treaties that were given assent by the Verkhovna Rada of Ukraine, except for grants aimed at regulating prices for paid services delivered to such non-profits or through them to their recipients in line with law, in order to lower the prices. The Law of Ukraine “On Enterprise Profit Tax” (article 7, section 7.1, subsection 7.11.13) defines the term “principal activities” as activities of non-profit organisations engaged in pro- viding charitable assistance, delivery of awareness-building, cultural, research, educational and other similar services to the society, creation of citizens’ social self service systems (non- government pension funds, credit unions and other similar organisations). Principal activities also include the non-profits selling goods (services) promoting principles and ideas advo- cacy of which was the aim of creation of the non-profit, that are closely linked to its principal activities, provided that a price for such goods (services) is below the standard price or is regulated by the state. Based on the above law, subject to article 7, section 7.11, subsection 7.11.9, paragraph two, and notwithstanding the provisions of paragraph one of this subsection, in case a non-profit organisation gains income from sources other than those identified by respective subsections 7.11.2-7.11.7 of this section, such a non-profit shall pay profit tax charged as a sum of incomes earned from such other sources less a sum of costs associated with gaining such incomes, how- ever, not exceeding the sum of such incomes. Therefore, in the context of the above law, selling goods received by the association as a membership subscription is equivalent to a business transaction aimed at making profit. Con- sequently, the income from selling such goods is subject to profit tax pursuant to section 11 of article 7, subsection 9, paragraph two, as income from sources other than those identified by respective subsection 7.11.1-7.11.7 of this section. National practices and legislation on funding CSOs... 39
As regards value added tax liable on membership subscriptions, it should be noted that, pursu- ant to the Law of Ukraine “On Value Added Tax”75, article 3, section 3.1, value added tax is charged on supplies of goods and services by the taxpayers within the customs area of Ukraine. Member- ship subscriptions the non-profit receives from natural and legal persons that are its members in the form of money are non-taxable, value added tax is not charged since they are not paid for delivery of goods or services.
Passive incomes Pursuant to tax laws of Ukraine, exempt passive incomes of CSOs, i.e. those associated with the use of their property and service delivery outcomes by other persons, include interest, dividends, insurance payments and royalties.
Interest and credits CSOs have limited access to funding in the form of money and goods on credit. In case of charities, law (Law of Ukraine “On Charity and Charitable Organisations”76) directly prohibits bor- rowing and pledging their property. In case of civil society organisations, the main limitations are lack of assets to secure cred- its and a low financial stability. Sparse examples of borrowing by civil society organisations are mainly associated with purchasing real property and other fixed assets. It is this property that, along with guarantees of members of the civil society organisation’s executive body, serves as a security for such credits. On the other hand, the practice when CSOs sell their goods and services directly, especially, to receive interest in the form of goods on credit, is very rare in Ukraine so far. Only credit unions, pension funds and some other non-profit types are allowed by law to receive interest on money offered on credit. Refundable financial assistance (loan) is an important source of funding of CSOs lacking cir- culating assets. Such organisations do not have any insurance funds or reserves, or undistributed profit to cover unexpected costs (penalties or costs associated with untimely transfer of grants, donations or budget subsidies). Refundable financial assistance is regulated by the Civil Code of Ukraine77 and tax law. Endowment is not regulated by special law. In fact, the point is special terms and conditions of contracts for depositing money or securities with banks and other financial institutions, under which interest, in full or in part, is transferred to the account of a beneficiary named by the ac- count holder. Effective funding of CSOs from their own endowment requires large amounts of fixed capital not used for programmed and other day-to-day activities. Therefore, both foreign and local do- nors are unwilling to allow CSOs to transfer their charitable donations to long-term deposit ac- counts. Examples of funding of Ukrainian CSOs from their own endowment include only few corporate charitable foundations. Nevertheless, creation of individual endowments to fund CSOs selected by a donating natural person is prevented by tax law and ineffective “reliefs” described above. Dividends. Incomes from corporate rights include dividends from CSOs’ participation in business companies, private (subsidiary) companies and other enterprises owned by them, as well as carrying out joint activities.
75 Law of Ukraine 168/97-VR “On Value Added Tax” dated 3 April 1997 [Available electronically from http://zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nreg=168%2F97-%E2%F0&p=1288600175262795]. 76 Article 20 of Law of Ukraine 531/97-VR “On Charity and Charitable Organisations” dated 16 September 1997 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97-%E2%F0]. 77 Articles 1046-1053 of Civil Code of Ukraine 435-IV dated 16 January 2003 [Available electronically from http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=435-15&p=1288600175262795]. 40 National practices and legislation on funding CSOs...
Participation of CSOs in business companies in Ukraine was limited by the need to pay the minimum chartered capital. The total chartered capital of a limited liability company and joint-stock company was 100 and 1,250 minimum wages respectively. Presently, these amounts are much less. Since changes in law took place not very long ago, as a rule, today’s CSOs have small share in companies’ capital, and thus use-of-dividends policy of the companies and retaining their share in the event of increase in the companies’ chartered capital are out of their control almost altogether. On the other hand, legal forms of unlimited companies are uncommon in Ukraine. Nevertheless, the main (unlimited) members of these companies with chartered capital not regulated by law can be only registered business entities. The most widespread type of incomes from corporate rights is dividends from private enterprises owned solely by CSOs. Taking into account virtually limited business activities of especially CSOs, these enterprises often engage in activities identical to statutory targets of CSOs. However, excepting enterprises of disabled people civil society organisations, such enterprises are not entitled to special tax reliefs or use of simplified taxation system. Passive incomes also include dividends from joint activities paid as specially regulated by tax law. Furthermore, joint working agreements need to be registered with tax agencies. Owing to this, CSOs prefer mixed and not always transparent legal forms of joint working such as co-operation agreements, joint charitable and other programmes, as well as co-sharing. Contributions to such activities, including rights to use premises or other property, often lack financial assessment, and thus it can not be adequately assessed how much they account for in funding of Ukrainian CSOs. However, given wide use of similar agreements, it can be estimated that dividends and passive incomes generally account in CSO funding for much more than it is suggested by official statistics78.
Other passive incomes There are only isolated cases of CSO funding in the form of insurance payments, because insurance companies are poorly developed in Ukraine so far. Instead, CSO funding from royalties, that is, paying for the use of their intellectual property (including marks, database and know-how) is mainly hampered, paradoxical as it may seem, by exemption of such transactions from value added tax. It does take VAT credit from business companies which is important to them. Incomes from renting CSO property are excluded from passive incomes but they are passive incomes in their legal nature. CSOs can receive incomes, for example, from leasing within depreciation expense, without ceasing to be non-profit. Though incomes from renting property are difficult to estimate, because CSOs state not all of them and often receive them in exchange for other services or property, they are also an important source of CSO funding. A typical practice is, for example, when CSOs allow other persons to use their premises free of charge, provided that they pay for public services or repairs. Furthermore, it is reduced rent on their property (especially, premises) that is the way in which local authorities support CSOs. CSOs’ activities that do not belong to principal activities or are not expressly stated in their statutory documents are considered to be unlawful. Nevertheless, laws of Ukraine only require such activities not to conflict with statutory targets of CSOs and legal requirements79. However, even if government bodies consistently adhere to such an interpretation, funding that comes from selling goods and services outside of principal activities of CSOs is considerably
78 Funding of civil society organisations (CSOs) in Ukraine: Analytical report, 2006 [Available electronically from http://www.ucipr.org.ua/modules.php?op=modload&name=News&file=article&sid=5368&mode=thread&or der=0&thold=0]. 79 Article 86 of Civil Code of Ukraine 435-IV dated 16 January 2003 [Available electronically from http://zakon.rada. gov.ua/cgi-bin/laws/main.cgi?nreg=435-15&p=1288600175262795]. National practices and legislation on funding CSOs... 41
limited by the risk of not receiving the non-profit status or losing such a status on the ground of discrediting decisions of state tax agencies. As long as clear regulation of principal activities is lacking, delivery of practically all services by CSOs can be deemed to be their non-principal activities producing income taxable at the standard rate. Laws of Ukraine consider accounting of incomes from non-principal activities and exempt incomes separately. Separate accounting is also used when incomes from principal and non- principal activities are earned using the same fixed assets.
2.5. Analysis of applicable laws of Ukraine on civil society organisations» participation in the consultation process and decision-making As regards the state’s use of the existing public consultation mechanisms, the latter continue to follow a top-down strategy, because they do not encompass specific proposals to the government in any area of government policy, and thus are unable to produce a subject for the discussion; mechanisms to provide information on how the government is taking account of results of the discussion are not developed or outlined by law. In contrast, civil society organisations perceive, for example, public councils to government bodies more often as a way of incorporation into the government structures with potential performance of particular government functions rather than a mechanism to influence it80. Civil society organisations in Ukraine do not influence the process of government decision- making in a perceptible way so far. Government bodies and CSOs lack sufficient experience and skills in applying public policy and consultation processes, which leads to ineffective decision- making and obscure policy. Today, most citizens are unable to exercise their rights to participate in the issue-solving process at the local level too. Also, far from all interest groups are represented in professional organisations, which even more complicates the process of public consultations and taking care of interests of the public. CSOs should become needed by the government, that is, develop and deliver goods and services good quality of which can not be ensured by the government. However, neither government bodies nor CSOs themselves make full use of even the existing legal mechanisms of public consultations. Means to ensure openness of local representative bodies are: – public hearings; – public forums (discussions initiated by local government to look at positions adopted by citizens on any issues on the local agenda, outcomes of which are not mandatory); – submission of applications, proposals or complaints to local authorities; – citizen initiatives (discussions initiated by citizens to look at solutions to problems the public is concerned with); – appealing against decisions of local authorities to courts directly or through law and advocacy. One of forms of co-operation of CSOs and citizens with government bodies is public councils. Public councils are informal public structures working with government bodies and local authorities in fields and organisational formats chosen by them. In other words, public councils should be seen as groups involving representatives of the public that have a formalised internal structure, are delegated certain authority of (by a competent decision) and/or consulted by government bodies or local authorities on mapping out, adoption and execution of their own authority (decisions). Creation and activities of public councils are primarily based on article 38 of the Constitution giving citizens the right to participate in governance, and Decree 854/2004 80 Derzhalyuk О. The dynamics and expansion of the scope of activities of civil society organisations as a component of democratisation of Ukrainian society [Available electronically from http://www.niss.gov.ua/Monitor/ May08/03.htm]. 42 National practices and legislation on funding CSOs...
of the President of Ukraine “On Encouraging Wider Participation of the Public in Making and Implementation of Government Policy” dated 31 July 200481. These days, besides specialised public councils set up with particular government bodies or co-operating with them at the national level, the process of creation of public councils within communities (in the first place, oblast cities, because it is they that can exercise local authority really, not virtually) is becoming increasingly wider. Public councils act as advisory bodies to government institutions in line with Resolutions of the Cabinet of Ministers of Ukraine “Some Issues of Promoting Engagement of the Public in Making and Implementation of Government Policy” that does not apply any more, and “On Additional Actions Aiming to Promote Engagement of the Public in Making and Implementation of Government Policy” currently in force82. Indeed, currently there are public councils to the Cabinet of Ministers of Ukraine, most ministries, state committees. However, the governmental actions aimed at creating other mechanisms to engage the public in the process of decision-making by government bodies appear to lack activity and effectiveness. To be more specific, this is public consultations and acceptance of proposals of the public by the government, researches by public experts, participation of representatives of non-governmental organisations in work groups to central executive agencies that draft regulations and so on. Such actions are mostly formal and fail to look into public opinion to be taken account of, because public consultation mechanisms: 1) do not encompass specific proposals to the government in any area of government policy, and thus are unable to produce a subject for the discussion; 2) are sometimes initiated to get information that would justify taking positions by representatives of the government; 3) fail to give equality to participants making known their positions and putting forth proposals in consultations and discussions. Furthermore, mechanisms to provide information on how the government is taking account of results of the discussion are not developed or outlined by law. At the same time, activities of active public councils are lacking coverage. On websites of many central executive agencies, information related to creation of such bodies (not to mention their activities) either is absent or is restricted to a decree creating such bodies, the respective provision and a list of members. To some degree, this limits involvement of the interested public in activities of the bodies. Therefore, the development of interaction between political government and civil society institutions is considerably hampered by the fact that conceptual provisions in this respect stated by regulators are not put into practice so far. On the other hand, civil society organisations perceive public councils more often as a way of incorporation into the government structures with potential performance of particular government functions or furthering narrow departmental and corporate interests rather than a mechanism to influence them. Presently, many CSOs are trying to deliver services that previously were the responsibility of the state. They undertake to improve public awareness and enhance the government’s responsibility for decision-making. Local civil society organisations proved to be more successful than national ones, due to their accessibility and closeness to citizens83. In the process of co-operation between NGOs and local authorities, the government gains increasingly more citizens’ confidence. Identification of a citizen initiative through which citizens advocate their interests, as well as active involvement of local non-governmental organisations promote dialogue between citizens and government
81 Decree 854/2004 of the President of Ukraine “On Encouraging Wider Participation of the Public in Making and Implementation of Government Policy” dated 31 July 2004 [Available electronically from zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=854%2F2004]. 82 Decree 1302 of the Cabinet of Ministers of Ukraine “On Additional Action Aiming to Promote Engagement of the Public in Making and Implementation of Government Policy” dated 26 November 2009 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1302-2009-%EF]. 83 Slavko Т.О. The role of civil society organisations in development of civil society [Available electronically from www.nbuv.gov.ua/Portal/Soc_Gum/Npchdu/Politology/2005.../31-7]. National practices and legislation on funding CSOs... 43
bodies. Such a dialogue is possible subject to monitoring quality of public services at the local level and building capacity of non-governmental organisations to engage citizens in the policy- making process. This capacity includes, in particular: – conducting public hearings; – setting up people’s self-organisation bodies; – undertaking surveys to measure quality of public services; – research into government policy by sectors; – provision of trainings; – setting up consulting bodies where government officials work together with representatives of civil society organisations. Of course, transition to democratic forms of governance through development and enhancement of influence of civil society is critical to Ukraine. This process will be facilitated by strengthening of non-governmental organisations and their increasingly closer co-operation with government bodies on all levels. Law of Ukraine “On Local Self-Government in Ukraine”84 defines particular forms of participation of citizens in local governance and characteristics of their application: – local referendums (article 7); – general meetings of citizens (article 8); – local initiatives (article 9); – public hearings (article 13); – people’s self-organisation bodies (article 14). We think that, from the point of view of consultations and decision-making, the most interesting forms are public hearings and people’s self-organisation bodies. Creation and activities of people’s self-organisation bodies are regulated by the Law of Ukraine “On People’s Self-Organisation Bodies”85. The main targets of these bodies are: – to participate in socio-economic and cultural development of the respective area, implementation of other local programmes; – to encourage inhabitants to participate in solving issues on the local agenda within the framework of the Constitution and laws of Ukraine; – to meet social, cultural, everyday and other needs of people by promoting delivery of respective services to them. In order to achieve these targets, local councils empower people’s self-organisation bodies to: – foster observance of the Constitution and laws of Ukraine, decrees of the President of Ukraine and executive agencies, decisions of local councils and their executive bodies, ordinances of heads of a village, small town, city, city district council (if any), decisions made by local referendums; – represent, together with deputies, the interests of inhabitants of a house, street, neighbourhood, village, small town, city in the respective local council and its bodies, local executive agencies; – assist deputies of respective local councils in organising their meetings with the electorate, meeting with citizens and other activities within constituencies; – examine citizens’ applications, meet with citizens; – inform citizens about activities of the body, organise discussions of drafts of its decisions on the most important issues; – duly put forth proposals as to draft local programmes covering socio-economic and cultural development of respective administrative units and draft local budgets;
84 Law of Ukraine 280/97-VR “On Local Self-Government in Ukraine” dated 21 May 1997 [Available electronically from http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=280%2F97-%E2%F0&p=1288256627401397]. 85 Law of Ukraine 2625-ІІІ “On People’s Self-Organisation Bodies” dated 11 July 2001 [Available electronically from http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2625-14]. 44 National practices and legislation on funding CSOs...
– organise voluntary participation of people in activities in the area of environmental protection, improvement, greening and maintenance of cottages, courtyards, streets, squares, parks, cemeteries, common graves, equipment of play- and sports grounds, children’s art studios, clubs, etc.; to this end, temporary or permanent teams can be set up, with possible use of other forms of people’s engagement; – organise voluntary participation of people in protection of historic and cultural sites, elimination of the aftermath of a natural disaster, construction and repairing of roads, footpaths, utility networks, public facilities in a manner and order prescribed by law for such works; – monitor quality of public and home refurbishment services delivered to citizens living within the area covered by the self-organisation body; – provide assistance to educational institutions, cultural, physical training and sports institutions and organisations in their people-targeted cultural, sports, recreation and educational activities, development of arts, physical culture and sports; – foster preservation of cultural heritage, traditions of national culture, protection of historic and cultural sites, introduction of new rites into everyday life; – organise provision of assistance to the elderly, people with disabilities, families of soldiers and partisans killed in the war, killed military men, poor families and families with many children, as well as sole citizens, orphans and children deprived of parental care, put forth respective proposals to local authorities; – provide necessary assistance to fire protection agencies in fire prevention, organise fire safety training of people, participate in public monitoring of observance of fire safety requirements; – assist law enforcement agencies in maintaining public order. The community has the capacity to conduct public hearings – meet with deputies of the respective council and local officials to hear them, raise issues and make proposals in respect of issues on the local agenda. It is the definition provided by the Law of Ukraine “On Local Self- Government in Ukraine”86, article13, part one. The law also requires public hearings to be conducted at least once per year, and leaves the review of proposals based on results of hearings to local authorities. The law-maker also notes that the process of public hearings is regulated by statutes of communities, and therefore all procedures pertaining to public hearings should be clearly set out in the statute or a separate provision (appendix) that is an integral part thereof. This is important because it is much more difficult to amend a statute than a separate provision to be approved by the decision of the local council. Let us look closer at the main essential elements of the process of public hearings. Special organisational aspects of preparation and conduct of public hearings will be addressed farther on. Based on provisions of the Law of Ukraine “On Local Self-Government in Ukraine”, a subject of hearings can be any issues on the local agenda. It is demand of the day to devote public hearings to problems of strengthening resources and development of communities, their property, housing, local budget, construction, etc. Based on most local regulations, initiators of public hearings are: – community activist groups, – people’s self-organisation bodies, – civil society organisations, – heads of communities, – deputies of local councils, etc. Decisions based on results of public hearings are voted openly and reflected in a resolution that, together with the minutes, is delivered to local authorities for a review. Analysis of current legislation of Ukraine in the area of CSO funding shows that its provisions mainly meet criteria established in the Fundamental Principles on the Status of Non-governmental Organisations in Europe. However, there is a very significant difference between the theory and
86 Law of Ukraine 280/97-VR “On Local Self-Government in Ukraine” dated 21 May 1997 [Available electronically from http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=280%2F97-%E2%F0&p=1288256627401397]. National practices and legislation on funding CSOs... 45
practice of its application, that can be compensated for only by co-ordinated actions aiming at organisational development of both CSOs and the government service, and independent public monitoring of meeting CSO funding standards. The Tax Code with proposals of the President of Ukraine passed by the Verkhovna Rada of Ukraine improved the regulatory framework to some extent as far as CSO funding opportunities are concerned. Removal of a section concerning the simplified taxation system is also positive, because application of that section virtually did away with small and medium business in Ukraine that uses this simplified taxation system, and thus one of (mainly on the ground) sources of money for CSOs – the private sector. But in 2011, a heavy burden will be put on the business by the one- off social contribution, that will also negatively affect small and medium business capacities to provide support to CSOs on the ground. Due to passing of the Tax Code and other laws and by-laws associated with the system of mandatory taxes and payments, CSO funding mechanisms need further research, especially, after their putting into practice.
2.6. Interim conclusions based on the analysis of applicable laws Based on the results of the desk top research and conclusions of other researchers of these problems, such as М. Latsyba, О. Solontay, О. Derzhalyuk and others, we can provide interim conclusions that will serve as a basis for provision of recommendations as to improvement of the existing legislative framework of Ukraine in the area of CSO funding.
1. Inconsistency of provisions of articles 8 and 24 of the Law of Ukraine “On Citizens’ Associations” currently in force allowing civil society organisations to engage in business activities not only through subsidiaries but also directly needs to be dealt with. 2. In order to eliminate some restrictions put on CSO funding by unfavourable regulatory policy, it is needed to extend actions in the area of deregulation of business activities in Ukraine to main risks associated with CSO funding, especially: requirements for amendments to statutory documents of CSOs not set forth by law; requirements for special government authorisations (licenses, special registrations, agreements, etc.), unless expressly stated by law; administrative restrictions of CSOs’ capacity to use and dispose of their property and property rights in some cases; restriction of CSOs’ access to financial services and imposition of administrative financial sanctions for minor or not duly proven breaches. 3. In order to minimise the influence of the unstable system of taxation of non-refundable assistance provided to CSOs on the status of funding, attention can be focused on the need for creating an alternative tax base for non-refundable assistance provided by donors with legal personality at 0.2-0.3% of their total income as payers of enterprise profit tax or their wages and remuneration costs; remove the link between entitlement of natural persons to tax credit on contributions and non-refundable assistance provided to CSOs to wages received by such donors. 4. In order to solve the problem resulting from exercise of some discriminating powers of executive agencies, the following needs to be undertaken: setting forth the main provisions on CSO funding and administration of taxes in respective laws and resolutions of the Cabinet of Ministers of Ukraine; establishment of clear and generally understandable criteria to assess compliance of principle activities of CSOs with non-profit status; providing all the ministries with common tendering techniques based on priorities approved by the minister, while avoiding duplication of departmental functions. 5. In order to solve the problem resulting from restricted access of CSOs to long-term funding, the following needs to be undertaken: amending tax laws so as to promote long-term state 46 National practices and legislation on funding CSOs...
funding of CSOs, for example, through special government funds; establishment of a special legal status of endowments of private donors of CSOs. 6. The problem resulting from discrimination of particular CSO types on the basis of their status or other characteristics can be solved by exempting one-off and periodic contributions from founders and members of CSOs referred to in the Law of Ukraine “On Enterprise Profit Tax”, section 7.11.1, paragraphs “b”, “c” and “d”, from enterprise profit tax and VAT; exempting non-refundable assistance provided to CSOs referred to in the Law of Ukraine “On Enterprise Profit Tax”, section 7.11.1, paragraphs “c” and “d”, from income tax, on the grounds of constitutional guarantees of equality of civil society organisations before the law; cancelling division of CSOs on the basis of territorial status as an obstacle to access to budget funding and earning incomes from principal activities. 7. The existing problem that results from competition between budget-funded institutions and CSOs for non-refundable financial assistance from private donors can be solved by setting a special quota for non-refundable assistance provided to budget-funded institutions and CSOs in the Law of Ukraine “On Enterprise Profit Tax” (section 5.2.2) and the Law of Ukraine “On Personal Income Tax” (section 5.3); exempting targeted assistance in the form of social services supplied in line with government standards and provisions from personal tax for beneficiaries of this assistance coming from both budget-funded institutions and CSOs. 8. Informing the public on social services delivered by CSOs shall be deemed social advertising. 9. The Law of Ukraine “On Value Added Tax” is to be amended where it fixes the worth of delivery of goods or services, by replacing the sentence “within 12 calendar months” with “within calendar year”. 10. The Law of Ukraine “On Enterprise Profit Tax” should be amended by expressly stating that membership subscriptions of CSOs of all types are non-taxable. National practices and legislation on funding CSOs... 47
3. ANALYSIS OF THE EXISTING PRACTICES OF FUNDING OF CIVIL SOCIETY ORGANISATIONS IN UKRAINE
Before starting the field research of the existing experience in the area of funding of civil society organisations by government bodies, local authorities and the private sector, we identified expert assessment units as a primary element of the research topic, that possess a set of characteristics limiting selection of respondents involved in the research. As key characteristics of an expert assessment unit, we selected the respondents’ belonging to respective government, self-governing, private organisations and CSOs, as well as their having experience in CSO funding by government bodies and local authorities, the private sector and natural persons. In order to obtain data reflecting all the existing experience in the area of CSO funding by government bodies, local authorities and the private sector, groups of assessment units were identified – civil society organisations as a recipient of funding; government bodies, local authorities and the private sector as financial donors. As the territorial unit used in the research, 5 representative regions of Ukraine were selected on the basis of the cross-geographic characteristic, level of economic development and structure of economic sectors, where we selected oblasts equally represented in the research: 1. Eastern (Donetsk oblast); 2. Western (Volyn oblast); 3. Southern (Odesa oblast); 4. Northern (Kyiv oblast); 5. Central (Poltava oblast and Kyiv). As selecting respondent groups, it was taken into account that not less than 20% of respondents work in the rural area. Rural surveys were undertaken with representatives of target groups of respondents evenly distributed across all expert assessment units: government bodies, local authorities, private sector, CSOs. Even distribution of respondents on the basis of the cross-geographic characteristic allows us to evenly focus on the research of existing funding practices in place in different regions of Ukraine and conduct comparative analysis of effectiveness of particular forms and mechanisms of CSO funding taking into account differentiation of economic development of oblasts and structure of economic sectors. Given the above, the field research was conducted by the method of a structured expert interview with 300 suitable respondents in 5 representative regions of Ukraine and Kyiv, visiting organisations and a face-to-face contact with the respondents. The field research tool is a questionnaire that is divided into five respective blocks of information and has in total seven parts two of which relate to procedural aspects of the survey (see Appendix 2.): 1. Interviewer’s instruction. 2. Block I containing questions about who the respondent is: civil society development expert, representative of a government body, business/private sector, local authority, manager or member of a CSO. The respondent representing the CSO is asked about the status and the structure of funding received by the organisation. 3. Block ІІ containing questions regarding problems of CSO funding by government bodies. 4. Block ІІІ containing questions regarding problems of CSO funding by local authorities. 5. Block ІV containing questions regarding non-government CSO funding. 6. Block V of proposals as to improvement of CSO funding. 7. Questions to the interviewer.
Data obtained in the process of the field research were processed using SPSS. They allowed us to see into existing Ukraine’s practices in the area of funding of civil society organisations by government bodies, local authorities and the private sector. 48 National practices and legislation on funding CSOs...
3.1. Characteristics of the interviewed respondents In the process of the research, 300 respondents from 5 representative regions of Ukraine were interviewed, in particular: • 71 respondents (23.3%) representing government bodies; • 72 respondents (24.0%) representing business/private sector; • 74 respondents (24.7%) representing local authorities; • 84 respondents (28.0%) that were managers or members of CSOs. Besides 223 respondents (74.3%) living in urban areas, 77 respondents (25.7%) living and working in rural areas were interviewed. The research included 84 respondents representing CSOs that were distributed as follows: 26.2% were from charities; 19% were from professional associations; 54.8% were from other CSOs (youth, women’s, disabled people, veterans organisations, people’s self-organisation bodies, etc.). Most CSO representatives were from organisations having over 50 members (47.6%), 20-50 members (32.1%), 1-10 members (20.2%). On the basis of their status, surveyed CSOs were distributed as follows: most of respondents (71.4%) were from local organisations, 19% were from all-Ukraine, and 4.8% were from international organisations. Surprisingly, 4.8% of respondents representing CSOs could not identify their status. Survey was to address the issue of CSO budget 2009. Ranking of the participants showed that most of them (39.3%) were from organisations whose 2009 budget did not exceed 10,000 hryvnias; 23.8% of respondents represented organisations whose budget exceeded 200,000 hryvnias; 15.5% said that the budget of their organisation was from 10,000 to 50,000 hryvnias; 10.7% represented organisations whose budget was from 50,000 to 100,000 hryvnias. Very few (2.4%) represented organisations with a budget from 100,000 to 200,000 hryvnias. These data showed a significant difference between budgets of civil society organisations within the sample. Only few, so to speak, “heavy-budget” organisations can compete with the others whose budget does not exceed 10-15 living wages. This can be explained by subjective (unprofessionality of CSOs, their “newness” and organisational development) and objective factors linked to the existing civil society development policy. On the basis of their sources of funding (government funding, business, community money, international funds, domestic charitable foundations, membership subscriptions), civil organisations were distributed, in general, evenly (from 1.2% to 4.8%), however, most surveyed organisations relied solely on membership subscriptions (20.2%), assistance provided by the business (8.3%), international foundations (7.1%).
3.2. Problems of funding by government bodies and local authorities 3.2.1. Main problems of the eisting government funding system and their importance for imrovement
Respondents assessed the main problems of the current CSO government funding system formalised in the questionnaire and their importance for development of CSOs using a scale, “very important – important – unimportant – hard to answer”. Besides problems outlined in the questionnaire, respondents were asked to name other problems with government funding of CSOs and assess their importance. In this way, the widest coverage of the research topic was achieved. The general results of distribution of the respondents on the basis of their answers to the posed questions are presented in fig. 3.1. Fig. 3.1 shows that the biggest problem of state funding of civil society organisations is thought by the respondents to be scant government funding. 57% of National practices and legislation on funding CSOs... 49
the respondents consider this problem to be very important, 28.3% assess it as important, and only 0.7% think that this problem is unimportant. If we rank state funding problems by the number of respondents that assessed them as “very important”, the problem put by us as the “Lack of programmes to tender for project funding” is ranked second, and the “Legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes” is ranked third. Respectively, only 1.7% and 1% of the respondents consider these problems to be “unimportant”.
Fig. 3.1. Distribution of the respondents on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO GOVERNMENT FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS, N (number of respondents)=300
It should be noted that all the answers to questions about CSO state funding problems formalised by us in the questionnaire were supported by most respondents (that assessed the problems as “very important” or “important” ). Each problem was assessed as “unimportant” by less than 4%. In general, the survey showed that the respondents are highly aware of CSO state funding problems. Naturally, some groups of respondents that had not encountered CSO government funding problems face to face answered some questions of the questionnaire with “hard to answer”. Most “hard to answer” answers were received to questions about importance of the following problems: • weaknesses in tax reliefs given to CSO funders and CSOs – 27.3%; • ineffective use of state funding – 25%; • non-transparency and complexity of government procurement processes – 24.3%. 50 National practices and legislation on funding CSOs...
Hence, the next step in the analysis of research results was to look into attitudes towards CSO state funding problems held by groups of respondents that are aware of these problems the best and personify subjects and objects of the process – those representing government bodies, on the one hand, and managers or members of CSOs, on the other. Comparison of their answers to questions about importance of the main CSO state funding problems will make it possible to find out whether there is a consensus on the vision of CSO state funding problems between the subject and the object of funding. If such a consensus exists, this provides the basis for effective dialogue between the public and the state aimed at solving such problems.
5.6%
Weaknesses in t ax reliefs given t o CSO funders and CSOs 42.3% 36.6% 15.5%
1.4%
Lack of programmes t o t ender for project funding 49.3% 38.0% 11.3%
2.8% Legislat ive uncert aint y of aims and crit eria of CSO st at e funding, government 's lacking respect ive t echniques t o select compet ing 47.9% 43.7% 5.6% programmes
2.8% Non-t ransparency and complexit y of government procurement 43.7% 39.4% 14.1% processes
1.4%
Ineffect ive use of st at e funding 46.5% 40.8% 11.3%
1.4%
Inadequat e government funding 60.6% 36.6% 1.4%
0% 25% 50% 75% 100% % of r es pondent s r epr es ent ing gover nm ent bodies Very important Important Unimportant Hard to answer
Fig. 3.2. Distribution of the respondents representing government bodies on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO GOVERNMENT FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS REPRESENTING GOVERNMENT BODIES, N=71
Fig. 3.2. shows distribution of respondents representing government bodies on the basis of answers to the question: “Please assess the main problems of the existing CSO government funding system and their importance for development of CSOs’. The number of members of the respective reference group is 71. Our hypothesis that the government reference group should include a minority of those that answered “hard to answer” to the question about importance of CSO state funding problems proved to be true. Less than 15% of the respondents were uncertain in answering this block of questions. Just as it was across the sample, government officials saw the most important problem in “inadequate government funding” that was assessed by 60.6% as “very important”, and by 36.6% as “important”. If we rank state funding problems by the number of government officials that assessed them as “very important”, the problem put by us as the “Lack of programmes to tender for project funding” is ranked second, and the “Legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes” National practices and legislation on funding CSOs... 51
is ranked third. Respectively, only 1.4% and 2.8% of the government officials consider these problems to be “unimportant”. Hence, the officials identified the same triplet of the most urgent CSO state funding problems as all the respondents within the sample.
1.2% Weaknesses in tax reliefs given to CSO funders 41.7% 25.0% 32.1% and CSOs
1.2% Lack of programmes to tender for project 50.0% 22.6% 26.2% funding
Legislative uncertainty of aims and criteria of 0.0% CSO state funding, government's lacking 46.4% 29.8% 23.8% respective techniques to select competing programmes
3.6% Non-transparency and complexity of 33.3% 29.8% 33.3% government procurement processes
1.2%
Ineffective use of state funding 39.3% 25.0% 34.5%
1.2%
Inadequate government funding 59.5% 19.0% 20.2%
0% 25% 50% 75% 100% % of managers or members of CSOs Very important Important Unimportant Hard to answer
Fig. 3.3. Distribution of the managers or members of CSOs on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO GOVERNMENT FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF MANAGERS OR MEMBERS OF CSOS, N=84
It is characteristic that 87.3% of the respondents representing government bodies believe that CSO funding is spent ineffectively, and 83.1% think government procurement processes to be complex and non-transparent. Let us compare answers of government officials with answers of managers or members of CSOs shown in fig. 3.3. The number of members of the respective reference group is 84. Managers or members of CSOs proved to be less aware of government funding problems. For example, 34.5% of the respondents of this group answered “hard to answer” to the problem of “ineffective use of budget funding”, and 33.3% of CSO members answered the same to the problem of “non-transparency and complexity of government procurement processes”. This suggests a very interesting conclusion that, perhaps, information on winners of government procurement tenders and outcomes of projects or delivery of procurement services is simply unknown to a wide group of stakeholders. 52 National practices and legislation on funding CSOs...
It should be noted that so big uncertainty primarily applies to problems with distribution and use of budget funding, that is, stages of the budget funding process strange to most civil society organisations. Those that were uncertain in answering the rest of the problems set out in the questionnaire accounted for not more than one-third. What follows is the results of ranking of government funding problems based on the criterion of a percentage of CSO members considering a problem to be “very important”. The top-ranked problem is “inadequate government funding” (59.5% of the respondents think it to be very important), the problem of “lack of programmes to tender for project funding” was ranked second, and that of “legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes” was ranked third. Conclusion. Therefore, the analysis of research results shows that reference groups of government officials and CSO members are unanimous in selection of the most important CSO state funding problems. They selected the following three problems (ranked in order of importance): 1) inadequate government funding; 2) lack of programmes to tender for project funding; 3) legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes. Given unanimity of views of subjects and objects of the funding process, one might expect a constructive dialogue between the government and civil society aimed at solving CSO state funding problems.
3.6% Weaknesses in tax reliefs given to CSO funders and CSOs 42.2% 30.0% 24.2%
2.2% Lack of programmes to tender for project funding 44.8% 32.7% 20.2%
Legislative uncertainty of aims and criteria of CSO state funding, 0.4% government's lacking respective techniques to select competing 43.0% 38.6% 17.9% programmes
2.2% Non-transparency and complexity of government procurement processes 36.3% 40.4% 21.1%
0.9% Ineffective use of state funding 38.6% 37.2% 23.3%
0.9% Inadequate government funding 54.3% 33.6% 11.2%
0% 25% 50% 75% 100% % of r es pondents fr om ur ban ar eas
Very important Important Unimportant Hard to answer
Fig. 3.4. Distribution of respondents living in urban areas on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO GOVERNMENT FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS LIVING IN URBAN AREAS, N=223 National practices and legislation on funding CSOs... 53
A distinctive feature of our research is in-depth study of views of respondents living in rural areas. Figures 3.4 and 3.5 show answers of respondents from urban (223 respondents within the sample) and rural areas (77 respondents) to the set of questions of the questionnaire regarding CSO state funding problems.
3.9% Weaknesses in tax reliefs given to CSO funders and CSOs 35.1% 24.7% 36.4%
0.0% Lack of programmes to tender for project funding 45.5% 27.3% 27.3%
2.6% Legislative uncertainty of aims and criteria of CSO state funding, government's lacking respective techniques to select competing programmes 45.5% 27.3% 24.7%
2.6% Non-transparency and complexity of government procurement processes 48.1% 15.6% 33.8%
1.3% Ineffective use of state funding 46.8% 22.1% 29.9%
0.0% Inadequate government funding 64.9% 13.0% 22.1%
0% 25% 50% 75% 100% % of r es pondents fr om r ur al ar eas
Very important Important Unimportant Hard to answer
Fig. 3.5. Distribution of respondents from rural areas on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO GOVERNMENT FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS LIVING IN RURAL AREAS, N=77
Comparison of data from figures 3.4 and 3.5 shows: • much more percentage of the respondents from rural areas that are uncertain in their assessment of CSO state funding problems. In particular, 36.4% of the respondents from rural areas could not assess the problem resulting from weaknesses in the system of tax reliefs given to CSO funders and CSOs, and 33.8% of the same respondents could not assess the government procurement problem. At the same time, respondents from urban areas that were uncertain in their assessment of government funding problems accounted for only one-fourth. • In general, assessments of government funding problems by the respondents from urban and rural areas are close – the both reference groups ranked first, second and third: 1) inadequate government funding; 2) lack of programmes to tender for project funding; 3) legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes. Besides formalised CSO state funding problems, the respondents were asked an open question regarding other government funding problems they would face. 54 National practices and legislation on funding CSOs...
The problems identified by the respondents are listed below: • half-hearted attempts of CSOs at receiving government funding: “too little knocking” as one of the respondents put it figuratively; • lack of the government funding information system. One of the respondents said: “Despite the existence of the practice and some announcements about getting funding from local budgets for specific aims and programmes at the regional level, this system is not in place at the national level so far. Some civil society organisations receive money in a non-transparent way”; • weaknesses in the government funding process. One of the respondents put it as follows: “Even the existing government programmes are funded not always in full. Furthermore, money is provided at the end of the year, when it can not be spent effectively, as a rule. The organisation first spends its money, and then the state does not recompense it because the budget is changed”. Another respondent added: “It is impossible to carry unspent money to the next budget year”; • besides the problem of non-transparency and complexity of government procurement processes formalised in the questionnaire, the respondents pointed out that there is a problem of complexity of reporting on the use of budget funding; • according to some respondents representing government bodies, the problem is the “CSOs’ low prestige among government bodies”. On the other hand, the interviewed members of civil society organisations speak about “nonrecognition of CSOs by government bodies”, “CSOs’ neglect by the state”; • “lack of a legislative provision requiring planning of (oblast, rayon, village) budget spending on CSOs’ projects or events”; • in addition, the respondents point out that “the tradition of CSO funding by the state does not exist”.
Conclusion: The respondents supplemented the list of CSO state funding problems with half-hearted attempts of CSOs at receiving government funding; lack of tradition of CSO funding by the state; complexity of reporting on the use of budget funding; CSOs’ low prestige among government bodies; lack of the system to provide information on government funding; weaknesses in the government funding process, especially, uneven funding over the year; lack of legislative provisions requiring planning of (oblast, rayon, village) budget spending on CSOs’ projects or events.
3.2.2. Respondents perception of the government funding model The respondents were offered both formalised and non-formalised (open) questions about elements of the CSO state funding model. Formalised questions prompted to assess the following elements of the model: • setting up the National Civil Society Development Foundation, predominantly competitive funding of CSO activities; • possible participation of CSOs of all types in project tenders; • possible funding to cover administrative costs; • simplified processes of government procurement of services and works for CSOs. Fig. 3.6. shows the distribution of the respondents’ answers to the set of questions regarding the CSO state funding model. Most respondents supported the main elements of the proposed CSO state funding model. Around 11% of the respondents did not answer the posed questions, 7% to 16% of the respondents answered “hard to answer”. The elements that received the biggest support were “possible participation of CSOs of all types in project tenders” (78.7% of the respondents) and “simplified processes of government procurement of services and works for CSOs” (74%). National practices and legislation on funding CSOs... 55
Possible funding to cover administrative costs was supported by 69% of the respondents; introduction of predominantly competitive CSO funding was supported by 62.7% and negated by 15.7% of the respondents.
Setting up the National Civil Society 53.3 19.3 16.3 11.0 Development Foundation
Predominantly competitive funding of 62.7 15.7 10.7 11.0 CSO activities
3.3 Possible participation of CSOs of all types 78.7 7.0 11.0 in project tenders
Possible funding to cover administrative 69.0 8.0 12.0 11.0 costs
3.0 Simplified processes of government procurement of 74.0 12.3 10.7 services and works for CSOs
0% 20% 40% 60% 80% 100%
yes no hard to answer don't know
Fig. 3.6. Distribution of the respondents’ answers to the question regarding the CSO state funding model,% of respondents (N=300)
Conclusion. Attitude towards setting up the National Civil Society Development Foundation proved to be the most ambiguous. It was supported only by 53.3% and negated by 15.7% of the respondents. Since many experts consider the National Civil Society Development Foundation to be the central element of the CSO funding model, we will analyse support of this idea by the main reference groups within the sample in detail.
urban area 59.6% 14.8% 18.4% 7.2%
rural area 35.1% 32.5% 10.4% 22.1%
0% 20% 40% 60% 80% 100% yes no %hard toоanswer р ес п н ден тів don't know
Fig. 3.6. Attitudes the respondents from urban (N=223) and rural areas (N=77) have towards setting up the National Civil Society Development Foundation,% of respondents. 56 National practices and legislation on funding CSOs...
Fig. 3.6. shows the results of interviewing the respondents from urban and rural areas on setting up the National Civil Society Development Foundation. Conclusion. The results show differences in attitudes the respondents from urban and rural areas have towards setting up the foundation. Whilst over one half (59.6%) of the respondents from urban areas support the CSO funding model based on the National Civil Society Development Foundation, in ruralities setting up the foundation is thought to be expedient by only 35.1% and negated by 32.5% of the respondents. Almost one-fourth (22.1%) of the respondents from rural areas did not answer the question about expediency of setting up the foundation at all. Such an attitude is likely to be explained by the respondents’ view that funding from centralised sources is inaccessible to rural CSOs.
representatives of 60.6% 26.8% 12.7% government bodies
managers or members of 53.6% 14.3% 13.1% 19.0% voluntary sector organisations
0% 20% 40% 60% 80% 100% yes no %hard toоanswer р есп н ден тів don't know
Fig. 3.7. Attitudes representatives of government bodies (N=71) and managers and members of CSOs (N=84) have towards setting up the National Civil Society Development Foundation,% of respondents
It would be logical to assume the existence of a difference between views of setting up the foundation in the reference groups of government officials and CSO members. Fig. 3.7. shows the results of interviewing representatives of government bodies (N=71) and managers and members of CSOs (N=84) on setting up the National Civil Society Development Foundation. Conclusion. Setting up the foundation is supported by 60.6% of representatives of government bodies that is more than across the sample (53.3%). However, 26.8% of the respondents of this group negated creation of the Foundation that is noticeably more than across the sample (19.3%). Therefore, polarisation of views of setting up the National Civil Society Development Foundation between representatives of government bodies is greater than across the sample. Furthermore, there are no respondents from among government officials that would not answer the question. Distribution of views of respondents from among managers and members of CSOs is close to distribution of views of all the respondents across the sample: 53.6% support the model based on the National Civil Society Development Foundation, 14.3% negate it, 13.1% answered “hard to answer”, and 19% did not answer at all. The respondents were also asked open questions regarding the CSO funding model. In their answers, many respondents emphasise the need for “creation of regional divisions of the National Foundation”. The respondents believed that “funding of CSO activities must be stipulated by law and provided for in the budget”. The respondents also emphasise the need for “creation of a system to provide information on opportunities of CSOs” participation in tenders” as a component of the CSO state funding National practices and legislation on funding CSOs... 57
model. In particular, it is proposed “to create a newsletter” to provide information on government procurement for CSOs, winners of tenders and outcomes of projects or services. Noteworthy is the proposal of a few respondents that the model should allow for “complementary funding of projects funded by international foundations” and “capital investments using budget money”. One of the respondents combines the two initiatives and proposes “budget co-funding of construction projects subject to the approval of complementary funding of a CSO’s project by international financial organisations”. The respondents emphasise that the government funding model should be based on “clearly identified long-term directions (priorities) of funding”, “civil society development programmes and development priorities”. And one respondent proposes “testing the CSO development programme implementation pilot in one region, after which the development of the nation-wide programme should only follow”.
3.2.3. Main problems of the existing local government funding system The respondents assessed the main problems of the existing CSO local government funding system offered in the questionnaire and looked into their importance for development of CSOs using a scale, “very important – important – unimportant – hard to answer”. Besides problems outlined in the questionnaire, the respondents were asked to name other problems with local government funding of CSOs and assess their importance. In this way, the widest coverage of the research topic was achieved. The general results of distribution of the respondents on the basis of their answers to the posed questions are presented in fig. 3.8.
3.3 Non-transparency, subjectivity and complexity of 48.3 31.3 10.0 7.0 project selection process
2.7
Unstable and limited 72.0 16.7 7.0 local budgets
1.7
0% 20% 40% 60% 80% 100% % o f r e sp o n d e n t s
very important important unimportant hard to answer don't know
Fig. 3.8. Distribution of the respondents on the basis of their answers to the question: «PLEASE ASSESS THE MAIN PROBLEMS OF THE EXISTING CSO LOCAL GOVERNMENT FUNDING SYSTEM»,% OF RESPONDENTS, N=300
Fig. 3.8 shows that the biggest problem of funding of civil society organisations by local authorities is thought by the respondents to be unstable and limited local budgets. 72% of all 58 National practices and legislation on funding CSOs...
regions that had participated in the field research pointed out that unstable and limited local budgets are a very important problem, 16.7% saw it as important for the existing CSO funding system, and only 1.7% thought it to be unimportant. The next step in the analysis of research results was to look into attitudes towards CSO local government funding problems held by groups of respondents that know these problems the best – those representing local authorities and managers or members of CSOs. Comparison of their answers to questions about importance of CSO local government funding problems will make it possible to find out whether there are differences in views of this issue between the subject and the object of funding. It is characteristic that vast majority of the respondents – 99% of representatives of local authorities and 77% of managers or members of CSOs – identified the problem of local government funding of civil society organisations as “very important” and “important” for the existing CSO funding system. It should be noted that virtually the same number of the respondents – 90% in urban and 87% in rural areas – consider this problem to be “important” and “very important”. The funding problem resulting from non-transparency, subjectivity and complexity of project selection process is very important to 48.3%, and 31.3% of the respondents believe it to be important for CSO funding. If we look at answers of the respondents from the regional angle, it proved to be the most important in Donetsk region (88%). In other regions, the number of the respondents that believe the problem resulting from non-transparency, subjectivity and complexity of project selection process to be “very important” and “important” was distributed fifty-fifty, on average. It should be noted that all the answers to questions regarding CSO local government funding problems formalised by us in the questionnaire were supported by most respondents (identified as “very important” or “important”). In the similar way, this problem is also regarded by representatives of local authorities (88%) and managers or members of CSOs (74%) that identified it as “very important” and “important” for the existing CSO funding system. It should be also emphasised that importance of this issue was unanimously supported by the respondents from urban and rural areas (80%). The expert interview included answering open questions regarding problems of the existing CSO local government funding system. The respondents’ open answers were analysed, generalised and grouped. Conclusions as to the “Main problems of the existing CSO local government funding system” thought by the respondents to be the most relevant are listed below: 1. Lack of interest in supporting civil society development among local authorities. Especially, this applies to those managers who, in the first place, being politically slanted and unprofessional, have worked within local authorities rather a little. 2. The current budget settlement system. Because of rather small local budgets and their deficiency, local authorities (including village and small town areas) have very limited resources to fund CSOs and support social projects. 3. Civil society development is not always seen as a priority as mapping out programmes funded from the local budget. Local authorities have their own, rather uncertain view of specific civil society development problems solution of most of which can be delegated to civil society organisations. 4. Complexity of the funding process pursuant to applicable budget law. The existing practice of social contracting is encumbered with some objective factors – the need to go through complex formal processes of opening treasury accounts, budget funding and reporting, and subjective ones – in some cases, the key role is played by having personal relationships with a manager making decisions. 5. Non-transparency and thus low awareness of opportunities to attract financial resources from the local budget among civil society organisations. 6. Corrupted competitive practices of receiving grants, “kickbacks”, etc. National practices and legislation on funding CSOs... 59
7. Lack of proper regulation of selection of civil society organisations through tendering processes at the legislative level and vagueness of funding priorities, which results in their lacking a system and diversification. 8. Lack of development strategies for urban and rural communities supported by socio- economic development programmes. 9. Poor expertise of the staff and managers of CSOs. Lack of professional skills in developing projects and setting their budget for tenders. 10. Low civic consciousness. Poor community funds.
3.2.4. Respondents’ perception of the local covernment funding model The respondents were asked open and closed questions to provide insight into their attitudes towards the CSO local government funding model. Generalised results of distribution of the re- spondents on the basis of their answers to the posed questions are shown in fig. 3.9.
Possible funding t o cover administ rat ive cost s 72.3 8.7 12.0 7.0
1.3 Possible part icipat ion of CSOs of all t ypes in project 83.7 8.0 7.0 t enders
1.0 4.7 Invit ing non-government al organisat ions t o open project 87.3 7.0 t ender
Mapping out medium-t erm 2.7 (2-3 years) CSO funding 79.0 11.3 7.0 programmes
0% 20% 40% 60% 80% 100% % of respondents
yes no hard to answer don't know
Fig. 3.9. Distribution of the respondents on the basis of their answers to the question: «WHAT, IN YOUR VIEW, SHOULD BE THE CSO LOCAL GOVERNMENT FUNDING MODEL?»,% OF RESPONDENTS, N=300
The vast majority of the respondents (87.3%) supported “Inviting non-governmental organisations to open project tender” as a CSO funding model. This model will foster, on the one hand, transparent action of local authorities, and on the other hand, equal access of civil society organisations to resources of the local budget. This model was supported by 89.2% and 81.8% of the respondents from urban and rural areas respectively. It should be noted that 97.3% of the respondents representing local authorities assessed this CSO funding model positively. This indicates that local authorities are prepared to an open dialogue with the public. A positive, though more moderate attitude towards this model is also characteristic of managers and members of CSOs. Rather large percentage (79.8%) of the respondents from among managers or members of CSOs assessed the model positively. A 17.5% difference may show some degree of distrust of those from the government among CSOs. Round table discussions in five regions of Ukraine and Kyiv show that such an attitude the public has 60 National practices and legislation on funding CSOs...
towards the government, as it were, became a tradition, though devoted and active steps taken by the government toward establishing relationships based on openness and interest in social development could produce some results. Eighty-three point seven per cent of the respondents supported possible participation of CSOs of all types in project tenders as an effective funding model. The model was accepted by 84.3 and 81.8% of the respondents from urban and rural areas respectively. Ninety point five per cent of the respondents representing local authorities assessed this CSO funding model positively. It was also supported by 77.4% of the respondents from among managers or members of CSOs. The model ranked third by the respondents is mapping out medium-term (2-3 years) CSO funding programmes. Most respondents (79%) believe the development of medium-term funding programmes to be an effective CSO funding model. 78 and 81.3 per cent of the respondents from urban and rural areas respectively assessed this model positively. Eighty-nine point two per cent of the respondents representing local authorities and 71.4% of those from among managers or members of CSOs also support the development of medium- term CSO funding programmes. The model of possible funding to cover administrative costs was supported by 72.3% of the respondents. The model was accepted by 73.5 and 68.8% of the respondents from urban and rural areas respectively. Seventy-seven per cent of the respondents representing local authorities and 71.4% of those from among managers or members of CSOs assessed possible funding to cover administrative costs positively. The expert interview included answering open questions regarding the CSO local government funding model. The respondents’ open answers were analysed, generalised and grouped. To summarise answers to the open question regarding “Perception of the CSO local government funding model”, it should be noted that the respondents think that the CSO local government funding model should allow for: 1. Development of short-, medium- and long-term CSO funding programmes aimed at their carrying out particular social projects. 2. Development of a simplified process of local budget funding and its use. 3. Mandatory CSO training in filling out proposals and setting project budgets. 4. CSOs’ administrative costs complementing the programmed activities rather than being the main costs. 5. CSO local government funding occupying a definite place within the general CSO funding system and interacting with other CSO funders. 6. Funding from local budgets within 30% of CSOs’ total costs. 7. Setting up regional foundations combining particular civil society organisations depending on the area, with mixed funding. Managers of the regional funds should be elected for a fixed period, and the specialist staff of the foundations is permanent. 8. Low level of the government’s confidence in CSOs and low awareness of the government of community problems.
3.3. Problems of funding from the private sector and individual citizens Block ІV of the questionnaire contained questions about CSO non-government funding, regarding possible funding from the business, private persons, and the organisations’ capacity to earn money independently. The respondents assessed the main problems of the existing CSO non-state funding system offered in the questionnaire and their importance for development of CSOs using a scale, “very important – important – unimportant – hard to answer”. Besides problems outlined in the National practices and legislation on funding CSOs... 61
questionnaire, respondents were asked to name other problems with non-government funding of CSOs and assess their importance. In this way, the widest coverage of the research topic was achieved. The general results of distribution of the respondents on the basis of their answers to the posed questions are presented in fig. 3.10. divided into two parts because of a large number of questions characterising problems of the existing CSO non-state funding system.
4.0 weaknesses in tax reliefs given to CSO funders and 46.3 42.0 2.3 CSOs 5.3
ineffectiveness of provisions that cover gaining income from principal activities of voluntary sector 40.0 41.0 11.7 2.0 organisations, social entrepreneurship 5.3
donors' striving to gain benefits in spite of interests of 19.7 38.3 15.3 24.7 voluntary sector organisations, community, society 2.0
lack of donor motivation 28.3 46.7 14.3 8.3 2.3
3.0 many voluntary sector organisations not having 32.3 38.0 24.7 fundraising activities 2.0
3.7
inadequate funding 60.0 33.3 2.0
1.0
0% 20% 40% 60% 80% 100% % of respondents
very important important unimportant hard to answer don't know
Fig. 3.10. (first part) Distribution of the respondents on the basis of their answers to the question: «THE MAIN PROBLEMS OF THE EXISTING CSO NON-STATE FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS, N=300
Fig. 3.10. shows that the biggest non-government funding problem is its inadequacy: 60% of the respondents consider this problem to be very important, 33.3% assess it as important, and only 1% of the sample think that this problem is unimportant. Therefore, the number of the respondents that identified this problem as “very important” and “important” reaches 93.3%. Analysis of distribution of answers of the respondents in urban and rural areas shows that 94% and 93% of them said that inadequacy of non-government funding is “very important” and “important” CSO funding problem respectively. It was interesting to look into attitudes the business/private sector has towards this. Results of the interview show that 95% of representatives of the business/private sector believe funding inadequacy to be very important and important issue. Ninety-three per cent of the respondents from among managers or members of CSOs answered the question in the same way. If we rank non-state funding problems by the number of respondents that assessed them as “very important”, the problem put by us as “Small and medium business liable to single tax becoming 62 National practices and legislation on funding CSOs...
unable to reduce taxes by providing assistance to the non-profit sector” is ranked second. Forty- nine point three per cent of the respondents identified this problem as “very important” and 37.7% as “important”, 87% in aggregate. Analysing distribution of answers of the respondents from urban and rural areas, it should be noted that 85% and 94% pointed out that the small and medium business liable to single tax becoming unable to reduce taxes by providing assistance to the non-profit sector is very important and important CSO funding problem respectively. Representatives of the business/private sector and managers or members of CSOs are unanimous in their view of this question. Ninety-four per cent of the interviewed representatives of the business/private sector and 90% of those from among managers or members of CSOs think the small and medium business liable to single tax becoming unable to reduce taxes by providing assistance to the non-profit sector to be very important and important.
lack of co-ordination among foreign donors 17.0 33.3 19.0 28.7 2.0
creation of 'unreal' third sector organisations 32.7 34.7 27.0 2.0 3.7
lack of sponsorship and patronage traditions 29.0 47.7 11.0 10.0 2.3
small and medium business liable to single tax 5.3 becoming unable to reduce taxes by 49.3 37.7 providing assistance to the non-profit 2.0 sector 5.7
Unprofessional staff of non-governmental 21.7 46.0 25.7 2.0 organisations 4.7
0% 20% 40% 60% 80% 100% % of respondents
very important important unimportant hard to answer don'tknow
Fig. 3.10 (second part). Distribution of the respondents on the basis of their answers to the question: «THE MAIN PROBLEMS OF THE EXISTING CSO NON-STATE FUNDING SYSTEM AND THEIR IMPORTANCE FOR DEVELOPMENT OF CSOS’,% OF RESPONDENTS, N=300
The next non-government funding problem is “weaknesses in tax reliefs given to CSO funders and CSOs”. Forty-six point three per cent of the respondents identified this problem as “very important”, and 42% as “important”, 86.3% in aggregate. As regards distribution of answers of the respondents from urban and rural areas, 88% and 91% pointed out that weaknesses in tax reliefs given to CSO funders and CSOs are very important and important CSO funding problem respectively. A way in which representatives of the business/private sector and managers or members of CSOs regarded this proved to be unanimous – 94% within each group believe weaknesses in tax reliefs given to CSO funders and CSOs to be very important and important. The next non-government funding problem studied by us was “many civil society organisations not having fundraising activities”. Thirty-two point three per cent of the respondents identified this CSO funding problem as “very important”, and 38% as “important”, 70.3% in aggregate. Analysing distribution of answers of the respondents from urban and rural areas, it should be noted that 69% and 77% said that many civil society organisations not having fundraising activities is very important and important CSO funding problem respectively. National practices and legislation on funding CSOs... 63
Representatives of the business/private sector and managers or members of CSOs regard this in the similar way. Seventy-three per cent of the interviewed representatives of the business/ private sector and 79% of those from among managers or members of CSOs think many civil society organisations not having fundraising activities to be very important and important. An important non-government funding problem is “lack of donor motivation”. Twenty-eight point three per cent of the respondents identified this CSO funding problem as “very important”, and 46.7% as “important”, 75% in aggregate. Seventy-seven and seventy-two per cent of the respondents from urban and rural areas pointed out that lack of donor motivation is very important and important CSO funding problem respectively. Representatives of the business/private sector and managers or members of CSOs answered this question largely in the same way. Seventy-four per cent of the interviewed representatives of the business/private sector and 83% of those from among managers or members of CSOs believe lack of donor motivation to be very important and important. An important non-government funding problem is also “lack of sponsorship and patronage traditions”. Twenty-nine per cent of the respondents identified this CSO funding problem as “very important”, and 47.7% as “important”, 76.7% in aggregate. Analysing distribution of answers of the respondents from urban and rural areas, it should be noted that 76% and 81% pointed out that lack of sponsorship and patronage traditions is very important and important CSO funding problem respectively. Representatives of the business/ private sector and managers or members of CSOs regard this in the similar way. Seventy per cent of the interviewed representatives of the business/private sector and 79% of those from among managers or members of CSOs think lack of sponsorship and patronage traditions in Ukraine to be very important and important. An equally important non-government funding problem is “creation of “unreal” third sector organisations”, that is, those that exist from grant to grant and promote their organisation as such rather than function as a civil society organisation. Thirty-two point seven per cent of the respondents identified this CSO funding problem as “very important”, and 34.7% as “important”, 67.4% in aggregate. Analysing distribution of answers of the respondents in urban and rural areas, it should be noted that 66% and 72% pointed out that creation of “unreal” third sector organisations is very important and important CSO funding problem respectively. Representatives of the business/ private sector and managers or members of CSOs regard this in the similar way. Sixty-four per cent of the interviewed representatives of the business/private sector and 66% of those from among managers or members of CSOs think creation of “unreal” third sector organisations to be very important and important. An important non-government funding problem is also “unprofessional staff of non- governmental organisations”. 27.7% of the respondents identified this CSO funding problem as “very important”, and 46% as “important”, 67.7% in aggregate. Analysing distribution of answers of the respondents in urban and rural areas, it should be noted that 66% and 73% said that unprofessional staff of non-governmental organisations is very important and important CSO funding problem respectively. It should be noted that only 52% of the interviewed representatives of the business/private sector think unprofessional staff of non-governmental organisations to be very important and important. Furthermore, a significant number of the respondents (44%) did not gave their view of the question. This can be associated with the fact that so far some representatives of the business/ private sector do not see civil society as a professional force able to influence the government, business, population and implement significant social projects. Seventy per cent of the interviewed managers or members of CSOs believe the problem of unprofessional staff of non-governmental organisations to be very important and important. 64 National practices and legislation on funding CSOs...
An important non-government funding problem is “donors” striving to gain benefits in spite of interests of civil society organisations, community, society”. Nineteen point seven per cent of the respondents identified this CSO funding problem as “very important”, and 38.3% as “important”, 58% in aggregate. 57 and 63% of the respondents in urban and rural areas respectively pointed out that donors’ striving to gain benefits in spite of interests of civil society organisations, community, society is very important CSO funding problem. The representatives of the business/private sector and managers or members of CSOs answered this question largely in the same way. Forty-five per cent of the interviewed representatives of the business/private sector and 58% of those from among managers or members of CSOs think the problem of donors’ striving to gain benefits in spite of interests of civil society organisations, community, society to be very important and important. The last non-government funding problem of those listed in the interview is “lack of co- ordination among foreign donors”. Seventeen per cent of the respondents identified this CSO funding problem as “very important”, and 33.3% as “important”, 50.3% in aggregate. Analysis of distribution of answers of the respondents in urban and rural areas shows that 48% and 59% pointed out that lack of co-ordination among foreign donors is very important and important CSO funding problem respectively. The representatives of the business/private sector and managers or members of CSOs answered this question largely in the same way. Forty-one per cent of the interviewed representatives of the business/private sector and 55% of those from among managers or members of CSOs think lack of co-ordination among foreign donors to be very important and important. In conclusion of the review of CSO non-government funding problems, it should be emphasised that all formalised answers to all the questions were supported by most respondents (minimum 50%) and were “very important” or “important”. It is characteristic that less than one half (45.8%) of the representatives of the business/ private sector answered “yes” to the question “Did you or your organisation provide funding to CSOs?”. Positive examples of CSO funding are known only to 34.7% of the representatives of the business/private sector. This indicates the need to provide an appropriate information framework to cover activities and the role of CSOs in social life, and integrated means for incentivising the business/private sector to fund CSOs. In general, most questions showed that the respondents regarded the existence of CSO non-state funding problems largely in the same way. Most answers of the respondents such as “hard to answer” are associated with lack of openness in activities of particular CSOs, as well as necessary expertise of CSO staff and business patronage traditions in modern history of Ukraine. In most cases, the respondents answered “hard to answer” to questions regarding importance of the following problems: – many civil society organisations not having fundraising activities; – lack of donor motivation; – ineffectiveness of legislative provisions that cover gaining income from principal activities of civil society organisations; – “donors” striving to gain benefits in spite of interests of civil society organisations, local community or society in general; – unprofessional staff of non-governmental organisations; – lack of sponsorship and patronage traditions; – creation of “unreal” third sector organisations; – lack of co-ordination among foreign donors.
The expert interview included answering open questions regarding other CSO non-state funding problems. The respondents’ answers to the open questions were analysed, generalised and grouped. Conclusions as to the open question about “problems of the existing CSO non- state funding system” are listed below: National practices and legislation on funding CSOs... 65
1. Lack of state’s reliefs for the business. Given reliefs, CSOs could use business money in particular directions more efficiently. 2. The system of taxes should be more oriented to the development of civil society. 3. Co-ordination and effectiveness of the use of donors’ money by CSOs need betterment. 4. Lack of expertise, some information and CSOs’ experience in the area of attraction of non-state funding. On the other hand, lack of expertise holds business players back from funding CSOs. 5. Low civic and people’s activity. 6. Poor popularisation of sponsorship and patronage ideas in the Ukrainian society. 7. The society’s low awareness of CSO activities. 8. Lack of a systematic and accessible publication that would provide information on CSO non-state funding opportunities and their needs. 9. Sometimes, donor priorities do not meet interests of communities.
3.4. Problems of funding from delivery of paid services As can be seen in fig. 3.10. (first part), a significant non-government funding problem is “ineffectiveness of legislative provisions that cover gaining income from principal activities of civil society organisations, social entrepreneurship”. Forty per cent of the respondents identified this CSO funding problem as “very important”, and 41% as “important”, 81% in aggregate. Analysing distribution of answers of the respondents in urban and rural areas, it should be noted that 81% and 84% said that ineffectiveness of legislative provisions that cover gaining income from principal activities of civil society organisations, social entrepreneurship is very important and important CSO funding problem respectively. The representatives of the business/private sector and managers or members of CSOs regarded the problem largely in the same way. Seventy-eight per cent of the interviewed representatives of the business/private sector and 87% of those from among managers or members of CSOs think the problem of ineffectiveness of legislative provisions that cover gaining income from principal activities of civil society organisations, social entrepreneurship to be very important and important. It should be noted that it was hard to answer the question regarding ineffectiveness of legislative provisions that cover gaining income from principal activities of civil society organisations to around 12% of the respondents. In our view, such a situation can be explained by the answer to another question, that about “lack of expertise, some information and CSOs” experience in the area of attraction of non-state funding” and “consumerist” spirit of particular organisations. Conclusion: the vast majority (81%) of members of the civil society organisation are willing to earn money to achieve statutory aims of their organisations and their development on their own. But they are hampered in this by the existing system of laws – “ineffectiveness of provisions that cover gaining income from principal activities of civil society organisations, social entrepreneurship”. Answering open questions about opportunities to deliver paid services, the respondents most often proposed to “allow CSOs to engage in business activities”.
3.5. Problems of funding from other sources Other sources of funding include membership subscriptions by CSO members and passive incomes. Unfortunately, our respondents do not have any deposit accounts and do not receive any dividends. However, as can be seen from fig. 3.11, 19% of the interviewed representatives of CSOs said they had other sources of funding. 66 National practices and legislation on funding CSOs...
From the answers to open questions, it can be inferred that such money mainly comes to the organisation from hiring out premises, or vice versa, the organisation uses premises free of charge as a result of delivery of free-of-charge legal and other consulting services, arbitration fees.
Segment of CSOs having 'other' sources of funding 19%
81%
Fig. 3.11. The segment of CSOs having «other» sources of funding within the sample (number of CSOs within the sample N=84).
Membership subscriptions are rather essential source of funding of CSOs that took part in the survey. Fig. 3.12. shows that membership subscriptions are the sole source of funding of 13% of the organisations, and almost one-third, that is, 29% of the respondents said they are one of sources of funding. Fifty-eight per cent of the interviewed members or managers of CSOs did not identified membership subscriptions as a source of funding of their organisation.
membership subscriptions are the sole source of funding 13%
membership membership subscriptions subscriptions are not are one of identified as a sources of source of funding funding 29% 58%
Fig. 3.12. The role of membership subscriptions as a source of CSO funding: segment of respective CSOs within the sample (number of CSOs within the sample N=84)
Analysis of fig. 3.13 shows that the vast majority of organisations – 71% of organisations in Kyiv oblast, 69% in Poltava oblast, 57% in Volyn oblast – rely on membership subscriptions. However, it should be noted that only 7% of CSOs in Donetsk oblast are funded by their members, or the respondents ignore membership subscriptions as a source of funding because of their small size. In our interview, we also looked into existence of control over activities of civil society organisations. The respondents’ answers to the question “Do you know any cases of CSOs being controlled?” are shown in fig. 3.14. To the above question, 82.7% of the respondents answered “no”, and 17.3% answered “yes”. Ninety-one point seven per cent of the representatives of the business/private sector and 77% of representatives of local authorities answered “no”. It should be noted that the respondents that answered “yes” did not explain their answer. National practices and legislation on funding CSOs... 67
Kyi v 36%
Vol yn obl ast 57%
Donetsk obl ast 7%
Odesa obl ast 29%
Pol tava obl ast 69%
Kyi v obl ast 71%
0% 10% 20% 30% 40% 50% 60% 70% 80%
Fig. 3.13. Percentage of CSOs relying on membership subscriptions in sample oblasts
yes 17.30%
no 82.67%
Fig. 3.14. Distribution of the respondents on the basis of their answers to the question: «DO YOU KNOW ANY CASES OF CSOS BEING CONTROLLED?»,% OF RESPONDENTS, N=300
3.6. POSITIVE EXAMPLES OF FUNDING OF CIVIL SOCIETY ORGANISATIONS
Only 36.3% of the respondents said that they knew positive examples of funding. Only 39.2% of 74 representatives of local authorities that participated in the research answered “yes” (fig. 3.15.). However, the questionnaire offered the respondents to answer the open question regarding positive examples of funding of CSOs.
yes 36.30%
no 63.67%
Fig. 3.15. Distribution of the respondents on the basis of their answers to the question: «DO YOU KNOW ANY POSITIVE EXAMPLES OF CSO FUNDING?»,% OF RESPONDENTS, N=300
However, summarised answers to the open question showed that financial and other assistance can be provided to CSOs and civil society along various lines, for example: - contributions to different celebrations; - providing assistance to youth, children and sports organisations, schools, kindergartens, people with disabilities and veterans; - ecological and art competitions, conferences, workshops; 68 National practices and legislation on funding CSOs...
- development of green travel and travel information centres; - restoration of cultural, historic and spiritual heritage; - patronage of children care homes; - assistance to and improvement of local areas; - delivery of different services; - development of infrastructure in rural areas, etc.
The respondents’ answers can be grouped by a source and mechanisms of funding:
1. Positive examples of central and local budget funding: 1.1. Competing youth support programmes (family and youth departments of Odesa oblast state administration); 1.2. Funding from the local budget (Odesa) is provided to support some events undertaken by civil society organisations, inviting civil society organisations to tender for social projects; 1.3. Over a few years, some local authorities (village, rayon and city councils) were funded from the local development foundation, having won the tender launched by the Cabinet of Ministers of Ukraine (Foundation for Local Self-Government in Ukraine); 1.4. Some projects were supported by the Odesa Oblast Foundation for Local Self- Government. The Agroindustrial Development Department launches tenders for budget funding to deliver social consultancy services; 1.5. Country people receiving free-of-charge consultations from different economic sectors and training at workshops and presentations; 1.6. Rural travel development projects supported, inter alia, by local authorities; 1.7. Village council helping all villagers to get gasified, improving local areas, etc.; 1.8. City veterans association is funded from the local, not central budget; 1.9. CSO funding from the local budget, if necessary.
Notwithstanding a positive funding practice in place and fruitful co-operation with local authorities, many respondents pointed out that they, unfortunately, do not know any cases of CSO support by the state.
2. Positive examples of funding from the business/private sector: 2.1. Provision of non-refundable financial assistance for purchase of wheelchairs; 2.2. Provision of charitable assistance to veterans; 2.3. Putting veterans on care lists of rayon enterprises, veterans sponsorship; 2.4. Funding of junior sports events; 2.5. Funding of different charitable activities – support of a children care home, sponsorship of different events, etc. – by the enterprise; 2.6. Delivery of equipment to schools and government institutions, repairs of equipment, etc.; 2.7. In 2010 the enterprise has started Mayetok social project: rural households have been given piglets, fodder and technology. As distributing piglets, Pan Kurchak agroindustrial group signs an agreement undertaking to purchase produced pork at a fixed price. In this way, many rural households gained additional income; 2.8. “As a private entrepreneur, I’ve participated in most marathons held by Volyn oblast organisation of the visually handicapped. The last was run under the slogan “A blind child wants a tactile book”. The raised funds were used to print two books of the Harry Potter series (using braille code). My money became a part of money raised for this good purpose”; National practices and legislation on funding CSOs... 69
2.9. “We closely co-operate with and provide assistance to a retirement home, deaf-mutes school, church, orphan school, rehabilitation centre for drug addicts”.
These positive examples of co-operation suggest that, for active participation of business enterprises and entrepreneurs in civil society development, the state needs to interest them and provide direct benefits, by legally giving more reliefs to the business supporting civil society organisations. The business endeavours to support socially oriented activities directly (without mediation of the state because it uses money ineffectively), and the state should only define a list of activities and types of organisations the reliefs will apply to.
3. Positive examples of funding from international donors: 3.1. Countrywomen’s union, Zinkiv credit union, Zinkiv union of farmers and private land owners were repeatedly given union development grants; 3.2. Grant funding from the EU-UNDP Community-Oriented Local Development project aimed at fostering sustainable socio-economic development at the local level; 3.3. “2002-2006 saw the Country People’s Welfare Improvement Programme working in our (Velyka Mykhaylivka) rayon to give powerful impetus to the development of civil society organisations, first of all, youth and women’s ones, within the rayon”; 3.4. The School Of Tomorrow programme funded by the Netherlands Embassy in Ukraine proved to be very beneficial; 3.5. Provision of refundable assistance to small producers (especially, in rural areas) aimed at the development of their business fostered self-employment, creation of new workplaces, replenishment of the local and central budgets; 3.6. Inviting informal activist groups to tender for mini grants to solve social problems within rural communities. Limited funding of mini projects made it possible to mobilise rural activists to tackle their own problems. Over time, some of these activist groups grew into officially working civil society organisations; 3.7. Heifer Project International. The project is aimed at assisting rural people provided that they will subsequently help others. This allows even ordinary country folk to be donors. Furthermore, relatively modest funding can provide assistance to a lot of people, because the programme is quick to encompass all the villagers; 3.8. The most widespread examples of funding of civil society organisations in our rayon include funding from international donors, for example, the European Union. As successes in our rayon, I could cite the two examples: the Tarutyne steppe preservation project and rural travel development project; 3.9. Our rayon has a few civil society organisations actively working with young people. They receive main funding from projects funded by foreign foundations. Unfortunately, local or central funding of these organisations is minimal or is lacking almost altogether; 3.10. Countrywomen’s Union of Ukraine and Nadiya women’s organisation were funded within the framework of international projects, the state did not provide any money; 3.11. Project funding by the Swedish Farmers Association. The project includes mapping out and adoption of the CSO development programme, setting up oblast and rayon farmers centres; 3.12. Poland-Ukraine-Belarus neighbourhood programmes; 3.13. The main donor of the All-Ukrainian Network of People Living with HIV is the Global Fund to Fight AIDS, Tuberculosis and Malaria. Using money of this fund, Ukraine has implemented most programmes aiming at overcoming HIV/AIDS epidemic; the donor closely monitors the use of funding, and it is devoted to fighting epidemic. It is very important that work of the civil society is the responsibility of the government rather than international donors, as it is the case. 70 National practices and legislation on funding CSOs...
These examples show very significant influence of international donors on the development of CSOs in different areas in Ukraine. From the point of view of the development of civil society organisations, not less interesting option is combination of resources of different sources of funding.
4. Positive examples of mixed CSO funding: 4.1. Using financial support from the local government and business, a specialised library was set up for the disabled people civil society organisation. Upon requests of the country folk with disabilities, books are delivered by a local postman. Using the similar scheme, medications are made available; 4.2. Positive experience has been gained in the process of implementing the EU-UNDP Community-Oriented Local Development project jointly with local authorities of Bolhrad rayon (Odesa oblast) and participation in other tenders for grants; 4.3. Assistance from government bodies and the business contributes to holding national cultural events, festivals, cultural exchange (visits to and from Moldova and Romania), etc. It is especially important for education of youngsters, their coming to know traditions and customs of their ancestors; 4.4. Our villages have created people’s self-organisation committees, written projects and received grants to replace windows in schools, kindergartens, supply hot water to medical institutions in some villages of the rayon. We reclaimed a number of sources playing an important role in supplying water to villages of the rayon, environmental organisations received grants aimed at improvement of the city recreation park, a social project that won the rayon tender was funded from the rayon budget through the entrepreneurship support programme; 4.5. The Nadiya association was awarded a project with funding of 100,000 hryvnias aimed at community-oriented local development. Medical out-patient equipment was purchased. The administration provided a 5,000 hryvnias’ house free of charge (5,000 hryvnias are community money). A music centre was given to the school. A small school grant was awarded: 3 computers, 15 seats, 3 tables; 4.6. In Mykolayivka village (Bilhorod-Dnistrovsky rayon), Perlyna organisation is working rather successfully. It has implemented around a dozen of social projects. It has been funded by the Polish East European Democratic Centre, Foundation for Local Self- Government in Ukraine, Heifer Project International and other organisations, including local ones; 4.7. “In the city and the rayon, a few civil society organisations are working, that are funded by international donors, and partly from local budgets. The Entrepreneurship Support Fund is doing successfully, and a few organisations work in the area of rural travel development”; 4.8. Civil society organisations can receive main funding from different international foundations. Moreover, in 2007-2008 civil society organisations received some funding from the rayon, but all similar programmes are currently wound up due to the recession; 4.9. Co-funding of projects driven by UNDP, the Community-Oriented Local Development project co-ordinating financial action of the community, oblast, rayon, village government and the project itself; 4.10. “The German “Memory, Responsibility, Future” project funded the project called “The Meeting Place Is Dialogue”. The aim of the project is to bring activity into life of old people – former prisoners of concentration camps, Ostarbeiters. Project participants set up a club. A fundraising campaign is launched to raise money to conduct meetings of older former prisoners (every Wednesday), two trips are organised. The Advocacy Campaign Against Human Trafficking is under way. The project attracts attention of National practices and legislation on funding CSOs... 71
Volyn people to human trafficking problems, establishes partner relationships with the government aiming at the development and adoption of the regional human trafficking prevention programme which will feed local funds to combating human trafficking. Active participation of journalists in attracting additional human resources considerably increased the project value”; 4.11. Joining of efforts of Zabrodivka village council, community, sponsors aimed at solving social problems of the countryside; 4.12. Positive experience of co-operation with the city council, Scandinavian mission; 4.13. Co-funding of water supply of Chesny Khrest village (Volodymyr-Volynsky rayon) by a foreign charity and the community; 4.14. Local deputies and other officials providing one-off and continual support to activities of trade unions and charities by funding their costs or purchases of assets they need. The above positive co-funding examples show that combining different sources of funding both from local authorities, the business and international foundations is not only an example of beneficial co-operation between the government, business, international community and civil society, but also a powerful tool to facilitate socio-economic development of Ukraine. Joining of efforts of all those interested in creation of developed civil society is a vivid example of how to devise and implement an integral CSO funding model able to unite all those concerned about Ukraine’s future.
3.7. Proposals on improvement of CSO funding based on interviews and regional round table discussions The respondents were asked for their views of strategic, inter alia, legislative actions needed to create an effective CSO funding model. Formalised answers included: • development and adoption of the government’s targeted Civil Society Development Programme; • annual provision of CSO funding in state budget laws; • approval of aims and criteria of CSO government funding; • setting up the National Civil Society Development Foundation. Fig. 3.16. shows distribution of the respondents’ answers to questions regarding strategic, inter alia, legislative actions needed to create an effective CSO funding model. Conclusion. Attention should be paid to unanimity of the respondents’ views of strategic actions at large aimed at creation of an effective CSO funding model. Ninety per cent of the respondents think it to be expedient to develop and adopt the government’s targeted Civil Society Development Programme, and only 3.7% are against it. Ninety-one point seven per cent of the respondents think the approval of aims and criteria of CSO government funding to be needed, and only 2.3% are against it. Eighty-seven point seven per cent of the respondents believe that state budget laws should annually provide for CSO funding, and only 3% are against. The respondents’ answers to the question regarding identification of setting up of the National Civil Society Development Foundation as a strategic action were also ambiguous, similarly to block 2: 61% said “yes” and 16.3% said “no”. Given unanimity of the respondents’ views on this issue, it is needless to analyse distribution of views different reference groups have. We will focus on answers to open questions of the questionnaire about strategic actions aimed at creating an effective CSO state funding model. Answers to the open question are partly explained by caution with which the respondents regard setting up the National Foundation for Entrepreneurship Development. One of the respondents explained his negative attitude towards setting up the foundation as follows: “The assessment of the need to set up the National Foundation or other similar formations calls for a detailed analysis 72 National practices and legislation on funding CSOs...
of their programme and statute”. Supporters of the idea of setting up the foundation motivate their view as follows: “Undoubtedly, the existence of such a foundation would positively influence unity and co-ordination of their activities, and would allow CSOs’ needs and demands to be tracked in a comprehensive and timely way”.
3.7 Development and adoption of the government 90.0 4.3 2.0 targeted Civil Society Development Programme
3.0 Annual provision of CSO funding in state budget 87.7 7.3 2.0 laws
2.3 Approval of aims and criteria of CSO government 91.7 4.0 2.0 funding
2.0 Setting up the National Civil Society Development 61.0 16.3 20.7 Foundation
0% 10 20 30 40 50 60 70 80 90 100 % % %% o f% %o n d% r esp % ents % % %
yes no hard to answer don't know
Fig. 3.16. Distribution of the respondents’ answers to the question: «WHAT STRATEGIC, INTER ALIA, LEGISLATIVE ACTION, IN YOUR VIEW, IS NEEDED TO CREATE AN EFFECTIVE CSO FUNDING MODEL?» (N=300)
4.7
Providing common project tendering rules to all executive agencies (approval of the respective methods by resolution of the Cabinet of 92.0 2.0 Ministers) 1.3
7.0
Providing all stakeholders with suitable mechanisms of access to procurement related info, enhancing transparency of and ensuring 89.0 2.0 control over activities of gov. service users (by amending the Prov. on Proc. of Goods, Works and Services Using State Money) 2.0
4.7
Developing Guidelines on the best practices of state support of CSO 91.3 2.0 2.0 activities for executive agencies
Setting up the National Civil Society Development Foundation 60.7 18.7 18.7 2.0
0% 25% 50% 75% 100% yes no hard to answer don't know % of respondents
Fig. 3.17. Distribution of the respondents on the basis of their answers to the question: “WHAT PRIMARY STEPS, INCLUDING THOSE AIMED AT CREATING THE LEGISLATIVE FRAMEWORK, NEED, IN YOUR VIEW, TO BE UNDERTAKEN TO CREATE AN EFFECTIVE CSO FUNDING MODEL?”,% OF RESPONDENTS (N=300) National practices and legislation on funding CSOs... 73
The respondents’ proposals include “allowing CSOs to engage in business activities”, “making Ukraine more interested in cross-border co-operation”, “giving tax reliefs to donors”. Most proposals concern the CSO development foundation and, in general, are as follows: “adopting the state’s CSO development programme and setting up its fund with donors’ money”, “setting up regional divisions of the National Civil Society Development Foundation”, “programming the use of funding”. Besides strategic actions aiming at effective CSO funding, the respondents were asked to assess primary steps needed to be undertaken to create an effective CSO funding model. The results are shown in fig. 3.17. Conclusion. Data from fig. 3.17. show that the respondents are almost unanimous in saying “yes” to the following primary steps: “providing common project tendering rules to all executive agencies (approval of the respective methods by resolution of the Cabinet of Ministers)” (92% said “yes”, and 1.3% “no”); “providing all stakeholders with suitable mechanisms of access to procurement related information, enhancing transparency of and ensuring control over activities of government service users (by amending the Provision on Procurement of Goods, Works and Services Using State Money)” (89% said “yes”, and 2% “no”), “developing Guidelines on the best practices of state support of CSO activities for executive agencies” (91.3% said “yes”, and 2% “no”). However, the “setting up the National Civil Society Development Foundation” proposed in the questionnaire (this time as a time-scaled, not strategic step) received “cautious” support again (60.7% said “yes”, and 18.7% “no”). Given almost complete unanimity of answers to the question regarding primary CSO state funding steps and distribution of the respondents’ views of the foundation similar to previous questions, it would be unreasonable to look into views had by the main reference groups in detail. Instead, let us analyse answers to non-formalised (open) questions. The respondents’ only two proposals meet the general context of questions formulated in the questionnaire and are about the development of rural areas and creation of regional subdivisions of the National Foundation: “developing the long-term Civil Society Development Programme (for rural areas), identifying priorities’ and “setting up regional divisions”. In November, within the framework of the two projects – “Civil Society International Best Practice Research” and “Developing Institutional Framework of Funding Civil Society Organisations in Ukraine” – the OSCE office in Ukraine conducted five regional round table discussions in Simferopol, Odesa, Lviv, Kyiv and Donetsk. The aim of these was: • to present preliminary results of three researches undertaken within the framework of the above OSCE projects on the following topics: research into and analysis of existing Ukrainian laws regulating funding of civil society organisations by government bodies, local authorities and the private sector; the best international practices and experience in the area of funding of civil society organisations by government bodies, local authorities and the private sector; foreign experience in enhancement of confidence between government bodies and the public in the process of their co-operation (dialogue); • to discuss the existing forms of funding of civil society organisations in regions, and issues of their putting into practice. Participants in round table discussions represented local executive agencies responsible for civil society development, civil society organisations and business circles. Participants in each round table discussion representing the three above sectors were invited from the oblast where the event took place and neighbouring oblasts, in particular, Crimean representatives went to Simferopol; representatives from Odesa, Mykolayiv, Kherson and Kirovohrad oblasts went to Odesa; those from Lviv, Transcarpathian, Volyn, Chernivtsi, Ivano-Frankivsk, Ternopil, Rivne and Khmelnytsky oblasts went to Lviv; those from Kyiv, Chernihiv, Sumy, Poltava, Cherkasy, Zhytomyr 74 National practices and legislation on funding CSOs...
and Vinnytsya oblasts went to Kyiv; those from Donetsk, Luhansk, Zaporizhzhya, Kharkiv and Dnipropetrovsk oblasts went to Donetsk. Round table discussions saw participants put forth a number of helpful proposals as to improving mechanisms of funding of civil society organisations and provided comments on the existing situation, from among which the following can be cited: - enhancing the list of CSOs entitled to state funding in the Budget Code; - providing access to funding for local organisations, especially, from subsidised regions; - funding of CSOs that have demonstrated their implementation capacity based on previous examples; - CSOs’ providing training in CSO capacities at the local level in rural communities; - international donors, fundraising, social contracting regulation should be in place at the local level; - more detailed analysis of passive income taxation (especially, bank deposits) and clarification of the situation; - imposing criminal or administrative liability for ignoring civil society organisations; - maximum preferences for CSOs’ capacity to earn money independently, maximum assistance in attraction of funding from tax laws; - simplifying the process of liquidation of civil society organisations with legal personality; - developing sponsorship and patronage traditions. Drafting the volunteering law anew, because the existing law is, in fact, abnormal – there are volunteer responsibilities and no incentives. A list of school children volunteer work should be introduced through the department of education, in order to allow a child to choose, as before, between helping the elderly, sports promotion, neighbourhood area cleaning, etc. Children that engaged in any sponsored activity will become sponsors themselves when grown-up, because they know where such money goes from childhood; - increasing funding of youth organisations, because on the ground they receive residual funding; - developing a local level environmental protection programme (for particular recreation areas); - amending the law “On Charity and Charitable Organisations” where it covers donor incentives; - social entrepreneurship: regulatory framework needs to be improved; - organisations entitled to government funding (social contracting) should be as loyal to the government as possible, those in opposition can not receive funding a priori. The state imposes its outdated CSO funding approaches, it should use other approaches; - the state would not fund the organisation that does not suit it any more; - social entrepreneurship should move to the foreground (the Law “On Social Entrepreneurship” should be passed) – they could help CSOs in attracting and using money and become the state’s partners; - centralisation of CSO funding controlled by the state is out of place, this would deteriorate funding and lead to corruption – this is a wrong way. This results in manipulation of civil society organisations and their use to achieve one’s own ends.
3.8. Interim conclusions derived from the analysis of interview and round table discussions 1. There are three most important problems of CSO government funding (ranked in order of importance): • inadequate government funding; • lack of programmes to tender for project funding; National practices and legislation on funding CSOs... 75
• legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective techniques to select competing programmes. 2. Half-hearted CSOs’ attempts at receiving government funding are ’provoked’ by several problems: lack of CSO state funding tradition; problems with reporting on the use of budget funding; CSOs’ low prestige among government bodies; lack of the government funding information system; weaknesses in the government funding process, especially, uneven funding within the year; lack of a legislative provision requiring planning of (oblast, rayon, village) budget spending on CSOs’ projects or events. 3. Given unanimity of views of subjects and objects of CSO funding process, one might expect a constructive dialogue between the government and civil society aimed at solving these problems. 4. CSO members living in rural areas regard proposals as to concentrating CSO state funding, for example, in the National Civil Society Development Foundation, with caution. Such an attitude is explained by the fact that rural respondents do not believe that funding from centralised sources would be accessible to rural CSOs, and therefore, insist on setting up regional divisions of such a foundation. However, a two-level (all-Ukraine and regional) CSO funding model using mechanisms of funding from the central, local budgets, business/private sector, membership subscriptions and grants is supported in every way. 5. In isolated cases, for some reason or other, including a political slant, local authorities do not support civil society development “on the ground” and have their own, rather uncertain view of specific local community development problems solution of most of which can be delegated to civil society organisations. 6. Because of rather small local budgets and their deficiency, local authorities (including village and small town areas) have very limited resources to fund CSOs and support social projects. 7. Complexity of the funding process pursuant to applicable budget law. The existing practice of social contracting is encumbered with some objective factors – the need to go through complex formal processes of opening treasury accounts for getting budget funding and reporting, and subjective ones – in some cases, the decisive role in securing a contract is played by having personal relationships with a manager making decisions. 8. Non-transparency, and consequently, low awareness of opportunities to attract financial resources from the local budget among civil society organisations. Information on winners of government and local procurement tenders and outcomes of projects or delivery of procurement services is unknown to a wide group of stakeholders. 9. Lack of typical rules regulating tenders launched by government bodies and local authorities to fund projects of/contracts with CSOs and reporting requirements. 10. Development strategies for urban and rural communities supported by socio-economic development programmes and identifying funding priorities are mainly lacking. Scant community funds combining different sources of funding. 11. Inadequate expertise of the staff and managers of CSOs. Lack of professional skills in developing projects and setting their budget for tenders for all types of funding. 12. The state does not give reliefs to the business funding CSOs virtually at all. The business tax system is not aimed at the development of civil society. It is not friendly to the development of sponsorship and patronage in the Ukrainian society. 13. Lack of co-ordination among donors. Sometimes, donors’ priorities fail to meet interests of communities. 14. Unanimity of views of the respondents (from all reference groups) and participants in round table discussions on the need for changes in CSO funding processes and opportunities and mapping out strategic actions in order to create an effective CSO funding model. Participants in the field research almost unanimously supported the following primary steps: “providing common general project tendering rules to all executive agencies (approval of the respective methods by resolution of the Cabinet of Ministers)”; “providing all stakeholders with 76 National practices and legislation on funding CSOs...
suitable mechanisms of access to procurement related information, enhancing transparency of and ensuring control over activities of government service users (by amending the Provision on Procurement of Goods, Works and Services Using State Money)”; “developing Guidelines on the best practices of state support of CSO activities for executive agencies”. However, the proposed “setting up the National Civil Society Development Foundation” received “cautious” support as a result of concern about excessive control and passing of the existing government funding problems into the new structure. Instead of this, representatives of civil society proposed another, in their view, more transparent and democratic model – the Public Monetary Fund that we will consider below. National practices and legislation on funding CSOs... 77
4. IMPACT OF THE TAX CODE OF UKRAINE #2755 AS OF 2 DECEMBER 2010 ON FINANCIAL STATE OF CSOS
The research into the existing legislative framework of Ukraine regulating funding of civil society organisations (CSOs) by government bodies, local authorities, the business sector and from other sources, as well as experience in the area of government and non-government CSO funding has been done in September-December 2010. However, on 1 January 2011 the Tax Code came into force (excepting its particular provisions) that had been approved by the Verkhovna Rada of Ukraine pursuant to Law of Ukraine 2755 dated 2 December 201087. The Code became the main legislative instrument that regulates paying taxes and charges by natural and legal persons to the central and local budgets of Ukraine. Though our research was conducted before the above document came into effect, considering its importance, we will see whether the situation in CSO funding changed in light of the Tax Code of Ukraine. Having come into effect, the Tax Code repealed basic Laws of Ukraine such as laws “On Enterprise Profit Tax”, “On Personal Income Tax”, “On Value Added Tax” and many other laws and by-laws. In general, this document must positively influence the taxation system in Ukraine, in particular, with respect to CSOs. Before passing of this document, tax laws of Ukraine could be said to be haphazard and even chaotic, and thus tax relationships were regulated by instruments of different levels – laws, resolutions of the Cabinet of Ministers of Ukraine, decrees of the President of Ukraine, ordinances of ministries and departments and so on, which significantly complicated activities of both business entities and civil society organisations. The Tax Code of Ukraine has effected a number of changes positive to CSOs the most significant of which are: - tax reliefs on charitable contributions from legal persons to NGOs (section 138.5.3 of the Tax Code); - lifting previous limitation of the minimum amount of legal persons’ charitable contributions to 2% of income gained in the preceding year (Tax Code, section 138.10.6, paragraph “а”); - lifting previous limitation of the minimum amount of natural persons’ charitable contributions to 2% of total taxable income gained in the preceding year (section 166.3.2 of the Tax Code); - exemption of incomes from charity tours (section 170.10.5 of the Tax Code); - providing for charitable assistance in the form of endowments (section 170.7.5 of the Tax Code); - exemption of free-of-charge transfer of securities by way of endowments from VAT (section 197.1.15 of the Tax Code). Now, civil society organisations registered as legal persons can pay 6 national taxes and charges, and the two more in special cases identified in article 9 of the Tax Code, in particular: - enterprise profit tax; - personal income tax; - value added tax; - initial vehicle registration fee; - land tax; - duty; - excise (in special cases, as importing motor cars into the customs area of Ukraine); - special forest use charge (when forest resources are used to hold cultural, recreation, travel industry, sports, educational events and do researches). 87 Tax Code of Ukraine 2755 dated 2 December 2010, http://zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=2755-17 78 National practices and legislation on funding CSOs...
Since 1 January 2011, CSOs can pay tax charged on real property other than a land plot and will not pay such taxes as advertisement and public service taxes that caused a lot of trouble to these organisations. The non-profits status in Ukraine currently exempts an organisation from only enterprise profit tax in general, or tax charged on particular types of income of such organisations. However, the status itself does not give any reliefs on other taxes and charges. Most civil society organisations in Ukraine having the status of non-profits are not given any reliefs on taxes charged on land or other real property, they are not exempt from value added tax in the event of their receiving goods by way of assistance. Article 157 of the Tax Code identifies requirements for civil society organisations to be given the status of the non-profit: - the organisation should be a resident for tax purposes; - the organisation’s statutory aim should not imply profit making; - assets of the organisation should not be used for the benefit of its individual members; - in case of liquidation of the organisation, its assets should be transferred to one or more other civil society organisations or go to the budget; - the statute of the civil society organisation should contain a comprehensive list of activities it engages in; - exempt incomes should not be used to conduct business88. The status of the non-profit is given to an organisation based on the decision of state tax agencies to put the civil society organisation on the Register of Non-Profit Institutions and Organisations. It should be noted that the procedure of making a decision on giving the status of a non-profit, similarly to keeping the register of non-profits, is not regulated by the current Tax Code, therefore, these relationships will continue to be regulated by agencies of the State Tax Inspectorate based on provisions issued by them. Therefore, as before, we may still have problems resulting from one- sided interpretation of provisions of applicable legislation by the Inspectorate agencies, not giving the non-profit status or unjustified taking it away, as well as controversies in this respect in courts. To our knowledge, current Law of Ukraine 2460 “On Citizens’ Associations” dated 16 June 1992 allows only international or all-Ukraine civil society organisations to establish separate tax- paying subdivisions including those with legal personality. At the same time, the Tax Code requires separate registration of separate subdivisions of civil society organisations for taxes. This raises the question, can such subdivisions get the status of non-profits today? The status of separate subdivisions of foreign civil society (non-governmental) organisations also remains uncertain. They are non-residents (section 14.1.22 of the Tax Code), which rules out the possibility of their being put on the Register of Non-Profit Institutions and Organisations. Nevertheless, such subdivisions are subject to registration (accreditation or legalisation) in Ukraine. Thus the question of possible application to them of article 157 of the Tax Code saying that the organisation should be a resident for tax purposes remains open. The Civil Code of Ukraine (article 85) generally requires non-business companies not to pursue making profit to be distributed between members. Provisions of the Civil Code are akin to article 157 of the Tax Code, furthermore, the Tax Code’s section 165.1.4 says that any payments to members of governing bodies of civil society organisations, as well as their direct relatives (associated persons), other than money paid for works and services under labour or civil contracts, are taxable. It should be noted that the Law of Ukraine “On Citizens’ Associations” leaves disposal of the civil society organisation’s property exclusively to its chief governing body – general meeting of
88 Round table discussion “Achievements and perspectives of the reform of charity law”, http://blagozakon.org. ua/?p=907 National practices and legislation on funding CSOs... 79
members or to their representatives (delegates). Should such a body not fix official salaries for members of other governing bodies of the organisation or delegate this capacity to respective bodies (presidium, board, etc.), fixing their salary appears to be doubtful. As before, contributions by members of civil society organisations are non-taxable provided that they are irreversible, that is, do not imply receiving any goods or services by way of compensation. Also as before, any activity of civil society organisations aimed at making profit is identified as business and is taxable at the standard rate. The Tax Code enhances the list of community benefit organisations to some extent: - civil society organisations established in order to deliver rehabilitation, social and sports services to persons (children) with disabilities, provide legal aid, engage in environmental, recreation, amateur sports, cultural, educational and research activities; - disabled people civil society organisations, associations of disabled people organisations and their local groups set up pursuant to the respective law (Tax Code, section 157.1, paragraph “b”). Currently, such organisations receive non-profit code 0006, which allows the list of exempt incomes to be enhanced. They do not pay undistributed profit tax. Instead, civil society organisations given non-profit code 0011 should spend at least 75% of the total annual income by 1 April of the next year. If an organisation with code 0011 spends a lesser percentage of its annual income, this difference becomes its undistributed profit taxable at the standard rate. Article 157.14 of the Tax Code says that the use of exempt incomes to conduct business is the ground for taking the status of a non-profit away from the civil society organisation. A ground for taking the status of a non-profit away is also unintended use of assets. Therefore, spending to achieve aims not identified by laws covering civil society organisations or Statutes of such organisations can be considered as unintended use of money pursuant to section 157.14 of the Tax Code. Unintended use of assets can also be deemed to be use by the civil society organisation of money or other property given for a specific purpose, that consequently can result in the organisation’s ceasing to be a non-profit. In general, these provisions of the Tax Code agree with section 54 of Recommendation CM/ Rec(2007)14 that restricts non-governmental organisations’ capacity to use property, purchase of which was exempt, for taxable purposes. Let us see how the Tax Code will influence CSO funding:
Enterprise profit tax Article 157 of the Tax Code lists incomes for non-profit organisations of each type. Incomes other than those identified by article 157 for non-profits of each type are liable to enterprise profit tax at the standard rate. The standard rate of enterprise profit tax is 16% (article 151 of the Tax Code, section 151.1). It will be reduced to this level gradually, subject to the Tax Code’s Section 20 “Transitional Provisions”, paragraph 10, in the following way: - 25% rate will apply from 1 January to 1 April 2011 - 23% rate will apply from 1 April to 31 December 2011 - 21% rate will apply in 2012 - 19% rate will apply in 2013 - 16% rate will apply since 1 January 2014. The Tax Code has not brought any significant changes in this tax for civil society organisations.
Charitable contributions and other gifts. These contributions are exempt from income tax in case of civil society organisations given non-profit code 0011, if they come from founders, members or other participants of such organisations (section 157.5 of the Tax Code). Civil society 80 National practices and legislation on funding CSOs...
organisations under non-profit code 0006 can receive such contributions from any persons (section 157.3 of the Tax Code).
Passive (investment) incomes. As before, “passive incomes”, that is, those gained by CSOs from the use of their money and other property by other legal or natural persons, are exempt from income tax. These incomes include interest, dividends, insurance payments and royalties. Passive incomes are defined in section 14.1.268 of the Tax Code. Civil society organisations’ having corporate rights (holding chartered capital of enterprises or their shares) is not considered to be business activity, regardless of shares or other property or non-property rights to chartered capital of enterprises. As before, income from hiring out property will not be placed among passive incomes. The Tax Code identifies income from leasing as interest. Therefore, when a CSO hires out its property under section 14.1.97 of the Tax Code, a part of income (excepting that earned as a compensation for value of object of leasing) is exempt.
Incomes from principal activities.Provisions of the Tax Code give rise to a lot of questions especially in the area of taxation of incomes from principal activities of civil society organisations. As pointed out above, there is an insurmountable obstacle to independent conduct of business by civil society organisations imposed by article 24 of the Law of Ukraine “On Citizens’ Associations” that allows them to engage in such activities only by establishing separate business entities. The Tax Code neither solves this problem, but imposes a number of obstacles to free engagement in such activities. Pursuant to section 157.15 of the Tax Code, the term “principal activities” includes activities of civil society organisations identified as principal by respective laws, including delivery of rehabilitation and sports services to persons (children) with disabilities, provision of charitable assistance, educational, cultural, research, social and other similar services for social use, creation of citizens’ social self-help systems. Statutory documents of civil society organisations should list all their activities not aimed at making profit pursuant to provisions of laws regulating their activities. Therefore, this requirement does not enhance the list of principal activities and refers to those expressly allowed by laws covering particular types of civil society organisations. Pursuant to applicable law, principal activities also include the non-profits selling goods, performing works and delivering services that promote principles and ideas advocacy and promotion of which was the aim of creation of the non-profit, that are closely linked to its principal activities, provided that a price for such goods, performed works and delivered services is below the standard price or is regulated by the state. This rules out the possibility of earning income, since the standard price is either a contractual price or cost of making the above goods. Civil society organisations under non-profit code 0011 are subject to additional restrictions, only selling goods and services to their participants (founders or members) being identifiable as their principal activity. Furthermore, the Cabinet of Ministers of Ukraine can impose temporary restrictions on application of provisions of this section to selling particular goods or services by civil society organisations, if such a sale jeopardises or conflicts with competition in the market of the above goods, provided that such a violation is duly evidenced by taxed persons that deliver the similar goods, works, services. However, these authorities over other legal persons are given by laws of Ukraine to the Antimonopoly Committee rather than the Cabinet of Ministers of Ukraine.
Government funding. Alongside subsidies and grants from the central and local budgets, as well as special funds, exemption covers incomes of civil society organisations gained within the framework of technical or charitable, including humanitarian assistance provided to such non- profits under international treaties that were given assent by the Verkhovna Rada of Ukraine. National practices and legislation on funding CSOs... 81
Incomes from non-principal activities. Legislation has not changed significantly compared to the previous situation, incomes from non-principal activities are taxable as income of civil society organisations: section 157.10 of the Tax Code requires a non-profit earning income from sources other than those specified in sections 157.2-157.9 of the Tax Code to pay income tax identified as a sum of incomes gained from other sources less a sum of costs associated with gaining such incomes, however, not exceeding the sum of such incomes (which is akin to provisions of the previous Law of Ukraine “On Enterprise Profit Tax”). As calculating a sum of incomes in excess of costs pursuant to section 157.10 of the Tax Code, paragraph one, and estimating sums of taxable income pursuant to paragraph two of this section, depreciation expense is ignored.
Value added tax Impact of this tax on financial position of civil society organisations is hard to underestimate, since value added tax paid on goods and services purchased by these organisations is unrecoverable. This provision of the Tax Code took up the baton from provisions of the previous law “On Value Added Tax”. The Tax Code says that persons referred to in article 180 of the Tax Code, similarly to requirements of the previous law, need not to register for value added tax (VAT) any more, provided that their income from selling goods and services not exempt from VAT has not exceeded 300,000 hryvnias within last 12 calendar months (section 181.1 of the Tax Code). As can be seen, there are no changes in the value or interpretation of the timeline of selling goods and services by law. Article 193 of the Tax Code reduces VAT rate from 20% (current rate) to 17% (since 2014) (Tax Code’s Section 10 “Transitional Provisions”, subsection 2, paragraph 10). While these changes favour civil society organisations to some extent, there is no further reduction of VAT rate, and exemption covers value of educational and social services delivered by only particular types of institutions (especially, when nonschools provide their pupils and students with paid services in the area of extracurricular education (section 196.1.8 of the Tax Code) which infringes upon the principle of taxation neutrality.
Other taxes civil society organisations can pay
Land tax. Sections 282.1.6 and 282.1.7 of the Tax Code exempt disabled people civil society organisations and their health resorts, recreational and rehabilitation facilities, as well as sports organisations using sport facilities for purposes identified by law from land tax (section 282.1.9 of the Tax Code). Other civil society organisations pay land tax fixed based on regional/local rates and purpose of land plots.
Tax on real property other than a land plot Pursuant to section 265.5 of the Tax Code’s article 265, premises used by civil society organisations to accommodate natural persons are taxed at the following rates: 1) at a rate of 1% of the minimum wage payable on 1 January per square meter of living area of a flat in a block of flats not exceeding 240 square meters 2) at a rate of 1% of the minimum wage payable on 1 January per square meter of living area of houses not exceeding 500 square meters 3) at a rate of 2.7% of the minimum wage payable on 1 January per square meter of living area of a flat in a block of flats exceeding 240 square meters 4) at a rate of 2.7% of the minimum wage payable on 1 January per square meter of living area of houses exceeding 500 square meters. 82 National practices and legislation on funding CSOs...
Pursuant to section 265.2 of the Tax Code, civil society organisations do not pay this tax only on rooms of hostels or family type children care homes owned by them.
Initial vehicle registration fee. In Ukraine, all civil society organisations should pay initial vehicle registration fee (on wheeled vehicles, ships, helicopters, etc.). Applicable laws do not give any registration tax reliefs to civil society organisations.
Duty. Civil society organisations should pay duty in case they import humanitarian or other charitable assistance. Customs Rules currently in force do not give any duty reliefs (except for ambulances). The Law of Ukraine “On Humanitarian Assistance” currently in force allows civil society organisations to receive humanitarian assistance without paying duty only based on a special decision of the Cabinet of Ministers of Ukraine’s Humanitarian Assistance Commission. Reliefs can also be given on import of vehicles that still account for a significant part of goods received as humanitarian assistance.
Taxation of natural persons donating to civil society organisations Section 166.3.2 of the Tax Code entitles natural taxpayers to a tax relief on charitable and other non-repayable contributions to non-profits including civil society organisations. The tax relief should not exceed 4% of the natural person’s total taxable income gained in the preceding year (section 166.3.2 of the Tax Code). This amends previous legislative provisions that gave relief on contributions amounting to minimum two and maximum five per cent of the total taxable income earned within the preceding year and were repeatedly criticised by Ukrainian and international experts. Contributions can be in the form of money and other property. At the same time, the tax relief does not cover value of services and works delivered by a natural person to a civil society organisation or free-of-charge use of the natural person’s property by the civil society organi- sation. The amount of tax relief is fixed subject to availability of documentary evidence at the time the natural person submits the person’s annual tax return, that is, by 1 April of the year following the reporting one. Entitlement to tax relief is not summed up and carried forward. Yet it should be noted that restriction of the size of tax relief to the amount of income earned by the natural person as wage is extremely unfavourable to donating natural persons and, con- sequently, civil society organisations. As before, the provision applicable in Ukraine does not give tax reliefs to citizens that do not earn wages (private entrepreneurs, the retired, students, etc.), as it was in previous laws and remains in the Tax Code.
Taxation of legal persons donating to civil society organisations Legal persons registered in Ukraine for enterprise profit tax are entitled to incorporate their charitable and other contributions to civil society organisations not exceeding 4% of taxable income earned within the previous year into their total costs (section 138.10.6 of the Tax Code). In contrast to donations by natural persons, the above contributions can be made to civil society organisations both in the form of money or other property and works or services. In general, cancelling the “minimum threshold” fixed for donating legal persons at 2% of income gained within the previous year that will apply until 1 April 2011 is a positive change in the Tax Code benefiting especially major enterprises. On the other hand, reduction of the maximum size of donations from 5% to 4% appears to incentivise corporate donors. This becomes especially obvious from the fact that reliefs given in 2009 were used by less than 500 of 700,000 legal persons registered in Ukraine89. 89 О. Vinnikov, “Reform of Taxation of Civil society organisations in Ukraine” National practices and legislation on funding CSOs... 83
Charitable contributions, sponsorship and patronage. As before, the Tax Code does not solve the sponsorship problem, though section 14.1.121 of the Tax Code identifies patronage as a principle activity of non-profit organisations. Section 138.10.6 of the Tax Code additionally entitles enterprises to incorporate their contributions aimed at protection of cultural heritage and production of national films and other audiovisual products (not exceeding 10% of profit gained within the preceding year) into their total costs.
Targeted government expenditures for the benefit of civil society organisations. The Tax Code does not require the use of part of revenue from certain taxes or privatisation of state- owned property, gaming business, government lotteries, etc. The Tax Code neither has any “percentage philanthropy” provisions requiring tax agencies to give a part of personal income tax to non-profit organisations identified by the law or donor. 84 National practices and legislation on funding CSOs...
5. RECOMMENDATIONS AS TO IMPROVEMENT OF THE EXISTING REGULATORY FRAMEWORK OF UKRAINE IN THE AREA OF FUNDING OF CIVIL SOCIETY ORGANISATIONS
In the above sections, we provided interim conclusions that were based on the results of two components of our research: the desk top component that contained the analysis of the legisla- tive framework of Ukraine as far as CSO funding is concerned and a lot of additional sources on the topic, and the field component that contained results of the interview including answers to open questions of the questionnaire about the existing experience in the area of CSO funding by government bodies, local authorities and the private sector, and results of five regional round table discussions. The analysis of laws of Ukraine covering CSO funding showed that their provisions mainly meet criteria established in the Fundamental Principles on the Status of Non-governmental Organi- sations in Europe. However, the field research proved that there is a very significant difference between the theory and practice of application of law at the national and local levels, that can be dealt with by introducing appropriate changes into legislation, government policy that would promote sustainable development of CSOs, foster partner relationships with government on all levels, and support independent public monitoring of CSO funding processes. The interim conclusions provided us with a secure basis for identification of problems and pro- vision of consolidated recommendations as to improvement of the existing CSO funding mecha- nisms. Whereas on 1 January 2011 the Tax Code90 (except for some of its provisions) as well as the Budget Code91 of Ukraine (No. 2456-VI as of 08.07.2010) came into force and considering their importance for CSOs funding, we have amended some of our interim conclusions regarding improvement of the existing regulatory framework of Ukraine in the area of funding of civil society organizations in the light of the aforementioned Codes.
5.1. Funding from government bodies and local authorities Problems: • Discrimination provision of the Law of Ukraine “On Citizens’ Associations”, article 8, part 3, saying that statutory activities of a civil society organisation may be supported from the State Budget only in case it has the all-Ukraine status; • Inadequate CSO funding by government bodies and local authorities, lack of programmes to tender for project funding, limited long-term funding; • Government funding of CSO projects significantly differs from procedures prescribed by law and is departmentally specific on such important issues as payment timelines, CSO contribution requirements; • Legislative uncertainty of aims and criteria of CSO state funding, government’s lacking a unified respective technique to select competing programmes; • Budget allocations are, in general, rather conditional, that is, amounts provided for in the budget can virtually decrease, advances are not applied as a rule, funding is uneven in time; • No ministry funds 100% of CSO costs, requiring a contribution by the CSO that often should be only in the form of money; • Government support given to CSO programmes and projects does not belong to protected expenditures, therefore, the State Treasury can delay payments to CSOs for rather long periods. There are many unjustified restrictions of uses of money;
90 Tax Code of Ukraine No. 2755 as of 02.12.2010, http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2755-17 91 Budget Code of Ukraine No. 2456-VI as of 08.07.2010 National practices and legislation on funding CSOs... 85
• Bias against competing newly created CSOs that are lacking implementation or state funding experience; • Lack of an “one-stop shop” to help drawing budget funding documents. There are wide differences in departmental practices of reporting, control, monitoring and assessment of CSO projects; • Unjustified requirements for amending statutory documents of CSOs not expressly set out by law; requirements for special government authorisations (licenses, special registrations, approvals, etc.), unless expressly stated by law; • Charging income tax on recipients of targeted assistance in the form of social services; • Charging tax on advertisement informing the public on social services delivered by CSOs; • Budget funding is often accessible to a limited number of “pocket” CSOs or civil society organisations showing allegiance to the current government and loyalty to individual officials, and as a rule, the state would not fund a CSO that does not suit it any more.
Proposed solutions: • Amending the Law of Ukraine “On Citizens’ Associations” or enhancing the list of CSOs entitled to state funding by the new Law “On Civil Society Organisations”; • In the Budget Code it is necessary to expand the list of CSOs entitled to direct funding from the state budget; The Budget Code of Ukraine recognizes only three types of CSOs to which the state funding can be provided, in particular: - state support for disabled people and veterans civil society organisations having the all- Ukraine status; - state support for youth civil society organizations for implementation of the national programmes and activities targeted at children, youth, women and family; - state support for cultural and artistic NGOs having the national status. While providing funding, state authorities are guided by other applicable legislative norms, for instance, almost every Law “On State Budget of Ukraine for…(year)” pledges certain funds, in particular, the State Veterans Committee of Ukraine provided 11,256.40 thousand hryvnias in 2010 to support veterans organizations and visits to military cemeteries and memorials (Appen- dix 3 to the Law of Ukraine “On State Budget of Ukraine 2010”) whereas in 2011 this Committee provided 11,500 thousand hryvnias for such purposes. For expanding the list of CSOs entitled to direct state funding from the State Budget it is necessary to make changes and additions to the Budget Code of Ukraine providing for a definition of the term “state funding of civil society organizations” as well as to extend the list of civil society organizations qualified for state funding, in particular: 1. Article 2, section 1, subsection 38 – to read as follows: “a budget funds recipient is an economic agent, a civil society organization (irrespective of its status) or other organization that does not have a status of a state-funded organization, authorized by a budget funds administrator to carry out activities envisaged by a state-funded programme, and receive state funds for carrying out thereof”; 2. to amend Article 87, section 9, paragraph “c” to read as follows: state funding for civil society organizations of disabled people and veterans irrespective of their status; 3. to amend Article 87, section 9, subsection “e” to read as follows: state funding for youth and children civic organizations (irrespective of their status) which participate in carrying out national programmes and activities targeted at children, youth, women, family, in line with the list approved by the Cabinet of Ministers of Ukraine; 4. to amend Article 87, section 10, subsection “c” to read as follows: state funding for cultural and artistic NGOs, irrespective of their status. 86 National practices and legislation on funding CSOs...
Making the above amendments is closely connected with the need of introducing respective changes to the frame Law “On Citizens’ Associations” (part 3 of Article 8) which defines that the Verkhovna Rada of Ukraine shall approve a list of all-Ukraine civil society organizations to whom the state provides the material assistance. • Revision of amounts of government funding (both at the national and local levels) by programming more tenders for CSO project funding; • Development and approval of a clear procedure for the State Treasury to fund projects or services delivered by civil society organisations using budget money, simplifying the process of opening of treasury accounts of the above CSOs; • Amending the Law of Ukraine “On Citizens’ Associations” or including provisions lifting restrictions on possible State Budget’s support given to statutory activities of civil society organisations based on their status, using tenders in the new Law “On Civil Society Organisations’; cancelling division of CSOs on the basis of territorial status as an obstacle to access to budget funding and earning incomes from principal activities; • In order to solve the problem of restricted access of CSOs to long-term funding, budget law needs to be amended so as to ensure long-term state funding for CSOs, for example, through specially created government funds; For the purpose of implementation of the aforesaid recommendation the following actions need to be taken: 1. Mapping out and approval of overall objectives and criteria of long-term government funding for CSOs made by a resolution of the Cabinet of Ministers of Ukraine (except for those that have been already set by separate state targeted programmes); 2. At the level of the Cabinet of Ministers of Ukraine an approval of a standardized (or unified) methodology of CSOs funding by executive authorities that sets state funding priorities ; 3. Development and adoption of the State targeted civil society development programme that provides for establishing an effective body for CSO funding (PMF – the Public Monetary Fund); 4. Amending the Law of Ukraine “On Targeted Government Programmes” so as to stipulate directly the need of engaging CSOs in implementing activities within the framework of the targeted government programmes. At present funds provided by the state should be used and the expenditures should be reported by the end of a calendar year. However, greater number of projects or tasks that are funded could enhance better impact if they had a continuous funding and duration for example, over several years. Therefore a mechanism of funding for such projects through the PMF is being proposed. The issue of making any amendments to the Budget Code is premature as primary grounds for ensuring long-term funding as described above have not been established so far. We will provide a more detailed clarification on the issue of funds in the respective section below. • In order to eliminate some restrictions related to the CSO funding due to unfavourable regulatory policy, it is necessary to extend actions regarding deregulation of business activities towards main risks associated with CSO funding, in particular, requirements for amendments to statutory documents of CSOs not set forth by law; requirements for special government authorizations (licenses, special registrations, agreements, etc.), unless prescribed by law; A solution of the aforementioned issue should be reflected in the following legislative instruments: 1. The Law of Ukraine “On Citizens’ Associations”: to make direct provision for the right of a CSO to carry out economic activity having no purpose of either profit generation or profit distribution among its members (participants), in relation to that to make respective changes to the Tax Code related to the tax exemption of the income obtained as a result of such activity (respective sections of Article 157 of the Tax Code); National practices and legislation on funding CSOs... 87
2. The Law of Ukraine “On Procurement of Goods, Works and Services using State Money”: to determine a comprehensive and definitive list of documents that participants of the procurement process or of simplified procurement procedures can submit upon a service buyer’s request in order to prove • Providing all the ministries with a common technique to invite CSOs to tender to be based on common approved priorities, while preventing duplication of departmental functions; • Targeted assistance in the form of social services provided within the framework of state standards and provisions should be tax exempt from personal income for beneficiaries of this assistance coming both from budget-funded institutions as well as from CSOs; In order to resolve the above issue it is necessary to make respective changes and additions to the Tax Code of Ukraine: Article 197.1.7. of the Tax Code provides for the tax exemption of the income obtained as a result of supplying the following services: b) providing accommodation for people at homes for senior and disabled citizens, boarding schools for children, rest homes for war veterans and veterans of work, geriatric centers, rehabilitation institutions, social territorial centers (established to supply social services); c) providing meals and sleeping accommodation and supplying other social services for homeless citizens at registration centers, social protection institutions for homeless people as well as persons released from penitentiary institutions at centers for social adaptation of persons released from penitentiary institutions. Issues of granting tax exemption to social assistance recipients (individuals) are regulated by Article 165 of the Tax Code “Incomes That Shall Not Be Included In Total Monthly (Yearly) Taxable Income”. However, the issue of targeted assistance provided in the form of social services within the framework of state standards and provisions is not specified in the Code. Thus, it is proposed to supplement section 165.1.49 of the Tax Code so as to prescribe the following: “incomes gained by a taxpayer in the form of social services supplied within the framework of state standards from both budget-funded institutions and organizations as well as from other suppliers of such services are not included in the total monthly (yearly) taxable income of a taxpayer”. In connection with the above it is proposed to rename section 165.1.49 into section 165.1.5. Developing new mecha- nisms of social contracting by government bodies and local authorities to be based on the princi- ples of equality, transparency and reciprocal responsibility for outcomes. In our opinion, it is necessary to engage the public in discussion and thorough consideration of this issue (possibly, in the framework of a round table discussion). As separate measures, the following can be suggested: At the level of the Cabinet of Ministers the following instruments are necessary: - a procedure for the assessment of the needs of certain social services recipients (with compulsory engagement of the public and CSOs for mapping out such a procedure), on the basis of which normative principles of state funding for supplying such services are defined; - approval of a list of social services to be paid for by recipients of such services on the basis of normative principles; - approval of criteria and a procedure for state audits and public financial reporting for legal entities of all forms of ownership and subordination which supply social services included in the list; On the legislative level: - to make a provision for the right of local self-government authorities to establish additional services that may be funded from revenues coming into local budgets on the basis of normative principles; 88 National practices and legislation on funding CSOs...
- to acknowledge the right of CSOs that supply social services to rent state and community-owned property without compulsory participation in tenders (amendments to the Law of Ukraine “On Renting State and Community-Owned Property’), or to provide compensation for the expenses incurred whilst renting state and community-owned property in the terms of tenders or in the instruments regulating state funding for CSOs on the basis of normative principles; - Developing a mechanism that would ensure equal access to state funding for local civil society organizations, especially children’s and youth organizations (and newly created CSOs that are lacking project implementation or state funding experience, but have the respective capacities and can prove it); A solution to the aforementioned issue can be found by addressing the following two aspects: ensuring equal access of the CSOs to state funding by eliminating restrictions based on status or other criteria, for example, experience. Article 8 of the Law of Ukraine “On Citizens’ Associations” contains a controversial statement that endorses the priority of some CSOs over other CSOs based on their status: “the state ap- proves a list of all-Ukraine civil society organizations to which it provides material assistance”. The Law defines that a civil society organization may receive support for its statutory activities only in the case that it has an all-Ukraine status. It does no mention support for all other civic or- ganizations as the main type of civil society organizations. The majority of lawyers interpret such a provision with the sense that the state provides material assistance through the mechanism of ap- proval to those CSOs whose activities are necessary for the state and coincide with its interests. Thus, the basic provision of the Law fails to establish the necessary grounds for broad coopera- tion between the state and CSOs or provide a basis for the tender mechanism development. In order to abolish such a restriction it is necessary to make respective changes to Article 8 of the aforementioned Law. A status-based restriction is also applied to CSOs at the level of the regulatory instruments. Thus, a tender for funds distribution among youth and children’s civic organizations is conducted on the basis of and pursuant to the procedure prescribed by the Resolution 1062 of Cabinet of Ministers of Ukraine “On Approval of Tender Procedure for Programmes Drafted by Civil Society Organizations Aiming at Children, Youth, Women and Family” dated 25 July 2002. This Resolution contains discriminatory provisions that prevent youth organizations having international and local status from participating in such tenders, contravening in this way the provisions of the Law of Ukraine “On Youth and Children Organizations”. The aforementioned Resolution requires respective changes to Article 8 that will rectify such a situation. The restriction of the CSOs access to state funding at the level of specific criteria, for example, their experience, lies in the following. On the state level there are a few models of tender conduct which can give CSOs access to state funding: tenders for draft programmes mapped out by civil society organizations aimed at children, youth, women and the family (Resolution 1062 of the Cabinet of Ministers of Ukraine dated 26.07.2002); tendering for budget funds to deliver social services (Resolution 559 of Cabinet of Ministers of Ukraine dated 29.04.2004); tenders launched for projects and programmes of civil society organisations in the area of informing the public about European integration (Resolution 956 of the Cabinet of Ministers of Ukraine dated 30 October 2008). The aforementioned regulatory instruments have a drawback in that they define a tender procedure in a simplified form and prescribe that a respective executive power body may adopt separate instruments regulating their implementation (evaluation criteria, application forms etc.). Among the criteria of evaluation one can find, for example, experience in implementing state funded projects that newly created, youth or children civil society organizations may lack. The above issue can be resolved by the Cabinet of Ministers adopting an instrument that will clearly define and regulate procedural issues uniformly for all state funding providers and that will contain criteria to be applied to the newly created, youth or children’s CSOs, and that National practices and legislation on funding CSOs... 89
such organizations are able to meet, for example, a number of events or projects carried out by an organization on a voluntary basis or at the expense of philanthropists’ funds, qualification requirements to an organization’s personnel etc. Incidentally, even the draft “Tender Procedure for Defining Programmes, Projects (Events) Mapped Out by Civil Society Organizations for Implementation of Which State Funding Will Be Provided” currently being mapped out by the Cabinet of Ministers of Ukraine contains a ban in Article 5 as follows: “A tender application may not be accepted from a civil society organization that did not carry out programmes and projects (events), the implementation of which received state financial support in previous years”. • Considering low awareness of the public and a function being other than that of commercial advertising, informing the public on social services delivered by CSOs shall be deemed social advertising; • Developing a government training programme aimed at improving professional skills of managers and members of CSOs in delivering services needed by the state and society.
5.2. Funding from the private sector and individual citizens Problems: • Value of money or property delivered to CSOs free of charge that may be incorporated into total costs of enterprises paying profit tax at the standard rate is limited by law to 2-5% of taxable profit gained in the previous reporting year, as well as to 10% of taxable profit in case of providing assistance to enterprises of all-Ukraine associations of Chornobyl victims in which employment of such persons is at least 75%, and charitable activities of such associations; • Insignificant tax relief equal to 2-5% of annual taxable income available to natural persons. Minor reliefs given by the state to the business supporting civil society and CSOs. The newly passed Tax Code would, perhaps, improve CSO funding by the private sector on the ground to some extent, but it virtually puts small and medium business liable to single tax out of the “game”, because enterprises will not be able to incorporate money paid to single-taxed entrepreneurs into their total costs, which makes it unreasonable to work with such entrepreneurs that thus will have no income; • Discrimination of CSOs of particular types receiving non-refundable financial assistance from private donors, based on their status and other characteristics; • Discrimination of CSOs of particular types in receiving funding, based on their status and other characteristics; • Competition between budget-funded institutions and CSOs for non-refundable financial assistance from private donors; • Undeveloped charity, sponsorship and patronage traditions in the society; • Inadequate co-ordination among international donor organisations in the sector that results in duplication of support and its not meeting actual needs of the society.
Proposed solutions: • Setting a special quota for non-refundable assistance provided to budget-funded institutions and CSOs in the Law of Ukraine “On Enterprise Profit Tax” (section 5.2.2) and the Law of Ukraine “On Personal Income Tax” (section 5.3); The aforementioned laws have become invalid. The above issue is largely regulated by the Tax Code. Section 157.2 of the Tax Code granted tax exemption to the incomes of the institutions and organizations gained as irrevocable financial assistance, if they are: a) state authorities of Ukraine, local authorities and institutions or organizations established thereby that are funded from respective budgets; 90 National practices and legislation on funding CSOs...
b) charitable foundations and charitable organizations established pursuant to the procedure prescribed by law to carry out charitable activities; civil society organizations established for the purpose of supplying services in the area of rehabilitation, physical culture and sports for disabled people (disabled children) as well as social services, aid and advice in legal matters, activities in the area of environmental protection, health improvement, amateur sports, culture, enlightenment, education and science, as well as creative groups and political parties, civil society organizations of disabled people, unions of civil society organizations of disabled people and their local branches established pursuant to the respective law; research institutions and higher education institutions of III-IV levels of accreditation registered in the State Register of Academic Institutions for which the state support is provided; reserves, museums and reserve museums; f) religious organizations registered pursuant to the procedure prescribed by law; h) trade unions, their associations and trade union organizations, as well as employers’ organizations and their associations established pursuant to the procedure prescribed by law. However, there is no way of accepting the lack of subsection “d” in the above list of this Article, as a good deal of civil society organizations fall into this particular category: “legal entities, others than specified in subsection “b” of this section, the activities of which are not aimed at obtaining profit, in accordance with the provisions of the respective laws”. Therefore we find it necessary to supplement section 157.5 with a paragraph “funds or assets that come without pay or in a form of irrevocable financial assistance or voluntary donations” that regulates the procedure of taxation of incomes of CSOs other than those directly mentioned in section “b” of Article 157.2 although they may not differ from the latter in essence. • Exempting one-off and periodic donations from founders and members of CSOs referred to in the Law of Ukraine “On Enterprise Profit Tax”, section 7.11.1, paragraphs “b”, “c” and “d”, from enterprise profit tax and VAT. The Law has become invalid. Issues pertaining to non-profit organizations, activities of which do not provide for obtaining profit and which were mentioned in paragraphs “b”, “c” and “d” of section 7.11.1 of the Law of Ukraine “On Enterprise Profit Tax” are regulated in the Tax Code. According to the Tax Code, there is a direct provision now stating that one-off or periodic contributions paid by founders and members of such organizations are granted tax exemption (section 157.5, 157.6). In addition, tax exemption was granted to assets and services received by a primary trade union from an employer, on the basis of the provisions of a labour union contract (section 157.9). • On the grounds of constitutional guarantees of equality of civil society organizations before the law, exempting non-refundable assistance provided to CSOs stipulated in the Law of Ukraine “On Enterprise Profit Law”, section 7.11.1, paragraph “c” and “d” from income tax. The Law has become invalid. The above issue is largely regulated by the Tax Code. Section 157.2 of the Tax Code granted tax exemption to the incomes of institutions and organizations gained as irrevocable financial assistance, if they are: a) state authorities of Ukraine, local authorities and institutions or organizations established thereby that are funded from respective budgets; b) charitable foundations and charitable organizations established pursuant to the procedure prescribed by law to carry out charitable activities; civil society organizations established for the purpose of supplying services in the area of rehabilitation, physical culture and sports for disabled people (disabled children) as well as social services, aid and advice in legal matters, activities in the area of environmental protection, health improvement, amateur sports, culture, enlightenment, education and science, as well as creative groups and political parties, civil society organizations of disabled people, unions of civil society organizations of disabled people and their local branches established pursuant to the respective law; research institutions and higher education institutions of III-IV levels of accreditation registered in the State Register of Academic Institutions for which the state support is provided; reserves, museums and reserve museums; National practices and legislation on funding CSOs... 91
f) religious organizations registered pursuant to the procedure prescribed by law; h) trade unions, their associations and trade union organizations, as well as employers’ organizations and their associations established pursuant to the procedure prescribed by law. However, there is no way of accepting the lack of subsection “d” in the above list of this Article, as a good deal of civil society organizations fall into this particular category: “legal entities, others than specified in subsection “b” of this section, the activities of which are not aimed at obtaining profit, in accordance with the provisions of the respective laws”. Therefore we find it necessary to supplement section 157.5 with a paragraph “funds or assets that come without pay or in a form of irrevocable financial assistance or voluntary donations’ that regulates the procedure of taxation of incomes of CSOs other than those directly mentioned in section “b” of Article 157.2 although they may not differ from the latter in essence. • Developing a regulatory framework aimed at introducing in Ukraine the so called “percentage philanthropy” already in place in many European countries where a natural person may ask tax agencies to deduct a percentage (for example, 1%) of a tax charged on the person’s income in favour of community benefit organisations recognised by law. This is concerning the development and adoption of the Law of Ukraine “On Percentage Philanthropy”. Similar legislation is already in place in many European countries, and it provides for the deduction by tax agencies of a certain percentage (for example, 1%) of a tax charged on the person’s income in favour of community benefit organizations recognized by law on the basis of a natural person’s wish. Thus, the main idea of the proposed Law (this is mentioned in the report) is a deduction by tax agencies, upon a natural person’s wish, of a certain percentage (for example, 1%) of the tax charged on the person’s income in favour of community benefit organizations recognized by Law. While developing the draft Law “On Percentage Philanthropy”, it is necessary to prepare in parallel the draft Law “On Making Changes and Additions to Tax Code, Chapter 4 “On Personal Income Tax” which regulates the respective procedure as well as Article 157 “Taxation of Non- Profit Institutions and Organizations”. Otherwise it is necessary to regulate the issue of changes in the taxation system in view of passing the Law “On Percentage Philanthropy” in the Final Provisions of this Law. • Improving co-ordination and effectiveness of the use of donors’ funding by amending the regulatory framework regulating provision of technical assistance to Ukraine, enhancing responsibilities of sectoral government bodies in the area of contracting international technical assistance in order to avoid its duplication and meet actual needs of the society. The question here is the international technical assistance granted pursuant to intergovernmental agreements. At present the raised issues can be resolved and these processes can be regulated by the adoption of the Law of Ukraine “On International Technical Assistance”, the need for which has been indicated in the works of the leading experts in the area of CSOs, and attempts at passing which have already been made in 1999 and in 2001. • Drafting the law “On volunteering” aimed at maximum incentivising of citizens engaged in volunteering; • Amending the law “On Charity and Charitable Organisations”, the Tax Code, in order to incentivise donors and popularise charitable activities and patronage in the state more effectively. 1. To make changes and additions to the Law of Ukraine “On Charity and Charitable Organizations” as follows: - this Law (Article 1) does not fully clarify the term “patronage”, in particular, it does not specify for which purposes such assistance may be directed. - the Law lacks definitions of such notions as “patron” and “grant”, it does not recognize the existence of patrons associations, and it does not define charity agents (for example, “philanthropists” and “charitable foundations”). 92 National practices and legislation on funding CSOs...
- When going through state registration, a charitable organization is obliged to pay related costs: it would be fair, taking into account the nature of such an organization, to free it from such a burden by making respective additions to Article 8 of the Law, which should ensure that no fees shall be charged on such an organization’s registration. 2. It is advisable to provide for additional incentives for sponsors and patrons, such as Honorary Titles, state awards, etc. in the Law of Ukraine “On State Awards of Ukraine”. Certain changes concerning the provision of tax incentives to philanthropists have been already made, in particular, Article 170.7.4 of the Tax Code which specifies that targeted charitable assistance to any sum (value) provided by resident legal entities or natural persons is not included in their taxable income, as well as providing for tax rebates on charitable contributions from legal entities in favour of non-governmental non-profit institutions and organizations (Section 138.5.3).
5.3. Funding at the expense of providing paid services Problems: • Contradictory CSOs’ capacities to conduct business independently contained in current law: The Law of Ukraine “On Citizens’ Associations” (article 24) allows civil society organisations to engage in business and other commercial activities only by establishing self-governing institutions and organisations with a legal personality; At the same time, the Economic and Civil Codes of Ukraine allow CSOs to engage in those directly, subject to the use of gained profit for the purpose of statutory activities; Furthermore, special Laws allow civil society organisations to directly engage in independent business activities. These are not only disabled people or Chornobyl victims’ organisations. This capacity, in particular, is affirmed by laws “On Co-Operation” (article 23), “On Professional Artists and Artistic Unions” (article 9), “On Employer Organisations” (article 11), “On Credit Unions” (article 21), as well as “On Charity and Charitable Organisations” (article 20). • Complicated procedure of registration and liquidation of CSOs with legal personality that is too burdensome to most small organisations; • Administrative restrictions on CSOs’ capacity to use and dispose of their property and property rights in some cases; restriction of CSOs’ access to financial services and imposition of administrative financial sanctions for minor or not duly proven breaches; • The provision of the Law of Ukraine “On Value Added Tax” covering value of goods or services delivered by CSOs “within 12 calendar months” to be equal to 300,000 hryvnias limits financial capacities and social activity of a civil society organisation within a calendar year.
Proposed solutions: • Contradiction between provisions of articles 8 and 24 of the current Law of Ukraine “On Citizens’ Associations” allowing civil society organisations to engage in business activities not only through subsidiaries, but also directly needs to be resolved. CSOs’ capacity to engage in independent entrepreneurship, subject to the use of gained profit for the purpose of statutory activities should be brought in line with provisions of the Economic and Civil Codes; • Developing a mechanism of legislative incentivising of CSOs to earn money independently. 1. In the Law of Ukraine “On Citizens’ Associations” – to make direct provision for the right of a CSO to carry out economic activities not aimed at either obtaining profit or its subsequent distribution among CSO members (participants), under the condition that these funds will be used for achieving statutory goals. 2. In connection with changes to section 1, to make respective changes to the Tax Code concerning granting tax exemption to the incomes gained as a result of such activity (respective sections of Article 157 of the Tax Code). National practices and legislation on funding CSOs... 93
• Improving regulatory framework for social entrepreneurship. Social entrepreneurship and social partnership between the state and CSOs should move to the foreground. The Law “On Social Entrepreneurship” should be developed and passed which would help CSOs to attract and spend earned money on social projects and be the state’s partners; • Given the complicated procedure of registration and liquidation of legal persons in Ukraine, it is needed to simplify the process of registration and liquidation of civil society organisations with legal personality by correspondingly amending the Law of Ukraine “On State Registration of Legal Persons and Natural Persons Conducting Business”, and the Law of Ukraine “On Citizens’ Associations” (or the draft Law of Ukraine “On Civil Society Organisations”) and respective by-laws; • Setting forth main provisions on CSO funding and tax administration in respective laws and resolutions of the Cabinet of Ministers of Ukraine; establishing clear and generally understandable criteria of compliance of CSOs’ principal activities with non-profit status (in respective laws); It has been regulated by the Tax Code of Ukraine. • Establishing clear and generally understandable criteria of compliance of the CSOs principal activities with non-profit status (in respective legislative instruments); The section 14.1.121 of the Tax Code stipulates that non-profit enterprises, institutions and organizations are such enterprises, institutions and organizations the main purpose of activities of which is not to obtain profit but to carry out charitable activities and patronage and other activities envisaged by law. It is proposed to supplement this Article with a definitive list of respective criteria, which, if present, allow an organization to obtain a status of a non-profit organization without any restrictions applied thereto. • Amending the Law of Ukraine “On Value Added Tax” where it fixes the worth of delivery of goods or services, by replacing the sentence “within 12 calendar months” with “within calendar year”; The Tax Code envisages that henceforth persons indicated in Article 180 of the Tax Code, in the same manner as required by the former applicable legislation, are not obliged to register themselves as value-added tax (VAT) payers, in the case that their income from the sale of goods and services not exempted from VAT does not exceed 300,000 hryvnias received during the last 12 calendar months (section 181.1 of the Tax Code). As we can see, there was no change either in the total amount or in the legal interpretation of the time period for the sale of goods and services. For the sake of ensuring continuous development of civil society organizations it is suggested to make the following changes to Article 181.1: 181.1. In the case that the total sum of proceeds from operations for supplying goods/services taxable in accordance with this chapter, including proceeds from operations based on the use of a local or global computer network, charged in favour of (paid to) such a person during a calendar year exceeds 300,000 hryvnias in total (less value added tax) such a person is obliged to register as a tax payer with a state tax agency at the place of their location (place of residence), pursuant to requirements envisaged by Article 183 of this Code, except for a person that is a single tax payer. • In order to solve the problem resulting from restricted access of CSOs to long-term funding, establishing a special legal status of endowments of private donors and CSOs (the issue is partly addressed by the newly passed Tax Code); The issue is partially regulated by the Tax Code. The subsection 170.7.5 of the Tax Code envisages that a recipient of targeted charitable assistance provided in the form of money shall have the right for its use during the time period established by the conditions of granting such assistance, but not exceeding 12 calendar months following the month that such assistance was received, except for receiving charitable assistance in the form of an endowment. 94 National practices and legislation on funding CSOs...
If targeted charitable assistance provided in the form of money is not used by its recipient during such a time period and is not returned to a philanthropist by the termination of the time period, such a recipient is obliged to include the unused sum of such assistance in the amount of their total annual taxable income and pay the respective tax. The term “endowment” means a sum of money or securities deposited by a philanthropist into a bank or a non-banking financial institution, which enables a charitable assistance recipient to use the interest or dividends accrued on the sum of such an endowment. Such a recipient shall have no right to spend or to alienate the main sum of such endowment without a philanthropist’s consent. The Tax Code does not regulate the future “fate” of an endowment and neither does it determine a clear procedure of “work” with this type of source of financial resources for CSOs. It is suggested to highlight the notion of an “endowment” in Article 14 of the Tax Code which outlines all the notions used in the Tax Code. To regulate the issue of charitable assistance in the form of endowment in subsection 170.7.5 where a separate paragraph should state that “Charitable assistance received (provided) in the form of an endowment shall be neither taxed nor included in the total monthly or annual taxable income of a taxpayer for the duration of the whole time period during which such assistance is provided”. • It is to be stated legislatively (in order to avoid ambiguous interpretation by tax agencies on the ground), what incomes are passive, where they come from and under what conditions they are considered as such; The above issue is partially regulated by the current Tax Code. The Tax Code outlines a notion of passive incomes: section 14.1.268. passive incomes are incomes received in the form of interest, dividends, insurance compensations and indemnifications as well as royalty. However, when granting a non-profit status to civil society organizations, there are still some cases of disputes with tax agencies caused precisely by the lack of a comprehensive list of such incomes. Therefore it is suggested to make the following additions to the Tax Code: 157.2 Tax exemption is granted to the incomes of non-profit organizations defined in subsection “a” of section 157.1 of this Article obtained in the form of PASSIVE INCOMES, namely: incomes received as a result of securities ownership (securities income), real estate ownership (renting out real estate), incomes gained by such an organization as a founder, or a co-founder of economic agents, a shareholder (dividends, corporate payments, payments per shares and any other incomes received from such economic agents that were generated without direct active engagement of non-profit organizations in the business activity of such economic agents), incomes obtained from copyrights (royalty) including books, works of art or science, computer programmes, other records on information carriers, video- or audiotapes, motion pictures films or tapes for radio or television broadcasts; payment for purchase of any patent, registered mark for goods and services or trademark, design, secret drawing, model, formula, process, right for the information pertaining to industrial, commercial or scientific experience, as well as incomes obtained as a result from placing funds owned by such organizations in banking establishments, credit unions, other financial institutions that have the right for supplying such services, and incomes received by such organizations in the form of insurance compensations and indemnifications. In connection with the above it is also naturally required to provide an extended definition of the notion “passive incomes” in section 14.1.268 of the current Tax Code. It is advisable to provide the same definition also in sections 157.2-157.9, as tax agencies on the ground often refer to these very sections when refusing to grant a non-profit status to an organization because of ambiguous interpretation of the notion “passive incomes”. • Introducing the “one-stop shop” principle for registration and liquidation of CSOs with legal personality; National practices and legislation on funding CSOs... 95
A “one-stop-shop” format provides for the submitting by an applicant of a package of documents necessary to receive certain administrative services to an authorized representative of a sole licensing office (at the place of such an applicant’s registration, for example). Henceforth, the interaction between all the necessary agencies goes on without the participation of an applicant until finally, an applicant receives from the hands of the same authorized person the full set of documents necessary to carry out the applicant’s activities. The question is the possibility for CSOs to register their activities (including state registration (receiving a state registration certificate), registration with tax agencies, pensions’ fund, etc., in one place). The same issue also applies to the termination of their activities. The need for such a service is conditioned by the current complicated, time-consuming and often obscure procedure of the state registration for ordinary citizens. Does any rural community, for instance, have any possibility (including a financial one) to hire a relevant expert in the case of a need to register a civil society organization? Apparently not. However, without such an expert it is impossible to understand all the twists and turns of the state registration of civil society organizations in its current format. After all, it is communities that have the greatest need to establish such organizations, but as the matter currently stands, it is often bureaucratic obstacles that impede the organization’s creation. This issue is controversial and requires a comprehensive approach. At present the issue of the registration of civil society organizations is regulated by Resolution 140 of the Cabinet of Ministers of Ukraine “On Approval of Guidelines for Procedure of Citizens’ Associations Legalization” dated 26 February 1993 and the Law of Ukraine “On State Registration of Legal Entities and Natural Persons Entrepreneurs” and some other regulatory instruments. Obviously, it is necessary to introduce respective comprehensive changes to these regulatory instruments with the purpose of simplifying the registration procedures for CSOs, for example, in the form of a “one-stop-shop” at the place of a CSO registration where CSO founders submit the necessary documents and receive by the indicated deadline the registered documents and certificates on CSO registration from all the respective agencies, in particular, tax agencies, social fund, pensions fund and others. • Amending the Law of Ukraine “On Enterprise Profit Tax” by clearly stating that membership subscriptions of CSOs of all types are not taxable. The Law became invalid. Although the issue is partially regulated by Article 157 of the Tax Code, it would be appropriate to make additions to this Article by stating the following general rule: “Incomes of a non-profit organization of any type gained by such an organization in the form of subscription fees, membership fees and target contributions, if such contributions are envisaged by the statutory documents of such an organization, are non-taxable”.
5.4. Public Monetary Fund Development of civil society and comprehensive and systemic solution of CSO funding problems require mapping out and adoption of a strategy and the state’s targeted civil society development programme creating an effective CSO funding agency; a regulation establishing aims and criteria of CSO government funding. Besides enhancing the list of CSOs entitled to direct funding from the State Budget, the size of civil society funding set by state budget laws should be increased. In order to foster civil society development and effective CSO funding, it is needed to devise a mechanism of CSOs’ centralised access to funding that comes from different sources: the state and local authorities, international technical assistance and private donors. However, centralisation of CSO funding controlled by the state is out of place, because, according to many respondents and most participants in round table discussions, this would deteriorate CSO funding and lead to corruption and manipulation of civil society organisations. 96 National practices and legislation on funding CSOs...
Based on the field research and results of round table discussion of the model and mechanisms of funding, a two-level (national and regional) CSO funding model is proposed, that will combine CSO funding from all possible sources: central and local budgets, business/private sector, membership subscriptions and international technical assistance grants – the Public Monetary Fund. The Public Monetary Fund (PMF) has regional divisions given a status of Associations of Citizens (civil society organisations) (article 10 of the Law of Ukraine “On Citizens’ Associations” currently in force) with legal personality. PMF aims at supporting the civil society development programme and other projects/ programmes CSOs implement on the national level. It provides CSOs with qualified help in receiving grants from international donor organisations (legal aid in fundraising, business planning, accounting, training, etc.). Money comes to PMF from different sources: state budget, business/private sector, CSO paid membership fees by regional divisions, international technical assistance. Regional divisions support development programmes and other projects/programmes CSOs implement on the regional level. They receive funding from PMF in order to carry out all-Ukraine projects/ programmes in the region, from local budget, business/private sector, CSO membership fees.
Management of PMF activities: 1. The management is elected at the CSO meeting (conference, meeting of representatives) every two or three years. It is composed of the board of directors and chief executives (of the fund and divisions). The board of directors includes representatives of the government, CSOs, business/private sector working on a parity basis. 2. The executive body is composed of permanent staff hired pursuant to the Labour Code. 3. Activities of the fund and its divisions are monitored by Supervisory Boards composed of representatives of the government, CSOs, business/private sector. 4. Audit commissions (checking and controlling financial and business activities of the fund and its divisions) are also working that can initiate ad hoc conferences/general meeting, should any misuses/financial violations be uncovered. PMF reporting takes place annually, at a conference/general meeting. Reports appear in national publications and are posted in the Internet. Online access to information on earnings/ expenditures of the fund and its divisions is free. It is accessible online. In this way, transparency of all PMF activities is achieved. National practices and legislation on funding CSOs... 97
Appendix 1. REFERENCES
Laws of Ukraine 1. Civil Code of Ukraine 435-IV dated 16 January 2003 2. Budget Code of Ukraine 2542-ІІІ dated 21 June 2001 3. Economic Code of Ukraine 436-IV dated 16 January 2003 4. Tax Code of Ukraine 2756-IV dated 2 December 2010 5. Decree of the President of Ukraine 945/99 “On Grants for Gifted Youth” dated 2 August 2000 6. Decree of the President of Ukraine 854/2004 “On Encouraging Wider Participation of the Public in Making and Implementation of Government Policy” dated 31 July 2004 7. Law of Ukraine 2460-XII “On Citizens’ Associations” dated 16 June 1992 8. Law of Ukraine “On State Budget of Ukraine 2010” dated 27 April 2010 9. Law of Ukraine 875-12 “On the Principles of Social Protection of the Disabled in Ukraine” dated 21 March 1991 10. Law of Ukraine 281 – XIV “On Youth and Children Organisations” dated 1 December 1998 11. Law of Ukraine 554/97-VR “On Professional Artists and Artistic Unions” dated 7 October 1997 12. Law of Ukraine 2117-XII “Principles of Culture Legislation” dated 14 February 1992 13. Law of Ukraine 1621-IV “On Targeted Government Programmes” dated 18 March 2004 14. Law of Ukraine 334/94 “On Enterprise Profit Tax” dated 28 December 1994 15. Law of Ukraine 889-IV “On Personal Income Tax” dated 22 May 2003 16. Law of Ukraine 2289-IV “On Government Procurement” dated 1 June 2010 17. Law of Ukraine 1759-IV “On Amending Some Laws of Ukraine Aimed At Simplifying Conduct of Business in Ukraine” dated 15 December 2009 18. Law of Ukraine 2269-12 “On Renting State- and Community-Owned Property” dated 23 December 1997 19. Law of Ukraine 168/97-VR “On Value Added Tax” dated 3 April 1997 20. Law of Ukraine 531/97-VR “On Charity and Charitable Organisations” dated 16 September 1997 21. Law of Ukraine 966-IV “On Social Services” dated 19 June 2003 22. Law of Ukraine 1087-IV “On Co-Operation” dated 10 July 2003 23. Law of Ukraine 554/97-VR “On Professional Artists and Artistic Unions” dated 7 October 1997 24. Law of Ukraine 2436-ІІІ “On Employer Organisations” dated 24 May 2001 25. Law of Ukraine 2908-ІІІ “On Credit Unions” dated 20 December 2001 26. Law of Ukraine 280/97-VR “On Local Self-Government in Ukraine” dated 21 May 1997 27. Law of Ukraine 2625-ІІІ “On People’s Self-Organisation Bodies” dated 11 July 2001 28. Resolution 1302 of Cabinet of Ministers of Ukraine “On Additional Actions Aiming to Promote Engagement of the Public in Making and Implementation of Government Policy” dated 26 November 2009 29. Resolution 236 of Cabinet of Ministers of Ukraine “On Approval of the Procedure of Use of State Funds As Financial Support for Organisations of the Disabled in 2008” dated 26 March 2008 30. Resolution 285 of Cabinet of Ministers of Ukraine “On Procedure of Use of State Funds As Financial Support for Veterans Organisations and to Visit Military Cemeteries and Memorials in 2008” dated 2 April 2008 31. Resolution 32 of Cabinet of Ministers of Ukraine On Procedure of Use of State Funds to Carry Out Particular Programmes in 2009” dated 14 January 2009 98 National practices and legislation on funding CSOs...
32. Resolution 411 of Cabinet of Ministers of Ukraine “On Procedure of Use of Funding Allocated under Some Budget Programmes to the Ministry of Labour and Social Policy in 2010” dated 9 June 2010 33. Resolution 1062 of Cabinet of Ministers of Ukraine “On Approval of Tender Procedure for Programmes Drafted by Civil society organisations Aiming Children, Youth, Women, and Family” dated 25 July 2002 34. Resolution 636 of Cabinet of Ministers of Ukraine “On Measures In Order To Solve Political, Legal, Socio-Economic and Ethnic Problems in the Autonomous Republic of Crimea” dated 11 August 1995 35. Resolution 1570 of Cabinet of Ministers of Ukraine “On Creation of the All-Ukraine Culture Information Centre in Simferopol” dated 28 December 1996 36. Resolution 559 of Cabinet of Ministers of Ukraine “On Approval of Rules of Tendering for Funds to Deliver Social Services” dated 29 April 2004 37. Resolution 956 of Cabinet of Ministers of Ukraine “On Approval of Civil society organisations Tendering to Carry Out Projects and Programmes In the Area of Informing the Public on European Integration” dated 30 October 2008 38. Resolution 10 of Cabinet of Ministers of Ukraine “On the Procedure for Engaging Citizens in Making and Implementation of Government Policy” dated 6 January 2010 39. Decree 232 of the State Tax Administration of Ukraine “On Approval of the Form of Report on the Use of Money of Non-Profit Organisations and Institutions and the Guidance on Filling It Out” dated 11 July 1997 40. Decree 89 of the State Treasury of Ukraine ’On Approval of the Procedure of Servicing State Budget Expenditures, Lending and Repayment of Loans” dated 25 May 2004 41. Decree 367 of the Ministry of Economy of Ukraine “Guidelines on Development of Targeted Regional Programmes, Implementation Monitoring and Reporting” dated 4 December 2006
Other sources 42. Government policy and the level of development of civil society in Ukraine, М. Latsiba, Ukrainian Centre for Independent Political Research, Ukraine, Kyiv, 2006 43. О. Vinnikov, D. Kovryzhenko, А. Krasnosilska, M. Latsiba, K. Rubanovsky, O. Solontay, L. Chorniy, “Government funding of civil society organisations. How will European standards be implemented?”, Ukrainian Centre for Independent Political Research, Kyiv, 2010 44. Papers of all-Ukraine conference “Government funding of civil society organisations. How will European standards be implemented?”, Kyiv, 2010 45. The level and the dynamics of development of non-governmental organisations in Ukraine. 2002-2006: Research report / Counterpart Creative Centre. L. Palyvoda, О. Kikot. – Kyiv: Makros, 2006. – p. 35 46. Shevchuk Т. Non-governmental organisations in social life of Rivne area, http://postua. info 47. Stepanenko І. Conceptual uncertainty of civil society in Ukraine: Possible ways to overcome / Development of democracy in Ukraine: International science conference papers (Kyiv, 29 September-1 October 2000). – Kyiv: Centre for Education Initiatives, 2001. – p. 593; 48. Derzhalyuk О. The dynamics and expansion of the scope of activities of civil society organisations as a component of democratisation of Ukrainian society, http://www.niss. gov.ua 49. Reva S. Participation of the public in the process of making and implementation of government policy // Political management, 2006. – No. 3 (18). – p. 7 50. Assessment of the system of government funding of civil society organisations in Ukraine: Analytical research report, UNITER/PACT, Kyiv, 2010 National practices and legislation on funding CSOs... 99
51. The level and the dynamics of development of non-governmental organisations in Ukraine. 2002-2006: Research report / Counterpart Creative Centre. L. Palyvoda, О. Kikot. – Kyiv: Makros, 2006. – p. 35; 52. Freedom House report 2009, http://tsn.ua/ukrayina/.html 53. The number of EDRPOU entities by legal forms as assessed on 1 January 2009, http:// www.ukrstat.gov.ua 54. The level and the dynamics of development of non-governmental organisations in Ukraine. 2002-2009: Research report, Counterpart Creative Centre, 2009, http://ccc-tck.org.ua 55. “Percentage philanthropy” as a guarantee of the development of civil society, a way toward involvement of citizens and civil society support, a resource of and for civil society in Ukraine. Analytical note on analysis of government policy in the area of funding of civil society organisations. S. Kuts, Centre for Philanthropy, http://philanthropy.org.ua 56. In-depth interview “Assessment of the system of government funding of activities of civil society organisations”, Ukrainian Centre for Independent Political Research, 2009, http:// www.ucipr.kiev.ua 57. Private Entrepreneur newspaper, http://www.chp.com.ua/persp_43.php 58. Analytical report “Funding of Civil Society Organisations (CSOs) in Ukraine”, 2006, http:// www.ucipr.org.ua/ 59. Whether percentage philanthropy is possible in Ukraine, Centre for Philanthropy, http:// philanthropy.org.ua 60. Laboratory for Legislative Initiatives. Legislative regulation of activities of non-profit organisations: Global experience and recommendations for Ukraine, 2001, http://www. parlament.org.ua 61. National Institute for Strategic Studies. Interaction of government bodies and civil society organisations, 2007, www.niss.gov.ua 62. Interaction of government bodies and civil society organisations. National Institute for Strategic Studies, http://www.niss.gov.ua 63. Analytical report “Funding of Civil Society Organisations (CSOs) in Ukraine”, 2006, http:// www.ucipr.org.ua 64. Civil society in the EU-Ukraine Association Agreement, www.eu.prostir.ua 65. Civil Society Journal, Issue 2(13), 2010, p. 28, http://www.eternityclub.kiev.ua 66. Comparative charts of foundation laws (2009). European Foundation Centre, 2010. 67. O. Vinnikov. Memo on NGOs’ capacity to engage in independent business activities, http:// www.ucipr.org.ua/ 68. Т.О. Slavko. The role of civil society organisations in development of civil society, www. nbuv.gov.ua 69. Socio-legal portal, http://www.pilga.in.ua/node/763 70. Round table discussion “Achievements and perspectives of the reform of charity law”, http://blagozakon.org.ua/?p=907 71. О. Vinnikov, “Reform of Taxation of Civil society organisations in Ukraine” 100 National practices and legislation on funding CSOs...
Appendix 2.
INSTITUTE OF RURAL DEVELOPMENT
Number in the sequence
RESEARCH OF EXISTING PRACTICES OF GOVERNMENT AND NON-GOVERNMENT FUNDING OF CIVIL SOCIETY ORGANISATIONS (CSOs) DEAR INTERVIEWER, GREET THE RESPONDENT, WITHOUT ACCENTUATING THE LANGUAGE OF THE GREETING, IN ORDER TO FIND OUT IN WHAT LANGUAGE THE RESPONDENT WOULD LIKE TO SPEAK WITH YOU:
Good afternoon (evening) IF THE RESPONDENT ANSWERS THE GREETING:
...in Ukrainian, ASK: ...in English, ASK: Скажіть, будь ласка, Вам легше розмовляти україн- Tell me please, would you like to speak English or, ською мовою, или, может быть, Вам легче разговари- perhaps, Ukrainian? вать на русском языке?
Ukrainian....1 TAKE THE UKRAINIAN QUESTIONNAIRE, MARK THIS ANSWER AND CONDUCT INTERVIEW IN UKRAINIAN English...... MARK THE ANSWER AND CONDUCT INTERVIEW IN ENGLISH
однаково, не має значення all the same, it doesn’t matter
А якою з цих двох мов Ви розмовляєте більше – Which of these two languages do you speak more – українською чи російською? English of Ukrainian? Ukrainian....................………….……3 TAKE THE UKRAINIAN QUESTIONNAIRE, MARK THE важко сказати, мабуть однаково..……4 ANSWER AND CONDUCT INTERVIEW IN UKRAINIAN
MARK THE ANSWER AND CONDUCT INTERVIEW IN English.........................………………… ENGLISH don’t know, probably, equally……..
Good afternoon, my name is (INTRODUCE YOURSELF). I represent (NAME YOUR ORGANISATION). The Institute of Rural Development is doing a research into funding of civil society organisations. Please spare me a little of your time.
(IF THE RESPONDENT WOULDN’T TALK) Could I speak with you tomorrow, the day after tomorrow? Thank you for your participation in the interview. START OF INTERVIEW ___HR___MIN National practices and legislation on funding CSOs... 101
INTERVIEW QUESTIONNAIRE
BLOCK 1. TO BEGIN WITH, A FEW QUESTIONS ABOUT YOU PERSONALLY
1. ARE YOU: 1.1. civil society development expert? 1 – yes 2 – no Proceed to question 2. 1.2. representative of the government? 1 – yes 2 – no
1.2.1. F YES, PLEASE NAME YOUR TITLE AND INSTITUTION _________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
Proceed to question 2. 1.3. representative of the business/private sector? 1 – yes 2 – no
1.3.1. If yes, please tell me, did you or your organisation provided funding to CSOs? 1 – yes 2 – no 3 – hard to answer
1.3.1.1. IF YES (YOU FUNDED THEM), PLEASE GIVE YOUR MOTIVATION _____________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________
1.3.1.2. IF NOT, PLEASE DESCRIBE CONDITIONS UNDER WHICH YOU’D PROVIDE ASSISTANCE TO CSOS ______ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________
Proceed to question 2. 1.4. REPRESENTATIVE OF A LOCAL AUTHORITY 1 – yes 2 – no 1.4.1. IF YES, PLEASE NAME YOUR TITLE AND INSTITUTION __________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ __________________________________________________________________________ 102 National practices and legislation on funding CSOs...
Proceed to question 2.
1.5. MANAGER OR MEMBER OF A CSO 1 – yes 2 – no
1.5.1. If yes, please give: 1.5.1.1. FULL LEGAL NAME OF YOUR ORGANISATION ________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________
1.5.1.2. Type of your civil society organisation:
1 – charity 2 – professional association 3 – other
1.5.1.3. number of members of your organisation: 1 – 1-10 2 – 20-50 3 – over 50
1.5.1.4. status of your organisation: 1 – local 2 – all-Ukraine 3 – international
1.5.1.5. your organisation’s budget in 2009: 1 – below 10,000 hryvnias 2 – 10,000-50,000 hryvnias 3 – 50,000-100,000 hryvnias 4 – 100,000-200,000 hryvnias 5 – over 200,000 hryvnias
1.5.1.6. sources of funding in 2009: 1 – state 2 – business 3 – community 4 – international foundations 5 – domestic charity foundations 6 – membership subscriptions 7 – other (please specify)
1.5.1.6.1. ______________________________________________________________ ____________________________________ National practices and legislation on funding CSOs... 103
BLOCK ІІ. PROBLEMS OF CSO FUNDING BY GOVERNMENT BODIES
2. Please assess the main problems of the existing CSO government funding system and their importance for development of CSOs (show the respondent table 2.1-2.8)
Hard to Very important Important Unimportant answer 2.1. Inadequate government funding 1 2 3 4 2.2. Ineffective use of state funding 1 2 3 4 2.3. Non-transparency and complexity of 1 2 3 4 government procurement processes 2.4. Legislative uncertainty of aims and criteria of CSO state funding, government’s lacking respective 1 2 3 4 techniques to select competing programmes 2.5. Lack of programmes to tender for 1 2 3 4 project funding 2.6. Weaknesses in tax reliefs given to 1 2 3 4 CSO funders and CSOs
2.7. Other (please specify):
2.8. Other (please specify):
3. What, in your view, should be the CSO state funding model? (show the respondent table 3.1-3.8) Yes No Hard to answer 3.1. Setting up the National Civil Society Development Foundation 1 2 3 3.2. Predominantly competitive funding of CSO activities 1 2 3 3.3. Possible participation of CSOs of all types in project tenders 1 2 3 3.4. Possible funding to cover administrative costs 1 2 3 3.5. Simplified processes of government procurement of services and 1 2 3 works for CSOs 3.6. Other (please specify)
3.7. Other (please specify)
3.8. Other (please specify) 104 National practices and legislation on funding CSOs...
BLOCK ІІІ. PROBLEMS OF CSO FUNDING BY LOCAL AUTHORITIES
4. Please assess the main problems of the existing CSO local government funding system (show the respondent table 4.1-4.3)
Hard to Very important Important Unimportant answer
4.1. Unstable and limited local budget 1 2 3 4 funding
4.2. Non-transparency, subjectivity and 1 2 3 4 complexity of project selection process
4.3. Other (please specify):
5. What, in your view, should be the CSO local government funding model? (show the respondent table 5.1-5.5)
Hard to Yes No answer
5.1. Mapping out medium-term (2-3 years) CSO funding programmes 1 2 3
5.2. Inviting non-governmental organisations to open project tender 1 2 3
5.3. Possible participation of CSOs of all types in project tenders 1 2 3
5.4. Possible funding to cover administrative costs 1 2 3
5.5. Other (please specify) National practices and legislation on funding CSOs... 105
BLOCK ІV. NON-GOVERNMENT CSO FUNDING
6. Please assess the main problems of the existing CSO non-state funding system and their importance for development of CSOs (show the respondent table 6.1-6.13 )
Hard to Very important Important Unimportant answer
6.1. Inadequate non-government funding 1 2 3 4
6.2. Many civil society organisations not 1 2 3 4 having fundraising activities 6.3. Lack of donor motivation 1 2 3 4 6.4. Donors’ striving to gain benefits in spite of interests of civil society 1 2 3 4 organisations, local community or society in general 6.5. Abstractedness and “ineffectiveness of legislative provisions that cover gaining income from principal activities 1 2 3 4 of civil society organisation, social entrepreneurship
6.6. Weaknesses in tax reliefs given to CSO 1 2 3 4 funders and CSOs
6.7. Many small and medium businesses liable to single tax becoming unable to 1 2 3 4 reduce taxes by providing assistance to the non-profit sector
6.8. Unprofessional staff of non- 1 2 3 4 governmental organisations
6.9. Lack of sponsorship and patronage 1 2 3 4 traditions
6.10. Creation of “unreal” third sector organisations to “solicit” money, favour 1 2 3 4 particular “projects” and individuals and so on
6.11. Lack of co-ordination among foreign 1 2 3 4 donors
6.12. Other (please specify):
6.13. Other (please specify): 106 National practices and legislation on funding CSOs...
BLOCK V. PROPOSALS AS TO IMPROVEMENT OF CSO FUNDING
7. What strategic, inter alia, legislative action, in your view, is needed to create an effective CSO funding model? (show the respondent table 7.1-7.7) Hard to Yes No answer 7.1. Development and adoption of the government targeted Civil Society 1 2 3 Development Programme 7.2. Annual provision of CSO funding in state budget laws 1 2 3 7.3. Approval of aims and criteria of CSO government funding 1 2 3 7.4. Setting up the National Civil Society Development Foundation 1 2 3 7.5. Other (please specify)
7.6. Other (please specify)
7.7. Other (please specify)
8. What primary steps, including those aimed at creating the legislative framework, need, in your view, to be undertaken to create an effective CSO funding model? (show the respondent table 8.1-8.7) Hard to Yes No answer 8.1. Providing common project tendering rules to all executive agencies 1 2 3 (approval of the respective methods by resolution of the Cabinet of Ministers)
8.2. Providing all stakeholders with suitable mechanisms of access to procurement related information, enhancing transparency of and ensuring 1 2 3 control over activities of government service users (by amending the Provision on Procurement of Goods, Works and Services Using State Money)
8.3. Developing Guidelines on the best practices of state support of CSO 1 2 3 activities for executive agencies 8.4. Setting up the National Civil Society Development Foundation 1 2 3
8.5. Other (please specify and explain)
8.6. Other (please specify and explain)
8.7. Other (please specify and explain) National practices and legislation on funding CSOs... 107
9. Do you know any cases of civil society organisations being controlled? 1 – yes 2 – no
9.1. If yes, please describe them in detail _____________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _____________
10. Do you know any positive examples (to follow) of CSO funding? (For interviewer’s attention. This is a very important point in the research. Please ask the respondent to provide as much detail as possible and note down the answer.) 1 – yes 2 – no 10.1. If yes, please describe them in detail ____________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ __________________________
Interviewer: THANK YOU FOR SPARING YOUR TIME FOR THE RESEARCH.
END OF INTERVIEW ______hr_____min
QUESTIONS TO THE INTERVIEWER (TO BE ANSWERED AFTER THE INTERVIEW)
1. DAY/MONTH WHEN THE INTERVIEW IS CONDUCTED: ______________________ 2010
2. REGION THE INTERVIEW IS CONDUCTED IN: Kyiv oblast...1 Odesa oblast... 2 Donetsk oblast... 3 Volyn oblast... 4 Poltava oblast... 5 Kyiv... 6
3. The interview was conducted in: Urban area... 1 Rural area... 2
6. The interviewer’s name ________________________________, signature INTERNATIONAL PRACTICES ON FUNDING CIVIL SOCIETY ORGANIZATIONS
BALAZS SATOR, OSCE EXPERT 110 International Practices on Funding Civil Society Organizations
ABBREVIATIONS
CAF – Charities Aid Foundation CEE – Central and Eastern Europe CIS – Commonwealth of Independent States CSDF – Civil Society Development Foundation CSO – Civil Society Organization CSR – Corporate social responsibility ECNL – European Center for Not-for-Profit Law ERNOP – European Research Network on Philanthropy EU – European Union ICNL – International Center for Not-for-Profit Law JHU – Johns Hopkins University NESsT – Nonprofit Enterprise and Self-sustainability Team NGO – Non-Governmental Organization NMS – New Member State OMS – Old Member State TOR – Terms of Reference USAID – United States Agency for International Development International Practices on Funding Civil Society Organizations 111
EXECUTIVE SUMMARY
This Study aims to present results of a comprehensive research of successful international practices that would be most applicable in Ukraine concentrating on the specific subjects of funding civil society by the state, local authorities, business and other sources as well as forms of contractual relations between state authorities and civil society organizations as required for the implementation of the research component of the project “Civil Society – International Best Practice Research”. The Study provides a framework for understanding CSO finances and it analyses six European countries1; three of them were subjects to complex contextual and technical assessment that have direct relevance to the Ukrainian situation, while the others provide useful models and examples. The countries included have introduced in the past decade one or more successful mechanisms to fund civil society, and as such, present good practices in ensuring sustainability of civil society organizations. The Study provides a comparative analysis of these models and mechanisms; presents the key elements in designing a successful institutional framework for CSO funding and finally, it offers recommendations for consideration by Ukrainian stakeholders. Based on the research of international best practices from these six countries, the following findings are of key importance in developing an institutional framework for CSO funding in Ukraine: There is a need of a “from the vision to the mechanism” approach to link funding mechanisms to be introduced with the vision and purpose of CSO development: the legislator needs to determine what functions it envisions for the CSOs; then to develop the appropriate tools to achieve the results. Developing a strategy for CSO development is typically the primary element that envisions a clear role for CSOs vis-à-vis the government. However, preparing the strategy itself means little in terms of the impact of governmental measures. Equally (if not more) important is the relevance of the strategy to the desired impacts; and the relevance of funding policies to the strategy. • There needs to be sufficient data and information available to make informed evidence based policy decisions in this field. This is important, as the CSO field is often neglected as a policy area and basic data are missing. • There needs to be an ongoing and systematic effort to trace the practice and impact of the implementation of the strategy. • The CSO sector cannot be financed through one main mechanism. Funding streams have to reflect the diverse functions, organizations and needs of the sector. There can be a different funding strategy for larger service providing and for small community based CSOs. Both direct and indirect means of support can be effective. • The funding streams have to come from long-term sustainable resources (public and private) so that CSOs can predict the levels of funding and can plan long-term. Some creativity may be needed to identify those – but based on the findings of the research it is possible. • The funding mechanisms should be complementary rather than competing; e.g. re- granting or intermediary organizations should not be in a competition with the CSOs they are supposed to support. • While certain income sources are less significant in terms of the total revenues of the sector, their absence or presence can dramatically change the conditions for CSO sustainability (the principle of «less is more»). • The strategy should take a long-term view (8-10 years) and consider a gradual development of the various mechanisms, building on each other (e.g., introduction of tax benefits after redefined public benefit status). 1 Countries analyzed: Bulgaria, Croatia, Czech Republic, Germany, Hungary, Poland, the UK; Bulgaria was finally not included into the study for lack of evidences available for the purpose of the document. 112 International Practices on Funding Civil Society Organizations
• It is essentially the culture and historic traditions that determine the behavior of taxpayers, CSOs and the state in any country. However, intelligent tax policy can capitalize on the opportunities presented by the ever changing environment and introduce incentives which can successfully change behaviors. • Government needs to invest into the capacity development of the CSO sector. Even in the most developed countries, CSOs need support in delivering the expected increased contribution to the public good. • Government should also ensure that there are resources that finance the ongoing development of the CSO sector – startups, innovations, service development etc. These are usually more effectively funded from private sources; where there is a lack of these, government can undertake this role or provide incentives to private actors to pursue it • The challenge for governments in fiscal hardship is how to make private money work for the public good.
Building on the above findings, the Study recommends the following key steps in the development of an institutional framework for funding CSOs in Ukraine:
• A redefined public benefit status that can serve as the basis for several fiscal incentives. • The creation of a fund to support civil society in order to boost the capacity of key CSOs and to catalyze local processes in CSO development. • The (gradual) introduction of a normative system of financing CSOs that provide social services approved by the state. • The introduction of a serious tax incentive to encourage the establishment of privately endowed public benefit foundations. • The introduction of a «toll» on green-field and other investments, including privatization, which should be spent to support public benefit purposes; in addition to consider deductibility of a percentage of the turnover for donations. • Increase, but most of all simplification and streamlining of the tax deduction for individual donors. • Allowing full tax exemption of mission related economic activities of public benefit organizations, and a partial exemption of their unrelated economic income.
These recommendations are based only on the comparative research and analysis carried out within the framework of the project. The primary focus of the analysis was to map the feasibility of various models. In case there will be political decisions reached on any of the recommendations, the next phase will be the business planning of the chosen methods (e.g. to determine the fiscal consequences of the introduction of the mechanisms). Therefore, more research needs to be made to compile data and information that will allow the decision-makers to make informed decisions on the introduction of these mechanisms. International Practices on Funding Civil Society Organizations 113
I. INTRODUCTION
This Research Study has been developed under the project “Civil Society – International Best Practice Research” with the view to assist policy- and decision-makers in Ukraine in developing a comprehensive financial support framework for the CSOs. Over the past decade, an increasing number of countries in Western Europe, as well as Central and Eastern Europe (CEE) have undertaken a comprehensive evaluation of the roles and functions of civil society organizations (CSOs)2. This was prompted primarily by the dual pressure of financial restrictions and an increasing level of contribution by CSOs to social and economic development3. Whether the UK and Germany or Hungary and Croatia, governments have redefined their relations with the nonprofit sector to ensure a more efficient participation of CSOs in social service delivery and the advancement of government policies in many other fields from fighting unemployment to improving education. As part of this re-definition of the roles and responsibilities between the state and the nonprofit sector (as well as the private sector), various mechanisms to facilitate state financing of CSOs were introduced to support CSOs in addressing their social functions. This Study aims to explore some of the working examples – good practices and lessons learned – in CSO financing from Europe, with a view to their applicability in Ukraine. CSOs have been playing an important role in the development of Ukraine in the past two decades. From providing assistance to the needy to providing expert advice to the government, they engage in a wide range of activities that benefit a larger or smaller part of the country’s population. CSOs are private, autonomous entities that until now have been financed mostly from foreign aid. This financing has proved extremely helpful in the first stages of the development of Ukrainian CSOs – but it is clear that it will not continue for a very long time. The sustainability of CSOs and of the valuable services they are providing will depend largely on whether the Ukrainian people and the Ukrainian government find them worthy of support. There are already good examples of government support of CSOs both at the central (e.g. through government programs) and local levels (e.g. the practice of the “social order”)4. Furthermore, CSOs do engage in fundraising and economic activities to raise additional funding; and many CSOs enjoy the support of volunteers from their communities. However, in order to ensure CSO sustainability, a strategic and systematic approach to CSO funding is needed, which takes into consideration the needs of CSOs for optimal operation as well as the possibilities offered by the cultural context and the fiscal environment. This Study aims to assist in the development of such a systematic approach by analyzing a number of successful international practices on a comparative basis that could be applicable in Ukraine. The research examines the specific subjects of funding civil society by the state, local authorities, business and other sources as well as forms of contractual relations between state authorities and civil society organizations. It also provides concrete recommendations for consideration to the Ukrainian decision-makers.
Framework for the Research The following framework was developed for this particular research. The methods and characteristics of each type of interaction listed in the first and second columns have been
2 For the purposes of this Study, CSOs are understood as private, independent, nongovernmental, nonprofit organizations, which primarily are organized in the form of civic associations and foundations, but also in other legal forms, such as nonprofit corporations or institutions, depending on the jurisdiction. 3 See, e.g. Nilda Bullain and Katerina Hadzi-Miceva: Recent trends in the public and self-regulation of accountability and transparency of nonprofit organizations in the EU, European Commission, 2009 4 The “socialni zakaz”, or social order is a relatively wide spread form of supporting CSOs at the local level through targeted small grant programs. 114 International Practices on Funding Civil Society Organizations
assessed in connection with the thematic areas of the top row. For each country selected there is an analysis carried out according to the criteria listed in the table.
>ĞŐĂů ,ŝƐƚŽƌŝĐͬ ŽƵŶƚƌLJ ZŽůĞŽĨ džĂŵƉůĞƐ KďƐĞƌǀĂƚŝŽŶƐ ͬ&ŝƐĐĂů ĐƵůƚƵƌĂů ƐƉĞĐŝĨŝĐ ^KƐ ͬĞƐƚ &ƌĂŵĞǁŽƌŬ ĐŽŶĚŝƚŝŽŶƐ ĞůĞŵĞŶƚƐ WƌĂĐƚŝĐĞƐ
&ƵŶĚŝŶŐ /ŶƚĞƌĂĐƚŝŽŶ DĞĐŚĂŶŝƐŵƐ ǁŝƚŚƚŚĞ ƐƚĂƚĞ ^ŽĐŝĂůĐŽŶƚƌĂĐƚŝŶŐ
ůƚĞƌŶĂƚŝǀĞ ĨŝŶĂŶĐŝŶŐ
WƌŝǀĂƚĞŐŝǀŝŶŐͲ ƚŚƌŽƵŐŚ /ŶƚĞƌĂĐƚŝŽŶ ŝŶƐƚŝƚƵƚŝŽŶĂůŝnjĞĚ ǁŝƚŚƚŚĞ ŵĞĐŚĂŶŝƐŵƐ ƉƌŝǀĂƚĞ ƐĞĐƚŽƌ WƌŝǀĂƚĞͲĐŽƌƉŽƌĂƚĞ ŐŝǀŝŶŐ
/ŶĚŝǀŝĚƵĂů ŐŝǀŝŶŐ
/ŶĐŽŵĞ ŐĞŶĞƌĂƚŝŽŶ
Explanation: • By funding mechanisms we mean direct budget support provided to the CSOs, primarily in the form of government grants but also subsidies and in-kind contribution, at both the central and the local level. • By social contracting we mean the ways in which the government engages CSOs in the provision of welfare services, such as education, culture or social services, based on a regulated competitive procedure. • By alternative financing mechanisms we mean methods of government financing that cannot be categorized in the traditional schemes of grants and contracts, such as the so- called percentage mechanism, or endowment of foundations from privatization or other governmental income. • Private giving through institutionalized mechanisms includes various forms of foundations established to channel private resources to CSOs and other beneficiaries. • Corporate giving encompasses a wide range of financial and non-financial support that companies provide to CSOs, as well as strategic partnerships and other forms of cooperation between the for-profit and nonprofit actors. • Individual giving refers to a range of giving techniques by which individuals may provide financial and in-kind support to a CSO. We do not include volunteering in this research although it can be seen as part of individual philanthropy. • Income generation refers to revenue of the CSO from membership fees, selling services and goods, renting space, investing assets and other economic or entrepreneurial activities. The completed matrixes serve as synthesizing platform that makes the key characteristics of each country easy to compare. Based on this information, an analysis is made of the advantages and disadvantages or risks associated with the various funding mechanisms, considering also the contextual specificities; and conclusions and recommendations are drawn to assist their possible adoption in Ukraine. International Practices on Funding Civil Society Organizations 115
Research methodology Desktop research During the research a review of currently available literature and information related to the financing mechanisms was conducted, in English, Hungarian, Czech and Slovak, including comparative studies and reports as well as materials related to the selected countries. This encompassed: • national laws related to CSO funding; • comparative legal analyses by expert organizations such as the International Center for Not-for-Profit Law and the European Center for Not-for-Profit Law; • country indexes, reports and assessments provided by international organizations such as USAID, Civicus, Johns Hopkins University, European Network of Research on Philanthropy, European Foundation Center, among others; • research reports and studies related to the various financing mechanisms; • articles in relevant journals related to the topic, e.g. International Journal of Not-for-Profit Law, Alliance Magazine; • statistical data where available. A literature review is enclosed at the end of the Study.
Field visits The expert of OSCE PCU carried out 5 trips to ant within Ukraine where it met with over 225 individuals representing national CSOs, local government authorities and businesses and other stakeholders at regional forums to present research findings in the framework of the “Developing Institutional Framework of Funding Civil Society in Ukraine” ExB Project. The forums organized in the form of roundtable discussions were held in Simferopol, Odessa, Kiev, Lviv and Donetsk. These forums were extremely important in understanding the context and selecting relevant examples and recommendations. They showed the existing cultural biases (e.g. a certain level of mistrust and/or prejudice among the different sectors) as well as shed light on important principles that policy development must keep in mind, such as the need to analyze the effect of concrete measures that the government is taking to on CSO development. Overall, the forums underlined the importance of participation in policy development, which will result in higher quality and more implementable policy recommendations.
Countries assessed We proposed to undertake the research in a mix of countries that represent enough differences in their various models and but all have relevant aspects for possible adaptation in Ukraine. The main criterion for the selection of countries was to have existing and well functioning mechanisms to support CSOs from public budgets; and/or mechanisms that encourage private philanthropy and own income generation through taxes and other innovative methods. Additional criteria included: Having a historical or cultural background that is similar to Ukraine at least in some aspects; representing both Eastern and Western Europe; and having enough data/information available for analysis. Based on the above criteria, eight countries have been selected and examined, of which five are presented in the Study5. Four represent a continental European model of CSO sector development, in countries with a strong state orientation, therefore, they are akin to the Ukrainian historical- cultural context. In addition, the UK is included as a source of best practices and innovative ideas. Although they represent different levels of economic and CSO sector development as well as different stages in the development of the CSO funding system itself, in all the countries there are practices that can be considered for the current Ukrainian context. 5 In addition to the countries presented, Bulgaria and Estonia were also examined. 116 International Practices on Funding Civil Society Organizations
Three countries have been analyzed in-depth: Hungary – Hungary has a nonprofit sector around the same size as Ukraine (65,000 organizations), and shares the past of socialism as well as the “bridge” position between East and West. Among the CEE countries Hungary has the most well developed system of government funding (at all levels); as a consequence, it also has the most lessons learned in terms of the actual operation of these funding mechanisms. Croatia – Croatia is a small Balkan country but with similar cultural features to CEE states. Like Ukraine (and unlike Hungary), it received large amounts of foreign funding which also supported its CSOs; therefore the CSO sector in Croatia is currently more or less at the same level of development as in Ukraine. At the same time, Croatia offers a well functioning good practice mechanism to fund and help develop CSOs through a strategic approach. Germany – Germany is in many ways a unique example due to its historical development; however, it resembles Ukraine culturally in its ongoing attempt to reconcile the interests of a progressive but strong central state, and bottom-up citizen initiatives. The recent initiatives in Germany to address the financial setbacks of the welfare state through increasing private philanthropic engagement offer an interesting example to Ukraine as well. United Kingdom – The UK is a common law country and as such, it has different practices and historical roots than continental European countries. However, it has always been the leader in introducing good practices in regulation, philanthropy and entrepreneurship, which served as a model for Western Europe and CEE. If not all the practices, the principles underlying the practices should be examined and followed. Czech Republic – The Czech Republic has in many ways followed a different route than its neighbors in CSO development. This led to introduction of practices that may prove more effective than the “typical” CEE solution (e.g. the introduction of a domestic grant-giving foundation sector or vouchers in social contracting).
Structure of the Study The Study consists of five main Chapters following the Introduction. Chapter II provides a framework for understanding the financing mechanisms for CSOs. It: (a) describes the different European models of CSO sector development, and their relationships with the state; (b) provides an overview of the financial viability of the CSO sector; (c) presents a mapping of resources to assess income sources of CSOs; and (d) describes in more detail the specificities of the three main categories of CSO income: public funding, private funding and earned income. Chapter III includes the most important general findings its author identified through the comparative research, in relation to the effectiveness of CSO financing mechanisms. These represent learning points from the countries analyzed and provide a background understanding for the country chapters. Chapter IV consists of five sections, each providing a detailed analysis of a country (Hungary, Croatia, Germany, UK, Czech Republic), based on the research framework described above. Chapter V summarizes the key conclusions based on the country descriptions and provides a basis for the recommendations. Chapter VI provides concrete recommendations for the consideration of Ukrainian policy- makers. International Practices on Funding Civil Society Organizations 117
II. UNDERSTANDING THE FINANCING FRAMEWORK OF CSOS
II.1. Models of CSO sector development in Europe6 The European scene is not unilateral in terms of the development of CSOs and their embeddedness within their societies. Based on cultural traditions7, religious traditions, legal and fiscal framework, global and regional role8, etc. various states follow a rather individual approach in terms of what is current and envisioned role and function of CSOs. In terms of the current assessment this question is going to be the major challenge for Ukraine as well: what is the vision for the role of the CSO sector in the development of the country? The answer to this question may influence choices of relevant mechanisms of funding. It will be also critical to decide, how much role the state will want to or will have to play in this development process and how much role other sectors and stakeholders should play. This section aims to provide some examples of how European countries have approached the role and financial sustainability of CSOs. While there is wide range of CSO financial sustainability models applied in various European countries, we can find the common factors that are necessary to assess before the models themselves are being analyzed. The legal framework is rather influential in terms of how widespread certain mechanisms are (such as tax incentives to promote new philanthropy in e.g. Germany – see below). Historical and cultural traditions can be as influential in a positive (general level of individual giving and individual responsibility within the Dutch population9) as in a negative direction (such as general expectation of the public in Hungary towards the state to provide generous services as it used to be during the period of socialism10). Obviously the economic and political situation in the countries will also have influence on the activities of CSOs as well as their interaction with various players (in countries that are economically stronger there is a decreasing tendency of violation of human rights as compared to those in a worse economic situation11). The following section analyses various European models from the point of view of two key aspects, the level of independence and the aspect of institutionalization. The European Center for Not-for-Profit Law (ECNL) model to categorize CSO sectors by these characteristics was chosen to make the choice of Ukraine specific interventions easier. The scale of independence is related to the autonomous self-governance of CSOs vis-à-vis the government or other actors (e.g. church, political parties); reflected in the CSOs capability to mobilize themselves and their constituencies, obtain financial support needed to carry out their mission, ability to deliver services that are not or partially subsidized, develop competitive expertise etc. In essence, it refers to the extent to which CSOs are able to set priorities and operate based on needs and their mission rather than based on priorities set by the government or other power structures. Institutionalization refers to the capacity of the nonprofit sector to undertake projects and services for the government, i.e. the potential of the sector to be a reliable and accountable
6 This section is based on information from the European Center for Not-for-Profit Law (ECNL), including a draft study under publication “Public Financing of Non-governmental Organizations in Europe”. The information has been provided by Nilda Bullain and Katerina-Hadzi Miceva from ECNL. Quotes are taken with permission from the authors. 7 For example, in the UK the charity sector goes back to several hundred years and the first charity legislation was adopted in 1601 in order to protect private property that was dedicated to a public purpose. 8 For example, former colonial states have a greater inclination to encourage CSOs to undertake a role in international development. 9 http://www.giving.nl/, GINPS data 10 Figyelő – Hungarian weekly, issue 50/2010, G bor Lambert The characteristics of Hungarians and willingness to re-start 11 Inglehart, Ronald F. and Christian Welzel. 2005. Modernization, cultural change, and democracy : the human development sequence 118 International Practices on Funding Civil Society Organizations
partner to the government in providing public goods and services. This includes for example, the number of registered organizations, their average budgets, the proportion of CSOs who are of public benefit, their physical infrastructure as well as their human and financial resources etc.
European Models of CSO Sector Developer
MORE INDEPENDENT
SOCIO-DEMOCRATIC/ LIBERAL/ SCANDINAVIAN ANGLO-SAXON
LESS MORE INSTITUTIONALIZED INSTITUTIONALIZED
EMERGING KORPORATIST/ (MED&CEE) CONTINENTAL
LESS INDEPENDENT
Source: European Center for Not-for-Profit Law
Corporatist (Continental): in this model CSOs are actively involved in the provision of social services and may be the main providers – as in the case of Germany where the principle of subsidiarity entails the primacy of community-based services. At the same time the state undertakes financing of the services in whole, typically through third party payments or subsidies to major providers and their interest groups. State funding thus represents well over half (usually 55%-75%) of the income of the sector. Therefore the CSO sector is highly institutionalized and also highly dependent on the government for ongoing support. Since the government also needs the CSO sector, there is a kind of interdependence, termed “hierarchical interdependence” by ECNL12, between the two sectors. A variation of this model is in France where the government also only recently started to revise its policies of subsidizing the CSO (associational) sector for its function of “solidarity”, introducing grants and contracts based on performance in delivering projects and services. Liberal (Anglo-Saxon): this is a model typical of Anglo-Saxon countries (in Europe, primarily the UK; see also Canada), although elements of it, especially the principle of contracting, have spread to the continent (e.g., Netherlands). In this model, CSOs are also highly involved in social services’ provision; however, they are less dependent on the state. Even though they receive financing through contracts, they have strong roots in the communities; and their own assets, philanthropic and self-generated income make them able to keep also a strong advocacy role. The relationship between CSOs and the state is based on the so-called Compact, an overall policy agreement, and contracting plays a key role in delivering social services as well. In the liberal model the principle of the best value service delivery13 makes the CSO sector very professional and competitive. Various models of management, accountability and transparency standards are applied; sophisticated management schemes are widespread to increase trust and confidence 12 “Public Financing of Non-governmental Organizations in Europe” ECNL (under publication) 13 Sample definition from the UK “Under best value, each local authority has a duty to “make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness”. This improvement involves consideration of costs, making the most of money spent, and making sure that services meet the needs of communities and authorities’ priorities.” http://www.idea.gov. uk/idk/core/page.do?pageId=5184420 International Practices on Funding Civil Society Organizations 119
of all stakeholders. While there is a significant level of public financing applied in these countries (35-55%), the level of other resources is high which makes the sectors more relevant in terms of partnership for the government. Social-Democratic (Scandinavian): this is the typical model in Scandinavian countries. Here, the state is the main service provider; CSOs are not typically involved in provision of social services but rather fulfill “expressive” functions (i.e. cultural, sports, hobby organizations that primarily serve their members’ and their communities’ interests). Even though almost everything in welfare provision is financed and delivered by the state, in contrast to the “statist” model of the former Soviet bloc, there is a high level of social capital and engagement in civil society (volunteering reaches the highest levels in Europe in these countries). The relationship between the two sectors can be characterized by the “live and let live” philosophy and consequently a low level of public funding of CSOs (25-35%). At the same time citizens and CSOs are extensively and directly involved in policy making both at local and central levels (increasingly through IT tools). In regard to institutionalization these sectors are less established, as they don’t need massive operations that are needed for services, while due to inclusive democratic practices there is less need for such capacity even in case of advocacy operations.
As can be seen, the two more independent European models, the Scandinavian socio- democratic and the liberal Anglo-Saxon have a major difference between them. In the liberal model countries the CSO sector is ready not only for recognizing the particular need but has a certain capacity to satisfy the need as well. In the Scandinavian Model it is the primary role of the state to satisfy justifiable needs, the CSO sectors tend to be more of a watchdog and advocacy character, their funding is strongly based on private giving and membership support. Emerging (Mediterranean and CEE): in the Mediterranean countries (e.g. Greece, Cyprus, Portugal) and most Central and Eastern European countries the relationship between the state and CSOs is still evolving. It has been characterized by low levels of public funding; either neglect of CSOs or dependency relationships; traditions or nepotism or political interest in funding and involvement of CSOs in service provision. Welfare models are typically residual as well as rudimentary as much of the care remains with the family and social nets. However, as the countries’ economy and CSO sector develop, they will be likely to converge towards one of the other three models14.
European Models of CSO Sector Developer
MORE INDEPENDENT
“AUTONOMY” “PARTNERSHIP” contacts PF 20-30% PF 35-55%
LESS MORE INSTITUTIONALIZED INSTITUTIONALIZED
PF under 20% “REGULATORY” (support) “SUBSIDIARY” (normative) PF 60-70%
LESS INDEPENDENT
Source: European Center for Not-for-Profit Law
14 E.g., Hungary and the Czech Republic seem to be moving towards the corporatist model; while Estonia and Slovakia tend toward the liberal model, and Slovenia and Latvia towards the Scandinavian model. 120 International Practices on Funding Civil Society Organizations
II.2 Financial viability of CSOs in Europe Regardless of their field of activity, effective CSOs are managed based on similar operating and organizing principles, which in general resemble those of businesses. Strategic focus and long term planning enhances better impact and strategic use of funds; systems and well defined management are guarantees for effectiveness and reduced risk for the donors; a predictable and financially solid operation entails less fluctuation and increased quality of work. In most of the old EU member states such systems are generally more developed, while in the case of new member states there is a lower level of institutional readiness for effective operation by CSOs – even when significant development has taken place. Several new member states have realized this weakness of their third sectors and over the last decades invested systematically into the development of their civil societies. Why have they done so? In these countries CSOs contributed to resolving serious social problems such as homelessness, unemployment, disability care or child protection. CSOs set up services where the state did not have the capacity to do so, and they developed innovative models that proved more effective than existing services. CSOs often undertake social innovation in the fields of education, child care, disability care, elderly care, etc, taking over the risk of the reform initiatives for the central and local governments. The government then often helped scale up and disseminate successful innovations: the services become the basis for mainstream governmental reform. In sum we can say that investments into the development of civil society have been made most often with a view to increase effectiveness and efficiency of state provided services nationally and locally. Furthermore, in some cases, e.g. in the case of Croatia, the government also appreciated the importance of developing civil society in terms of active citizenship, recognizing that conscious and active citizens are vital for peaceful democratic development. Thus, the vision of the Croatian National Foundation for Civil Society Development reads: “Through its activities the National Foundation strives to achieve active citizenship in the development of a modern, democratic and inclusive society in the Republic of Croatia.”15 There are yet other motivations for governments to have developed their governmental strategies towards CSOs and to have introduced various mechanisms to increase CSO infrastructural capacity. Countries that are further from the EU accession do so usually to increase external funding for state services (as CSOs can attract a significant volume of private funding to match service delivery costs); in case of countries in the pre-accession phase as well as among those that are already members there is a strong motivation to have relevant infrastructure and capacity (including CSOs) to successfully access and absorb European funds (in case of members the success ratio of applicants may help states to win funding from the EU budget that is more than their contribution or at least equal to it). Some countries followed a rather creative approach in their support for civil society development, which represented significant innovations even compared with the old member states. These include the Czech endowment model, the Hungarian percentage designation scheme, or the Estonian or Croatian National Civil Fund concepts, all of which are described in this Study. The document also aims to analyze to what extent these approaches truly contributed to the strengthening of civil society and how effectively they contributed to achieving the relevant and targeted results. The governmental support for CSOs also addresses a key problem, namely the lack of institutional or administrative funding (funding that the CSO can use to pay its running costs, such as salaries and rent, and the costs of organizational and service development, e.g. IT, staff training, fundraising etc.). In most NMS but also other European countries, the project based restricted funding is the most typical, while the level of unrestricted funding is rather low16.
15 http://zaklada.civilnodrustvo.hr/category/180/subcategory/182 16 Restricted funding refers to funds that can only be used in relation to the funded project and is therefore not suitable to fund administrative and development costs; while unrestricted funding has no such limitations. International Practices on Funding Civil Society Organizations 121
Such funding could come from any of the sources, however there are impediments: the lack of transparent and effective giving mechanisms – in case of governmental and municipal donors; the lack of widespread philanthropic culture in case of individuals; the low level of corporate citizenship – in case of businesses. The low level of such funding is a key struggle for most CSOs as unpredictable changes in the environment (e.g. changes in taxation, frequency of calls for application, reporting requirements, etc.) may result in financial losses that the less- or non- solvent CSOs have difficulties to finance). Another problem from the point of view of CSO sustainability in the new member states is a general public expectation towards NGOs17 and CSOs18 that they have to provide services for free, work for their organizations on a volunteer basis or below the average wage. Usually the public opinion is less accepting of competitive salaries (even in the public sector) despite the tendency that the first CSOs to have contractual relationships with their governments and corporate sectors beyond charitable giving have been those with very specific know-how and high quality expertise. In order to enhance the sustainability of CSOs, it will be necessary to achieve a shift in public opinion towards a more nuanced view of CSOs and their needs.
II.3. Mapping the Funding Sources for CSOs The following chart lists most potential funding sources for CSOs. A general principle applies here: the more balanced the income from various sources of a given CSO is, the more sustainable it is19.
Each of the sources in the Table might be characterized by different parameters. One general distinction is whether the source is domestic or foreign. From the side of the CSOs this may mean a very different modus operandi and fundraising-communications strategy. Foreign sources can include foreign governmental and private sources. These two are usually referred to together as “international donors”20. However, from the point of view of the CSO, raising funds from bilateral and multilateral funding agencies, i.e. government sources, requires a somewhat different approach than raising funds from foreign private donors (e.g., foreign foundations). Private foreign donors tend to develop less but longer-term relationships. At the same time, accessing foreign governmental funds (such as EU funding) requires a high level of administrative capacities, project and financial management systems that are compatible with the donor requirements. The strategic approach usually is more important in this case than bureaucratic requirements. In case of such donors mostly the “elite” of CSO sector has access to and capacities of accessing these funds.
17 Lester M. Sallamon: Global Civil Society: Dimensions of the Nonprofit Sector (with S. Wojciech Sokolowski and Associates), Volume II. 18 World Bank definition: “the term civil society refers to the wide array of non-governmental and not-for-profit organizations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations. Civil Society Organizations (CSOs) therefore refer to a wide array of organizations: community groups, non-governmental organizations (NGOs), labor unions, indigenous groups, charitable organizations, faith-based organizations, professional associations, and foundations”. http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/CSO/0,,contentMDK:20101499~menuPK:244752~page PK:220503~piPK:220476~theSitePK:228717,00.html 19 Based on the analysis of several thousands (approx. 15.000) of CSOs who participated in CSDF Hungary’s programs over the past 15 years, it can be concluded that ideally a CSO should have income from at least 6 different sources, with a minimum of 10% from each. 20 In the case of re-granting programs like Pact, NDI, OSI etc., it can be debated whether they should be categorized as foreign or domestic. As long as decisions are made by local experts within the country, we consider them domestic sources. CSDF Resource Map 122 Income Resource
Domestic International
Restricted Unrestricted Total Restricted Unrestricted Total
State Support Central
Regional
Local
ІInstitutionalized Private Support (cha ritable donors)
Corporate Donors
Individuals
Earned income Governmental Contracts
MunicipaI Contracts
Corporate Contracts
CSO Contracts
Incomes from finacial transactions
Membership Fees
Other Earned Income International Practices on Funding Civil Society Organizations
Copyright© CSDF Hungary, 2008 International Practices on Funding Civil Society Organizations 123
In general, it is rather challenging in the case of foreign funding, for the CSO to comply with a dual legal and fiscal system, including a dual reporting scheme so as to be in line with the national regulations as well as with the donors’ home country regulations. Domestic funding is usually attractive for a broader spectrum of CSOs as there are no language barriers21, the conditions might be culturally easier to follow and the initial fundraising investment is usually shorter. However, the sources may be rather limited. In the following, we focus on domestic sources only. In relation to the vertical scale of the chart, there are three major categories included: governmental sources, private sources and earned income. These three types of sources are quite different in terms of how they affect CSO sustainability and how the CSO needs to behave in order to successfully raise the funds. State support includes all forms of financing CSOs from public funds, whether at the central or local level. This includes grant support, contracts and third party payment schemes (see section II.4.). It could be argued that governmental contracts are in fact earned income for the CSO as they represent fees for services supplied by the CSO to or on behalf of the government. However, the practice of government funding in CEE has shown that a) there is no clear distinction between grants and contracts and so CSOs are often supported by contracts rather than grants when the function of support is in fact project or institutional funding; and b) even when there is a fee-for- service relationship behind the contract, in almost every case the CSO will need to comply with the terms set by the government, i.e. there is not much opportunity to set prices, deadlines or other contractual terms. In short, while technically government contracts (including municipal contracts) may be seen as earned income (fees for services), in practice, the CSO is not free to set the terms of its service and in fact needs to fundraise in similar ways to obtain a government contract as to obtain a government grant. Private funding includes three main types of sources: institutional funding, i.e. private foundations; companies and individuals. We include the so-called percentage mechanism22 as a funding source under individual funding, even though it is actually public funds that are being transferred to CSOs. The reason is that this source “behaves” like private giving: it is the – individual or corporate – taxpayer who decides on whether and to whom to “give” his or her tax assignation. Therefore the CSO has to raise the tax percentage in a similar way as when asking for a donation from the company or the person. Regarding earned income, there are many forms of it but most of all they comprise of the fees for services and goods that the CSO charges to its customers. Furthermore, it can include e.g. rent for space leased, income from investments, income from license fees and many others. It is important to note that this type of income behaves in a slightly different way than the type where the CSO is asking an outside source (i.e., the government, the international donor, the company or a private individual) for support. Here the CSO has a tangible and immediate value to offer regardless of its mission – even when the service or good offered for sale is directly related to the mission. Therefore the “behavior” of this type of a source is much closer to the regular market mechanisms and it requires different management skills to make it profitable and sustainable. Also in this category there is a special source, namely the membership fees, which could be questioned based on the logic above as membership fees are usually not associated with market based for-profit operations. However, from the point of view of managing and raising the income, membership fees are similar to other fees for services: they also reflect a quid-pro-quo situation in which the member pays in exchange for becoming part of an association that has something to offer. Of course, there are many problems in practice with membership fees, but that does not change the basic relationship between the CSO and its members. 21 EU and other foreign funds often accept English or French proposals only, the communication related to the project is also expected to be in these languages. Most CSOs still lack staff and volunteers fluent in such languages. 22 The percentage mechanism enables an individual or corporate taxpayer to assign 1 or 2% of its taxes to a qualifying NGO. This mechanism has been introduced in Hungary, Slovakia, Poland, Lithuania and Romania. 124 International Practices on Funding Civil Society Organizations
From the point of view of CSO sustainability, all three main types of sources have their added value as well as their challenges. State support is often seen as a stable large scale source especially if the funding model is determined by law or decree. The tendency to bureaucracy is the highest here, as various sets of requirements are applied to ensure a transparency of the use of public funds. The largest difficulties traditionally appear when European funding is re-distributed by a national state or quasi-state distribution mechanism where double set of bureaucratic requirements is applied (those of the EU and national level ones). It typically finances mainstream operations rather than innovations and high risk pilots, as the expectations with public funding don’t allow for such actions. Private funding is usually more flexible. In emerging CSO markets this usually represents the source that might be used for fast response, tailored assistance and finance higher risk projects, e.g. less developed or start-up CSOs often have such donation first on their track record. On the other hand, raising funds especially from individuals is still difficult for most CSOs due in part to a lack of skills and in part to a lack of belief in the effectiveness of asking people for money. Yet, the experience from developed countries shows that the only most reliable source of funding for an NGO that can help ensure long term sustainability is the support of committed individuals: people who believe in the organization. The question of earned incomes is trickier. Earned income can help a CSO finance its administrative or developmental needs and as such plays a very important role in CSO sustainability. In fact, in most countries earned income represents the major part of the income of the CSO sector. However, in countries where the state controlling mechanisms are not functioning well and/or there is a high degree of tax avoidance, the CSO enterprise form might be misused by some players for the tax exempt status as hidden businesses, which is a general fear from the side of the legislator. On the other hand, in most of the NMS’s as well as OMS’s relevant measures were introduced to eliminate the risks of such dealings. Other forms like membership fees, interest earned23, etc. usually represent the most flexible funding source in the financial scheme of CSOs.
II.4. State Financing of CSOs24 There are three main mechanisms used to finance CSOs by the state in European countries. This can happen through providing direct budgetary support, i.e. subsidies or grants; contracting out a service; or providing so-called third party payments (see Table I.). The purpose of each of these forms is somewhat different. Grants and subsidies are usually used to promote implementation of a government policy, and they often serve also to support the organizations receiving the funds. In the case of contracting, the government “orders” a specific service, ideally through a procurement or another competitive tendering mechanism. In the case of third party payments, the government essentially delegates the provision of the service to an outside provider based on set prices, quality and other criteria.
Direct budget support The most widespread form of financing CSO activities is that of providing direct budget support. The two main forms of monetary support are subsidies and grants (there can also be in-kind support provided, e.g. premises to house the service)25.
23 In the Czech Republic there is a specific investment scheme to deal with CSO investments (Balancovany Fond Nadací) – Pioneer investment. 24 This section is based on information from the European Center for Not-for-Profit Law (ECNL), including a draft study under publication “Public Financing of Non-governmental Organizations in Europe”. The information has been provided by Nilda Bullain and Katerina-Hadzi Miceva from ECNL. Quotes are taken with permission from the authors. 25 Read more: alternative state funding in Hungary International Practices on Funding Civil Society Organizations 125
Subsidies are dedicated for certain civil society organizations, often provided as institutional support. In the case of subsidies there is usually no competition and the recipient CSO is entitled to the support as defined in law. In many countries of Europe and the CIS subsidies are given to different unions as representative organizations of social groups, e.g. Union of Blind People, Union of Deaf People and others, due to historical reasons. (It has to be noted that the subsidy model is less favored from the point of view of transparency and accountability of public funding, as it lacks open and fair competition as well as any performance measures accompanying the funding that would ensure “value for money”.) Grants are a form of support to CSOs from the state or local budgets. In contrast to subsidies, grants usually imply competition for funding. CSOs are typically funded to carry out a specific project which has strictly listed activities, deadlines for execution and an itemized budget, i.e. reporting is based on whether money was spent in accordance with the proposed budget. In the case of grant-making, the state sets out a certain amount available for the CSO grant projects under certain conditions. The government states only the goals, not the means; in fact it invites CSOs to come up with the best ideas on how to achieve the goals. Many CSOs can apply and several may win grants for their projects. CSOs will structure their costs according to the grant application form, usually differentiating between direct and indirect costs of the project. CSOs, grant-inners, are accountable to the government (like in the case of any other donor).
Contracting / service procurement The other main form is procurement, or contracting a CSO. In this case, rather than a donor- donee relationship, there is a relationship between contracting parties. The purpose here is to provide a concrete government service with the help of the CSO. In this case, the government knows exactly what needs to be done, sometimes even to the detail of procedural specifications (e.g., minimum standards of the service), and is looking for someone who will deliver the service at the highest quality and for the lowest price, so CSOs have to compete with other providers. Therefore, while there is usually (and as a matter of good practice) a tender procedure, CSOs are supposed to provide bids (not applications) and there is only one winner. The cost structure of the bid is usually based on fees for some kind of unit (e.g., a fee is charged per beneficiary or per day) and the fee includes both direct and indirect costs.
Third party payments Another way of transferring social services to non-state providers is the so-called third party payments26. In the third party payment scheme, the government is the “third party” who pays for the cost of the service provided by the CSO to the beneficiary – either directly to the CSO as in per capita payments, or through the beneficiary, as in voucher payments. These amounts are also paid for performing a government service; however, the terms of these contracts are very concretely specified in the law. In this case, the government determines a certain type of service (e.g., day care provision for the homeless), as well as the standards and costs of this service. Thus, the service fee is not a subject of negotiation or bidding but regulated in law. Thereafter, every provider who meets the conditions or criteria set in the law will receive a set amount of compensation for a service provided to every client or beneficiary. (When a CSO meets the
26 There is some debate in the terminology relating to this concept as most CIS and CEE governments consider it a subsidy rather than a compensation (i.e. payment) for services provided. This determination stems from the Soviet times when government provided exclusively subsidy type support to both lower levels of government and non- governmental entities. In many countries legislation still refers to this type of payment as a subsidy support. In our view, however, the “third-party payment” terminology needs to be promoted in order to help change the way government views non-state providers. 126 International Practices on Funding Civil Society Organizations
conditions it may also receive a license to perform the service.) In this arrangement indirect costs are usually not included in the service fee and there is a general overhead percentage calculated which may be fully or partially paid to the organization. The voucher mechanism is a method of third party payment as well. It focuses on the choice of the beneficiaries or clients. In this system potential beneficiaries receive vouchers that entitle them to use certain services free of charge. The beneficiaries are the ones who choose to which service provider they go to. There is usually a preliminary approval of all specialists who are licensed/approved to provide these services. Based on the vouchers collected by each provider, the state transfers a fixed fee for each client served.
Main forms of public financing of CSOs
Procurement and Grants and support Third party payments contracing
Implementation of Providing services to the Aim Providing a gov’t service goverment policy govermrnt
Set dominanty by Terms of contract Set by the govermrnt Set by law govermrnt
Best ideas and project Highest quality at the Fulfillment of legal Key selecton principle plans lowest price requirements
NGOs fuxded Several applicants One bidder Several licensees
Budget according to Cost structure Project budget Free based budget regulations
Percentage of project May be fully covered in General overhead% set Indirect related budget fees by law
Copyright© ECNL 2010
II.5. Private Funding of CSOs The importance of private and (within that especially individual) funding is often underestimated by both governments and CSOs. The general direction countries in CEE have been taking was towards increasing the public funding of CSOs and improving a little the conditions for private funding, without much consideration to its potential impact. One reason why the government should be concerned with the possibilities of CSOs to raise private funds is social innovation. From both government and CSO perspective there is a need for unrestricted or less restricted funding for social innovation. This is especially relevant in countries in transition, where the welfare system has to be transferred into a model that is more efficient, qualitative and also of a personalized character. Such social innovation has a high level of risk (in the early phases comparable to risk of venture investments) and is usually financed by private sources, where the possibility of failed attempts is more acceptable. In case the results are demonstrable, the model is easier to adopt by the state welfare system. This happens on many occasions and thus, the government benefits from the fruits of private funding of CSOs. While in Ukraine currently it is foreign donors who undertake the risk and responsibility of funding social innovation, domestic potential needs to be built by the time they start leaving the country. International Practices on Funding Civil Society Organizations 127
The other important aspect where private funding plays vital role is financing advocacy and expert groups that are monitoring and reflecting on policymaking and its impact. This is a vital function to any modern state (as these groups often substitute for missing or not well functioning systems within the state) and it can be partly financed from state sources27. However, besides taxes collected and used to finance the functions of the state, private funding should be considered as additional responsibility taken by individuals, companies and private donors that is materialized in additional volunteer contributions. This is important so that policy analysis remains independent. When discussing private funding we have to make a clear distinction between corporate funding, charitable institutional funding and individual donations. In terms of corporate funding the two main categories to analyze are institutionalized and non-institutionalized funding mechanisms; and there is also a principle difference between ad- hoc and strategic giving. Charitable institutional funding might be of domestic or foreign origin as well as might be categorized as re-granting, sinking funds or endowed funds. Individual giving may be categorized by frequency: one time or regular/planned giving as well as by the size of the donations like small donations and large gifts.
Corporate funding In terms of corporate funding there are various motivations of companies to give. It is noteworthy that available reports do not consider financial motivations such as tax benefits as the primary factor in making the decision to give. Emphasizing responsibility towards society, personal motivations of the leaders/owners are more frequent answers. While the statements of reasons given in a survey might be largely influenced by the public perception on companies and general expectations towards them, there is an increasing volume and quality of such donations Europe-wise.
Institutionalized corporate grant making Over certain volume of donations and in case the company perceives grant making as a strategic intervention, corporate donors tend to institutionalize their grant making in forms of in-house policies, tendering procedures, or setting up a separated grant making unit or an administrative body within the corporation. These options are often steps of development taking place over years. There are a number of advantages of institutionalized grant making that companies come to realize over time: there is larger transparency of expectations of the donor; funding streams are more predictable; and in the end companies can better link such activities with their communications and branding. Corporate foundations represent a special category within the framework of institutionalized corporate grant making. On the one hand there is an accusation that these foundations are to pursue the interest of the company and to serve the benefits e.g. of employees; on the other hand there is a much more typical pattern, when actually the company can support cases that are not fully or at all in line with their business interest. In the second case the company is acting as a socially responsible player but also not harming its own business interest (e.g. support of the Roma issues is not necessary helping the company’s market interest within the public at large in CEE, still the company can deal with racism by distancing the support through a corporate foundation). Such Foundations often utilize CSO experience, by subcontracting preparation of the decision making to CSOs, or involving them as expert board members, that results in smart “know-how import”.
27 Boris Strecansky, Obcianska advokácia a mimovládne organizácie, 2006 128 International Practices on Funding Civil Society Organizations
Non-institutionalized forms of grant making The non-institutionalized form is more typical in case of corporate players, which either don’t have large volumes of funding or don’t consider it as a strategic intervention in case of their markets. The main motivation in such cases to donate is some level of connection with the case. Such non-formalized grant-making may also be long term (e.g. local shop owners supporting local schools, cultural events repeatedly for years), and often there is a high level of accountability – especially at the local level – as the donation is given based on previous experience. In case there is no such prior connection, then emotional aspects, psychological factors, good timing, etc. determine whether the donation is agreed28. Therefore, when SMEs suffer financially, like during a crisis period, that makes a significant impact on the performance of local CSOs incomes as well. As in most countries the procedures of claiming tax credits are rather simple29, usually there is no separate incentives or administration systems for institutionalized or non-institutionalized funding. From the CSO perspective it seems to give more guarantees, if the funding is done through an institutionalized channel, since it helps defining goals in a better way, and to think strategically – counting on the company’s long term support. There is another big difference between understanding the ways and importance of grant making between western and local organizations, especially in the early stages of market economy development. Based on experiences from CEE, local companies learned in a couple of years how to incorporate such activities into their business, while western donors practically entered the market with models in which charitable giving was part of their business model.
Charitable institutionalized funding Re-granting In most European countries the model of re-granting to CSOs exists, but in CEE it had a vital role in the development of civil society. In old member states re-granting is usually related to government funding and is used as an attempt to make state funding more independent from the state (such organizations are often semi-independent so-called “arms length” agencies). In Eastern Europe they were created and funded mostly to have relevant distribution mechanisms in channeling foreign funding to recipient countries for projects of national and local interest. A new “class” of so-called intermediary organizations was created, which are seeking grants to pursue their strategies in the form of giving subgrants. They don’t usually have endowments; in business terms they provide services to larger international donors by identifying the need and distributing grants to address it. After the decline of funding available from the western charitable donors most of these organizations struggle to stay alive and some have closed – even though the needs continue to exist. There was a network of re-granting foundations set up to distribute funds before the EU accession in the new EU member states – after the accession, some of these organizations became redistributors of EU funding at the national level (Structural Funds, Norwegian and Swiss funding mechanisms)30. In countries like Hungary, a local network of resource centers was created with the same intention, but it was difficult to justify the cost of another interim player towards the foreign donors (since there were not enough funds to redistribute locally, the size of the country does not require such de-centralization, and their know-how advantage was not significant compared to central, national systems).
28 Kuti, Eva ed. Vállalatiadományozás Magyarországon Tanulmányok 2005 (Corporate giving in Hungary) 29 In case of Hungary the CSO has a right to issue a statement, how much was donated by which company, the company can use this simple statement to submit to the tax office 30 For example, in Romania, the Civil Society Development Foundation (FDSC) manages part of the Social Fund, while in the Czech Republic the same foundation (NROS) became the national contracting partner for civil society development related funds. International Practices on Funding Civil Society Organizations 129
Another, hopefully more sustainable example is the network of community foundations where the funds are sought for both internationally, nationally and locally, strongly involving local businesses, municipalities, CSOs and citizens. Unlike most re-granting organizations, some of these foundations have built an endowment, which serves the long-term local needs.
Endowments Classical charitable grant making with endowments has an advantage compared to other types of funding, as the funds distributed are secured long term. Examples from both “old” Europe and “new” Europe show, that such funding significantly contributes to the sustainability of the sub- sector it is supporting as the reliability of the strategies of these funds as well as ongoing availability of sources make the CSOs become more long term and impact oriented. Both the German and the Czech models analyzed below are interesting examples from two totally different cultures.
Sinking funds Sinking funds represent an interesting model of charitable giving. Sinking funds mean that the donor, or donors, establish a fund to be spent down (distributed in grants) over a longer period of time, typically 10 years. The funds are calculated to be enough to finance the program over the given period of time. In case there is a significant but – seemingly – resolvable societal problem, by determining the amount needed to deal with the challenges as well as determining a realistic time frame needed to achieve results, it is possible to calculate the volume of funding needed. Examples from around the region include the Trust for Civil Society in Central and Eastern Europe (CEE Trust); the Baltic-American Partnership Fund, the Balkan Trust, the Black Sea Trust. These Trust Funds have been established with pooled funds of several western charitable donors, sometimes including also bilateral ones (USAID). As can be seen, these are mostly regional constructs, and have been part of the “exit strategy” of donors: after they discontinued their own program, they could still contribute to the support of their former grantees and to the achievement of results in the areas funded. (The idea was created in response to the claim from NGOs that there is “unfinished business” in building democratic societies in the region when the donors were already planning to leave.) Sinking funds are interesting from CSO point of view as the impact required is usually clearly defined, the funds are available for a relatively longer term, still, it motivates and pushes all players to achieve results within the available period of time. Although the current examples are regional, this idea can well be adapted to a national level as well.
II. 6. Individual funding Fundraising needs investment In order to understand the nature of individual giving from a regulator’s point of view we would like to introduce the so-called “Donor Pyramid”. This pyramid of individual donors shows how CSOs can think about and handle their individual donors. It has five levels: 1. At the bottom there are the people who have not yet given to the CSO but are potential givers, e.g. due to their place of living, age, gender, area of interest etc. 2. The second level is made of people who already gave once or twice occasionally. 3. The third level is made of people who became regular givers, i.e. they are making donations almost “automatically” in regular time periods. In the West this is mostly done through direct debits from the individuals’ bank accounts, but in Eastern Europe regular giving is more often done through postal payments. In any case, we are here talking about people who respond positively to the fundraising calls of the CSO and keep the CSO in their mind every time they give. 4. The fourth level is that of major gifts, i.e. donors who are very committed to and deeply trust the organization, and who contribute with a significant amount of money. 5. Finally, there are people who leave their legacy to the CSO (bequests). 130 International Practices on Funding Civil Society Organizations
The general idea is to start from the bottom and through various forms of communication make individuals become more and more committed and more reliable in terms of financial commitments. It is important to understand that only regular givers will ensure real sustainability to CSOs. However, nobody becomes a regular giver without first being asked and having given once. Therefore, the CSO has to invest in the first two levels and then also in maintaining communication with the top three levels. Without doubt, this costs money, even if it is done at a very basic level. As a donor is moving up on the chart, the Return on Investment (ROI) is increasing more and more.
Piramid of individual donors
Beguest Major gifts Regular giving
One time gift Prospects
From the regulator’s point of view it is important to understand that such donor cultivation equals to the customers relationship building in the corporate sector. The investment is really high and predictability of its return is crucial. While in the business world such costs are easily justifiable, the general expectation towards CSOs is that they don’t spend “too much” money on their communications and fundraising. However, given that a very low percentage of the expenses is often seen as “too much”, this is not a realistic expectation for a sustainable CSO. Understanding the fact that individual fundraising is a short term high cost – long term high return investment may help creating a legal and fiscal framework that promotes such giving. In countries with a higher level of individual giving, the quality of CSO provided services is higher, as the funds donated by individuals well complement public funding, giving the flexibility to the service providing CSO to invest in higher standards; raise matching funds; and compensate for potential losses (such loss can be, e.g. if the government contract does not cover all the overhead costs of the NGO, which is quite typical case). There is also a significant difference in observing the level of accountability and transparency between countries with higher level of individual giving and those with the lower one. In case a CSO has to communicate and maintain relations with a higher number of constituents, it is more motivated to remain transparent and accountable, even if the level of expertise of an individual donor on the cause is often lower than the same expertise with the governmental specialized donor. This is because through the individual donors there is a better level of constant monitoring and expectations for improving performance of the CSO. In short, broad individual support of CSOs may result in a higher level of accountability, transparency and service quality than rigorous government regulation. In order to enable CSOs to invest in fundraising, government should not impose any specific percentage of administrative costs, neither by law, nor by defining a ceiling in its grants and contracts. Administrative costs are different for every CSO and there is essentially no “industry standard” about them even in Western Europe or the US. In fact, there has been research that showed that lowering administrative costs due to donor pressure led to weaker performance. The best policy in relation to administrative costs is to ask CSOs to make public both the rate (percentage) and the method of calculating it. International Practices on Funding Civil Society Organizations 131
From no-giving to regular giving In CEE countries, the philanthropic culture is still in the making and the biggest question is how to develop it to a level where it can sustain a strong CSO sector. The highest cost related to professional fundraising from individuals appears when the CSO is trying to segment and target potential donors (those who are as yet non-givers). Any technique and method applied here (like direct marketing campaigns, advertisements, street collections, etc.) have to target larger audiences to achieve some results as (1) only a portion of people will find the specific cause appealing (some prefer to give to children, some to animals etc.); and (2) even if people can associate themselves with the cause, there may be technical barriers to getting engaged (such as difficulties with the payment or action at the moment they receive the message, etc.). In case there is a successful fundraising act, there is already a high probability that the donor has affection towards the cause. By sophisticated communication strategies, such donors are then targeted to become regular givers, to agree to a planned regular donation. Once achieving the level of the planned regular giving, such funds become easy to calculate and income more predictable compared to e.g. the results of a governmental call for applications. The individual sums are obviously significantly lower and for this reason a high number of small donors is needed, but the so-called “donor lifecycle” is calculated in years31, as opposed to the usually one year “lifecycle” of governmental grants. The government can encourage this process with the individual CSOs in two main ways: • Tax policy, e.g., providing a higher level of benefit to donors who give regularly; and • Capacity building, i.e. support through grant programs the spreading of professional fundraising (importantly, such program has to enable the import and adaptation of foreign experience: Western experience to get acquainted with the most up-to-date techniques and CEE experience to understand the adaptation processes).
Major gifts and Bequests In case of major gift donors usually there is a long term donation history and therefore a well built relationship between the donor and the organization, before a commitment to a larger, usually specifically focused major gift donation is made. Bequest or legacy is a special category. While in western countries, especially in North America such donation from average individuals represents an income source multiplying every year, in CEE countries such donations are usually accidental – but not rare. In the West, CSOs sensitively but consciously communicate to their donors about such opportunity; while in CEE CSOs are usually shy and feel inappropriate to ask for a major gift or a legacy. Regardless, people do give, which signals that there is willingness among the population to express their commitment to the cause and to the organization through a serious financial pledge. The German case below describes a European model that includes elements of dealing with legacies in a sensitive but socially beneficial way. Needless to say, a major gift or a bequest greatly enhances CSO sustainability. It enables the CSO to make longer term plans, invest in infrastructural development, create a reserve fund, or scale up its services and reach more beneficiaries. Government can endorse the idea of making major gifts and bequests through tax policy: • by exempting such donations from gifts and inheritance taxes; and • by allowing a special tax benefit above a certain value of the donation.
31 The donor lifecycle is the length of time during which one donor keeps supporting the same organization. In case of Hungary, the time a donor involved in a planned giving scheme spends supporting the organization is on average 6-7 years and increasing. 132 International Practices on Funding Civil Society Organizations
II.7. Earned Income of CSOs Earned income refers to types of income which are derived from an “economic activity” of the CSO (also called entrepreneurial, business or trade activities). Essentially it means sale of goods and services that is conducted with regular frequency or continuity. In the section below we will not explore all the possible ways of generating earned income by CSOs, we will rather elaborate on the ones that to our best knowledge already exist in Ukraine.
Membership fees In an optimal case membership fees are a relevant tool to assess membership cultivation of the given organization. Obviously members of a business association can allow themselves to charge higher membership fees than an association of parents with children with disabilities who have to fight for equal opportunities. There are significant differences between certain groups of CSOs with membership in terms of their approach to the membership fees. While highly specialized and focused organizations for representing certain interest groups as well as most of the trade unions treat membership fees as their members’ strategic investment and commitment to the cause, for various reasons (especially in CEE countries) other significant groups of membership organizations don’t consider it as an important income source. On the one hand they consider that “people don’t have the money to pay the membership fee”. (This is actually only true in very limited cases when members come from the most marginalized populations.) On the other hand, there is also a governmental behavior in background to this attitude, as governments and municipalities often prefer to talk to bodies with the largest member support. Therefore CSOs are interested to claim the biggest membership possible in an effort to show legitimacy. That’s why CSOs often fail to collect membership fees or set it at a nominal level, not at one that represents a significant part of their budgets. Paradoxically though, if membership fees are not a significant source of income for the association, its leadership will have less motivation to be accountable towards the members (and more towards external donors and the government). By insisting on “representation” as the main criteria to allow CSO participation in decision-making, government incentivizes less democratic and less sustainable practices in membership building in CSOs.
Service fees CSOs often offer their experiences or expertise to their peers. Project planning, proposal writing advices or any direct business services are typical in such category. This opportunity is open to a large number of CSOs because the simplest know-how to “sell” is the experience. Although there is a general expectation that such experiences are shared for free, in case the CSO is able to develop its know-how further, it will often find its own market. Professionally developed know-how in any field represents increasingly bigger value as many donors invest into the development of the organization and its programs over the years. When such know-how becomes relevant for policymakers, new markets are opening up with corporate clients as well as the public sector.
Goods sold Charitable production and sales of goods seem an attractive opportunity for many CSOs. T-shirts, branded and creative mugs, etc. are the most often promoted income generation ideas. The fact is, at least based on CEE experience, that production and sales of such goods rarely contributes significantly to the incomes of the organization. In the end it is a highly competitive International Practices on Funding Civil Society Organizations 133
market and even the “passion brand” segment32 of it (most CSOs operate with such ambitions) is penetrated. To be successful requires special marketing skills and often investment; usually there are only a handful of CSOs that can achieve that in a national market. Another typical area of goods production is supported employment where there is a subsidy from a donor to produce the goods (for example setting up a workshop for people with learning difficulties). While this type of income can represent a bigger share in the CSO’s budget, it is important to acknowledge that it is subsidized, i.e. the risk is shared by a donor. Such production is usually much more beneficial in PR terms – but it will only help the sustainability of the CSO, if it is developed to be viable in the market without the subsidy. When supporting production of charitable goods, e.g. through supported employment, government and donors need to make sure that there is a mid-to-long term business plan that will enable the CSO to maintain the production with a decreasing level of subsidies.
Renting of premises One of the assets CSOs are increasingly taking advantage of is the offices or premises where they operate. As a typical example, those who offer capacity building services also offer space and equipment for rent. As internally it might be relatively easy to reschedule work (e.g. setting days for working from home) and free up space for trainings and workshops, more and more CSOs use this opportunity.
License fees Some organizations with a well recognized brand may “sell” their name and logo for corporate use. Companies that want to get associated with good causes and can utilize the market benefits of licensing often pay high amounts to get permission from CSO brands. This type of income is unrestricted, and it is also recognition of the achievements of the organization, as the main reason the company is choosing such partners is the fact that significant part of the population is of high opinion of the given CSO.
Taxation of earned income The most important issue when talking about tax policies regarding earned income is the definition of “economic activities”. Every country defines this term in its own way, reflecting the national circumstances. While there are some typical common elements, e.g. conducting the activity in exchange for payment or regularly, there are also many “gray areas” that leave room for national interpretations.
For example so-called thrift-shops or charity shops, which sell only donated materials, and outlets that operate on volunteer labor will in some jurisdictions be considered an economic activity, while not in others. Similarly, some forms of fundraising, e.g. selling branded T-shirts or charity postcards can be considered economic activity in one country but not in another one. Another ambiguous example is the charging of fees for services that are “intrinsically connected”33 to the public benefit purposes of certain CSOs, such as tuition fee in a school or admission fee in a museum. Revenues from passive investments (e.g. bank interest) are also a questionable item. There is no blueprint in terms of deciding which of these activities should be considered as economic and therefore potentially subject to tax, but it is important to address them for legal clarity.
32 A passion brand is a brand that people identify with and it creates not only a positive impression but also ownership and loyalty in customers. In case of passion brands, people not only buy the product because it is good quality or reliable but because they express their belonging and identification with the values that the brand represents. Due to the possibility of identifying with their cause nonprofits are ideal candidates for passion brands. 33 ICNL/ECNL/MCIC paper reference 134 International Practices on Funding Civil Society Organizations
Once the definition is made, the question of what tax policy to apply comes into play. European countries take five main approaches34: • Generally taxing all profits • Not taxing any income from economic activities • Taxing according to the destination of the income • Taxing based on whether the activity is related to the mission of the organization • Taxing above a certain threshold
Tax all profits: the main argument for full taxation of NPO economic activities is that if they are not taxed they may gain an unfair competitive advantage over for-profit organizations. (E.g. tax- free profits may also enable NPOs to maintain lower profit margins on their economic activities, which could even be used to reduce prices on goods and services below levels which are competitive, or even sustainable, on the part of for-profit organizations.) Full taxation is easy to administer and it minimizes the potential for abuse by organizations attempting to take advantage of NPO tax preferences. For this reasons, this approach is mainly used in countries where there is still a high level of corruption, i.e. Albania, Bosnia (Republika Srpska), Bulgaria. However, in most European countries there is some level of tax exemption ensured for CSO economic activities, and potential abuse is dealt with through other legal means.
Full exemption (no taxation): this approach is again only used in a few jurisdictions, e.g. Cyprus, Bosnia (Federation) or Croatia where CSOs as legal entities are not subject to income tax at all, and therefore also not subject to tax on their profit income. It has to be said that this approach leaves ample room for abuse. Most countries apply some “intermediary” solution. This means that they recognize the importance of providing tax benefits for economic activities of CSOs. Such recognition has several reasons, including: • CSOs often lessen the government’s burden to provide similar services. The government is compensated for the loss of tax revenue by its relief from this financial burden, and by the benefits resulting from the promotion of the general welfare. • CSOs are often able to provide needed services at a lower cost and higher quality than for- profit organizations, which are bottom-line driven. • Taxing NPOs depresses the development of the NPO sector. “This is a particularly apt argument under a tax regime which requires NPOs to pay tax on economic activities even when they are related to their public benefit purposes. In the latter case NPOs are limited in their ability to financially sustain their operations. Such an approach also fails to provide incentives for NPOs to engage in public benefit activities involving an economic component (e.g., an association for the blind selling walking canes) since these activities would be subject to full taxation.”35
As to argument that giving CSOs preferential tax treatment results in unfair competition with the for-profit sector, it has been argued that empirically such concerns are largely unfounded and the negative impact on the for-profit sector overestimated36.
34 Id. 35 ICNL-ECNL-MCIC 36 “First, small businesses are often able to avoid profit taxes by means unavailable to NPOs. Large salaries and expensive offices may allow small businesses to substantially reduce paying income tax. Indeed, several countries have abolished small business profits tax due to their failure to collect. Second, small businesses are eligible to receive loans from lending institutions, whereas NPOs are generally ineligible for loans. Third, economic activities in which NPOs take part generally fall in the province and jurisdiction of the not-for-profit sector and therefore do not compete with for-profit entities. This is especially true when a country uses the “relatedness” approach to NPO tax exemption.” ICNL-ECNL-MCIC paper. International Practices on Funding Civil Society Organizations 135
Destination of income approach: in this legislation, any income used for statutory or public benefit purposes is tax exempt; all other income is taxed. This is the case in Poland. It is based on the premise that tax exemptions should only subsidize activities which benefit the public, so only income actually spent in furthering statutory or public benefit purposes should be tax exempt. The main criticism of this approach is that it allows and even encourages NPOs to engage in income generating activities completely unrelated to their goals, and as such it creates unfair competition. While the US abandoned the destination of income approach due these problems, this seems to be not the case in Poland where the CSO sector is still weak and is in need of unrestricted resources.
Relatedness approach: This approach looks to the source of the income. Under this approach, NPO income is tax exempt, if it derives from economic activities sufficiently related to the statutory or public benefit purposes of the organization. Generally the activities that are considered as unrelated to the statutory goals will be taxed in the same way as other entities. This is the approach used in the US, and in CEE by Latvia. This is certainly the most “fair” method of determining when tax exemption is justified. However, it is also the most difficult to implement because the tax authority has to make a decision as to which activities are related or not to the mission or a public benefit purpose. For example, in case of an environmental CSO, selling awareness raising books on the protection of nature at various related events can be considered as related to its mission, but what if the CSO publishes attractive albums and sells them through commercial bookstores?
“It is difficult to draft laws or regulations which adequately codify the concept of “relatedness” and guiding principles must often be established on a case-by-case basis. After a body of decisions or norms concerning application of the rule exists, this is likely to be a less serious problem. But for countries in a state of transition, where guidelines for the not-for-profit sector are still being established, the concept of “relatedness” creates a degree of uncertainty concerning the tax treatment of income.”
Threshold approach: this approach places a ceiling on NPO tax exemptions in monetary terms, percentage terms, or both. Usually this approach is combined with another approach (and is also called a hybrid approach). For example, the Czech Republic, Serbia, and Montenegro combine this approach with the destination of income approach, while Hungary and Slovakia combine this with the relatedness approach. This is also a fair approach as it restricts the amount of tax free profits an NPO may generate and thus, alleviates fears of unfair competition or incentives for for-profit organizations to use the CSO form as a cover. For the government it is also advantageous as it can use it to limit the losses of tax revenue; and it is usually relatively easy to administer (although, as this approach is usually combined with another approach, administrative difficulties may remain). At the same time, this approach acknowledges the importance of earned income and provides justified tax benefits to CSOs.
Some examples (from 2007) • For example Hungary combines the relatedness test with the threshold method by introducing a certain limit of exemption for income from unrelated commercial activities. As mentioned above, all economic activities that are included in the statute of the organization as supporting the mission are not subject to taxation. Income from commercial/entrepreneurial activities (those that are unrelated to the mission) is taxed only if such income exceeds the envisioned threshold. For example, all NPOs, regardless of whether they acquired public benefit status or not, may benefit from tax exemption on the income from commercial activities which does not exceed 10% of total income or 10 million HUF (€38,892). Further, the Hungarian law also creates two categories of public 136 International Practices on Funding Civil Society Organizations
benefit organizations, which are entitled to higher percentage of the exemption. Thus, organizations that have acquired public benefit status are exempt for commercial income that does not exceed 10% of total income or 20 million HUF (€ 77,785), and those who have obtained status of prominent public benefit organizations are exempt up to 15% of total income.
• In Czech Republic, income from economic activities related to the statutory purposes of an NPO is subject to a reduced tax. All related income is exempt from income tax up to CZK 300,000 (€ 11,203). In addition, revenues (i.e., incomes minus related expenditures) at the end of fiscal year over this amount are reduced before taxation by 30% or CZK1 million (whichever is less), if the proceeds are used for public benefit purposes.
• In France, earnings from economic activities are exempt from tax, provided that they are not distributed and that other features are present to distinguish the organization from a commercial entity. Specifically, NPOs with annual revenue exceeding € 60,000 are eligible for tax-exempt status, if: (1) management does not have a financial interest in the NPO; and (2) the NPOs do not compete with the commercial sector. 20 NPOs with annual revenue below € 60,000 can receive tax-exempt status only if (1) not-for-profit activities are their predominant activities and (2) they do not distribute any income or assets to any private interests.
• In Germany, public benefit organizations (PBOs) may carry out business activities. Profits are free from corporate and commercial tax, as long as the business activities are necessary to pursue the PBO’s statutory public benefit purposes (education, health care etc.). The same is true for charitable and church related purposes. Tax privileged purposes are listed in the law. In order to benefit from tax privileges, PBOs have to pursue these purposes and have to follow the principle of disinterestedness as defined in the law: they may not have as a prime aim the acquisition of income, they may use their resources only for statutory objectives, they may not distribute profits and may not pay disproportionately high salaries. They must use their resources within the year following the acquisition of the resources, but may build reserves within the margins mentioned in the law. Additionally, the organization must be set up exclusively for purposes that will make it eligible for tax exempted status and may compete with for-profit organizations
• In Slovakia, NPOs are generally exempt from taxation on income from statutory activities. The non-statutory economic activities of NPOs are taxed at the general income tax rate, except that income from selling NPO property is tax exempt below SKK 300,000 (€ 8,935). International Practices on Funding Civil Society Organizations 137
III. GENERAL FINDINGS
Importance of a strategic approach Many European countries analyzed have developed some kind of a long term action plan to reflect on the relationship of the CSO sector with the state and other societal players. In some cases it was done in a form of a strategy (Hungary, Croatia), in other cases in a form of a “compact” between the government and CSOs (UK) or the Parliament and CSOs (Estonia)37. However, preparing the strategy itself means little in terms of the impact of governmental measures. Equally (if not more) important is the relevance of the strategy to the desired impacts; and the relevance of funding policies to the strategy. The case of Hungary offers relevant learning. While the country’s legislators created pieces of modern supportive legislations, in some cases really unique ones, the strategy was created many years later (1998 and 2003 respectively), and focused largely on developing a centralized structure of government support for CSOs, without considering the broader vision of their role in society and the local communities. Although Hungarian public sector support to CSOs was historically one of the highest in Eastern Europe, the estimated impact has been relatively much smaller than that in less financed CSO sectors (See country report on Hungary.) As there has been essentially no assessment of the impact, it is hard to find objective and clearly identifiable evidence as to the reasons. However, it is likely that the decline of the once inspiring Hungarian model is strongly related to the lack of a single overarching long-term concept on the role of CSOs in the development of the country. In contrast, in the UK there has been both a compelling vision on the role of the voluntary (CSO) sector vis-à-vis the government, and an ongoing and systematic effort to trace the practice and impact of the implementation of the Compact38. The latter resulted in new policies and practices strengthening the implementation of the strategy that proved effective for both the government and CSOs. One example is the efficiency of funding voluntary organizations (CSOs). The Compact encouraged local governments to increasingly contract with voluntary organizations in the delivery of public services. A study has been conducted to assess the extent and impact of this practice39. It recommended that Treasury publish guidance to the government funders, to clarify what is and is not permitted under Government Accounting as it applies to the voluntary and community sector. The cross cutting review found that often there is a lack of consistency in the interpretation of Government Accounting Rules, and a widespread perception that so-called “Treasury rules” are inflexible. The Government realized that getting the funding relationship right is increasingly important, if the financial stability of service delivery organizations is to be assured, and so that government can look confidently to the voluntary and community sector to deliver services40. It therefore published
37 Bullain, N. and Toftisova, R.: A Comparative Analysis of European Policies and Practices of NGO-Government Cooperation. In: The International Journal of Not-for-Profit Law (IJNL), Volume 7, Issue 4, September 2005. 38 See for example: Hearts and minds: Commissioning from the voluntary sector, National Audit Commission, July 2007 (available at http://www.audit-commission.gov.uk/nationalstudies/localgov/Pages/heartsandminds.aspx); Research Study into the Compact and Independence, Commission for the Compact, September 2008; They are Champions: The role and impact of Local Compact Champions, Commission for the Compact, July 2009; Compact Baseline Survey 2009/10 – A study of the levels of awareness, knowledge, understanding and use of the Compact among Government and Non Departmental Public Bodies, Commission for the Compact, July 2010 (all available at http://www.thecompact.org.uk/information/100023/140293/research/). 39 The cross cutting review of the Role of the Voluntary and Community Sector in Service Delivery, HM Treasury, 2002. 40 http://webarchive.nationalarchives.gov.uk/+/http://www.hm-treasury.gov.uk/spending_review/spend_ccr/ spend_ccr_guidance.cfm 138 International Practices on Funding Civil Society Organizations
the guide: Improving Financial Relationships with the Third Sector: Guidance to Funders and Purchasers (2005). This set out four key points, messages: • Stability in the funding relationship: moving from one year funding to longer-term funding arrangements where appropriate. • Timing of payments and the balance of risk: recognizing that payment in arrears often results in the third sector bearing the upfront costs of borrowing and the risks that this entails; • Full cost recovery: ensuring that funding bodies recognize that it is legitimate for third sector organizations to recover the appropriate level of overhead costs associated with the provision of a particular service; and • Reducing the burden of bureaucracy: streamlining access and performance management requirements for multiple, and often very small, funding streams41. The performance of public funders in implementing these and other recommendations was subsequently tracked in a number of studies. In the most recent Compact Baseline Survey Report (2010), the funding practices of governmental funders were also analyzed. An example of success is the issue of full cost recovery, which has long been championed by the voluntary sector in the UK and was supported by a wide range of awareness raising and capacity building programs. As a result, in the 2010 report 58% of governmental bodies and non-departmental public bodies (both significant actors in contracting CSOs) reported that they “sometimes” (23%) or “always” (35%) apply the principle of full cost recovery in their funding programs; placing it among the most widely implemented funding principles in the Compact.
Less is more? Related to the importance of a strategic approach is the principle of “less is more”. While certain income sources are less significant in terms of the total revenues of the sectors, their absence or presence can dramatically change the conditions for the general sustainability of the CSO sector. The targeted approach both in case of the Croatian and Estonian state fund to assist development of the CSOs clearly shows that a strategic approach makes even a smaller investment beneficial. This doesn’t mean that the types, quality or quantity of sources would be necessarily satisfactory; it merely speaks to the importance of a strategic choice. Private individual giving is a less developed source in CEE countries. Yet it is evident how much more professional are those CSOs that have larger individual donor bases in their communications, know-how development or advocacy work. These organizations learn the concepts of stakeholder and results focus through the development of private fundraising. Even though the income from individual giving is much smaller than that from other sources, the image of CSOs (“CSO brands”) and their professional capacity is influenced largely by these funds. The 1% mechanism has a similar effect, although maybe not always the effect that was planned: in Hungary, while the income from the 1% designations represents only 2-3% in the total income of CSOs, it has played an unparalleled role in raising awareness about the existence and work of CSOs among the general public. (At the same time it was planned that it would significantly increase the role of private donations, which it did not seem to achieve.) (See Hungary country report.) The Hungarian example may be educational in terms of setting priorities as well. While the Hungarian financing model is very diverse and takes into consideration many aspects of societal life, the fragmentedness of goals and strategies makes the complex and in details well thought system less functional. 41 Improving Financial Relationships with the Third Sector: Guidance to Funders and Purchasers, HM Treasury, May 2006, pp. 5-6. International Practices on Funding Civil Society Organizations 139
A sustainable origin of funding An important part of a successful approach to support civil society is to ensure sustainable sources of funding for the sectors. In the times when budget cuts are necessary due to economic reasons it is especially hard to relinquish funding for CSO support. Experience shows that with some creativity it is possible to identify funding sources that do not burden the annual budgets through direct spending but rather mobilize additional resources – whether from the governmental or private sector.
There are two important aspects of “sustainability” of an income source: • Its guaranteed availability over the long-term, and • Its ability to make grant decisions independently – based on needs of the CSOs and their beneficiaries (rather than based on governmental priorities).
Fundraising experts agree that the most sustainable source of income for CSOs is that raised from individual donors. Their commitment is to the organization, it is reliable and will last for long years. Private grant-giving foundations are another long-term and reliable source of income responsive to the needs of CSOs. Such community funding and charitable giving by individuals and corporations was most typical in the US and other Anglo-Saxon /liberal model countries till the end of the 20th century, but in the past two-three decades continental European practices started to follow this pattern as well (obviously to a different level in OMS’s and NMS’s).
Governments try to increase and motivate private philanthropy through different methods. Two of the examined countries offer interesting models to ensure that independent private grant giving foundations put their capital to work towards the long-term development of society.
• In Germany significant tax credits were offered to private individuals to contribute to the endowments of existing or new foundations. This is rather similar to the pattern of the US family foundations tradition, with the difference that in case of Germany this scheme was motivating not only for the traditionally wealthy but for the new generation of the upper middle class as well.
• In the Czech Republic the use of 1% of the privatization income to endow hundreds of CSOs across the country represented a creative approach and a great use of the opportunity raised by the transition from a state owned economy into the private economy. These funds still work in the interest of the country and from the CSO and citizens perspective became independent funding as the state doesn’t have the right to determine for what and how the funds are being used, except maintaining and monitoring measures of responsible investing.
In two other countries, namely England and Croatia lotteries offer long-term support for CSOs. While there are many controversial issues involved in lottery funding – from moral considerations to questions of efficiency – it is undoubtedly a widespread form of government support to CSOs42. It is easier to devote some part of the usually highly profitable lottery income to support CSOs than to designate annual budget funds for this purpose; and at the same time, it will be a sustainable source that can be managed independently.
42 Other countries using lottery schemes to support and promote CSOs include Finland, Ireland, the Czech Republic, Macedonia, the Netherlands and others. For more see Katerina Hadzi-Miceva-Evans: Lottery Proceeds as a Tool for Support of Good Causes and Civil Society Organizations: A Fate or a Planned Concept? In: IJNL Volume 12, issue 4, November 2010. http://www.icnl.org/knowledge/ijnl/vol12iss4/art_5.htm 140 International Practices on Funding Civil Society Organizations
Whether through private or governmental schemes, it is important to ensure that there is long- term independent funding available for CSOs. This type of funding is the one that remains flexible and responsive to community needs; and importantly, it finances social innovation and financially risky social investments. Government funding is risk-averse; in lack of a reliable, flexible and long-term income source, the key added value of the CSO sector: its ability to develop innovative solutions to complex social problems and its ability to cater for the needs of the most marginalized, will quickly disappear.
Balancing the outreach of support A typical dilemma in government funding for CSOs is the breadth of the outreach: should government support encompass the widest possible range of CSOs, or should it focus on just a smaller segment that is considered important to the government? The reason to reach out broadly is usually to support CSO sector development as such (in order to enhance democratic development or increase CSO capacity to assist in resolving social problems). The reason to concentrate the outreach is to make more effective use of the limited resources that are available. Practice shows that there is no solution that meets the interest of every CSO – the Hungarian NCF is a case in point. It has tried to build “consensus” among too many CSO stakeholders, to the effect of leaving just a little to everyone. Spreading the support widely will inevitably result in smaller amounts of assistance for each CSO, which at one point is likely to lose its relevance. The challenge in the Croatian model, which tends to focus on the more established CSOs, is that it may make the CSOs feel “too comfortable” and loyal to their main funding source, without the need to look for community and individual support. This is particularly a problem in CEE where such sources are underdeveloped and where CSO development would benefit greatly from the potential of private giving.
While there is no blueprint to this dilemma, the following can be recommended: • It is wise to invest in the direct funding and capacity building of CSOs that are of “strategic” importance to the state and to CSO development (e.g. state service providers, CSO support centers, CSOs with special expertise etc.); • At the same time, the government can multiply the outreach of its support through indirect incentives such as tax benefited donations, tax incentives for economic activities, supporting the creation of independent grant-giving entities etc. International Practices on Funding Civil Society Organizations 141
IV. COUNTRY SPECIFIC FINDINGS
IV.1. Hungary Basic data on Hungarian nonprofit sector (2009): There have been 66 145 nonprofit organizations in Hungary in 2009. 57,865 (87,5%) of these can be categorized as a “classical” NGO, i.e. independent private not-for-profit organization. The rest are interest representation organizations (e.g. trade unions) and quasi-NGOs (e.g. nonprofit companies and public foundations established by the state). From among the classical NGOs, 22,122 are foundations and 35,743 associations. 48% of NGOs have public benefit status, meaning that they can be seen as more transparent and file annual reports. Almost 90% of NGOs reported some kind of financial activity in 2009, so there is a low percentage of fully inactive organizations.
Financial data on the Hungarian CSO sector In 2009, the “classical” Hungarian CSOs (associations and foundations) disposed of over 418,4 billion HUF (1,494 billion EUR), which was 37.5% of the total income of the nonprofit sector (thus, the income of the whole nonprofit sector including trade unions, professional associations, nonprofit companies and quangos amounted to over 1.1 trillion HUF or 3.9 billion EUR). The almost 1,5 billion EURO income of the “classical” NGOs came in largest part from the state (35%), about 24% from private funding and about 26% from own income related to their mission; finally 15% of this income was a result of business activities (non-mission related economic activities). Within the private funding, companies contributed 52.5 billion HUF (over 187 M EUR), which is distributed among 12 447 NGOs (or 18.8% of NGOs). Individuals donated over 20.2 billion HUF (72.4 M EUR), which was received by 8 727 NGOs (or 13.2%). Domestic nonprofit organizations (e.g., foundations) provided for 2.1% of the income of the whole sector, totaling 23.5 billion HUF (over 84 M EUR), and benefiting 17 397 organizations or 26.3% of all NGOs. Foreign support has grown from 2007 to 2009, the statistics documented about 44,2 billion HUF (close to 158 M EUR) of foreign support but this reached only 2 329 NGOs, or 3.5% of the sector43. It may be interesting to point out that the single source that reaches the most NGOs is the 1% tax designation: in 2009, 25 389 NGOs received a designation, which is 38.4% of the sector. The next largest outreach for a source was central government support, reaching about 28% of NGOs. At the same time, however, the total amount of the 1% designations (10.4 billion HUF or 37.3 million EUR) represents not even one percent (0.9%) of the total income of all nonprofit organizations in Hungary. If we take government sources altogether (including the tax designations), almost 64% of NGOs have some kind of governmental income (compared to 45% that receive private funding, 55% that have mission-related own income and 48% that have income from business activities).
Government funding mechanisms Historic-cultural context As a key feature in Hungarian civil society one must mention its strong orientation towards the state. This is true both financially and culturally. Financially, government funding has been dominant in the income of the CSO sector in Hungary since the mid-nineties. Its share in the sector’s income grew from 13% in 1993 to 44% in 2007 (and started reducing somewhat to 42% by 2009). 43 It is not clear, however, whether this is to be considered private as it may include e.g. the Norwegian mechanism which is governmental funding. 142 International Practices on Funding Civil Society Organizations
Legal/Fiscal Historic/ cultural conditions Country specific elements Framework Funding mechanisms Supportive – Strong state orientation; is- Widest range of public fi- neutral sues in transparency of fund- nancing forms in NMS. Na- ing. Relative acceptance of tional Civil Fund and other CSOs by the public state funds supporting CSOs
Social contracting Supportive Innovative approaches, espe- Normative support for ser- cially related to employment. vice providing CSOs and CSOs increasing role in ser- church providers according vices provision until recently. to volume of services. Vari- Church providers privileged ous other effective models Interaction with the state
on municipal level
Alternative financing Neutral Post-socialist unutilized build- Property donations to trade ings transferred to CSOs. CSO unions and NGOs in the late funding in Hungary highly po- 90’s. Percentage tax desig- litically tainted – 1% mecha- nation scheme for CSOs was nism as a way to de-politicize first in the CEE region decision-making
Private giving through Neutral Foreign donors worked Small foundation sector - the institutionalized mech- through re-granting organiza- focus of Western donors on anism tions. Long-term investments creation of an indigenous made into professionalization grant-making sector came of CSOs, social innovation late
Private-corporate giv- positive-neutral Increasing volume of corpo- Used to have generous tax ing rate giving in general. Low deductions for companies level of consciousness of cus- supporting PBOs and for Earned income Interaction with the private sector
tomers that would put pres- long term giving. In-kind do- sure on companies to follow nations VAT free more responsible practices
Individual giving neutral-not After 1989 public expectation Traditional fundraising meth- supportive to receive services for free ods not overregulated but survived. This influenced the strict data protection rules. culture of giving: everything Technical barriers. Recently welfare related should be free decline of giving and unconditional
Income generation supportive- Always a large part of CSO in- CSOs engage in many forms neutral come. Nonprofit companies of economic activities. are a flexible form to provide Membership fees regarded market-like services not important by most of the CSOs International Practices on Funding Civil Society Organizations 143
Role of CSOs Examples/Best Practices Observations
Recipients; sometimes Volume and variety of forms in state Lack of strategic approach; high con- (NCF) decision-makers funding. Funds” policy to lower expec- centration of government funding with tations if lower budget approved. Public quangos. PBO status lacks implemen- benefit status as transparency require- tation. Bureaucratic burdens and tech- ment nical conditions undermine best value principle
In principle, service provider Normative support based on clear legal Increasing quality expectations not and contracting partner – in mechanism. Measuring Social Return on matched with adequate level of fund- practice still recipient Investment (SROI) can show the value ing. Discrimination of CSOs vis-à-vis created by CSOs churches
Recipient; in case of 1% also Restriction in amounts of direct budget Such methods often associated with active promoter subsidies. Percentage scheme: despite political influence and in some cases several problems, a good way to create corruption. New flat tax will reduce 1% links between CSOs and constituencies income
Recipient-strategic partner Strategic investment into hard-to-fi- Private foundations gave less than 7% nance causes such as Roma, human of CSO income, but their significance rights. Flexible, CSO-friendly funding was much higher. Due to lack of such conditions funding it is now hard to raise funds for startups and service development
Multiple roles: recipient- General purpose grants, emergency More limited areas for support but one strategic partner-supplier support, flexible and fast funding to of the most flexible sources of income. partner CSOs. Good cases: decentral- Local companies are willing to give like ized decision-making; bank clients de- multinationals but less strategically cide on CSO support from profits
Initiator-recipient (not pa- Despite relatively low level of individu- 1% system was successful in making ternalistic relationship with al donations, their total was 6-7 times people think about whom they want the donor) higher over the last years, than the in- to support but may weaken individual come from 1% commitment needed for true philan- thropy
Initiator-service provider Legislation on economic activities is ex- Income generation linked to areas emplary and allows CSOs to invest into where state delivery is not cost effec- strategic development tive, e.g. specialized employment ser- vices 144 International Practices on Funding Civil Society Organizations
Culturally, regardless of whether they currently receive or not funding from the government, there is a general expectation among NGOs that they should; and beyond funding, a general expectation that the government (state) should do things in order for the situation to change. This attitude is often also reflected in the way they aim to achieve their mission, for example through lobbying for a change in the law rather than grassroots advocacy, or getting endorsement from the local government rather than local entrepreneurs. The strong government orientation is of course not unique to CSOs: it is a common feature of Hungarian society. By 2011 there is a general acceptance of the CSOs – especially foundations – as doing “good deeds” in society. This is largely due to the 1% law and an increased attention by the media towards promoting social causes in the recent years. At the same time, CSOs are often seen as political vehicles of parties; or as “do-gooders” that are not so important for solving the problems of the country. Forms of public financing are widely available – probably the most forms are applied among the NMS. This includes grants, contracts and normative support at both central and local levels and through various channels: ministry funds, autonomous funds and public foundations, local government funds etc. After the EU accession a part of the funding from the EU budget (Structural Funds) also became available for CSOs through national distribution channels. However, there is also a certain lack of transparency and accountability in the distribution of public funding. As an example, the National Civil Fund has been repeatedly condemned for its favoritism (favoring CSOs related to the members of the regional decision-making bodes) by the State Audit Office and by the competent Ministry as well as the media. There have also been serious problems in delayed contracts and payments from the Structural Funds that endangered the ability of even larger CSOs to deliver the services they contracted for. For a long time there has been a lack of capacity of CSOs to lobby and advocate for more transparent, and more strategically targeted public funding. More recently, there has been an improving level of cooperation between expert CSOs and governmental-municipal partners in improvement of the financial framework. The current government aims to reform CSO financing: on the one hand they announced that they aim to make it more transparent and accountable; on the other hand there will be serious cuts in the public funds available for CSOs.
Country specific elements One specificity of Hungary is the National Civil Fund, which provides institutional and program support to NGOs. It is an autonomous Fund established through law, with elected CSO representatives in its 11 national and regional decision-making bodies. Every year it receives the amount equal to the total amount of the 1% of taxes that the taxpayers designated to CSOs. Another noteworthy fund is the National Employment Fund that has been financing CSOs activities that created workplaces for the past two decades. Since the introduction of the Structural Funds, re-granting mechanisms are concentrated in one state run quango, the European Social Fund Nonprofit Ltd. As one of the few exceptions, the Norwegian and Swiss Civil Fund NGO segment has been distributed through an independent re- granting consortium composed of private foundations.
Role of CSOs CSOs are primarily seen as recipients of public funding. At the same time, the CSOs in the national and regional decision-making bodies of the National Civil Fund form the majority of members, therefore they are also decision-makers.
Examples, best practices In general, the high level of government funding ensured that CSOs were not left without resources after foreign donors left; and thereby it ensured that they can continue to cater for the International Practices on Funding Civil Society Organizations 145
ongoing needs in society. Regardless of the problems, the engagement of government in funding CSOs at all levels and in many various forms has to be seen as exemplary. An important policy of the NCF and National Cultural Fund includes mechanisms binding the donor to lower expectations, if the approved project budget has been significantly cut. The public benefit status of NGOs is relatively well defined and in practice government funding is often linked to the status, which is used as a transparency and quality requirement in public funding.
Observations There seems to be a lack of a strategic approach in terms of the wished results and impact. The problem seems to be not so much the volume of funding but rather how it is spent. According to some development professionals, the Hungarian NGO sector has been spoilt by the fact that some level of governmental funding has always been available for the kinds of things that should be normally funded from community resources. As an example, the National Civil Fund has been supporting small town, even village level organizations with 1000-2000 EUR grants for institutional support (i.e. to support the NGO’s existence). At the same time, the government has been cutting on the normative support to NGOs that provide crucial government services to needy populations. As a result, small NGOs become oriented on governmental funds and lose incentives to raise money from the community, while major NGOs get in a financial crisis and have to abandon quality service to their clients. So there is a total misplacement of the resources even though there has been plenty of funding for the sector. There is also a disproportionately high level of funds distributed amongst a small group of organizations that are in most cases established by the state/local government44. PBO status does not always provide enough guarantees for transparent operation of CSOs due to the lack of strict monitoring and supervising provisions; but it is still one of the best attempts to find a balance between benefits and obligations of CSOs. Bureaucratic burdens and technical conditions particularly in tenders related to the structural funds are often against good practices and the best value principle (e.g. too high own contribution45, conditions related to the volume of the budget, no multi-year project financing etc.).
Social contracting Historical-cultural context Social contracting has been in existence since the early-nineties in Hungary. On the one hand, there was a lack of municipal funds and services while there was a huge need created with the transition from socialism into capitalism. On the other hand, many NGOs had an important role in catering for services for needy groups and were leaders in social innovation. As a result, governments at the central, and gradually also at the local level have acknowledged the importance of NGOs in delivering services. Legislation has helped this process by creating special mechanisms to contract NGOs at the local level from central state support (normative support)46. Local civil society strategies and “compact”-type agreements have also proliferated between 1998 and 2008. Most recently, however, this trend seems to reverse. Already the previous government started cutting the normative support for NGOs as a result of budget restrictions due to the economic crisis; the current government also has an ideological motivation to support church providers
44 These quasi-NGOs used to be called public benefit companies, now simply called nonprofit companies, account for the major part of the governmental funding of the broad nonprofit sector (this includes not only classical associations and foundations but also e.g. trade unions, other interest representation groups and quasi-governmental organizations). 45 In most cases 10-20% 46 This means that if an NGO undertakes responsibility for a service that is a government obligation by law, and it meets certain standards, the government transfers a calculated per capita support to the organization. 146 International Practices on Funding Civil Society Organizations
over NGO providers and therefore continues to make it extremely difficult for NGOs to run local social services. Experts report that several NGO run services are being transferred to church denominations in order to avoid closing down47. Throughout the past two decades, Hungarian NGOs came up with innovative and effective solutions to distinct social issues. Examples include many fields from early childhood development to homeless care to rehabilitation; the most significant examples are probably in the field of employment. While many of these have remained at the local or pilot level, others have been slowly gaining place more broadly – e.g. through professional associations, and sometimes the government took up the model and financed country-wide application (e.g., home care for the elderly or a special methodology for integration of people with mental disabilities into the mainstream labor market). This resulted in tangible benefits for society, the state and the providers themselves.
Country specific At the central level, the normative support is specific to Hungary, this is provided to CSOs that receive a license to run public services. Along with CSOs and the governments’ own public service providers, church organizations and institutions maintained by a regional association of local governments are also in this “market”. (However, CSOs are in the worst position among the service providers in terms of their financing and sustainability.) Quality assurance requirements in various fields of service provision are typical. At the municipal level, there are various effective models ranging from annually repeated grants to CSOs to long-term service contracts. CSOs are more often engaged in service provision through these forms than through the restrictive normative support. Larger municipalities created a fund to support CSOs to engage in service provision as well.
Role of CSO CSOs are in fact service providers and contracting partners to the government. However, due to the generally paternalistic nature of state-CSO relationships, they are more seen as recipients of support even when the quality of their services is well recognized.
Examples, best practices The normative support that is based on legally defined and “automatically calculated” financing mechanism for those who comply with the license conditions, is a good practice for financing social services as it responds to customer choice. (Beneficiaries can choose between public, church or CSO providers and those beneficiaries who chose the nonprofit provider will also be guaranteed the service.) A CSO best practice in social contracting is a foundation that started to measure its Social Return on Investment (SROI)48. Based on results monitored over several years, it turned out that the clients assisted by the foundation will be employed on the average within 6 months, will remain employed in the same place longer and will find new employment faster than similar programs run by state agencies. All in all, every one Hungarian Forint (1 HUF) invested in the activities of Salva Vita resulted in 4.77 HUF in return over a period of five years (e.g., in savings or income generated)49. This calculation gives proof to the government about the value created and gives a strong argument to continue investing in this organization even if the government changes. 47 In Hungary, the Vatican has a special agreement with the Hungarian government that stipulates that the government will support church run services to the same extent it would support its own public services (including primarily schools and social services but also e.g. cultural or health services). By implication this is also applied to other “historical” churches; but not to NGOs. 48 SROI is a method developed initially by US and UK academics and nonprofits to be able to monetize the value creation of nonprofit organizations. This foundation called Salva Vita has been the first one to undertake such assessment in Hungary and to the best of our knowledge, in the whole CEE region as well. 49 http://salvavita.hu/index.php?menu_id=1210&topmenu=1200&oldal_id=1210&oldal_tipus=text International Practices on Funding Civil Society Organizations 147
Observations The normative support can in theory be a good tool to create equal conditions among providers from different sectors. However, this is not the case in Hungary where CSOs are provided a lower level of support (on the average 60-70% of what public and church providers receive). At the same time quality expectations are constantly increasing and CSOs have to comply with the same standards as fully funded providers. As such, this is a hidden discrimination of independent providers, reflecting the discomfort of the public sector with “opening up” the social services market. At the same time, CSOs generated high quality, good value know-how in service provision that got integrated in state provided services; specialized services they developed were made broadly available as well as valued by majority of the general public. The government seems not to understand that it needs the CSO service providers to continue generating this know-how and improving effectiveness of services. There seems to be a lack of understanding of the sustainability of services. There is also a lack of measuring the satisfaction of beneficiaries / clients receiving CSO or public or church based services. At the same time, the plurality of the forms in which the government engages CSOs in service provision – apart from the normative system – and especially at the local level has created ample opportunity for CSOs to assist communities addressing their basic needs. Despite the current difficulties faced by the CSOs in this system, it remains one of the most progressive models for social contracting in the NMS.
Alternative financing Historical-cultural context After the collapse of communism, national federations and other CSOs which were the successors of the party-organizations (e.g., federations of the disabled, of elderly, of women, of writers and journalists etc.) remained utilizing the buildings that were assigned to them before. In 1998-2000 these and other buildings have been transferred into the property of CSOs that have been using it or that proposed to utilize it in the future50. This was a one-time program conducted through tender procedures over two years, without any specific feasibility or impact assessment. Another factor to mention here is the political nature of government funding to CSOs. Since the change of the system, every government has favored certain groups of CSOs over others and this has been evident also in the amount of state support they received. (E.g., pioneers versus scouts, Christian women’s groups versus liberal women’s groups etc.). In the mid-nineties, the Parliamentary Committee that was deciding over CSO support got to a stall as they could not compromise on these preferences. This was when a group of MPs, the then Minister of Culture and CSO experts came up with the idea of the percentage mechanism – this was supposed to de-politicize government support by turning the decision over to the taxpayers. Other factors, such as the low level of private giving and the need to increase the resources for CSOs were also considered at the introduction of this idea (which initially would have concerned only cultural organizations).
Country-specific Then transfer of property to CSOs was a special feature of the Hungarian policy towards civil society. While churches and trade unions could reclaim former properties, CSOs were provided the opportunity to take their “share” of restitution. However, this act did not result in a wide- reaching endowment of CSOs; only a few hundred received properties and many of them were not able to maintain it properly.
50 Law on transfer of certain state properties 148 International Practices on Funding Civil Society Organizations
Hungary also provides direct budget support to some National Associations and umbrella organizations; however the possibilities for this are by now severely restricted. A Ministry cannot spend more than 20,000 Euros in support of any one foundation without a tender procedure; and it has to obtain approval of the Cabinet of Minister to include any association into its budget for direct subsidies. The percentage designation scheme for individuals is a Hungarian “invention” as it was the first in the CEE region to introduce it. This scheme allows taxpayers to designate 1% of their tax dues to a qualified CSO, and another 1% to a church or an annually specified government purpose. There is much analysis to be done regarding the% scheme, but here we would only mention two main points: • On the positive side, it clearly helped to create more connections between CSOs and the public at large. It was a reason for CSOs to reach out to people and explain what they are doing. • On the questionable side, its effect on the development of «traditional» or «real» philanthropy is still not clear. Research made thus far was not able to establish a causal relationship, while more and more empirical evidence points to the conclusion that in the long term (i.e. over 10 years) it may hinder rather than help the development of a philanthropic culture.
Role of CSO In the case of alternative financing, CSOs are essentially recipients of the public funds; however in case of the% system they are actively promoting themselves to the public and are therefore more than “passive” recipients of property or grants.
Best practices Although there are many issues and criticisms towards the percentage scheme, if introduced in the proper context and at the proper time, it can help develop an understanding of the importance of CSOs among the population and in creating linkages between CSOs and their constituencies. The restriction in the amounts that can be expended to support CSOs without a tender is also to be considered as good practice in CEE.
Observations Transfer of property ownership, even if the process and conditions were regulated by law was associated with political influence and in some cases corruption. In case of building support timing is critical. In Hungary, in most cases they were donated or provided for a long term lease in periods when it proved difficult for the CSOs to maintain the property (while they were banned from selling it for a number of years). The new governmental initiative to introduce a flat tax will dramatically change the situation regarding the 1%. The volume of tax paid by individuals will decrease, while the number of individuals who will have tax to designate will increase. Altogether, a 30% reduction in tax income is expected, which may severely affect those CSOs that are more dependent on income from the percentage mechanism. This points to the fact that the “real” or “traditional” individual giving scheme is still the most reliable source of income in the long term and that a governmental source – however innovative – can never be a substitute to the support of committed individuals.
Private institutional funding Historical-cultural context In Hungary, unlike in many other countries in the region, foreign donors were not directly established in the country; rather they chose, or helped establish, a Hungarian foundation for re- granting their funds. There have been not more than 10 such re-granting foundations in the mid- International Practices on Funding Civil Society Organizations 149
nineties and about half of them closed or minimized its grant-making program after the original donors left the region. (Including the Hungarian Soros Foundation, which was the first of the Open Society Foundation network in CEE, and whose closure in 2007 was a symbol of the end of an era of private foreign funding.) During its “glory”, such funding was mostly used for social innovation, for piloting and mainstreaming innovative services, and projects tailored to special beneficiary groups. It has been the main funding source to invest into capacity building and professionalization of CSOs, helping to strengthen them often throughout several years. (In comparison, the currently available institutional support from the NCF has to be spent within a few months each year.) Another advantage of western private donors has been that they were for the most part politically neutral and also seen as such (with the exception of the Soros Foundation, which was accused of intervening into political dealings)51. Domestically “born” private grant making foundations in Hungary are still in the early stage of development. Their number is gradually increasing but there is only a handful of philanthropic individuals that have established foundations. These support typically contemporary artists or talented poor children, i.e. people rather than organizations (CSOs). The culture and understanding of supporting CSOs among the newly rich is not yet developed. At the same time there is an increasing number of corporate foundations that support CSOs and civil society more broadly (see below). It should be noted that in Hungary there is no separate legal form for grant making and operating foundations; and there is no incentive for a donor to make an endowment. Therefore, there are practically not more than 2-3 domestic grant making foundations that have been endowed and on whose support CSOs can count on in the longer term.
Country specific The first phase of focused programs of Western development donors into the creation of an indigenous grant-making sector came late in Hungary. Essentially, donors started building endowed foundations from the re-granting/implementing organizations only when they were already leaving. This resulted in limited success in endowing them and also a limited range of areas they kept supporting.
Role of CSO Unlike the governmental agencies, private funders saw CSOs not only as recipients but also as strategic partners in helping them achieve their own long-term goals. That is also why they tried to take responsibility for helping CSOs as long as they could with institutional support and flexible program grants.
Best practices, examples The volume of strategic investment into advancing causes that are hard to finance from the “philanthropic market” is a good practice example of Hungarian institutional donors. These have included supporting causes such as the Roma, civil liberties, human rights and rights of marginalized groups etc. Although there has not been much impact measurement of these programs, they have clearly filled a gap in addressing needs that other donors did not undertake. CSOs also praised the grantee-friendly, flexible, non-bureaucratic funding mechanisms of these foundations. For example, there was usually no or minimal own contribution required or if required, in most cases volunteer work was accepted. Flexible funding in important areas left space for a trial-and-error approach and slow accumulation of the results bottom-up, a more natural way for social change than government ordered policies. 51 In case of US based foundations a condition to receive the most beneficial 501C3 status. 150 International Practices on Funding Civil Society Organizations
Observations The lack of a variety of donor models and diversity of strategies contributed to the fact that the Hungarian CSO sector became somewhat “uniform” (i.e. most CSOs have a similar income base, relying to a large extent on various forms of government funding and own income). While in last decade of the 20th century Hungary and its CSOs belonged to the top innovators of CEE, this advantage has diminished in the first decade of the 21st century. CSOs are today more implementers of governmental programs than innovators in their respective fields. Although the volume of donations of private philanthropic foundations was never higher than 7% of the total revenue of the NGO sector, its significance was much higher. Many CSOs and in some cases also smaller community organizations receiving such support were able to develop their know-how and capacity to the level that they became relevant suppliers and partners for both companies and government. Most CSOs that have had the capacity to attract and implement EU programs came from the ranks of organizations “built” with the help of foreign donors. Due to the lack of such funding, it is currently difficult to launch CSO startups, to invest in service development, and to build an organization strategically. Although corporate foundations are slowly learning the “art of grant making”, they will likely remain funding more popular causes, so the gap in the lack of independent domestic grant-making institutions is still being felt.
Private corporate Historical-cultural context The volume of corporate giving and institutional corporate giving in general has been increasing. In general, like in other CEE countries, there is more emphasis on PR and brand building but the classical charitable giving and CSR have been increasing as well. The most recent data of the Statistical Office are from the year 2009, and show that income of the CSOs from corporate support increased by 20% since 2007. Therefore, interestingly this form of support has not been affected by the crisis as badly as CSOs were expecting it. A recent research by the Hungarian Donors Forum has the following results52: • 70 out of the top 200 companies responded to their survey • 10% of these give under 1 million HUF (3,500 EUR) and 14% give over 100 million HUF (approx. 357,000 EUR) per year • 45% do not plan to increase their giving budgets in 2011, while 20% plan to do so. There has always been and still is a low level of consciousness of the customers that would put pressure on companies to follow more responsible practices. Hungarians have been repeatedly shown to be most sensitive to price, disproportionately so as compared with other European countries (quality, accessibility and other factors come much lower, not to mention environmental and social responsibility)53. Western owned companies were the first to establish more developed grant making schemes and corporate foundations on the national level. However, a research in 2005 showed that 67% of domestic companies actually give although not in a structured or professional way54; while SMEs play a vital role in community level support. Thus, ad-hoc giving is still more typical than strategic giving; but the willingness is seemingly there.
Country-specific Hungary had provided generous tax deductions for companies that supported public benefit organizations and legislation also provided incentives for longer term support. 150% of the donation to the maximum of 20% of taxable income could be deducted for a one-time support 52 Reference research, Oct-Nov 2010 53 Kuti, Eva ed. Vállalatiadományozás Magyarországon Tanulmányok 2005 (Corporate giving in Hungary). 54 Id. International Practices on Funding Civil Society Organizations 151
of public benefit organizations; and in case of a four year commitment to give the same or larger amount, 150% of the donation could be deducted up to 25% of taxable income every year. If the supported CSO was not of public benefit status, up to 100% of the donation could still be deducted under the same conditions. This tax scheme has been very progressive and it helped spread the culture of giving among Hungarian companies55. However, in the past few years (since 2008) these benefits have been cut significantly, leaving only a very small group of CSOs (those who are “prominent” public benefit organizations and have a contract with a governmental agency) as eligible to receive a tax deductible donation. In-kind donations are free of VAT, which has been a contentious issue as well.
Role of CSO CSOs are perhaps most well recognized by the corporate donors: especially when having an established philanthropic or CSR strategy, they can be in the role of a recipient as well as a supplier or a strategic partner.
Best practices Corporate donors often provide general purpose grants or unrestricted emergency support to their partners (e.g., in case of changes in the law that is causing significant cash-flow problems). Support in general is flexible and responsive to the needs of the grantee and the beneficiaries; usually there is no own contribution required. There are good practices in decision-making: in some cases the decision-making on the grants is decentralized (e.g., employees of a local division have their own budget and can decide whom to support). Another interesting initiative is by the first Ethical Community Bank in Hungary (MagNet Bank), which launched a Community Giving Program, in which the clients of the bank can decide together which NGOs (from a pre-selected list) will receive 10% of the Bank’s annual profits. The Bank also has a special service package for foundations and associations, something that NGOs have been long waiting for in the Hungarian market of financial services.
Observations Although the scope of corporate support is limited (only in certain fields and to certain CSOs), it remains one of the most flexible sources of income for CSOs. Also, the Hungarian example shows that domestic companies find CSO support just as important as multinationals; however, they lag behind in establishing planned giving programs that would make their support more accessible and more reliable for CSOs. Whether ad-hoc or institutionalized, companies are usually the fastest decision making donors of CSOs.
Individual giving Historical-cultural context Hungary, for historic reasons, had been running a generous, expensive welfare system before 1989. Since the quality of services was relatively high, the public expectation to receive high quality services for free survived even after the system change. This had significantly influenced the culture of giving: everything welfare related should be free and unconditional. As a result, people were not ready to support CSOs in providing welfare services for a long time. Individual donations in Hungary were on the rise throughout the nineties but only at a very modest rate that actually put this mechanism behind government and corporate giving in terms of its share in CSO sector income. In the most recent trend, individual giving is already declining: the amount 55 There has been no targeted impact research in this respect; however, when the benefits were discontinued, CSOs reported a clear decline in the willingness of companies to support them. It is not clear, however, if this was due to the tax change solely or also to the beginning of the financial crisis. 152 International Practices on Funding Civil Society Organizations
of money received by NGOs from private donations fell by 20% from 2007 to 2009. This could be explained by several factors: (1) the economic crisis and that people have less to give; (2) the decline has already been a tendency though not as sharp, in the mid-2000s, and (3) by 2009 all the tax benefits for donations from private individuals have been discontinued. Over the past 4 years, the government has gradually cut the previously existing tax credit on donations to public benefit organizations. Although the credit itself was not a major benefit (100% of the donation up to 30% of the tax but with a fixed ceiling of circa 200 Euros), it might have mattered to those who used to take advantage of it. Nevertheless, some NGOs are trying to reach out to the public in fundraising campaigns but success seems to be limited to a circle of those who engage in the relatively higher cost professional fundraising. One of the detrimental effects of the one percent law may have been that it has hindered the development of the “traditional” way of raising funds, i.e. personalized and regular (cyclical) communications with the donors.
Country specific The percentage mechanism was hoped to produce an increase in the low level of giving, and increase funding for large number of CSOs, as well as churches and causes of public interest. To some extent it achieved its purpose as people get more familiar with CSOs and started to think about which CSO “deserves” their support through the tax designations. More traditional forms of fundraising such as street collections, charity events and direct dialogue are not overregulated. Simple technical barriers exist and present difficulties in raising money from individuals (e.g. private banking cheques crucial for most widespread fundraising methods in the West are not in use, or more than 50% of a donation via sms goes towards taxes and fees).
Role of CSO The CSO is both the initiator of the relationship and the recipient of support. It is therefore regarded as worthy of support (unlike in the paternalistic relationship with a state donor).
Best practices, examples Even though individual giving represents a lower share in the income of the sector, the level of individual donations was 6-7 times higher over the last years than the income from 1%. It is important to recognize that while the 1% is a capped amount, donations from individuals are not – they can be increased through including a new cause, a new target group or new ways of asking.
Observations Due to relatively strict data protection rules, obtaining data of potential donors is difficult (still hard to find relevant data on donors in large quantities) and therefore expensive. There is a lack of expertise relating to the different forms of professional fundraising and there are no clear benchmarks on how to evaluate success. The percentage scheme brings public funds into the picture, which ultimately weakens the involvement and commitment of the individual (even if the person makes the decision, s/he remains anonymous and will not feel the financial consequences of this decision). It remains to be seen whether having more net income – with the introduction of the flat tax – results in an increased level of individual giving.
Income generation Historic-cultural context Generating earned income has always played an important role in the development of the Hungarian CSO sector. Over 40% of the income of Hungarian CSOs comes from own income International Practices on Funding Civil Society Organizations 153
including two major parts: income related to their mission (e.g., training on advocacy) – 26% and non-related business income (e.g., renting office space) – 15%. CSOs can engage in economic activities directly or through establishing a company. However, foundations and associations cannot be established to primarily conduct economic activities. There was a special form, the public benefit company that was supposed to serve the purpose of service oriented nonprofit organizations, which could conduct economic activity more freely. However, it became a tool for local municipalities to contract out municipal services on a non- competitive basis (by setting up such companies). As a result the model was changed in 2009 and now instead of having a privileged form that is “automatically” considered public benefit, any corporate legal form may obtain public benefit status, if it complies with the same requirements as common CSOs. Such companies represent a simple and flexible form for providing services in a way they would in any market: reacting quickly on changing needs of the beneficiaries. However, they are usually excluded from calls for grant proposals even though their public benefit requirements are the same as for other CSOs. Overall, since the nonprofit company in this form is still new, there is not much experience with it yet.
Country specific Hungarian CSOs are engaged in many types of economic and business activities but there are also earned income models they do not favor. Membership fees are one of the latter. Membership fees are regarded as not important by most of the CSOs – not counting trade unions – and often they don’t even collect them. The notion of the membership fee being symbolic still prevails in most associations. CSOs receiving property as a grant (mostly from governments and municipalities but now more and more from corporations as well) are in privileged situation as they can generate unrestricted income through rents.
Role of CSO In this function CSOs are proactive, initiators of relationships with customers and beneficiaries, and of course, service providers in a competitive market. Importantly, this is the only form of financial income where the feedback on CSO performance by the service user is immediately expressed in monetary terms as well.
Examples, best practices While much abuse has been reported over the years relating to government funding and the 1%, there were no major scandals relating to economic activities. This indicates that the Hungary found a good balance of incentives and controls in regulating this type of activity. Mission related income represents 26% of the total revenue of the sector in Hungary. This unrestricted income allows CSOs to invest own resources into areas that are strategic for them as well as self development or into non-mainstream areas.
Observations Hungary has a pool of mechanisms that could make the CSO sector more self-sustaining. A strategic approach to harmonize these methods, increased benefits and clear rules may improve performance significantly. Income generating activities are on a large scale linked to areas, where state service delivery is not cost effective, e.g. employment and re-integration of disabled people through production and services. 154 International Practices on Funding Civil Society Organizations
IV.2.CROATIA
Basic data on the Croatian nonprofit sector In 2009, there were more than 37,000 registered civil society organizations, including associations, foundations, sports and religious organizations56. In the same year, the government funding amounted to almost 530 million Kn (over 71 million Euro), which is 15.5% less than in 2008. Out of this amount, 46.2% was distributed from the lottery proceeds. Most of the funds were given through the Ministry of Science, Education and Sport (31% of total funding). Sport is the most funded activity (31%) followed by projects in the fields of culture, people with disabilities and socially disadvantaged groups. From 1999 to 2009, 27.543 projects of CSO were funded by the state, amounting to more than 320 million Euro of funding allocated to the sector. According to a research conducted among CSOs that received grants from the state budget in 2008 almost 70% of CSOs rely on funding from the central and regional/local government’s budgets as the main source of funding. CSI research results indicate that 33.2% of surveyed CSOs receive funds from the corporate sector, and the average share of corporate sector funds among CSO income amounts to 18.2%.
Government Financing Historical-cultural context The post civil war period entailed a strong position for CSOs within the society. They played a prominent role in delivering aid and assistance, and helped in post war conflict resolution in affected communities. As the whole state system was to a level newly created, the interaction with a newly formulating CSO sector was frequent, compared to early phases in other countries in CEE. There were large scale international donor programs implemented here. Croatia belonged to the countries of the Western Balkans in which the imported know how had been already adapted in other countries of Eastern Europe. Development programs like USAID used experts from the region and implemented joint projects with Central European CSOs. At the same time, Croatia had been historically closer to Western Europe than most other Western Balkan countries, which made it easier for them to adapt democratic institutions and adhere to European norms in practice even when the laws were not yet up to date (see law on foundations). It was also the first country in the Balkans that undertook a strategic effort to support the development of civil society, and such, it established exemplary models.
Country specific elements Croatia is the first country in the Western Balkans to undertake initiatives to develop specially designated mechanisms for Government-CSO cooperation and a mechanism to support transparent funding of CSOs57. This process resulted in significant innovations, the most influential was without doubt the creation of a National Foundation for Civil Society Development that was the first and has a unique place even among similar funds in the CEE region. Compared e.g. to Hungary the fund supports a relatively small number of organizations, but for the same reasons the support provided makes the donations relevant in terms of the wished impacts. Another unique feature is the support of multi-year activities. (See best practices)
56 USAID, The NGO Sustainability Index for Central and Eastern Europe and Eurasia: Croatia, www.usaid.gov/ locations/europe_eurasia/dem_gov/ngoindex 2009. 57 Hadzi-Miceva-Evans (2010). International Practices on Funding Civil Society Organizations 155
The National Fund has now been decentralized and it made agreements with four regional organizations to manage community grants programs. In addition, line ministries support CSOs with grants in their respective field of operation. Croatia also benefits from the EU funded Instrument for Pre-Accession Assistance (IPA), which has a civil society support component. As a result of the learning process from several years of government funding experiences, in February 2007, Parliament adopted a Code for Good Practices in funding CSOs58. (See best practices) This was aimed, among others, to fend off criticism relating to conflicts of interests that the National Foundation was accused of in the early years. The National Foundation is the “funding arm” of the broader institutional framework connecting civil society and the Croatian government. It fits into a tripartite system of Croatia’s “new model”59, which also includes the Government Office for Associations (created in 1998) and the more recently established Council for the Development of Civil Society, which is a specialized advisory body of the Croatian government. The Council is charged with monitoring, analyzing, and evaluating the financing granted from the state budget, and ensuring compliance with the Code.
CSO role CSOs are seen as both recipients and partners in government funding.
Examples, best practices Croatia undertook successful decentralization of a once centralized model of support for civil society. (All state funds to CSOs used to be distributed through the Government Office for Associations.) The National Foundation for Civil Society Development is a good example of a state fund supporting civil society. Its concept follows the approach of an excellence model: based on strategic priorities it determined areas to be developed that have the largest potential to make positive influence even on the part of the sector that is not heavily subsidized through the fund (multiplying effect). It has set a strategic goal that it aims to accomplish and it views CSOs as key partners (rather than simply vehicles) in achieving it. The main goal is to encourage Croatian citizens to take an active part in public life – not only at elections but also in taking care of each other and addressing social problems on a daily basis. It uses effective and appropriate funding mechanisms that are in line with development principles (such as rootedness and long-term processes). E.g. instead of directly giving very small grants to community based CSO programs (like the Hungarian fund), it agreed with regional intermediaries who can manage those programs more efficiently. Uniquely in the region, it also supports up to three years of institutional development of CSOs. This is not typical of governmental donors who usually support on an annual cycle. Further, the Foundation is financed from the lottery proceeds, which provides a relatively secure and predictable financing year after year (in contrast with other countries where the Fund depends on annual budget appropriations). The Code on Good Practices for government funding of CSOs is also exemplary in that it sets out basic rules and procedures for public authorities at all levels of government in distribution of public grants. It achieves this through a very simple and easy-to-follow document that contains eight key principles with concrete guidance for their application. 58 Code of Good Practice, Standards and Benchmarks for the Allocation of Funding for the Programmes and Projects of NGOs. Official Gazette no.: 16/2007, February 2007. 59 For more information about the model see: Vidacak, Igor., “Developing Standards and Mechanisms for Public Financing of NGOs in Croatia”, International Journal of Not-for-Profit Law (IJNL) October 2010; and Hadzi-Miceva Katerina, “Legal and Institutional Mechanisms for Government-NGO Cooperation in Hungary, Estonia and Croatia,” in “Organizacje pozarządowe. Dialog obywatelski. Polityka państwa,” edited by Marek Rymsza, (Institute for Public Affairs, Poland), 2007. 156 International Practices on Funding Civil Society Organizations
Legal/Fiscal Framework Historic/ cultural conditions
Funding mechanisms Supportive Post-war period: CSOs delivering hu- manitarian aid; strong international presence, weak government
Social contracting Neutral-not supportive CSO services subsidized by foreign do- nors, no history of CSO involvement in Interaction with the state
state service provision
Alternative financing No significant model identified
Private giving through institu- Neutral - not supportive Foreign regranting organizations did tionalized mechanism not establish indigenous grant-making foundations despite large volume ca- pacity building programs
Private-corporate giving neutral Corporate social responsibility still in early stages of development due to un- Interaction with the private sector
friendly business environment
Individual giving neutral Giving to church and charity is part of traditions; post-war solidarity enhanced community giving
Income generation Supportive Economic activities a rare practice. CSOs used to give services for free, now Earned income
late to change this pattern International Practices on Funding Civil Society Organizations 157
Country specific elements Role of CSOs Examples/Best Practices Observations
Tri-partite system of CSO strat- Recipients and National Foundation: lot- Strength: clear strategy and egy implementation: Govern- partners tery proceeds, decentral- autonomy. Weakness: small ment Office, National Founda- ized structure, multi-year CSOs may remain without tion for Civil Society Develop- funding, institutional sup- support. ment (CSD) and Council for port; Code on Good Prac- CSD tices for Funding CSOS
No systematic involvement, Lobbyists for Cross-sector participa- CSO capacity exists, e.g. strategy currently being devel- improved condi- tory process to develop the quality management systems oped. Good examples exist es- tions. strategy for involvement of promoted among CSOs. CSO pecially locally CSOs involvement will be in line with EU expectations
Weak foundation sector; Na- Recipients CroNGO program intro- Role of private donors was tional Foundation “took over” duced good practice in taken over by the state CSO support from re-granting grant-giving that was taken organizations; foundation law up by the National Founda- out-dated tion (multi-year institutional funding)
Growing support of CSOs by Beneficiaries, Certain companies intro- No significant differences companies but mostly ad-hoc recipients only duced responsible prac- from other countries in the de- giving. Tax deductions not sig- tices e.g. Croatia Telecom velopment of corporate phi- nificant in a telephone fundraising lanthropy campaign
The majority of Croatians give Generally not Some good examples for Despite generally positive at- but only small amounts. Use of active in fund- fundraising success exist, titudes to giving, CSOs do not new technologies is spreading raising e.g. Guide Dog Association raise funds; they are not famil- iar with professional fundrais- ing
Legal framework favorable for Initiator-service Some good examples for Transition and economic de- CSO economic activities, mis- provider social enterprise, espe- velopment could be helped by sion related income tax free; cially among environmental increased role of CSOs in so- but interpretation issues. No groups cial enterprise and social ser- public benefit status vice delivery 158 International Practices on Funding Civil Society Organizations
Observations The model has the strength of focusing on large and mid size market leader CSOs, who are able to deliver good programs; at the same time this represents a weakness as well in that rural CSOs and startups have difficulties to access it60. Another advantage is that while the overall strategies are set with the government, the fund has autonomous decision making and it has been able to develop good funding practices, responsive to the needs of CSOs making it a reliable partner for CSOs in the long term.
Social contracting Historical-cultural conditions Unlike in Hungary, in Croatia CSO services were largely subsidized by foreign donors and they provided the services for free, therefore the tradition of social contracting has not developed as much over the past decades. The expectation of free social services by the state has been coupled by the expectation of free social services by the CSOs, so both the citizens and the state expect that they don’t have to pay for the CSO delivered services. CSOs also believed in this, however, they are struggling to sustain their services and so have started to lobby to change the situation. As a result, there are already some good examples of local service provision by CSOs at the municipal level.
Country specific elements In Croatia there is no systematic involvement of CSOs in the provision of social services and local governments often lack the interest to contract CSOs. At the same time, there is an emerging dialogue among the state and CSO sector on the opportunities. A working group was formed to develop a Proposal for Improvement of the System of Contracting Social Services of Public Interest with Civil Society Organizations61.
CSO role Lacking as yet a mechanism for financing, CSOs are mainly advocating for improved conditions.
Examples, best practices It is a good practice that the Office for Cooperation with NGOs is leading a cross-sector, participatory consultative process including competent ministries, local authorities, and CSOs in order to develop a strategy to improve the situation in CSO contracting.
Observations There is relevant and high quality CSO service providing capacity in Croatia due to the investments into institutional capacity building by both foreign donors and the government. In line with the EU practices, as a result of cooperation among sectors, the system of social contracting is likely to develop soon. There are evidences that show readiness for such cooperation, e.g. the attempt of a group of CSOs to introduce broadly accepted quality management systems for CSO services62.
Institutional private giving Historical-cultural context Despite big foreign aid programs, there were no large private funds, with a few exceptions. For a long period the USAID funded CroNGO Program (a re-granting organization) was playing 60 According to the CSI survey from 2005, the geographical distribution of CSOs indicates the markedly urban character of these organizations. Most CSOs are not rooted in local communities, where citizen’s activism is mainly characterized by informal assistance to neighbors or family members. 61 USAID NGO Sustainability Index 2009. 62 PQASSO by Charities Evaluation Services(CES) UK. International Practices on Funding Civil Society Organizations 159
the role of a semi-private donor. Essentially, a few large scale state funds, like USAID and more recently the National Foundation played the role of classical private institutionalized funding – developing capacity of CSOs, financing their overheads, innovative projects, etc. USAID already had the experience with Central European countries, where such capacity contributed to the strengthening of the sector at large. The National Foundation was then open to take over the good practices from such donors, e.g. institutional support and multi-year funding.
Country specific elements Compared to Hungary, Croatia received much higher levels of foreign aid and massive development programs took place. Yet, unlike in Hungary, there were hardly any local re-granting organizations; and there are hardly any indigenous grant-making foundations. This has had two main reasons: first, with the establishment of the National Civil Fund in 2003, foreign donors could have had the impression that the state has “taken over” the financing of their key grantees, so they were less worried about “exit strategies”. Second, Croatia was the country in the Balkans where due to political infighting, an outdated foundation law is still in force. It contains e.g., that the foundation cannot be created for unlawful or immoral purposes, or “if there is no serious reason for the establishment of a foundation, particularly if the purpose of the foundation is obviously lacking seriousness”63. Obviously such provisions leave a wide space for interpretation; yet there have been no problems with registering foundations in Croatia. At the same time, there was no incentive, legal or fiscal, for indigenous grant-making foundations to evolve.
CSO role In their relationship with foreign private funds, CSOs played mainly a recipient role.
Examples, best practices One of the most successful funding programs from the point of view of capacity building of CSOs was run by the CroNGO program. This included three year institutional funding coupled with technical assistance to develop a strategy for the development and sustainability of the organization; and in addition training and pilot-funding for fundraising and income generation projects. In the program, some large scale fundraising projects were implemented, which achieved a concrete target – an unusual result in the region64.
Observation The role of private donors was taken over by the state in funding key national level CSOs and in responding to civil society development needs (institutional support, pilot projects). At the same time, due to the availability of central sources, there was not enough pressure towards wealthy individuals and strong corporations to establish private philanthropic foundations.
Corporate giving Cultural-historical context Research by the European Network on Research on Philanthropy (NROP) revealed that “the type of welfare state emerging in Croatia does not contribute to the development of a socially accountable corporate sector since the corporate sector is obliged to pay high taxes and contributions for social and public purposes, yet it is not seen as an important stakeholder for society at large”65.
63 Law on Foundations and Funds, Offl. Gazette No. 36/1995, 64/2001. 64 E.g., the Croatian Guide Dog and Mobility Association raised 500,000 Euro in a campaign to build a dog training center, which was a great success beyond any expectation. 65 European Research Network on Philanthropy, Croatia http://www.ernop.eu/country/24/croatia.html#Data 160 International Practices on Funding Civil Society Organizations
According to recent survey results on the extent of social responsibility of larger companies, over 50% consider their corporate social responsibility as insignificant (20.8%) or limited (33.6%). In general, firms see this type of spending as another way of spending money on marketing or sponsorship, rather than as their social responsibility66. At the same time, the media pays close attention to charitable giving, and stories in the media have reportedly inspired individuals and donors to give more. According to the ENROP report, small and medium companies are becoming active in their communities, although they still provide most of their support to sport and cultural events. Therefore, on the whole, the current extent of corporate philanthropy still is seen as rather limited.
Country-specific elements Overall, corporate philanthropy represents a new and growing tendency in terms of the total revenue of the sector. Civicus Index research results from 2005 indicate that 33.2% of surveyed CSOs receive funds from the corporate sector, and the average share of corporate sector funds among CSO income amounts to 18.2%67. This could be seen as a moderate level of philanthropic support; however, from CSO reports it seems that it is still not seen as a reliable, predictable income source, probably due to the prevalence of ad-hoc giving (a lack of strategic programs to support CSOs). As an example, only a few companies have established grant- making foundations. As significant foreign investment was made in various industries whereby the foreign company’s charitable policies were adopted, the funding is growing but has a less institutionalized character. Domestic companies also engage more and more in funding charitable programs, and young entrepreneurs showed interest to support CSOs in their communities68. Tax deductions available to businesses for donations are not significant (up to 2% of tax base deductible).
CSO role Overall, the corporate sector considers CSOs solely as beneficiaries of their support, while the associations consider the corporate sector as donors only. Such a narrow view of civil society- business relations results in a limited number of partnerships between CSOs and the corporate sector69.
Examples, best practices Encouraged by the success of a number of humanitarian organizations soliciting donations over the telephone, Croatian Telecom has waived its right to profit from certain humanitarian organizations, so that the money raised can be fully distributed for humanitarian purposes. In cooperation with the Government, Croatian Telecom established a committee for allocating phone numbers to humanitarian organizations70. Construction companies, banks, often with an international background also play an important role promoting the culture of giving; and SMEs also started increasing their involvement mostly on the local level.
Observations In terms of the development of corporate philanthropy, Croatia shows no significant difference from other CEE countries.
66 Id. 67 Civicus Civil Society Index Report on Croatia, 2005 http://www.civicus.org/new/media/Croatia_country_report_ English.pdf 68 ERNOP. 69 ERNOP. 70 CSI report. International Practices on Funding Civil Society Organizations 161
Individual giving Historical-cultural context Although regular giving by individuals to CSOs does not have a tradition in the country, a culture of giving for charity and other public purposes is an important part of a civic culture. In addition, post-war solidarity facilitated community level giving – even when there was an abundance of humanitarian aid, people continued sharing their food and products (although not necessarily across ethnic lines). Most Croatians give only small amounts to charity. The CSI survey reveals that for 76.6% of respondents, the financial value of donations during 2004 did not exceed 500 Kuna (83$). With the average net income per annum in 2004 being 4.143 Kuna (690$), this amounts to 1.2% of a person’s annual income. Another research (from 2006) showed that 77.8% of citizens donated up to 500 kunas and only 4.7% donated more71.
Country specific elements According to the CSI survey 66.8% of citizens have donated cash or goods, such as garments and food, for humanitarian purposes in 2004. Since then, charitable giving has increased, partly thanks to the introduction of new technologies of giving by phone or recurring payments (see Examples, also under Corporate Philanthropy). A slightly higher number of women than men give to charitable purposes, and individuals with higher levels of education are more inclined to donate.
CSO role CSOs are generally not very active in fundraising from the public; when they are, they are initiators and recipients.
Examples, best practices While charitable giving is not widespread, there are good examples of fundraising organizations that use a professional approach and take advantage of modern technologies. The example of the “PU ” Association is mentioned in the Civicus report, which is partially financed by permanent transfer orders from banks, which citizens can commission without additional charges, allowing for a transfer of small but regular monthly income for the associations activities.
Observations Survey results indicate that, in general, the public is in favor of a culture of giving. Still, individual giving does not represent a strong part of CSO support. This can have a number of reasons, but in our view it is mostly due to the fact that CSOs have managed to raise resources from the state (at the central or local level), and also from corporations; therefore very few feel the need to raise funds from the public at large. CSOs are not familiar with professional fundraising techniques and lacking the motivation to “go for it”, they have simply not asked people. This theory is supported by the fact that whenever a CSO decided to engage in fundraising activities they were most of the time successful.
Income generation Historical-cultural context In Croatia, self-financing activities by CSOs remain a rare practice. CSO economic activities did not develop properly for several reasons, including that donor programs often did not allow CSOs to charge for the products and services they developed with the donor’s support. Therefore it has 71 Survey by Frank Sakic (2006), in ENROP report. 162 International Practices on Funding Civil Society Organizations
become almost impossible to start charging fees for the same services once the donors ceased supporting them, and CSOs have missed an important opportunity to become more sustainable. On the other hand, it was often not felt proper also by the CSO to charge for its services, due to the idea of solidarity and assistance to the needy. In addition, there has been a lack of capacity and entrepreneurial spirit on the part of the CSOs to undertake commercial projects. Finally, there is no clear interpretation of the legal framework which, in principle, allows CSOs to engage in commercial activities72.
Country specific elements The Croatian legal framework is favorable toward the economic activities of CSOs, as such activities are explicitly permitted by law and they are not taxed, if they are conducted within the framework of the CSO. CSOs are exempt from paying corporate income tax on income generated through commercial activities, unless such exemption has lead to the acquisition of “unjustified privilege on the market.” Should the competent tax authority reach such a finding, which has not happened in practice thus far, a tax is levied on the CSOs income resulting in the same obligations as those incurred by for-profit entities (20%). CSOs will also need to pay the same taxes as for- profit entities, if they establish a company to run the economic activities. There is no clarity about whether only such economic activities are allowed which are referred to in the statute of the CSO. Also, it is unclear on what basis the “unjustified privilege on the market” would be judged, but it is understood that the provision is construed to fend off possible abuse of the tax exemption. CSOs have lobbied for the introduction of a public benefit status, which would increase the transparency and accountability of the qualifying CSOs, and would therefore reduce the possibility of abuse regarding tax exempt economic activities. This might enable the legislators to abolish the ambiguous provision relating to “unjustified market privileges” as long as only public benefit organizations would be fully tax exempt in their mission-related economic activities.
CSO role Initiator, service provider. One reason why CSOs are not so active in this field may be that they don’t feel comfortable in the role of “salesmen”.
Examples, best practices Engaging in economic activities is a growing tendency in the social services sector, and some training and consultancy organizations incorporated it into their business models, but it is still not widespread on the national level. There are however some good examples e.g. those in the portfolio of NESsT (Nonprofit Enterprise and Self-sustainability Team), including rental of coastal premises of the CSO and promoting the sales of cloth diapers73.
Observations The country has had to go through a difficult period in an extremely short time: from a post- war country into an accession country that has to reform most areas of recently created systems and mechanisms to comply with EU expectation. This could present itself also as an opportunity to involve CSOs more into economic development through encouraging social enterprises and CSO service delivery. Introduction of the public benefit status may be helpful in clarifying legal uncertainties regarding the tax treatment of CSO economic activities.
72 NESsT Croatia guide http://www.nesst.org/documents/2006CroatiaLegalGuideEN.pdf 73 http://www.nesst.org/NVFCentralEurope.asp#LSCroatia International Practices on Funding Civil Society Organizations 163
IV.3. GERMANY
Basic data on German nonprofit sector There are two main types of nonprofit organizations in the German third sector: – registered associations: their number is over 550,00074; and – foundations: their number is over 16,00075. In addition, there are over 5,000 cooperatives that also play an important role76.
Financial data on the German CSO sector The non-profit sector is a substantial economic force in Germany, as far as both expenditures and employment are concerned. It employed 3.6% of the active population; and including volunteers, an equivalent of 6.6%. Its expenditures represented 4% of the GDP. In fact, if the German civil society was a country, its GDP would be 2.2 trillion $ for Germany (approximately 1.7 trillion €), far above the 1.3 trillion $ average (approx. 1 trillion €) of the all 35 countries analyzed in the Global Civil Society – An Overview Report77. The Global Civil Society Report also highlights that the sources of civil society organization revenue without considering volunteers are the following: 64.3% from the government; 3.4% from philanthropy; and 32.3% from income generated by economic activities. According to the same Report, the respective percentage including the value of volunteer work (as philanthropic support) will change to the following: 42.5% from the government; 36.2% from philanthropy; 21.3% from economic activities.
Government funding mechanisms Historic-cultural context Germany has a sizable third sector that is marked by strong government support. The nonprofit sector plays a prominent role in the everyday lives of German people by being the main provider of the basic social services, based on the so-called “principle of subsidiarity”. (See social contracting.) Due to their significant role in both service provision and everyday community life, CSO are well respected by society as well as the state. Since the Second World War, Germany was restrained from undertaking a military role abroad but at the same time due to its export-oriented economy it could not be isolated and had to develop its export markets. Therefore it also undertook a prominent role in international development, another area where CSOs are highly involved. The German Ministry of Foreign Affairs provides an opinion on CSOs that recognizes their added value and that is characteristic of the attitudes of the state towards the CSOs in general: “Non-governmental organizations are a manifestation of civil-society involvement (…). The NGOs strength lies, among other things, in the high degree of motivation and specialist know-how of their staff and partners as well as in the fact that they are in close contact with underprivileged sections of the population – a key prerequisite for people to help themselves and take the initiative. 74 554,401 in 2008; source: Vereinsstatistik 2008 – Statistics of Associations 2008, produced by the V&M Service GmbH with the collaboration of the Research Institute for Sociology at the University of Cologne, 2008, accessed on http://www.vita.it/guide/view/50/91455 75 16,406 in 2008; source: Stiftungen in Zahlen – Errichtungen und Bestand rechtsfaehiger Stiftungen des beurgerlichen Rechts in Deutschland im Jahr 2008, Association of German Foundations, published in 2009, accessed on http://www.vita.it/guide/view/50/91455 76 According to data by the German Cooperative and Raiffeisen Confederation (DGRV), there were 5,291 cooperatives in Germany in 2007, with approximately 17.6 million members spread across them. 77 Lester M. Salamon, S. Wojciech Sokolowski, Regina List, Global Civil Society – An Overview, The Johns Hopkins Comparative Nonprofit Sector Project, 2003. 164 International Practices on Funding Civil Society Organizations
Legal/Fiscal Framework Historic/ cultural conditions
Funding mechanisms Supportive Sizeable third sector with strong govern- ment support. CSOs respected by soci- ety. Added value of CSOs acknowledged by the state. After reunification Eastern CSO sector developed quickly
Social contracting Exemplary Subsidiarity as central principle means nonprofit providers are preferred over Interaction with the state
public ones. CSO sector has two main parts: quasi-governmental service pro- viders and more grassroots civic asso- ciations
Alternative financing No significant model identified
Private giving through institu- Exemplary Foundation reform movement in 1990’s; tionalized mechanism since then real boom in private founda- tions due to new generation of donors
Private-corporate giving Supportive Corporate social responsibility a long- lasting debate in Germany. Pressure from consumer groups for better prac- tices Interaction with the private sector
Individual giving Supportive Germany is in the middle of European country rankings for level of giving com- pared to GDP (0.22%). Church tax indi- cates a larger interest in supporting good causes but expectation is for the state to finance welfare expenses from taxes
Income generation Supportive Economic activities are a tradition in German third sector; including coopera- Earned income
tives, housing and banking associations. Membership fees are an important source of income as well International Practices on Funding Civil Society Organizations 165
Country specific elements Role of CSOs Examples/Best Practices Observations
High level of government sup- Recipients and part- Ability to maintain organi- Government invested in port represents over 60% of ners zational autonomy despite capacity development sector income; at the same government support of CSOs. CSO indepen- time, political and professional dence does not mean independence of CSOs main- there is no control of use of tained public funds
CSOs organized in 6 federa- Service providers, Normative funding fi- Elements of the model tions that represent interests partners, and recipi- nanced by social security very specific to Germany vis-à-vis government. Services ents of subsidies system complemented but principles are impor- financed by social security with subsidies to cover full tant. Such model needs payments and subsidies costs of CSOs well prepared CSOs with professional capacities
Very favorable tax deduction Recipients of founda- Tax deduction scheme Legitimate wealth genera- scheme introduced in 2007 tion grants. provides real incentives. tion and well defined pub- that led to over 1,000 new Political foundations as a lic benefit purposes are foundations being established way to separate politically important for the transpar- every year. Many types of foun- oriented CSOs from oth- ency of the system dations, including political ers
Many forms of corporate phi- Recipients of sup- Important role of large Enabling environment for lanthropy but only recently port. corporate foundations in both large and small com- started strategic programs. funding research and in- panies, supporting role of 2007 tax reform also affected novation SME in local development companies in a positive way but impact is not visible due to crisis
Decreasing trend of donations. Recipients and inter- Simplified and harmo- Countries with higher per- Cross border donations are mediaries delivering nized tax rules for deduc- sonal taxation show lower also tax deductible, if there is a assistance tions on donations adopt- level of giving in relation to “potential benefit” for the Ger- ed in 2007 GDP man people. Few large fund- raising CSOs collect major part of giving income of the sector
CSOs can undertake tax ex- Initiator-service pro- Tax regulation of eco- This model enables CSOs empt mission related economic vider nomic activities related to to generate substantial activities, if they receive the a clearly defined public income from economic public benefit status. This is benefit status activities while preventing well-defined and regulated in abuse detail 166 International Practices on Funding Civil Society Organizations
One thing that all NGOs share is that they have no state authority and conversely that the state has no direct influence over them. Nevertheless, or perhaps precisely for this reason, the work of NGOs is very well accepted the world over, among the population and the media. This gives many NGOs better access to people than state bodies. In many places they can create a special relationship of trust. This has often proved to have created a very solid foundation for staying in contact and in dialogue at critical junctures, especially in politically sensitive situations, even in countries in which cooperation with the government is difficult or impossible for political reasons.”78 The development of the German nonprofit sector has also been influenced by the reunification of West and East Germany that took place in 1990 and the subsequent evolution of a nonprofit sector in East Germany. The Global Civil Society Report says in this regard: “In contrast to the experience of other transition countries in Central Europe, however, the emerging East German nonprofit sector largely adopted existing West German patterns and is by now virtually indistinguishable from its West German counterpart in size, structure, and composition”79.
Country specific elements What is intriguing in the relationship between government and CSOs in Germany is the dual presence of financial support and a relative high degree of political independence (autonomy). In general, the government takes it as an obligation to support nonprofit organizations that fulfill an important social role and help realize government policies (e.g. in social services provision, environmental protection or international development). Yet at the same time there is an inherent understanding that CSOs have their own autonomy and that it is not proper for the state to dictate the direction of their development. This progressive attitude is rooted in the long-standing principles that have influenced legislation and that also govern the everyday lives of German people. Besides the subsidiarity principle as most relevant for the nonprofit sector and described below, these include also the principle of self-administration (self-governance) and community economic self-organization (Gemeinwirtschaft)80. The former dates back to the 19th century and the absolutist state that realized that it has to provide space for its citizenry to organize themselves, if it wants to hold the federal power. Since then, there is the duality of a strong centralized federal state that has the final say in the “big politics” and the bottom-up organization of citizens to govern their everyday lives. Communal economics gave rise to the cooperative movement and mutual associations in the banking and housing industries, another important pillar in the diverse third sector in Germany illustrating autonomous self-organized entities.
In the light of the above, the government provides budgetary support to a range of CSO activities at all levels, primarily at the state and local level. There are a few policy areas, such as the youth, environment or international development, where federal support is also available. In these cases it is common to have project grants but also long-term strategic partnership agreements between the competent Ministry (or federal agency) and the CSOs. At the local level, grants and direct budget support are typical ways to support CSOs81.
78 Web site of the Ministry of Foreign Affairs http://www.bmz.de/en/what_we_do/approaches/bilateral_ development_cooperation/players/ngos/index.html 79 Germany: Unification and Change. In: Global Civil Society, p. 99 http://www.ccss.jhu.edu/pdfs/CNP/CNP_ GCS1_Germany.PDF 80 Id. p. 105 81 The JHU Global Civil Society Report also notes that only about one third of the CSOs reported that state funding is dominant in their income to the extent that they are dependent on the state. This signals, that while state funding is dominant in the total revenues of the sector (above 60%), it probably concentrates with the large service providing organizations and the majority of CSOs have their income from membership fees and sales of their products and services. International Practices on Funding Civil Society Organizations 167
It has to be noted that with the growing economic restraints, originating not only in the recent economic crisis but also in the deeper crisis of the big-spending welfare state, the wide range and volume of CSO support have been shrinking. The tendency is inevitable, but the German government has been inventive in ensuring alternative ways of support for the CSOs that it considers to be crucial also in fighting the consequences of the economic crisis, namely to encourage private philanthropy (see Private institutional funding).
Role of CSOs CSOs are essentially recipients of the funding but also seen as partner actors in the social and economic development of the communities.
Examples, best practices The combination of state funding and respect of organizational autonomy is an important good practice that is hard to find in Central and Eastern Europe. Although the situation is not ideal even in Germany, it would be important to adopt the understanding that the state is funding these private entities because of what they do and not because of what the state intends to do. This can be done because as long as the goals are the same (e.g., assist the needy, develop the poor communities), it can be assumed that the local CSO will know the needs and possibilities better and it can devise better solutions. Over the past 60 years (since World War 2) this has been proved in the German practice.
Observations Germany features a dominantly state financed CSO sector with good measures of success and value added. Due to the long-standing, historic principles that govern the relationship between the state and CSOs, it would be hard to “copy” this model in CEE. However, the Ukrainian government could start cultivating such principles in its funding mechanisms as they are of key importance for the development of a healthy civil society. It is important to note that the lack of government’s political and professional influence does not mean that there is no control over the use of public funds; or in case of service provision, over the quality of service. There are rules of the Treasury by which the CSOs have to abide; and the funding has to be transparent from the side of the government as well. CSOs have had to develop a certain level of institutional capacity to be able to take advantage of this system. The majority of over half million associations does not receive government funding (at least not from the central level), but it is important to have a large enough pool of capable CSOs that can be eligible for the funding. The German government, and similarly the Hungarian and Croatian government realized that they need to invest also into the capacity development of CSOs.
Social contracting Historical-cultural context Historically the most important principle in German social contracting is that of “subsidiarity”. This principle is rooted in the agreement between the Catholic Church and the State and goes back to more than a century. It gives preference to community based private provision of the basic welfare services over those provided by the government. Essentially, the provider has to be as close to the need as possible; therefore the municipality will only start a service, if there is no local CSO that would undertake it, and the state and federal governments will also intervene only if the lower level cannot take care of the service (this can happen e.g. in the case of a rare disease, when there are not enough clients in the territory of the local government to start a service). As a result, in fields such as health and social services, extensive partnership arrangements emerged between the nonprofit sector and the state. However, this also resulted in the 168 International Practices on Funding Civil Society Organizations
“duality” of the German nonprofit sector. One part of it, oriented at culture, community life, environment, youth is very much “civic”, its main income is from membership fees and service fees and it builds on community support engagement. The other part of it is providing social and health services financed by the state and forms an integral part of the welfare state; those CSOs are highly professional, institutionalized and receive direct budget subsidies and ongoing financing from the social security system (third party payments). They are indeed to some extent considered part of the public sector and perceived as less “civic”. While it cannot be said that the whole nonprofit sector in Germany depends on state funding, this is certainly true for this part of it.
Country specific Germany has incorporated the principle of subsidiarity in its constitution. The principle of subsidiarity is defined in the following terms: “Subsidiarity means that the larger social unit (the state) should assist the smaller unit (the family) only if the smaller unit can no longer rely on its own resources. In terms of social policy, it basically translates into a system whereby private provision of services takes precedence over public efforts and local provision over non local”. In this connection, the Federal Social Assistance Act states in its article 93 that government agencies are forbidden to establish their own service providers, if suitable associations are available, or can be extended or provided. According to the German Social Security Code, the public bodies are obliged to complement effectively by co-operating with the non-public bodies. Also, the local authorities have to respect the independence of these bodies concerning the setting of objectives, carrying out the tasks and arrangement of their organizational structure. However, the local authorities have the right to examine the appropriate use of public means employed by the latter. Accordingly, a majority of CSOs are working in the fields of service provision, mainly social services (38.8% of CSOs), health (30.6%) and education (11.7%)82. Service providing CSOs are organized in a very specific way in Germany: they have convened into six major CSO federations which act as “CSO-unions”, representing the interests of their members. (Five of these are related to the major church denominations, while the sixth one brings together all the secular organizations.) These confederations negotiate with the government on an annual basis about the allocations to the service providing CSOs. Part of the funding is prescribed by law under strict criteria (e.g. the amount that is paid per capita for the service or the minimum quality standards of the service); but part of it is negotiable based on various factors, such as the annual inflation rate or the need for infrastructural investments (renovations, extensions of buildings, etc). The government then transfers the total amounts of the direct subsidies to the federations and they forward the funding to their members.
CSO role In this scheme, CSOs are most of all service providers who are partners to the state; also recipients of the subsidy funding.
Examples, best practices That non-profit provision of welfare and social services is preferred over the public one is a good practice; however, it needs a well-prepared CSO sector that is able to undertake the responsibility for the services. A good practice element is also that – unlike in Hungary – per capita third party payments are complemented by subsidies that help sustain and develop the CSO as an organization – otherwise 82 1995 data; source: Annette Zimmer Ed., The Third Sector in Germany, Münsteraner Diskussionspapiere zum Nonprofit-Sektor, Sonderband 3 –Arbeitsstelle Aktive Bürgerschaft at the Institute for Political Science, Westphalian Wilhelms-University of Münster, 2000), accessed on http://www.vita.it/guide/view/50/91455 International Practices on Funding Civil Society Organizations 169
the quality of its service provision would suffer. Therefore it shows a model for the “normative” system, in which CSOs are not discriminated but actually preferred.
Observations Clearly this model is very specific to Germany. CSOs in this model are an integral part of the state welfare provision; this also generates some problems, e.g. that CSOs become almost like state providers and can over time loose their competitive edge (in contrast to the UK model, where there is no legally binding preference toward the CSO providers). The “unionization” of CSOs is also a unique model in Europe and is clearly due to the need for a strong lobby power vis-à-vis the state for the third sector, which receives the majority of its income from the government. Germany has a strong tradition of self-organizing and asserting the rights of private entities against the government, therefore it can be successful there. This may not be the case in some CEE countries, where the unions are usually co-opted by the reigning governments.
Private institutional funding Historical-cultural context Foundations have long tradition dating back to the 19th century83. Yet, until the 1990’s, the legal and fiscal environment for foundations did not receive much public attention. It was only in the 1990’s when, due to the initiative of a few leading German private foundations such as the Bertelsmann Stiftung, a reform movement started to unfold and the foundation sector started to boom. This also had to do with a generational change: in the past two decades WW2 survivors have passed away and left considerable wealth to their children, who themselves have had accumulated enough assets not to need their parents legacies for making a living. Therefore this new generation of wealthy people has started to look for opportunities to devote at least some part of the assets to a good cause. Unlike their parents, they are not so concerned that their children will need all the wealth they accumulated during their lives, and are more willing to make an endowment in their lifetime. The tendency of increasing private wealth has continued until today. According to the Bertelsmann Stiftung, there are approx. 200 billion EUR passing to next generations every year84. There are several types of foundations in Germany, both private benefit and public benefit foundations are typical. In addition, a new movement of community foundations has evolved (there are today approx. 230 community foundations in Germany which were unknown before 1996)85. Germany also has so-called political foundations86, which are each affiliated with a political party along distinct ideological lines. They receive annual budget support from the related political parties to educate the voters about their political programs. These foundations are also involved abroad, working with affiliated parties, trade unions and CSOs.
Country specific As mentioned above, over the past decade there has been a real boom in foundations in Germany. In 1996 there were 441 foundations established, while today there are 1,000-1,100, or more new private foundations registered per year87, increasing the number of foundations to 16,406 in 2008. (Most of them were established in the cities of the former West Germany.)88 There are several reasons for this boom, one being the increase in private wealth and the new generation of high-net-worth individuals; a second being the role of leading German foundations
83 CIVICUS, http://www.civicus.org/media/CSI_Germany_Country_Report_English.pdf 84 http://www.bertelsmann-stiftung.de/bst/de/media/xcms_bst_dms_27508_27509_2.pdf 85 Id. 86 Interestingly, in terms of their legal form, these are actually associations. 87 http://www.bertelsmann-stiftung.de/bst/de/media/xcms_bst_dms_27508_27509_2.pdf 88 http://www.vita.it/guide/view/50/91455 170 International Practices on Funding Civil Society Organizations
in promoting a new model for foundations; and a third reason being the supportive tax deduction scheme that was introduced in the late nineties. Concretely, an individual donor can deduct up to €1,000,000 for a donation to the endowment of a foundation with qualifying purposes. (This means essentially public benefit purposes as defined by the German tax law.) The deduction can be taken in the year of donation and/or divided over the following nine years. This has proven to be a serious incentive for many wealthy people who were seeking the most economically efficient “investment” of their assets. The reason for the government to introduce such changes in the tax laws has been the realization of the inevitable fiscal difficulties faced by the welfare state, and that the tendency of budget restrictions will last for a long time. This meant that a gap was being created between the demand from society in welfare provision – including among others the gap in financing CSOs – and the possibilities of the state to meet the demand. Seeing the accumulated wealth among individuals (and to some extent, corporations), the government aimed to incentivize private philanthropy to address the needs that would remain unmet. Therefore, foundations and their active philanthropic engagement with society have gained political importance.
Role of CSO CSOs are seen as recipients of foundation support; but also effective conduits of delivering the services to the needy with the funds of the foundations, i.e. partners and service providers on behalf of the foundation.
Best practices, examples Motivating individuals to convert private wealth into a funding mechanism for public purposes is a good example. It is important to note that Germany resembles the CEE region in the public expectations towards welfare service provision, and that by financing the services, the state ultimately takes the responsibility for providing accessible and affordable social services, health and education for everyone – even if the services are actually delivered by private providers. The private foundation model in Germany is a strategic way to ensure that the services are delivered even when the state does not have the resources to provide them as broadly as earlier. It is also a good practice that the law makes no difference, if the person establishes its own new foundation or if the person donates to an existing one – as long as the funds go towards an endowment, i.e. they ensure the long-term financing of the given purpose. The ability of the person to distribute the deduction over ten years also contributes to the long-term thinking and shows that the legislator has thought with the perspective of the donor in mind. Finally, the idea of separate political foundations is also an interesting one (it has already been adopted in Hungary too), as it is one way to “channel” the political interests into a legally controllable mechanism. If such category of foundations exists, the other foundations and other CSOs can be required to refrain from party-related political activity, especially if they are receiving tax privileges (e.g., public benefit status).
Observations This is a win-win model for encouraging private philanthropy. However, it has two components that are specific to Germany (or rather, Western Europe): the origin of private wealth is legitimate and can be tracked down, which may be an issue in the case of CEE countries, including Ukraine; and second, the public benefit purposes that are eligible for the tax exemption are well defined in German legislation (tax laws and case law). In case of such a serious tax incentive, the government has to make sure that both the origins and the destinations of these funds will be legitimate and justifiably eligible for tax exemption. International Practices on Funding Civil Society Organizations 171
Private corporate funding Historical-cultural context The issue of corporate social responsibility (CSR) and corporate citizenship had been a long- lasting debate in Germany, which was reinvigorated in the late 1990’s due to the new “wave” of CSR globally. Consumer pressure on companies to behave responsibly is certainly bigger than in the examined countries in CEE, and that plays an important role in the development of corporate responsibility as well as corporate giving. Companies in Germany have different attitudes towards CSOs depending on their field of activity. E.g. CSOs active in culture and sports have always enjoyed sponsorship and other support from corporations; while consumer groups and environmental organizations have been more challenging towards them and thus, less supported (often they do not even accept funding from corporations). Local and regional companies often play an important role in the communities as employers as well as promoters of community development. Overall it can be said that the relationship between the corporate and CSO sector is a balanced one, where different players have different interests but they can negotiate around their interests in a constructive way89. More recently, companies find it more and more important to have a positive image in the media, and are organizing in various forms to promote social responsibility among their peers. In addition, they have started to become more involved in the promotion and support of the nonprofit sector as such, e.g. KPMG has been organizing a CSO transparency award for the past few years, while other companies are involved in supporting CSOs to become more professional in their management practices90.
Country-specific Companies are involved in philanthropic activities in many ways, from giving community grants or giving in-kind donations to company volunteering programs and secondment arrangements; as well as establishing corporate foundations. Large corporate foundations (Bosch, Siemens, Bertelsmann and others) play an important societal role by financing research and development, social innovation and supporting difficult causes. Company giving in Germany is most often of a classical charitable character, i.e. it is not directly linked to business interests. At the same time a cross-sector panel evaluating the role of corporate involvement in the Civicus project concluded that “companies are engaged in corporate citizenship, but their engagement is not comprehensive or reliable enough to make a lasting contribution towards solving social problems”91. This conclusion is probably due to the relatively low overall level of funding represented by the corporate sector in the incomes of CSOs. According to the JHU data, only 3% of the sector income is derived from philanthropy, individual and corporate support combined92. More recent data from 2007 show that in that year, 29.1% of the firms donated up to 5,000 €, whereas 30.5% of the firms donated from 10,000 to 50,000 €. The small- and medium-sized enterprises mostly donate up to 50,000 € (86.3% of the small firms and 65.7% of the medium firms fall in the first three donation categories); 42.1% of the bigger firms, instead, donates from 50,000 to over 100,000 € (2005 data)93.
89 Based on Civicus Index Germany Country Report p. 37-38. http://www.civicus.org/media/CSI_Germany_ Country_Report_English.pdf 90 Guidestar Europe Germany report, 2008. 91 Civicus Index Germany Country Report p. 38 http://www.civicus.org/media/CSI_Germany_Country_Report_English.pdf 92 Germany: Unification and Change. In: Global Civil Society, p. 109 http://www.ccss.jhu.edu/pdfs/CNP/CNP_GCS1_Germany.PDF 93 2007 Report Citizenship in Germany and a Transatlantic Comparison with the USA – Results of a CCCD Survey by the Centrum für Corporate Citizenship Deutschland (Centre for Corporate Citizenship Germany, CCCD), http://www. vita.it/guide/view/50/91460 172 International Practices on Funding Civil Society Organizations
However, in 2007 there has been a major tax reform, with the aim to encourage private involvement in addressing social problems. In this regard, cash, assets and any other economic goods except rights of usage and claims for specific performances can be deducted; and a tax deduction is possible up to 20% of yearly taxable income (or 0.4% of the sum of the turnover and salaries). Donations exceeding the deductible limit may be carried forward to subsequent fiscal years. Since we have found no data from the past two years regarding corporate giving, it is not clear what the effect of these changes have been in corporate philanthropy. (However, considering also that it has been the period of the economic crisis, it would be hard to measure the effect of legislation separate from the general economic decline.)
Role of CSO: CSOs are mostly recipients of corporate support.
Best practices: Transparent, exemplary operation in case of the largest, most visible corporate foundations that play an important role in promoting philanthropy and social and economic development in general. The model whereby 0.4% of the turnover and salaries paid can be deducted from the tax dues as an alternative to deductions of the tax base is important, as it provides an opportunity for companies that do not report a profit in any given year to still enjoy a benefit related to their donation (since it can be carried over to the next years).
Observations German companies in CEE countries do not have a socially responsible image, especially compared with UK and US companies. This can be a sign that the domestic context in which there is a high consumer pressure for socially responsible performance makes a big difference. It has to be noted that company giving abroad will not generally be subject to the same tax deduction as domestic giving, unless the donor can justify that the gift has been made to an entity pursuing public benefit and that the purposes supported abroad possibly have a positive impact for Germany. Thus, German companies are not encouraged to establish large giving programs benefiting the local environment (unless perhaps they can argue that it enhances the general image of Germany in that country). Another observation is that the general tax environment as well as tax incentives for giving benefit large and small companies in the same way. This is important, as small companies are key actors in supporting local development.
Individual giving Historical-cultural context Being an European welfare state, individual charitable giving is not as widespread in Germany as in Anglo-Saxon countries such as the UK or the US; however, the% of giving represents a higher level of GDP than in other continental European countries, e.g. France. Data from the Charities Aid Foundation (CAF) in 2006 show that the national giving level represents 0.22% of GDP in Germany, compared to 0.14% in France on the one hand, and on the other hand, 0.45% in the Netherlands, 0.73% in the UK and 1.67% in the US (largest% globally). It is interesting to note also that there was a significant difference between the two parts of Germany: giving in former East Germany represented only 0.12%, while giving in former Western Germany was at 0.26% of the GDP94.
94 International comparisons of charitable giving, CAF Briefing Paper, November 2006 http://www.cafonline.org/ pdf/International%20%20Giving%20highlights.pdf International Practices on Funding Civil Society Organizations 173
Another study revealed that about 35% of the physical taxpayers have declared a donation in their income tax returns between 2001-2003. This indicates a relatively high level of engagement from the population compared to the fact that they contributed only a small percent of the income of the nonprofit sector95. In Germany there is also a church tax, which is a voluntary contribution with an opt-out system (in other words, taxpayers are assumed to pay it unless they refuse to do so). According to the CAF research, if this has been included, Germany would have been among the top countries in the levels of giving in proportion to GDP. This shows that there is a traditional basic commitment among German people to contribute to the “greater good”; however, the expectation is in general that the government should be for the welfare services from the taxes paid. Actually, the CAF study concludes that there is a correlation in the EU countries between the level of personal taxation, particularly social insurance, and the level of giving: countries with higher personal taxes show a lower level of giving in relation to GDP and vice versa (Germany obviously belonging to the first category).
Country specific elements Based on the available research data, it can be seen that there is decreasing trend in the total amount of donations to nonprofit organizations since 2005. While one report estimates 4.4 billion € donated to nonprofit organizations in 200596, the data for 2008 shows only 2.8 billion € that have been donated to third sector entities in Germany, by approximately 27 million people over 14-years old. The average donation amounts to 102 €, and women are somewhat more generous than men (44% of women donates, against 40% of men). Moreover, differences between West and East Germany exist: 43% of the population makes a donation in West Germany against 37% in East Germany. Age groups that are more willing to donate are the seniors and the 50/64-years old people, with respectively 61% and 45% of donors97. Unfortunately there is no reliable data available to compare the levels and structure of giving before and after adopting the new tax legislation in 2007, which harmonized and increased the tax benefits available for physical persons donating to public benefit purposes. Under this law, as described in the section on Corporate Funding, up to 20% of the annual taxable income is deductible for a qualifying donation, while exceeding amounts can be carried forward to future tax years without limitation. Furthermore, following the recent call by the European Commission that Germany brings its legislation in line with EC Treaty principles regarding the tax benefits, as of January 1, 2009, donations to nonprofit organizations residing in other countries can also be eligible for the tax deduction, if they pursue public benefit purposes and if the donor can justify that the donation has the potential to benefit the German people. (Actually, the EC has challenged this latter provision and it is now under consideration for amendments.) It has to be said also that there are only a few hundred CSOs in Germany that are large professional fundraising organizations, and those collect the major part of fundraising (giving) revenues of the sector98. Most CSOs know rather how to apply for state funding and have the same kind of capacity problems in public fundraising as their peers in CEE. This is another reason why the shift to increase available funding from philanthropic foundations can be an effective step (as these foundations also run project grant competitions which resemble fundraising from the state). 95 Borgloh, Sarah: What drives giving in welfare states? ZEW Discussion Paper #08-123 http://econstor.eu/ bitstream/10419/27606/1/dp08123.pdf 96 Household budget survey, 2005 http://www.ernop.eu/country/3/germany.html#Data 97 Report 14 Jahre Deutscher Spendenmonitor – Fakten und Trends im Zeitverlauf by the TNS Infratest Holding GmbH & Co. KG (2008; data from October 2007 to October 2008) http://www.vita.it/guide/view/50/91460 98 DZI, the main German fundraising certification body certified 236 organizations in 2008, which have together collected 1.4 billion Euros, out of an estimated 2.45 billion (in other estimates, 2.8 billion) Euros in that year. http://www. ernop.eu/country/3/germany.html#Data 174 International Practices on Funding Civil Society Organizations
Role of CSO CSOs are recipients and intermediaries in delivering the assistance to the needy.
Best practices, examples Even though it is too early to see the longer term impact, the 2007 tax laws represent good practice in that they provided a unified definition of the qualifying organizations (earlier there were different levels of benefit available for CSO pursuing different public benefit purposes); and that they provided a cross-cutting rule on the tax deductions (earlier there were different limits of deduction depending on the purpose as well as the taxpayer – physical or legal person). In other words, these provisions represent a simplification and an increase in the incentive for making philanthropic donations by individuals.
Observations Germany is an example of a country where there is a historic commitment to give to the church and public purposes, but where the taxpayers expect the state to pay for the welfare services from the taxes. Yet, through tax incentives this pattern could be slightly shifted (although results show thus far primarily in the field of foundations philanthropy and not yet in direct giving).
Income generation Historic-cultural context Income generation and engaging in economic activities has never been alien to the German third sector. In fact, cooperatives, housing and other mutual associations form an important part of the third sector both at the local level and as national federations. (See the reference to the principle of Gemeinwirtschaft in the section on Government funding.) More generally, revenues from economic activities, including membership fees, provide for more than a third of CSO sector income. Unlike in the countries of CEE, membership fees are an important income source for CSOs. According to the Household Budget survey, 6.7 billion Euros were spent on membership fees in 200599; 1.5 times the amount as on donations (and twice as much compared to later years). Also, it is generally accepted that CSOs are sustained based on their earned income and so customers are willing to pay for CSO services (these are usually services offered beyond the basic services that the state sponsors). While economic activities are permitted and CSOs generally undertake them, they are also taxed unless they comply with a strict system of rules that is required by the tax-exempt status. The criteria for this status and for the accompanying income tax exemption have been developed over the years and while the 2007 reform gave it a simplified framework, it has retained the key elements of the system. In Germany it is the competent tax authority that determines the eligibility of the organization for the public benefit status. If this is granted, the organization is free to engage in economic activities furthering its public benefit purposes without paying income tax on the returns.
Country specific Here we are including the provisions relating to the public benefit status and the related tax exemptions as an example that we believe is a good practice for regulating income tax exemptions for economic activities100.
99 http://www.ernop.eu/country/3/germany.html#Data 100 This section is taken from the USIG country report on Germany, with slight modifications only. http://www.usig. org/countryinfo/germany.asp#exemptions International Practices on Funding Civil Society Organizations 175
The Fiscal Code (Abgabenordnung/AO) defines three types of purposes as being tax- privileged: • According to it, the organization pursues public benefit purposes (gemeinn tzige Zwecke), if “its activities aim to support the general public materially, intellectually, or morally”. The beneficiaries must not be limited to a closed circle of people, such as members of one family or employees of one corporation. The law also lists a series of purposes that are regarded as supporting the general public, if the above requirements are met. The list, which is exclusive since 2007, includes the following categories: science and research, education, arts and culture, religion, international understanding, development aid, preservation of the environment and cultural heritage, support of youth or the aged, public health, amateur sports (including chess), support of democracy, care of soldiers and reservists, and the support of civic engagement. There are also additional explanations provided in the regulations to help interpret these categories. • An organization pursues charitable or benevolent purposes (mildtätige Zwecke), if it aims to support and help people in need either because of their economic situation or because of their physical, psychological, or mental situation. • Church-related purposes (kirchliche Zwecke) include the support of public law religious communities, construction of houses of worship, spiritual development, and religious education. In addition, the AO requires that an organization receiving tax benefits must carry out its tax-privileged (public benefit, charitable, or church-related) purposes exclusively, directly, and unselfishly. The organization should pursue its activities by itself (directly), which can also be through “Hilfspersonen” (auxiliary persons), through which the organization is acting (employees, free-lancers, other legal persons), e.g., by contracting or assignment. Just to lease premises or personnel to tax privileged organizations would not be considered to be directly pursuing tax-privileged purposes. Tax-privileged entities must use their income before the end of the year following the year during which the income was received. If compliant with the above purposes, the CSO may receive tax privileges regarding its economic activities. If the activity is necessary to pursue the organization’s statutory purpose and it does not compete with for-profit organizations more than necessary, profits are not taxed and VAT is reduced to 7% (so-called “Zweckbetrieb”, according to Article 65 AO). Commercial activities which are not necessary to pursue the statutory purposes of the NPO are taxed at ordinary rates, if the annual gross income of non-statutory commercial activities exceeds € 35,000 (Article 64, AO).
Role of CSO CSOs are producers and sellers of goods and services, as well as service providers for their members.
Examples best practices The tax regulation related to the public benefit status is a good practice as it ensures transparency and accountability, and yet it allows CSOs to engage freely in economic activities that help ensure their sustainability. 176 International Practices on Funding Civil Society Organizations
IV.4. UNITED KINGDOM
Basic data on the UK nonprofit sector There are 180,918 charities in England and Wales101. Government funding of CSOs was around £12.8 billion in 2007/08 and it accounts to over one third of all income to the sector. Around 40,000 organizations have a financial relationship with the public sector, but over 75% of CSOs do not have direct financial relationship with the state102. Most of the funding from state sources is distributed to organizations working in social service fields. As part of the state funding, an important source of income is the proceeds from lottery. 28% of lottery proceeds are distributed to good causes in the categories of: charities, health, education and environment (50%); sports (16.67%); arts (16.67%); and heritage (16.67%). So far £25bn has been distributed to over 350,000 projects103. The largest distributor of lottery proceeds is the Big Lottery Fund.
Funding mechanisms Historic-cultural context The UK is a common-law country with traditions and legal mechanisms that are very different from those of countries in the continental Europe. At the same time, it has many specific solutions, examples that can be well adopted in European and CEE countries as well. Yet, here we would like to set as the main example not one or another concrete tool or mechanism but the overall approach that the UK demonstrated in its effort to involve civil society (in the UK, the voluntary sector) in the provision of welfare services. The UK has a robust voluntary sector with charity regulation dating back to 1601. Charities seen as trusted good-doers of publicly raised funding; while all voluntary organizations are seen as core to society. Unlike in Germany, in the UK private nonprofit entities did not develop to be an integral part of state service provision. However, they developed their own services from philanthropic resources and demonstrated impressive results with the communities they served. During the time of financial constraints and in line with the general policy of streamlining the welfare state, in the mid-nineties the labor government set out to develop a new overarching policy to capitalize on the potential of the voluntary sector. The result was the so-called Compact, a principle document which defined the tasks, rights and obligations on both sides (government and voluntary sector), and which served as the basis for a long-term strategic effort to maximize the benefits not only for the government and CSOs, but most of all, for the population. The Compact meant an increasing role for both charities and the voluntary sector in delivering public services. It also meant increased support for and investment in building capacity of CSOs. The Compact was followed by several related policy documents, guidance and regulatory measures, all based on solid data and impact assessments. Today, the new government has somewhat different ideas about the role of and relationship with CSOs; however, it builds on the results of the process thus far and considers the outcomes – both negative and positive – in setting new policies. 101 http://www.charity-commission.gov.uk/showcharity/registerofcharities/registerhomepage.aspx (data as of December 1, 2010) However, charities are not the only form of CSOs. They constitute about a half of around 865,000 CSOs in the UK. European Commission, “Recent Public and Self-Regulatory Initiatives Enhancing NPO Transparency and Accountability of Non-profit Organizations in the European Union”, developed by ECNL, 2009, www.ecnl.org 102 NCVO, Funding Commission, Paper 4 – Public Sector Funding – Findings and Emerging Recommendations, 2010, www.ncvo-vol.org.uk 103 www.lotterygoodcauses.org.uk/lottery-grants/lottery-grant-faq/ International Practices on Funding Civil Society Organizations 177
Country-specific elements The Compact provides a strategic framework for CSO support. The cooperation is institutionalized through the recently reformed Office for Civil Society in the Cabinet Office, which is active in the field of support for the sector through cooperation and funding, social enterprise, charity law and regulation of volunteering and giving and the sector’s role in public services. Central government funding is often channeled through other bodies, such as the regional government and regional development agencies, non-departmental public bodies and local National Health Services trusts104. Lottery proceeds provide significant funding to CSOs working in selected fields of activities. The past decade has witnessed countless initiatives both from the government, funding agencies and CSOs to improve funding practices. It supports web-based portals which aim to facilitate the implementation of the granting schemes and ease the access to information about funding opportunities (e.g., governmentfunding.org.uk, Decision Support Tool105 and fundingcentral.org.uk)106.
Role of CSOs CSOs are recipients of funding but they are seen as long-term partners by the governmental funders.
Examples, best practices The Compact is a unique mechanism for government-CSO partnership. While it cannot be expected to be replicated as such in other countries, we find it important to point to some of the key elements of the Compact process (including its implementation to date) as instructive for devising a strategy for cooperation with the CSO sector: • There needs to be a vision for the relationship, that clearly describes the role of CSOs vis- à-vis the central and local authorities, and provides clear benefits for both sides. • The government will need to invest into capacity building of CSOs in order to make them capable of playing an increased role in social development. Even though the CSO sector in the UK was many times more developed than in any other European country, the government still needed to propose capacity building programs across the country to help them fulfill their new functions. • There needs to be funding strategy supporting the overall development strategy, which enables the vision (see example written under “General Findings”). • There needs to be enough data and information available to make sound policy decisions – if such data are not available, the government needs to invest into producing them (during the past years, several UK government agencies engaged in measuring progress in the various aspects of implementation). • There needs to be an ongoing assessment of the process and openness to flexibly change
Observations The Compact itself is hard to “copy” in other contexts, but its principles can be followed: partnership, joint processes, clear rights and responsibilities, commitments on both sides. The current government is set to curb social expenditure and CSO funding but the strategic approach remains to guide policy (under the name of Big Society107).
104 NCVO, The State and the Voluntary Sector; Recent Trends in Government Funding and Public Service Delivery, 2009, www.ncvo-vol.org.uk 105 National Audit Office, A Decision Support Tool for Public Bodies in England, www.nao.org.uk/guidance_and_ good_practice/toolkits/better_funding.aspx 106 Hadzi-Miceva and Golubovic, 2011. 107 See http://www.cabinetoffice.gov.uk/content/big-society-overview 178 International Practices on Funding Civil Society Organizations
Legal/Fiscal Framework Historic/ cultural conditions
Funding mechanisms Supportive Robust voluntary sector with charity regu- lation dating back to 1601. CSOs seen as trusted good-doers of publicly raised funding; core to society. Blair “Compact” meant increasing their role in delivering public services; increased support for and investment in building capacity of CSOs
Social contracting Exemplary Long traditions of fair and open process for contracting out public services. CSOs, private sector and local government in- Interaction with the state
stitutions are treated as actors with equal chances in public bids
Alternative financing
Private giving through institu- Supportive Under common law, trusts have been tionalized mechanism playing the role of foundations. Charitable trusts are strictly regulated, trustees have personal liability for the assets
Private-corporate giving Supportive UK companies have been leading world- wide in good CSR practices. Good image is a real motivation in the UK market. Ac- Interaction with the private sector
countability is a key term for the private sector as much as for the public sector
Individual giving Supportive Highly developed philanthropic culture - donors give as part of the “routine” of ev- eryday life. Despite crisis, charitable giv- ing remained widespread
Income generation Exemplary “Primary purpose” trading income tax Earned income
free; trading income for fundraising and other “non-primary purpose” trading only allowed within limits International Practices on Funding Civil Society Organizations 179
Country specific elements Role of CSOs Examples/Best Observations Practices
Compact provides strategic Recipients and part- Good practice Compact hard to replicate but its framework. Big Lottery Fund and ners guidance given to principles can be followed. Cur- other funds support CSOs. De- funders. Regular rent government set to curb CSO centralized government offices, monitoring of im- funding but strategic approach authorities, and municipalities pact of funding remains to guide policy provide grants for local projects
Best value principle combines Service providers, Best value as Local municipality is encouraged high quality with reasonable cost partners guiding principle to contract out so doesn’t see in the evaluation of service ten- in contracting. CSOs as rivals - it has an inter- ders. High quality service provi- Full-cost recovery est in the good performance of sion by CSOs, strong user focus (funder paying for CSOs indirect costs of the service)
The UK trust/foundation sector Recipients of gifts by Increased ac- Strong, large and diverse trust/ spends as much as the govern- trusts countability in foundation sector was key in the ment and 10 times more than the safeguarding as- development of a strong and in- corporate sector to support char- sets with a public dependent voluntary sector itable purposes benefit purpose.
A wealth of CSR and philanthropy Strategic partners, Payroll giving; Shift away from corporate phi- good practices are being prac- service providers community invest- lanthropy towards a holistic view ticed by all types of enterprises – and recipients of ment tax benefit of socially and environmentally from small to multinationals support responsible business
Gift-aid: government matches Recipients and ve- Certain limited New government prefers tax donation by redirecting tax on the hicles to deliver do- benefits to donors incentives to direct funding of amount to the charity nor’s intentions in exchange for CSOs donations are al- lowed
Social enterprise movement has CSO acts as busi- Tax breaks for Highly enabling environment for been playing a big role in social ness but profit rein- primary purpose SMEs in general is key to the development vested trading success of the social enterprises 180 International Practices on Funding Civil Society Organizations
Social contracting Historical-cultural context In the UK there is a long tradition of fair and open procedures for contracting out public services for purposes of government efficiency. In principle, CSOs, the private (for-profit) sector and local government institutions are treated as actors with equal chances in public bids. Due to the boost in privatization during Thatcher, for-profit providers dominated the public services market for quite a long time. However, in the past 15 years, since the Compact was adopted, CSOs have been gaining a more prominent role in welfare service delivery, especially in the areas of housing, social services and education. This was assisted by capacity building programs of the Blair government aimed at voluntary organizations and charities, with the aim to become more professional to meet contracting requirements, and more sustainable to ensure long-term partnerships.
Country specific elements The leading principle in contracting out social services in the UK has been the so-called “Best Value” principle. This was an important principle that is nowadays used by most public service tenderers. Traditionally in procurement price used to be the leading factor of selection. However, it has to be recognized that in most public services, especially the above mentioned, welfare services price alone cannot drive the competition; that could lead to a serious decrease in the quality of the service. Ensuring a certain quality is key in the case of social services, education and similar fields. The “Best Value” principle combines high service quality with reasonable cost in the evaluation of service tenders108.
In the UK, there is some evidence that CSOs are providing generally higher quality services than other sectors, especially the government. The Audit Commission of the UK109 has published a Report in 2007110 which contains some hard data regarding comparisons of nonprofit (voluntary), for-profit (private) and governmental (public) service providers in the area of social services. The Report found that “voluntary sector providers meet a greater proportion of the national minimum standards than in-house [i.e. public] or private sector providers”. Data is retrieved from the Commission for Social Care Inspection. It analyses seven different types of social care services for children, younger adults and older people (mostly residential/institutional care services) over the period 2003-2006. In six types of services, the voluntary sector providers have consistently outperformed the other two sectors over the four years in terms of the levels of meeting national standards. Only in the service area of residential special schools have the private sector providers achieved a slightly higher rate of compliance than the voluntary sector111.
In addition, UK CSOs can bring additional resources for the municipalities. They are able to attract volunteers and also donations (to cover part of the costs or add additional value to the services provided). The above mentioned UK Report cites an example from Greater Nottingham, where a study found that for each 1 GBP the local council invested in the form of grant funding to local voluntary organizations, the voluntary sector was able to lever in approximately another
108 Although it has by now been replaced with a newer, more complex performance measurement method, the Best Value remains a key principle for contracting out. See http://www.idea.gov.uk/idk/core/page.do?pageId=5184420 109 The Audit Commission is an independent body responsible for ensuring that public money is spent economically, efficiently and effectively, to achieve high-quality local services for the public. 110 Hearts and minds: commissioning from the voluntary sector. Audit Commission Public Services National Report, July 2007. 111 Id. pp 19-20. It should be noted that the Audit Commission also observes: “the data available do not permit a robust assessment of value for money. For example, they do not reveal the cost of achieving a higher proportion of minimum standards, nor whether reaching a higher proportion of minimum standards actually lead to a better quality service for end users” (Although the latter is an implicit assumption). International Practices on Funding Civil Society Organizations 181
6 GBP through mobilizing volunteers and community resources. In Newcastle, every 1 GBP given in grant aid brought in another 14 GBP from local voluntary organizations112.
Role of CSOs CSOs are seen as strategic partners in delivering social services, therefore the government has invested in their capacities to meet quality standards.
Examples, best practices Apart from the best value principle, there are two good practices to be mentioned: full cost-recovery and user-focus. Both came as a result of strategic advocacy processes led by the CSO sector. • Full cost recovery has been one of the Compact funding principles and means that government funders should finance not only direct costs of a service but also any indirect (overhead, administrative) costs associated with it that the CSOs incur as an organization. See more on this under Chapter III, General findings: The importance of a strategic approach. • User focus is a principle that has been championed by UK CSOs as an alternative to government services in the 1980’s, when service quality was largely measured by infrastructure (especially in institutional care) and evaluations by the caring professions (experts). CSOs argued that the most important factor is whether the users are satisfied with the service they receive; and that they should be involved in planning, designing and evaluating the services. The term «user» itself reflected a departure from the traditional term «client» or «patient», as it refers to the entitlement of the beneficiary to use the service rather than being subjected to it. As a result of a long advocacy process, by today user- focus is a mainstream principle in all government services and it lead to the redesign of the service models (including user-consultation, user-empowerment, user-led services and other similar methodologies in the development and management of services).
Observations In the UK, the local municipality is encouraged through the performance evaluation of the government to contract out. Therefore incentives for contracting (and thus, effectiveness and efficiency) are built in to counter the natural institutional interests of keeping the services in-house. Unlike in most CEE countries, municipalities do not see CSOs as rivals – they have an interest in the good performance of CSOs. At the same time, CSOs have high quality professional and infrastructural capacity which is not entirely dependent on the funder. These two factors account for a relatively successful model of social contracting.
Private institutionalized giving Historical-cultural context Under common law, there is no separate legal form for a foundation. However, there are foundations in the UK, which can assume different legal forms; most often this will be a trust. A trust is an entity created to hold and manage assets for the benefit of others. The trust must pursue a charitable purpose and is governed by trustees. Trusts have a long history in England. In fact, the protection of private property dedicated for public purposes was the original goal of charity regulation in the 17th century. Charitable trusts have been a key factor in the development of the voluntary sector as well as society as a whole. Many of them maintain hospitals, schools or museums. Others are essentially
112 Id. p 24. The two above sections were taken from Nilda Bullain and Luben Panov: Handbook on non-state social service delivery models, ECNL and UNDP, 2011 (under publication). 182 International Practices on Funding Civil Society Organizations
grant-giving foundations that give grants to voluntary organizations and charities to support public benefit causes. Others are so-called Community Investment Finance Institutions, which lend money to businesses, social enterprises and individuals who struggle to get finance from mainstream banks and loan companies. They help deprived communities by offering loans and support at an affordable rate to people who cannot access credit elsewhere. They can also be run by Government. A trust ordinarily is not a legal person. Under the Charities Act of 1993, however, the body of trustees can apply to the Charity Commission for a certificate of incorporation. An incorporated body of trustees is a legal person, but without the usual corporate limitation on liability; in other words, trustees are personally liable for the assets of the trust. Incorporation allows the trust to perform particular functions – hold property, enter into contracts, and sue and be sued – in its own name rather than in the names of trustees. Charitable trusts are regulated by the Charity Commission. Due to the strict regulatory environment and the fact that trustees have personal liability, trusts are a well established sector and enjoy the support of the public.
Country specific elements There are three main groups of charities that act as grant-makers in the UK113: • Charitable trusts and foundations. Independent charitable trusts and foundations in the UK act in a variety of ways to support the voluntary and community sector. Grant-making is the predominant activity for most foundations. The majority of foundations in the UK do not engage in any operational activities, i.e. the provision of services or other direct support to beneficiaries. • Community foundations. Community foundations are charitable trusts that support local community causes. Their role is to manage donor funds and build endowments as well as make grants to charities and community groups, linking local donors with local needs. • Other charities. Some large operating charities, or operating fundraising charities (that is those that do provide direct services), also carry out grant-making. This type of grant- making often supports a charity’s own programs and projects and/or provides specific funding for their field of interest (e.g., the British Heart Foundation and Oxfam).
The estimated total number of trusts and foundations in the UK is 8,800. The spending from trusts and grant-making charities is broadly comparable with central government spending (£2.5 billion) and nine times greater than the £ 0.3 billion of corporate cash donations114.
Role of CSOs CSOs are usually recipients of grants from the trusts.
Examples, best practices Increased accountability in safeguarding assets with a public benefit purpose is good practice. While the personal liability of the trustee is not feasible under continental law, it serves as an example for creating greater incentives for prudent directorship of the public benefit organization.
Observations The UK has a very strong, large and independent grant-making sector. Trusts are extremely diverse – not only in the scale and number of grants made and the type of trust – but in their
113 Grant-making by UK trusts and charities, ACF and CAF, January 2007 http://www.acf.org.uk/uploadedFiles/ Publications_and_resources/Publications/0416B_TrustAndFoundationBriefingPaper.pdf 114 Id. International Practices on Funding Civil Society Organizations 183
age, their style of grant-making and in the areas they support115. This sector is a key reason why UK CSOs are able to develop institutionally and yet remain independent and thus become equal partners to the government.
Private corporate giving Historical-cultural context The concept of corporate social responsibility (CSR) goes back centuries in the UK, to the Victorian era and industrialization when the success of factory businesses across the country brought about masses of urbanized factory workers living in overcrowded slums. One of the earliest mentions of an “industrialist philanthropist” is the Quaker entrepreneur Cadbury, whose aim with a coffee and tea (and chocolate) factory was “a business with a conscience: Quakers believed in equality and social justice, and Cadbury hoped his products would prove an attractive alternative to alcohol, seen as the principle cause of poverty and deprivation among the working classes”116.
CSR got a new impetus in the early 1980’s when, as a result of a combined effect of Thatcherian privatization, global recession and the end of the manufacturing industry, Britain was faced with the unrest of socially excluded masses. A new movement among British businesses led to the formation of Business in the Community, a leading CSR membership organization until today. In 1985, the Prince of Wales became its president, and the following year, Thatcher attended the launch of the Per Cent Club, encouraging companies to donate at least half a per cent of pre-tax profits in cash or kind to Business in the Community and other projects.
“It’s worth noting, however, that this outpouring of generosity by business was driven as much by self-interest as philanthropy. (…) most of the big companies backing Business in the Community were cutting far more jobs than they were creating, and needed to show their remaining employees, trade unions and the communities (…) that they were doing something to help the victims. At another level, the prosperity of business was linked to the prosperity of society: right at the outset, David Sieff, a board member of Marks & Spencer and Business in the Community, remarked that the wealth of the high streets depended on the health of the backstreets, a catchphrase that was to become caring capitalism’s slogan.”117
In the mid-1990’s, came the new global push for social responsibility in protecting the environment and the future of the planet (an early representative of this trend has been the Body Shop). This trend over the past 15 years led to a shift in thinking about CSR among British (and multinational) companies from the focus on “caring” and charitable giving (corporate philanthropy) to a focus on their core business: to ensure that their supply, production and distribution lines, employee policies and operating practices are all “ethical” (respecting the environment, diversity, sustainability, etc.).
Country specific elements A wealth of CSR and corporate philanthropy good practices are being practiced by all types of enterprises – from small to multinationals. According to the data, corporate philanthropy has been on a decline in the past decade (in line with the shift in the focus of CSR mentioned above). Although total charitable giving by the 500 biggest companies has grown in real terms over the past few years, it has tumbled by more than half as a percentage of pre-tax profits, according to 115 http://www.acf.org.uk/trustsandfoundations/?id=74#Grant-making_by_Uk_Trusts_and_Charities_a_briefing 116 Tomkins, Richard: Shifts in corporate philanthropy, in: Financial Times, January 17, 2009. http://www.ft.com/ cms/s/2/3a0856c6-e1d5-11dd-afa0-0000779fd2ac.html#ixzz1ITRCUAKO 117 Id. 184 International Practices on Funding Civil Society Organizations
the Charities Aid Foundation – from 1.6 per cent in 2001/02 to just 0.7 per cent in 2005/06, the latest period for which figures are available. Indeed, the Per Cent Club closed in 2006118.
The majority of corporate community support comes from a small number of companies. The latest (7th) edition of The Guide to UK Company Giving, just published by the Directory of Social Change, reveals that of the 490 companies covered in the guide, a mere 50 accounted for over three-quarters of the total cash donations given in support of charitable causes. Of the £500 million donated in total in 2007/08, nearly 77% (£384 million) was accounted for by this small group119.
A specific feature to be mentioned is payroll giving. Although this is a benefit in the personal income tax, it should be mentioned under the title of corporate giving, as it needs the commitment from the company as an employer to make it available for its employees. Payroll giving means that for employees who sign up to the system the company will deduct and automatically transfer a specified amount of the employee’s salary to a charity of their choice. This gift is fully tax deductible, i.e. there is a 20-40% saving on the donation for the donor.
Payroll giving is growing in the UK: it has increased from £37 million in 1999/2000, to over £106 million in 2009/2010. But there is still room for further growth: only 4% of UK employees participate in payroll giving schemes (for comparison, in the US, the employee participation rate is nearly 35%). Research shows that companies which offer payroll giving believe it improves the company image, enhances community involvement programs, and supports employee volunteering. 96% of companies feel that payroll giving is something a good employer should offer; and nearly all said they would like to increase participation levels in their organizations120.
Role of CSOs CSOs are actively seeking funding from companies. However, over the past 15 years they have been increasingly undertaking other roles as well: partnering with companies on CSR programs (e.g. “cause-related marketing”121), giving advice and training to companies on CSR (e.g. on workplace diversity or “greening the office”), and holding companies accountable for their practices (advocacy campaigns). One of the reasons companies have adopted ethical practices in the UK has been the ability of CSOs to mobilize public opinion against them, if they failed to do so (e.g. organizing consumer boycotts).
Examples, best practices Incentivizing payroll giving (as a specific form of giving) is a good practice because it creates a joint incentive between employers, employees and charities. It encourages employees to organize and advocate for the introduction of this form of giving at their workplaces, and encourages companies to introduce it to improve their image. Often companies will match the amounts given by their employees which in turn can lead to a tax deduction for the company.
Observations The historic and cultural conditions for the development of corporate philanthropy are unmatched in continental Europe, not to mention the CEE region. However, globalization and the increasingly unified European markets mean that the good CSR practices are spreading to 118 Id. 119 http://www.companygiving.org.uk/page.aspx?SP=CG_News 120 http://www.payrollgiving.co.uk/index.php?getID=4&getTitle=Employer 121 This is when a company sells a product with the logo of a well-known CSO and transfers part of the proceeds to the CSO. International Practices on Funding Civil Society Organizations 185
this region as well. While corporate philanthropy and cash-based giving is on decline, there is plenty of room for CSOs to engage with companies and for the government to provide innovative incentives for philanthropy.
Individual giving Historical-cultural context The UK is one of the countries with the highest levels of philanthropic giving in Europe and worldwide. It ranks 8th on the World Giving Index, with only Ireland, Switzerland and the Netherlands ranking higher among European countries122. This is important in understanding the strength that the UK voluntary sector derives from having a strong supporter base independent from government support.
The Gift-Aid is a specific form of tax benefit provided upon charitable donations. It does not necessarily mean a tax advantage for the donor, however, the charity can receive the tax benefit123. If the donor claims Gift-Aid, the Treasury will match the donation with the proportionate amount of tax to be paid on the donation by transferring it to the charity. In essence, for every 1£ donated, the charity will receive an additional 25 pence from the Treasury. (In some ways it is similar to the percentage mechanism; however, unlike the percentage scheme, in this case the donor has to make a real gift to the charity.) The fact that giving remains high (between 54-58% of UK population give to charity every year), regardless of the fact that donors do not get a real tax benefit, illustrates the importance of the cultural rootedness of philanthropy.
Another element that is important to recognize is the strong charity regulation. Charities are registered and supervised by the Charity Commission, an independent regulatory body that is specialized in understanding, supporting and investigating charities. As a result of a long and consistent regulatory practice regarding charities, the public considers a charity as a reliable organization that is worth supporting. Therefore, the “charity” label became like a trademark that people can trust with their gifts.
Country specific elements The crisis years (2008-2009) saw a decreasing trend in donations but a slight increase was reported already in 2010. Key findings of the most recent report on UK giving include124:
• Charitable giving remains widespread. In 2009/10, 56% of adults living in households in the UK donated to charitable causes. The typical amounts given per donor per month in 2009/10 were £12, measured by the median, and £31 measured by the mean. Our best estimate of the total amount given to charity in 2009/10 by all such individuals is £10.6 billion, clearly a major contribution to the work of the voluntary sector. In addition, donations from individual legacies are estimated to provide at least a further £2 billion (the latest estimate, based on 2007/08 figures). • High-level donors have the greatest impact on the total amounts given. The share of total donations coming from high-level donors in the survey (those making donations
122 The World Giving Index 2010, Charities Aid Foundation http://www.cafonline.org/pdf/WorldGivingIndex 28092010Print.pdf 123 Only higher rate taxpayers can claim a tax benefit, which will be the difference between the lower rate tax (20%) and the rate they are paying (40 or 50%). Therefore, they will be able to claim 20 or 30% of the donation in a tax deduction. 124 UK Giving 2010. CAF and NCVO, December 2010 http://www.cafonline.org/pdf/UK%20Giving%20 2010_101210.pdf 186 International Practices on Funding Civil Society Organizations
of more than £100), has increased slightly, from 6% in 2005/06 to 8% in 2009/10. Furthermore, this does not take account of the very wealthy who give very large amounts (..). It is estimated (…) that very wealthy individuals gave 100 donations of £1 million or more (…), with a combined value of £1.0 billion. • If the recession hit giving, levels are recovering. Over the last year the proportion of people giving increased slightly, after decreasing between 2007/08 and 2008/09 at the time of the recession. The typical (median) amount given also increased, from £10 in 2008/09 to £12 in 2009/10. The overall amount of £10.6 billion given to charity was an increase in real terms of £400 million compared to £10.2 billion in 2008/09 (once adjusted for inflation). However, the total amount given has not recovered to 2007/8 levels. • The patterns of who gives and how they give remained much the same as in previous years. Women aged 45-64 continue to be the most likely group to give (68%) and young men aged 16-24 the least likely (31%). People in managerial and professional occupations are the most likely to give (69%) and they also give larger median amounts on average (£19). Giving in cash remains the most common method of donation, used by half of all donors (50%) in 2009/10. After increasing between 2005/06 and 2008/09, the proportion of donors using direct debit now remains fairly steady at 29%. Those giving larger amounts tend to use cheque/card and direct debit. • Use of the Gift Aid scheme appears to be leveling off. Gift Aid was used by 40% of donors in 2009/10, a proportion similar to 2008/09. Before that there had been a gradual increase in Gift Aid usage. People who donate larger amounts are more likely to use Gift Aid; in 2009/10 Gift Aid was used by 73% of those giving higher-level donations (£100+) but only by 20% of those giving donations of £10 or less.
Role of CSOs CSOs in the UK are playing a strong role in raising funds for causes. However, “voluntary organizations not only benefit from donations, they also perform a role in highlighting social needs to suppliers and potential suppliers of social finance”125.
Examples, best practices The creation of the charity sector is an important example that can be adapted in continental Europe through a properly designed public benefit legislation. The charity sector is only about a third of the whole voluntary (CSO) sector, but it is the most institutionalized and professional part of it, which is working hard to gain and maintain the trust and monetary support of people. The Charity Commission not only controls, but rather supports the sector in becoming more professional and deserving of the public trust126.
At the more technical level, a good practice that can be shared is that the UK determines a certain level of benefits that the charity can give to donors “in exchange” or rather, as an appreciation of the donation. This is a helpful way of regulation to make a clear difference between donations and sponsorships. The table below illustrates the value limits of benefits for donations in order for the donation to qualify as Gift Aid.
Another good practice method is the community investment tax relief, which allows investors in the community development finance institutions (see above) to reclaim up to 25 per cent of their investment in tax relief over five years. 125 The summary is taken from: UK Giving 2010, CAF and NCVO 126 More recently, with budget restraints reaching also the Charity Commission, it is planning to focus more on its role as a regulator and less on the support functions it has been playing. However, by now there is a wider infrastructure available for the support of charities as well. International Practices on Funding Civil Society Organizations 187
Benefit value limits for donations127 Amount of donation Benefit value limit £0 -100 25% of the donation £101 – £1,000 £25 £1,001 – £10,000 5% of the donation Above £10,000 £2,500 (maximum) 128
Observations While the new government is cutting back on direct government funding for CSOs, it is increasing the available types and amounts of tax incentives for charitable giving. According to news on the latest Budget of the UK, George Osborne, the Chancellor of the Exchequer (Minister of Finance) has “unveiled a raft of measures aimed at helping voluntary sector organizations in what he claimed were the “most radical and most generous reforms to charitable giving for more than 20 years”129.
Reforms will enable charities to claim Gift Aid on donations totaling up to £5,000 per charity without any paperwork, implementing an online claim system for the tax relief by 2013 and a 10 per cent tax break on inheritance tax for people whose wills include a 10 per cent legacy to charity. Osborne said he wanted to make “giving 10 per cent of your legacy to charity the new norm in our country”. They will also retain community investment tax relief, which was recommended for removal.
Furthermore, in December 2010, the Cabinet published the so-called Giving Green Paper, which sets out “the Government’s initial ideas for building a stronger culture of giving time and money to start a national debate on our society’s attitude to giving”130.
These policies demonstrate that while the Conservative government prefers different means than Labour to support charities (indirect rather than direct incentives), it places an equally high emphasis on their role in the well-being of society and the development of the country. The ideas relating to indirect incentives may be of interest to CEE governments that are cautious to commit direct funding to CSOs.
Earned income Historical-cultural context Charity law allows charities to exercise a trade in the course of actually carrying out a primary purpose of the charity. This is commonly known as “primary purpose trading”. Examples include, e.g., the provision of educational services by a charitable school or college in return for course fees; the holding of an art exhibition by a charitable art gallery or museum in return for admission fees; or the sale of tickets for a theatrical production staged by a theatre charity131.
However, if fundraising is the main or sole aim of trading activities (for example the selling of postcards by a child-welfare charity) this is called “non-primary purpose trading”. Charity law does not permit charities to directly carry out non-primary purpose trading where a significant risk
127 http://www.hmrc.gov.uk/charities/gift_aid/basics.htm 128 This is to be raised to £5,000 as of 2011. 129 Ricketts, Andy: Gift Aid reform and tax relief figure prominently in Budget, In: Third Sector Online, 23 March 2011. http://www.thirdsector.co.uk/news/Article/1061503/Gift-Aid-reform-tax-relief-figure-prominently-Budget/ 130 http://www.cabinetoffice.gov.uk/resource-library/giving-green-paper 131 USIG country note on England http://www.usig.org/countryinfo/england.asp 188 International Practices on Funding Civil Society Organizations
to their assets would be involved. There are special tax rules to help charities that wish to carry out small amounts of non-primary purpose trading, when all the profits from the trading are to be used by the charity. The maximum permitted non-primary purpose trading turnover for a given tax year is £5,000 for a charity whose total income is under £20,000; 25% of the total income of a charity whose annual revenues are between £20,000 to £200,000; and £50,000 for a charity with an annual total income of over £200,000132.
Commercial/economic activities other than the exceptions set out above cannot be conducted directly by the charity; however, any commercial/economic activities can be conducted through a for-profit subsidiary with the profits then transferred tax-free to the charity. Many charities now have trading subsidiaries for fundraising purposes.
Country specific elements Social enterprises133 are a specific form of businesses trading for social and environmental purposes that took hold in the UK. The pioneers of social enterprise can be traced as far back as to the 1840’s, for example in Rochdale, where a workers’ co-operative was set up to provide high quality affordable food in response to factory conditions that were considered to be exploitative. A resurgence of social enterprise started in the late 1990’s with the coming together of different traditions, including co-operatives, community enterprises, enterprising voluntary organizations and other forms of social business. Social enterprises are distinctive because their social and/or environmental purpose is absolutely central to what they do – their profits are reinvested to sustain and further their mission for positive change. Famous social enterprises from the UK include The Big Issue, a newspaper distributed by the homeless, or Jamie Oliver’s restaurant Fifteen.
Government data (the Annual Survey of Small Businesses UK 2005-2007) estimates that there are approximately 62,000 social enterprises in the UK contributing at least £24bn to the economy. Social enterprises are estimated to employ 800,000 people. The State of Social Enterprise Survey released November 2009 found that despite the recession, social enterprises are twice as confident of future growth as typical small to medium enterprises (SMEs), with 48% of social enterprises responding positively as opposed to just 24% of SMEs. Additionally, since the economic downturn began, 56% have increased their turnover from the previous year whilst less than 20% have seen it go down. This is a considerably better performance than SMEs in the UK, where only 28% increased their turnover and 43% saw it go down.
Social enterprises are active in a wide range of industries. According to a DTI survey in 2005, health and social care services are the largest category of trading activity for social enterprises as they were the principal trading income source for 33% of respondents, followed by education at 15%. Social enterprises are also extremely active in the energy, transport and recycling markets. However a social enterprise can be successful in any market – from an employee-owned bicycle shop to an IT consultancy firm hiring people with Asperger’s syndrome.
Social enterprises can take different legal forms, the most often used is the company limited by guarantee (a nonprofit company form); as well as membership societies or the recently introduced community interest company. Since tax considerations are important, many of them assume also a charitable status; however, this brings with it a layer of regulations that do not fit
132 Id. 133 This section is written based on information on the web page of the Social Enterprise Coalition UK. http://www. socialenterprise.org.uk/pages/frequently-asked-questions.html International Practices on Funding Civil Society Organizations 189
all types of social enterprises. In February 2010 the Social Enterprise Mark was launched as the brand for social enterprises. It requires a business to meet six defined criteria in order to qualify to receive the Mark134.
Role of CSOs CSOs in the UK are often entrepreneurial and engage in trading activities to achieve their charitable causes. In these cases they are essentially like for-profit businesses, showing great care for their multiple stakeholders (their customers, the community and the beneficiaries of their cause).
Examples, best practices Encouraging social enterprises is a good practice in the UK. In terms of charity regulation, the tax free pursuit of “primary purpose trading” is a clear incentive that can lead to the emergence and spreading of socially oriented businesses that create employment, provide social and health care, promote education, develop communities and contribute to the social and economic progress in the country.
Observations In the UK, there is a generally favorable legal environment for doing business, including starting and running a small or medium enterprise. It ranked 4th out of 183 countries of the world in the Ease of Doing Business survey of the World Bank in both 2010 and 2011135. This demonstrates that an enabling legal environment is needed not just in terms of CSO regulation but also (most of all) in terms of small enterprises in order to promote a culture of social entrepreneurship.
134 See more at http://www.socialenterprisemark.org.uk 135 http://www.doingbusiness.org/data/exploreeconomies/united-kingdom/ 190 International Practices on Funding Civil Society Organizations
IV.5. CZECH REPUBLIC
BASIC DATA ON THE CZECH NONPROFIT SECTOR
The Czech Republic’s nonprofit sector consists of civic associations, foundations, endowment funds, public benefit institutions, church-related legal entities, and organizational units of civic associations, such as trade associations. At the end of September 2009, there were 105,758 nonprofit organizations operating in the Czech Republic. The most widespread types of nonprofit organizations are civic associations, which number 68,057. The only information that is available to date on the overall income and its structure is the estimate made for the Johns Hopkins NPO project. According to Frič and Goulli (2001) public funding made up 39.4% of the Czech nonprofit sector’s cash revenue, while fees provided 46.6% and private philanthropy 14.0%. If churches and religious organizations were included and the value of volunteer labor added, the estimates would change considerably: public funding would then account for 31.8%, fees for 36.7% and philanthropy for 31.4%. However, these figures are more than a decade old. The tradition of charity and voluntary association in “The Lands of the Czech Crown” is rich and old, dating back to the beginning of the Czech state in the 9th and 10th centuries. Its long evolution culminated in the latter half of the 19th century – by the end of the 19th century the Czech Lands had the largest number of charitable and voluntary organizations in the Austro- Hungarian Empire – and in the twenty years of the first Czechoslovak Republic in the 1920’s and 1930’s. Its evolution was then disrupted by fifty years of totalitarian rule (1939-1989). In spite of harsh repression, some independent citizen initiative as well as opposition to the communist regime did exist, but remained fragmented and weak. Both the early scattered opposition of the 1950’s and the mightier reform movement of the Prague Spring in the 1960’s were put down by force, and so after 1968 occupation of the country by the Soviet Union, cultural activists and civic leaders had to find new ways of independent existence and opposition to the regime. They found it in the parallel polis of independent cultural initiatives, samizdat publishing, underground church and underground university and in the defense of human and civil rights initiated and inspired by Charter 77.
Government Financing Historical-cultural context The communist regime had a huge impact on civil society in the Czech Republic, which persists to this day. This inheritance manifests itself, for instance, in the prominent role of the state, the paternalistic attitudes of the public, in the absence of a strong middle class, in the suspended traditions of giving and volunteering, etc. A high level of mistrust in other people and in democratic institutions characterizes the Czech Republic, like the other post-communist countries, inhibiting the development of a strong civil society136.
In the 1990’s Czech conceptions of civil society were influenced by a polemical debate between two of the leading political personalities of the time, Václav Havel (the then president) and Václav Klaus (the then prime minister). The debate reflected the ambivalent relations between the state and CSO sector. A key question was that of the mandate and legitimacy of CSOs to protect public interest and to participate in public policy (in contrast to elected political representatives). Havel believed that CSOs play a central role in society and that they should be compensated for the losses suffered 136 Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development. Civicus Civil Society Index Report for the Czech Republic http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf International Practices on Funding Civil Society Organizations 191
from the dictatorships in the same way as other segments of society (i.e. citizens, companies and the church). His initiative led to the adoption of the support of foundations (see below). Klaus, on the other hand, thought that CSOs are no more than “hobby” organizations and the state should not interfere with their affairs, negatively (oppressing them) or positively (supporting them). As a result of this debate, the Czech Republic did not have an overall policy towards the development of the CSO sector and followed separate routes for CSO development than the other Visegrad countries. E.g. it introduced a special scheme for creating domestic foundations but did not adopt a percentage law. Government funding as such has not been properly regulated until this day.
Country specific elements Presently, CSOs receive public resources from the State budget and from budgets of all public administration offices (regional and communal), which amounted to a total of US$ 264 million in 2007. 70% of this was provided by the Ministry of Education and Sports, and the Ministry of Labor and Social Affairs. Nearly half of this state support was received by CSOs seated in Prague. Furthermore, the Czech Republic provided support to civil society from specially dedicated funds (see below). In addition to the State funds, CSOs also received funding from 14 administrative regions and from more than 6,000 municipalities. The overall total of state support for CSOs amounted to US$ 446.4 million in 2007137. The Czech Republic has uniquely introduced targeted funding to support civil society not only directly from the State budget but also from specially dedicated funds from the EU and other foreign support schemes. One example is the EU Transition Facility, which was an instrument for new member states to help the transition period after becoming a member of the EU138. While other countries used this mainly to build capacity for the public administration, the Czech Republic dedicated a part of the funds to support the development of the CSO sector. Unlike other countries, which contracted the grant management to a state supervised or private agency, Czechs contracted with a leading grant- making foundation for this purpose (Civil Society Development Foundation, NROS). NROS has also been managing the Czech NGO Fund (Block Grant for NGOs) that supports Czech CSOs under the Financial Mechanisms of European Economic Area and Norway, with over 10 million EUR139. While the Norway mechanism supported CSOs also in other new EU member states, this was the first program in the region that provided institutional support for the development of CSOs and the CSO sector.
CSO role CSOs are seen as both recipients and partners in government funding.
Examples, best practices The Czech government used EU funds to foster the development of civil society. To achieve this purpose, it contracted an independent domestic grant-giving foundation for the management of the funds. This was very beneficial for the effectiveness of the program, as NROS had experience of providing small grants to CSOs, which most government bureaucracies always struggle with. This was a good way to find a balance between the need to have a strict reporting and accounting framework for the EU and the Government, and the need to have smaller, flexible and needs-based projects for the CSOs. CSOs did not have to undertake unreasonably big administrative burdens, yet the reporting and accounting requirements of public budget spending were met by NROS. 137 Pajas, Petr Jan: Civil Society in the Czech Republic, 2011. Data taken from: Analysis of Financing CSOs from Public Resources in 2007 (Governmental Council of Non-Government Nonprofit Organizations, Prague, 2008). In: Yuwen, Li (Ed): NGOs in China and Europe, Ashgate, 2011. Page 266. 138 The Transition Facility was created by the European Commission for the accession countries as a continuation of assistance in areas where administrative and institutional capacity is not sufficient yet compared to the current member states. It also focused on areas that could not be financed from the Structural Funds. The program was scheduled for the period 2004-2006, but the drawdown of funds for various projects running until 2009. 139 See www.blokovygrant.cz 192 International Practices on Funding Civil Society Organizations
Legal/Fiscal Framework Historic/ cultural conditions
Funding mechanisms Neutral Debate on the role of civil society and its relations to the state between Havel and Klaus - held back development of state support schemes
Social contracting Neutral/Supportive CSOs are involved in social services provi- sion since 1990’s. Special legal form cre- ated for public benefit service provision Interaction with the state
Alternative financing Exemplary Government endowment of private grant- making foundations using 1% of privatiza- tion income: a unique alternative financ- ing case. See below
Private giving through insti- Exemplary In 1991 a law was adopted that dedicated tutionalized mechanism 1% of the income of voucher privatization in the Czech Republic for the strengthen- ing of the CSO sector (as a form of restitu- tion for civil society)
Private-corporate giving Neutral/hindering Due to lengthy process of the voucher privatization, company giving took on lat- er than in other NMS Interaction with the private sector
Individual giving Neutral/supportive Giving was not typical in the 1990’s but started to increase after the 2002 floods. CSOs built on this occasion to raise their profiles
Income generation Supportive Generally high levels of membership in associations. Asking for fees in CSO ser- vice provision is customary, they are not Earned income
expected to provide everything for free International Practices on Funding Civil Society Organizations 193
Country specific elements Role of CSOs Examples/Best Practices Observations
Widely spread state budget Recipients of state Use of EU facilities to sup- No data on the sector to support and local support to funding port CSO development; support effective policy CSOs without an overarching contracting with indepen- making. State builds on policy or structure dent grantmaker to man- existing capacity for sector age grants development
Contracting principle; com- Service providers, Voucher system can have CSOs are part of the pic- petition for licensing of ser- dominant in certain great potential, if suc- ture but without a system of vices; in-kind social benefits fields (personalized cessfully introduced in support and development including recently introduced care) practice. Good practice, for long-term partnership in vouchers as increases service us- service provision ers” choice and voice
Foundation Investment Fund Foundations are long This scheme resulted in a CSO sector was supported distributed the assets from term strategic part- strong domestic founda- by the public and by policy privatization to over 200 foun- ners to the state tion sector that can help makers as a key part of the dations in 1999-2001. Foun- ensure sustainability of democratic transition dations are strictly regulated CSOs when foreign do- and have to report annually on nors leave their spending
Tax deduction available but Recipients of compa- Czech Donors Forum is a No special features or inno- minimal. Deductions are ny donations good example of sharing vations in this field available not only for dona- good practices with com- tions to CSOs but for individu- pany donors als as well
Relatively high level of giving Recipients of chari- CSOs used the flood res- Czechs are active also in (not just to CSOs) and vol- table gifts cue efforts in a creative public life (petitions, dem- unteering among the popu- and strategic way to raise onstrations) so can be lation. Fundraising permits funds mobilized for supporting required for public collections causes that matter to them also financially
Detailed regulation of the CSOs: service provid- CSOs excel in certain High levels of membership ability of various legal forms ers; foundations: in- types of services and are and volunteering signal to engage in economic ac- vestors recognized through pay- strong community links of tivities. Partial tax exemption ments from government CSOs and increase chanc- for purpose-related business and service users as well es for sustainability income 194 International Practices on Funding Civil Society Organizations
Observations Experts examining the Czech CSO sector have difficulties in making a sound analysis as there key data are missing, and the data available are unreliable, often contradicting or not representative140. This is a reflection on the lack of a coherent state policy towards the sector, as such data would be essential to devise an effective strategy for civil society development. One feature that seems outstanding from the available information is that in the Czech model, the government often builds on already existing capacity of suppliers in the country for managing government funds. This is exemplified not only by the NROS example, but also e.g. by the establishment of the Czech Development Agency, that was inducted by the Ministry of Foreign Affairs to develop policy and manage programs in development cooperation of the Czech Republic. Instead of creating a new institution, it took up the activities of the already existing think- tank, the Czech Development Center. This approach also means that the Czech Government – unlike some of its neighbors in the region – considers the effectiveness of independent or semi- independent (“arms-length”) agencies in distributing state funding.
Social contracting Historical-cultural context CSOs have been participating in service provision since the political changes in the 1990’s. This was partly inspired by the post-independence economic reforms where privatization was a dominant feature not only in terms of state assets (as in most other countries), but also in terms of public services. The approach was reflected also in the legislation: the Czech Republic was the first in the region to create a special form for the provision of public services, namely the public benefit corporation (PBC). This is a non-membership, nonprofit legal person whose main function is to conduct social, educational and other “generally beneficial services” to the public on equal terms and conditions (which, on the other hand, endowed foundations cannot directly undertake). PBC’s were originally created to enable the privatization of state entities providing public benefit services.
In practice, however, PBC’s commonly have been used as an alternate legal form for those foundations created before 1998 that could not meet the criteria for establishing a foundation under the new Law on Foundations (see below). Other organizations, including theatres, hospitals, homes for the elderly, drug rehabilitation clinics, and other kinds of not-for-profit establishments providing community services, became PBC’s after the enactment of the Law on PBC’s141. A more structured and fuller participation of CSOs in service provision was hampered by the competing policy views on the role of CSOs vis-a-vis the state (as noted above).
Country specific elements The overall system of social service provision in the Czech Republic is based on the contracting principle. Social service providers compete to receive a license in order to be able to register and run the services. Licenses for concrete types of services are issued by regional authorities based on an assessment of whether the provider is capable of meeting all the conditions prescribed by the Law142. Conditions include service quality standards and are regularly inspected. A fundamental measure of the quality of social services is the compliance with human rights when providing
140 http://www.e-cvns.cz/soubory/Hladka_paper.pdf Hladká is listing the two credible studies used by most researchers analyzing the Czech sector, one from 1995, the second from 2001, revised in 2004. Specific cross-sectoral data are hard to collect even for institutions focusing on the analysis of the sector. 141 USIG Czech Republic Country Information http://www.usig.org/countryinfo/czechrepublic.asp 142 In March 2006 Parliament approved a set of three new acts related to social benefits with the date of implementation on 1st of January 2007: Act on Assistance in Material Need, Act on Living and Existence Minimum, Act on Social Services. International Practices on Funding Civil Society Organizations 195
social services (a progressive approach compared to many other countries in the region). The principle of competitiveness is therefore included in the social contracting scheme, which in theory renders the provision of social services more effective. State licensed CSOs, private firms and even individuals may become service providers.
Besides annually revisited143 priorities in social contracting, innovative projects beyond these priorities are also funded, if the provider is able to show the added value of the innovation. As a specific feature of the Czech social system, Act No. 111/2006 on Assistance in Material Need also enables the provision of social allowances in kind. The provision in kind should be maintained either in the form of vouchers (tokens) which are intended for buying basic food, clothes or in the form of special credit cards scheme. The aim is a closer connection between the labor market and social assistance benefit system. At present, in some Czech municipalities and city districts there are pilot projects in progress with this scheme of social benefits provision144.
CSO role Based on available information it can be drawn that NGOs are definitely accepted as social service providers. The decentralization of services is not only financial but relates to the transfer of responsibilities and possibilities for control. The process of decentralization is directed towards the local authorities, and then from local authorities to contracting services out to independent providers. Although territorial self-governments are still the majority providers of social services, CSOs play a dominant role in specific types of services such as social counseling or social prevention145.
Examples, best practices The voucher system which is included in the law but not applied widely yet, can be considered a good practice. In this system, the government distributes the vouchers to the service users, who will choose the provider (among those licensed), and the government will reimburse the cost of the services to the provider based on the actual usage. This system provides a choice to the service users, enables them to provide direct feedback on the services, and encourages competition among the providers. There are also counter-arguments, especially related to the fact that service users are often under-informed and may make the wrong choices (from a professional point of view). In the Czech Republic, it is early to see any serious effects of this tool as it has only been launched in very limited ways (It is planned in some districts of Prague with a more restrictive character, e.g., restricted use of social welfare for alcohol, etc.).
Observations Overall, the Czech system with the contracting principle linked to a transparent and relevant accreditation system of the social services providers represents a progressive and user centered, decentralized approach, offering room for qualitative improvements. CSOs are involved in the provision of social services but – in contrast to the UK or Germany – there is no general scheme that would assist them to become sustainable and reliable partners for the central and local government in ensuring the welfare services for the population. The voucher system may be beneficial for CSOs, if they are able to prove that their services are in high demand among the beneficiaries.
143 The annual revisits are conducted more as an evaluation exercises to reflect on progress and introducing technical interventions rather than changing the course or strategy every year. Based on experience, the priorities are rather stabile, leaving enough space for creating longer term strategies in line with state preferences by services providers. 144 Provazníková, Romana: An alternative provision of public services – the use of vouchers. University of Pardubice, Economic Faculty, 2007 http://dspace.upce.cz/bitstream/10195/35612/1/ProvaznikovaR_AnAlternativeProvision_SP_FES_2007.pdf 145 BCNL: Contracting of Social Services between the State and the NGOs in England, Germany, Poland, Hungary, the Czech Republic and the practices in Bulgaria. Sofia, 2004. 196 International Practices on Funding Civil Society Organizations
Alternative Financing/Institutional private giving146 In the Czech Republic, on the initiative of Vaclav Havel, the first Parliament of the new Republic adopted a provision in the law on privatization according to which 1% of the total privatization income of the country shall go towards the support of the Czech nonprofit sector. This was justified by the fact that after 1989 all citizens, churches and private entities received some kind of restitution (compensation for assets that were nationalized by the socialist government) except CSOs, which were, for the most part, newly formed. It took almost a decade to agree on the exact form of the support, during which the privatization income was accumulated in a separate account. In 1998 the Parliament adopted a new law in which the system was laid out: foundations in the Czech Republic are required to have a certain level of endowment, cannot engage in economic activities and are subject to a set of strict transparency and accountability rules. These foundations were eligible to apply for the privatization funds, which provided them with endowments, which in turn allowed the foundations to support CSOs in their respective geographic and thematic fields on an ongoing basis. With this solution the state played an important catalyzing role in the development of civil society through a one-time investment. Today there are around 300 indigenous grant-making foundations in the Czech Republic, making it the strongest foundation sector in CEE, and thus, relieving the burden of the government to finance small community organizations, startups, innovative pilot projects and other high-risk or economically not feasible philanthropic projects.
Country specific elements The Foundation Investment Fund (NIF) was established in 1991 from the allocated 1% of shares from the second wave of coupon privatization as an asset of the fund. It has managed these assets that were dedicated to the nonprofit sector. NIF was designed to strengthen the nonprofit sector by ensuring the support of community projects, non-profit organizations. It has played an important role in the formation of a strong endowment base for the Czech CSO sector, and currently constitutes the majority of registered endowments of Czech foundations.
The tender for the breakdown of the contribution from the Foundation Investment Fund took place in two stages. In Stage I (1999), a total of 500 million Czech crowns (CZK) were divided into 39 foundations in seven program areas. In Stage II (2001) a total of 64 foundations were distributed 849.3 million crowns, and share future revenues from the sale of shares in the NIF portfolio.
Foundations who benefited from this arrangement are strictly regulated. They are required to distribute annual income (if any) and use the proceeds for the calendar year (real income) by the end of next year. There are certain rules as to how the income can be used (e.g., according to its purpose and through open grant competition). However, the Foundation should strive to preserve the real value of the endowed assets. It can use up to 20% of the income for its own administration or to increase/preserve the assets, while 80% has to be used for grant support. Investment policies are prescribed to the Foundations and they have to report annually on the incomes from investments and the use of the income for grants.
In exchange, Foundations enjoy certain benefits, e.g., tax free investment income and tax exemption for yields resulting from economic use of a property that is part of the protected endowment of a foundation. 146 The Czech Foundation sector is analyzed as an example under both of these categories as the form of financing the foundations was an innovative and unique method. International Practices on Funding Civil Society Organizations 197
Furthermore, foundations have pooled their assets and contracted with an investment company that worked out a specific portfolio that complies with the legal requirements and aims to achieve the highest yields within the limitations on risk-taking that the law and good practice require.
CSO role Foundations that were recipients of the state funds were seen as long-term strategic partners of the government to provide sustainable support for communities and CSOs in the Czech Republic.
Examples, best practices The concept of endowing private local grant-making foundations – with the appropriate regulatory environment – is itself a best practice. Due to the fact that the Foundation Investment Fund contributed largely to the stabilization of hundreds of local and national CSOs, by endowing them, the Czech donor sector is vivid and diverse, supporting wide range of activities in the country. This presents a good model for the survival of CSOs without foreign funding while avoiding dependence on the government.
Observations A unique example in Europe (and even globally), in which the state not only offers tax credits or annual support but practically contributes to the endowment of independent grant-making institutions. When this idea was raised in Hungary – with the aim to follow the Czech example,– Hungarian CSOs as well as the general public rejected it out of mistrust towards the potential recipient foundation (they were not convinced that such endowed foundations would spend the funds in their support). In the Czech Republic, CSOs and foundations were seen in a more positive light and the system was seen as part of the democratic transition process, so it did not meet a negative public opinion. The comparatively high number of registered active CSOs within the country couldn’t exist without the large number of donors – and the decentralized principle of fundingі – which shows the practical relevance of the theory of a large one-time investment that pays off. Since the institutionalized private donor community is rather big compared to the other NMS’s, there is relevant experience with professional grant-making to share and learn from each other. Due to the diversity of funding models, these grant-makers also influence state and corporate grant-making practices.
Corporate giving Cultural-historical context Corporate charitable giving as well as various forms of corporate engagement with the society has strong historical roots in the Czech Republic. Due to the lengthy voucher privatization period, the corporate engagement was developing slowly after the changes in 1989 but nowadays it is comparable or in some aspects more developed than in other NMS’s. The large number of endowed foundations made an influence on changing attitudes of Czech firms for establishing more and more charitable mechanisms.
Country specific elements According to taxation laws, subsidies, grants, and donations for NGOs are tax-deductible, and individuals and companies may deduct donations from their tax base. The current maximum allowed deduction (5% of taxable income for legal entities), however, is inadequate to motivate 198 International Practices on Funding Civil Society Organizations
potential donors. In 2009, the situation worsened when the tax rate was lowered; with a smaller tax bill, individuals and companies were less motivated to offset their tax liabilities through charitable donations. The tax environment in the Czech Republic is further complicated by inconsistent interpretations of the tax law. For example, a lawyer, an economist, an accountant and a financial office may all interpret it differently147. The deductibility of a donation under Czech law is a function of the activity rather than the form of the recipient organization. In order to be deductible, a donation must be made for “financing science and learning, research and development, culture, schools, police, fire squads, support and protection of young people, protection of animals and their health, social and health care, ecology, humanitarian and charity purposes, religious purposes for registered churches and religious communities, and sports, as well as for supporting political parties in their activities”. Deductible donations can also be made to individuals under certain conditions (e.g. to support their education, to disabled people, to victims of a natural disaster, etc.). In addition, a donor may receive a deduction for a donation to any legal entity that properly applied for and carried out a public collection under the Public Collections Law (i.e. fundraising)148.
CSO role Recipient of funding from companies. Other roles (adviser, strategic partner etc.) are not typical as yet.
Examples, best practices An interesting example of good practice is the Czech Donors Forum. This is a membership organization of donors that also exists in other countries. However, due to the strong foundation sector in the Czech Republic, the Czech Donors Forum has been building a vast array of practical knowledge, learning points and good practices in CSO grant-making that are very useful also for companies. Therefore, companies in the Czech Republic have a specialized resource and advocacy organization that they can rely on in order to be able to donate more efficiently, in a simple and cost-effective way.
Observations Company giving and CSR in the Czech Republic are similar to those in other NMS’s, without any specific features or innovations.
Individual giving Historical-cultural context Most of the CSO sector has always had income from services and membership fees. In part due to this, also due to the greater availability of foundation grants, and finally because of the general attitude of the socialist past, individual giving has not been particularly strong in the Czech Republic. This was especially true in the first decade of the transition. However, there was an increasing movement among leading CSOs to mobilize public support, and the catastrophic floods of 2002 provided a sad but opportune occasion to turn the public sentiment on philanthropic giving. Fundraising initiatives to help flood victims produced outstanding results and provided a good basis for CSOs to carry on developing a broader pool of supporters for their “ordinary” work. The image of Czech CSOs was also strengthened during the flood rescue efforts as they acted quickly and professionally, often more effectively than the state agencies.
147 USAID Sustainability Index 2010 148 USIG Czech Republic country information. International Practices on Funding Civil Society Organizations 199
Country specific elements According to the Civicus CSI Index, 47% of people have donated either money or a gift to a CSO in 2004. Over the previous 4 years there was a slight increase of 4% in charitable giving in the Czech Republic. The survey Civil Society 2004 reveals that the total value of material or financial donations last year did not exceed CZK 700 for two thirds of citizens making donations. The average gift per citizen in 2004 was CZK 1,161. With the average net income per annum in 2001 of CZK 83,000 this amounts to 1.4% of a person’s annual income149.
The largest proportion of individual donors is found among people with university education (64% donated in the last year). Entrepreneurs, people with incomes over 15,000 CZK per month, people from the higher status group and believers belong to groups who give to charity significantly more often than others. Czech citizens most frequently donate to causes related to children (49%), physically handicapped people (35%) and people stricken by a natural catastrophe (24%). These main target groups remain the same as in 2000150.
The survey also showed that 32% of citizens of the Czech Republic did voluntary work during the last year. In light of the CSI’s assessment criteria this is a minority, but when compared to Poland, the percentage of citizens volunteering at least once in the last year is approximately twice as high in the Czech Republic than in Poland. Based on CSI data, compared to Poles, Czechs are also more likely to donate to CSOs. These differences may have to do with the different role of the Church in the civil society: Church plays a major role in Poland while the Czech Republic is one of the most atheistic countries in the world with 59% of non-believers (Czech Statistical Office 2004). Church itself was not included among CSOs in the CSI project151. As for the legal framework, CSOs aiming to conduct public fundraising activities need to register their campaign under Act No. 117/2001 on Public Collections (“Public Collections Law”). Registration and permit for the collection are required not only from CSOs but anyone who wants to run such activity (e.g. a parent who wants to collect money for her sick child). Individuals may deduct donations to qualifying NGOs up to 10 percent of the person’s taxable income. However, to qualify for the deduction, the individual must donate at least 2 percent of his/her taxable income or CZK 1,000152.
CSO role CSOs are recipients of donations. The culture of giving is still very much of a charitable (rather than philanthropic) nature in the Czech Republic.
Examples, best practices CSOs have used the occasion of the natural catastrophe in a creative and strategic way to build interest in regular giving.
Observations Czech people have a strong inclination to express their opinion and make their voice heard. This is also visible from the CSI index: close to 50% of Czechs have engaged in some kind of citizen advocacy activity in the past five years (some 12% of the Czech population has written at least one letter to a newspaper, around 14% have participated on a demonstration, and 43% have
149 Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development. Civicus Civil Society Index Report for the Czech Republic http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf pp. 30-31 150 Id. pp. 30-31. 151 Id. p. 30. 152 USIG Czech Republic Country Information. 200 International Practices on Funding Civil Society Organizations
signed a petition). This would indicate that, if asked effectively, they would be willing to donate as well. Philanthropic giving is another way of expressing their opinion on what should change in their country and their communities.
Income generation Historical-cultural context Although there is no recent data available on the incomes of CSOs from economic activities, due to their role in service provision it can be assumed that the majority of income sources of the Czech CSOs is still income from statutory and non-statutory services. The activity of citizens is high in Czech Republic (see below), for this reason the membership fees are likely to represent a relevant source of income at least for the major associations. This tendency has been improving except the trade union sector, where the decline has been almost constant over the last 20 years153. The CSI survey showed that 47% of the Czech population are members of at least one CSO, representing a significant increase from 2000 (29%). 23% of citizens are members of more than one organization, which means that almost half of the members of CSOs belong to more than one organization. The largest membership is found in sport organizations (16%) and trade unions (13%), followed by organizations of gardeners and growers (6%), voluntary fire brigades (6%), faith-based organizations (6%) and fishermen organizations (5%)154.
Country specific elements155 An association may not be established for the primary purpose of carrying out economic activities. Foundations and funds are prohibited from engaging in economic activities directly or through other entities except for leasing real property in their endowment, and organizing lotteries, raffles, public collections, and cultural, social, sporting, and educational events. Foundations (but not funds) are allowed to hold up to 20 percent of the shares of a joint stock company and invest up to 20 percent of their property remaining after subtracting the value of their endowment in stocks of shareholding companies traded on regulated stock markets. (Strict rules govern the use of the endowment on the capital market.) PBC’s may engage in so-called “complementary operations” (for example, economic activities) provided that these do not jeopardize the quality, scope, and availability of the organization’s public benefit services. PBC’s may establish another juridical person but are not allowed to take part in the entrepreneurial activities of other juridical persons. Any profit earned from economic activities must be used for a PBC’s development. Income from profit-yielding economic activities that is related to the statutory purposes of a CSO is subject to a reduced tax. All related income is fully exempt from income tax up to CZK 300,000 (approximately USD 17,250). Total revenues (i.e., income minus related expenses) at the end of fiscal year over this amount are reduced before taxation by 30% or CZK 1,000,000 (approximately USD 57,500), whichever is less, provided that the proceeds are used for statutory public benefit activities within three years of accrual and other conditions are met.
CSO role In relation to income generation, CSOs are mainly service providers. In addition, foundations are seen as investors in capital markets. 153 Martin Myant, Trade Unions in the Czech republic, 2010. 154 Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development. Civicus Civil Society Index Report for the Czech Republic http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf p.30-31. 155 Information in this section is taken from the USIG Country Information on the Czech Republic. International Practices on Funding Civil Society Organizations 201
Examples, best practices In certain fields of social assistance, mainly in ones that offer rather personalized, local services, the Czech CSOs play a dominant role in services provision. Asking for a fee in exchange for the service is customary; CSOs are not expected to give the services for free.
Observations The extent to which Czech CSOs have been able to generate resources from their constituencies (membership fees, volunteer contributions, service fees, other economic incomes) shows that there is at least a certain level of “rootedness” among CSOs. They have strong links with their communities that they can build on as they increase also the financial support from people. Notwithstanding the existing contradictions in the law, a generally well regulated, enabling legal environment has helped income generation activities. 202 International Practices on Funding Civil Society Organizations
V. CONCLUSIONS BASED ON COUNTRY FINDINGS
Based on the analysis of various aspects of funding mechanisms in countries, the conclusions and recommendations of the research listed in this and the next chapter may be divided into two main areas. The Conclusions refer to general considerations, enabling environmental and policy conditions for effective funding mechanisms (basing funding mechanisms on a clear strategy, ensuring larger transparency, accountability and motivating systems through a version of defining public benefit status). The Recommendations (Chapter VI) refer to concrete technical steps and funding methods the legislators may consider introducing in Ukraine in the field of governmental funding, social contracting, private institutional giving, corporate giving, individual giving, and earned income. The recommendations are based on the general conclusions drawn from the country analyses and the identified best practices as could be applied in the Ukrainian context. As it is visible from best practice countries, only a harmonized approach of strategic level interventions and the palette of technical funding tools may bring the wished impact that is also cost effective. Conclusions relating to the general funding environment To ensure that the Ukrainian CSO sector can grow to serve the larger benefit of the citizens and become a reliable trusted partner for the government, it is crucial to develop a proper funding strategy for this sector. Key considerations in developing the funding strategy include:
a. Link between overall policy framework and funding mechanisms: • The research has demonstrated that the success of a funding mechanism is strongly related to the existence of two key elements: (a) a clear understanding (in the form of a government policy) of the intended role for the CSO sector in social development, and (b) a strategic approach to funding which makes it possible for the CSO sector to fulfill this role. • Therefore, there is a need of a «from the vision to the mechanism» approach to link funding mechanisms to be introduced with the vision and purpose of CSO development: the legislator needs to determine what functions it envisions for the CSOs; then to develop the appropriate tools to achieve the results. • Developing a strategy for CSO development is typically the primary element that envisions a clear role for CSOs vis-à-vis the government. However, preparing the strategy itself means little in terms of the impact of governmental measures. Equally (if not more) important is the relevance of the strategy to the desired impacts; and the relevance of funding policies to the strategy.
b. Evidence based approach in developing and monitoring the funding mechanisms: • There needs to be sufficient data and information available to make informed evidence based policy decisions in this field. This is important, as the CSO field is often neglected as a policy area and basic data are missing. • There needs to be an ongoing and systematic effort to trace the practice and impact of the implementation of the strategy.
c. Success factors of the “funding mix” for the CSO sector: The CSO sector cannot be financed through one main mechanism. Funding streams have to reflect the diverse functions, organizations and needs of the sector. There can be a different funding strategy for larger service providing and for small community based CSOs. Both direct and indirect means of support can be effective. The funding streams have to come from long-term sustainable resources (public and private) so that CSOs can predict the levels of funding and can plan long-term. Some International Practices on Funding Civil Society Organizations 203
creativity may be needed to identify those – but based on the findings of the research it is possible. The funding mechanisms should be complementary rather than competing; e.g. re- granting or intermediary organizations should not be in a competition with the CSOs they are supposed to support. While certain income sources are less significant in terms of the total revenues of the sector, their absence or presence can dramatically change the conditions for CSO sustainability (the principle of “less is more”).
d. Importance of an enabling legal-fiscal environment: Developing funding mechanisms should take a long-term view (8-10 years) and consider a gradual development of various mechanisms, building on each other (e.g., introduction of tax benefits after redefined public benefit status). A coherent approach in developing an enabling legal environment is needed, e.g. in introducing tax deductions and the public benefit status. The public benefit status can serve as a good basis for indirect support of CSOs but only if it is well defined and entails tax benefits that serve as real incentives. It is essentially the culture and historic traditions that determine the behavior of taxpayers, CSOs and the state in any country. However, intelligent tax policy can capitalize on the opportunities presented by the ever changing environment and introduce incentives which can successfully change behaviors. Innovation and creativity can be helpful in legislation. Other countries can serve as models but every country can create its own most effective solution. However, in this case the risk of unintended impacts is much higher (see the case of the percentage laws in Hungary and other CEE countries).
e. Considerations of supporting CSO sector development Government needs to invest into the capacity development of the CSO sector. Even in the most developed countries, CSOs need support in delivering the expected increased contribution to the public good. Government should also ensure that there are resources that finance the ongoing development of the CSO sector – startups, innovations, service development, etc. These are usually more effectively funded from private sources; where there is a lack of these, government can undertake this role or provide incentives to private actors to pursue it. Government should assume a difference between strategies supporting, on the one hand, CSOs that assist in state service provision – more long-term direct support and more regulation can be justified, if they are more involved in providing government services; and on the other hand, other types of CSOs (community based, cultural, environmental, etc.) – more indirect support, project based direct support and less regulation are typically needed in their case. 204 International Practices on Funding Civil Society Organizations
VI. RECOMMENDATIONS
The following proposals are recommendations based on the best practice examples that were identified in the country research, considering the general conclusions as well as their potential applicability in the Ukrainian context. They need to be considered within a strategic framework that is based on solid policy evidence.
Public benefit status We see the introduction of a meaningful public benefit status as a central element of a CSO funding strategy, as it can serve as the basis of providing the various benefits that can be afforded to the CSOs through the funding mechanisms. The public benefit status ensures a higher level of accountability and transparency to the CSOs in exchange for being eligible for a higher level of direct and/or indirect benefits than “regular” CSOs. As such, it could be the basis for a number of benefits and privileges listed below, including e.g. eligibility for normative support, for tax deductible donations, for tax deductions on endowments, etc. Currently there is a “charity” status, related essentially to tax deductible donations. However, there are different limits (e.g., an additional 5% is deductible for donations for cultural heritage); the existing benefits seem not to be sufficient incentives to change behavior; and there is no unified understanding of this status (somewhat similar to the situation in Germany before 2007). A well-defined status with clear conditions and tangible benefits, available for a broad range of CSOs, could be the basis of a more developed CSO sector, with more state and private sector involvement, but also with increased transparency and accountability.
Government funding This Study proposes the establishment of a Fund for Civil Society Development (Civil Fund). The main aim of the Fund would be to build capacity in the sector in two ways: • To strengthen CSOs that are capable of undertaking services contracted by the government; and • To strengthen smaller CSOs and more broadly speaking civic groups and communities through a multiplier effect. In order to achieve this, the Fund would not only give grants directly to CSOs but it could also be able to provide support through regional resource centers in all the main regions of Ukraine. The resource centers could provide professional methodological guidance to CSOs in the region, as well as operate a social innovation fund. (The innovation fund could also be centralized, however it may be better to have local decision-makers to support the local innovations.) The board of the fund needs to be composed of credible and independent experts, who have expertise in both civil society development (at the policy level as well as practically), and grant-making to CSOs. The Board should be a mix of people from the nonprofit sector, from the government (or Parliament), and from independent institutions, e.g. media or academia. It has to have proper conflict of interest policies and procedures and should not be seen as trying to lobby for their own organizations. The Board should be able to set a strategic vision for the sector; seeing not just the needs of CSOs but also the needs of society and how CSOs can best address them. A credible independent expert governing board has been key to the success of the Croatian Foundation as well as the other successful Fund model in the region, Estonia. The fund would manage a total of up to 9-10 million EUR/year, supporting up to 300 CSOs in a year (including multiple year commitments). It could be decentralized, like in the case of Croatia, whereby it could agree with existing regional development CSOs to manage the grants International Practices on Funding Civil Society Organizations 205
for that region. The central unit would give the large national level grants (e.g., 30,000 -50,000 EUR), while the regional ones could also give small grants (e.g. 5,000-25,000 EUR). Therefore its overhead costs could vary between 8-12% (depending on the grant management scheme). The Fund could also choose to tender the regional centers every 3 years. The Fund should provide institutional support to CSOs. It is very important to provide a clear definition for institutional costs, as there are many ways to interpret this type of expenses (also called core costs, running costs, administrative or overhead costs). The institutional support could also be provided in matching funds, preferably over a three years period and requiring the CSO to raise increasing levels of matching funds each year. There could be entry-level considerations, i.e. only those who already have a certain level of budget could apply – this would ensure that the Fund builds on existing capacity rather than is encouraging to “create” CSOs just to apply for the funding. The state can also decide to establish a sinking fund for the institutional support, aiming to strengthen a cadre of a few thousand CSOs over 10-12 years. This would be part of the overall Civil Fund, amounting to, say 30%, of its total budget. Then every 3 years, this part of the budget would be reduced by 20%, until at the end there would be only a minimal amount, circa 12% of the Civil Fund budget available for institutional support, to help newcomers. The Fund would need to communicate this strategy clearly from the beginning so that CSOs can take advantage of the opportunity in time.
Social contracting This Study proposes to consider introducing the normative system in Ukraine, similar to the Hungarian arrangement. The reasons we propose the normative system over the contracting one are the following: • It seems that both state and CSOs are not ready to enter into proper contracting relationships on a systematic basis; e.g. there may not be enough willingness with local authorities to contract; or there may not be enough capable CSOs to apply for the bids. • There is an ongoing reform of the financing of social services that shall introduce the unit- based calculations for each service, which can serve as the basis for per capita normative support. • With the normative system, CSOs will become not competitors but complementary providers with the public administration system, as the funding will only be given, if there is proven need for the service (based on the number of clients). We are not proposing to introduce the German principle of subsidiarity in which CSO providers would be preferred across the board. It is important, however that (a) CSOs are not put into a disadvantaged position compared to local governments’ own agencies, like in Hungary, and (b) that there are incentives for the local governments to engage with CSOs. These require innovative legal guarantees and solutions, the Polish example could be a good starting point. The normative system could be introduced most of all in the area of social services, and over time, possibly also in health and education. For the social services, in case of certain types of services (institutional services and those requiring high intensity care) licensing of the organizations providing the service could take place. Although the state should determine the minimum quality of service requirements for the services it intends to finance, we would recommend to leave the decision as to which quality management system to use with each organization.
Alternative financing We do not recommend to introduce the percentage mechanism at this stage in Ukraine. We believe that with proper tax incentives for giving, a deeper and more lasting impact could be achieved in developing philanthropy and generating sustainable income sources for CSOs. 206 International Practices on Funding Civil Society Organizations
Private institutional giving We suggest to consider the introduction of a system of incentives for private endowed foundations, similar to the German model. Although there are already private foundations in Ukraine, those are seen as political undertakings. A clearly defined public benefit status would help in making the endowments free of political or private interests and would increase trust in the private foundations. Without doubt, there is private wealth in Ukraine and the challenge to the government is to make it work for the public good. In our view, the German system of tax deductible contributions to an endowed foundation (or making an endowment) would also work well in Ukraine, provided that the level of deduction is equally motivating and deductible over time. It can also be considered to allow a shorter time period, e.g. 5 years only for smaller amounts (while 10 years can be allowed for a larger endowment). Increasing the support of domestic private foundations toward Ukrainian CSOs would probably be the best strategy to address the gap that foreign donors are likely to leave when they withdraw from the country, i.e. the support of social innovation, pilot projects, protection of rights, etc., especially at the national and regional levels.
Corporate giving For companies it can be suggested that in case of green-field investments, regeneration projects, privatization and similar transactions, 5% of the investment should be spent on public benefit purposes, supporting entities entitled under the public benefit law. This would create a real incentive for CSOs to opt for the PBO status, undertaking the increased accountability and transparency obligations. The level of support could also differ at the regional and national levels. It is important to note that most mechanisms suggested in these recommendations focus on the support of the more capacitated CSOs, whether at the national, regional or local level. At the same time, the experience from other countries shows that it is the small enterprises that provide the most support to public causes locally – not only monetary but also in-kind and volunteer support. Therefore it would be important to provide special incentives for the small enterprises, which will be affected negatively by the new tax laws in Ukraine. One example can be to define an amount that is not too high but is already a good incentive that can be credited against the tax obligation, and which can be repeatedly used, if the enterprise supports the CSO in the long term (perhaps up to 10% of the taxable income). It is also important that in-kind donations can be counted as support. Finally, the German model of the deductibility of a certain percentage of the turnover as opposed to taxable income could also be considered in Ukraine, where it is quite common that companies do not report an end-of-year profit.
Individual giving According to the CSI report, up to 65% of the population already gives to charity on a yearly basis156. While the culture of regular (e.g. monthly) support of CSOs is still some way ahead, intelligent tax policy could help speed up the process. With a well-defined system of public benefit organizations, incentives for individual giving can be reconsidered. It is likely that some increase in the current level of deductibility (5%) would be helpful, as the European average is closer to 10- 12%; but most of all, it seems, that clear criteria and easy procedures for claiming the deduction would almost be sufficient to assist CSOs in their fundraising efforts.
156 Civicus Index Ukraine report, 2006, p. 50 http://www.civicus.org/media/CSI_Ukraine_Country_Report.pdf International Practices on Funding Civil Society Organizations 207
Earned income In our understanding it is currently unclear whether CSOs may engage in economic activities on a tax free basis157. We suggest that public benefit organizations may conduct mission related economic activities exempt from income tax, and unrelated economic activities exempt up to 20% of the total income of the CSO (possibly, also including a limit in the amount). In conclusion, we would like to emphasize once again that these are suggestions that are based only on the comparative analysis done in the course of the research. More research needs to be made to compile data and information that will further inform the decision-makers and allow for making informed decisions based on an understanding of the fiscal implications (e.g., the amounts involved in the tax benefits, the potential impact related to the Civil Fund etc.).
157 Id. 208 International Practices on Funding Civil Society Organizations
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ALBENA KUYUMDZIEVA, OSCE EXPERT 214 International practices on confidence-building measures ...
FREQUENTLY USED ACRONYMS
CEEC – Central and Eastern European Countries CIVICUS – World Alliance for Citizen Participation CoE – Council of Europe CSO – Civil Society Organizations DIFID – United Kingdom Department for International Development EC – European Commission ECOSOC – United Nations Economic and Social Council EESC – European Economic and Social Committee EKAK – Estonian Civil Society Development Concept EP – European Parliament EU – the European Union NGO – Non-governmental organisations NPO – Non-profit organisations NSA – Non– State Actors OECD – Organisation for Economic Cooperation and Development OSCE – Organisation for Security and Cooperation in Europe TI – Transparency International UK – the United Kingdom UN – United Nations UNDP – United Nations Development Programme UNEP – United Nations Environment Programme WB – World Bank International practices on confidence-building measures ... 215
EXECUTIVE SUMMARY
“Democratic deficit”, lost public trust, confidence gap… In the last decade all these phrases have invaded the international public domain thus focusing the political and media attention on a problem that threatens to undermine the main democratic values of the last centuries. Slowly but consistently the close link between those who govern and those who have been governed has been loosened to a point where citizen have lost their trust in the ability of politicians to properly govern the state and where public authorities mistrust good intentions and support coming from the civil society sector. This tendency was very clearly pictured by the 2005 Gallup International world survey1 revealing the following paradox: approximately 50% of global respondents declared that their national elections are free and fair, but only 30% of them believed their country is gov- erned by the will of the people. In order to respond to this social phenomenon, international organisations, governments and civil society sector organisations around the globe have launched series of programmes, policies and initiatives aiming at diminishing the government-citizen confidence gap and building mutual trust and understanding. The current review presents the major developments in the last two dec- ades with a special focus on the policies and best practices implemented by the European Un- ion and five selected EU Member states (Austria, Bulgaria, Estonia, Netherlands and the United Kingdom). Parallel to this, the strategic policy guidelines of the Council of Europe, United Nations and the Organisation for Economic Cooperation and Development have been highlighted. Three of the founding good governance principles: transparency, participation and accountability, have been taken as benchmarks and examined trough the lenses of building trust in the efforts of both public authorities and civil society organisations to achieve social inclusion, better life and sus- tainable development.
General trends The role of the civil society sector has been gradually increasing during the last decades. The main stages of inclusion vary from information provision trough consultation, dialogue and partnership. The methods of involvement have been closely interlinked with the aim of the involvement and political, administrative and social development of a country and its civil society sector. The European Union has been using various “hard” and “soft” confidence building instru- ments. The main foundations of the citizen participation have been laid down in the Treaty on European Union and the Treaty on the Functioning of the European Union. The White Paper on European Governance and the General principles and minimum standards for consultation of in- terested parties have given a major impetus and have set the standards that were adopted by the European institutions and member states. The European Transparency initiative and the regula- tions on lobbying further contributed to the establishment of clear framework for citizen involve- ment in the policy process. Parallel to the EU framework, the Council of Europe has developed additional trust build- ing tools providing opportunities for wider acknowledgement and reinforced cooperation. The Guidelines for the Development and Reinforcement of NGOs in Europe, the Recommendations on the legal status of non-governmental organisations in Europe along with the Code of Good Practice for Civil Participation in the Decision-making Process adopted in October 2009 by the Conference of International Non-Government organizations have marked the main directions for spreading the standards for active citizen involvement across the boundaries of the EU thus form- ing common European understanding on how to build citizen-government trust.
1 Information available at : http://news.bbc.co.uk/2/hi/4247158.stm) 216 International practices on confidence-building measures ...
There is a common understanding that the greater the CSO’s role in the policy process, the greater responsibilities should be vested in them. Deriving from that notion, the expectations that CSOs should follow the same transparency and accountability rules that are required from public institutions have been growing. The new transparency and accountability rules for CSOs have been mainly developed on voluntary basis from the civil society sector itself (e.g the European Charter of Active Citizenship, Accountability Charters etc.) and by guidebooks elaborated by major international organisations such as the UN and the EU. These standards aim to ensure that CSOs are representing the “true” voice of citizens and act solely in public benefit. The trend towards introducing more accountability and transparency into the CSO sector is largely supported by the sector itself. Good governance principles and handbooks have been elaborated by international organisations such the Independent Sector, European Foundation Centre, Central and Eastern European Working Group on Non-profit Governance. In addition a number of self-accreditation, third party accreditation and integrity assessments schemes have been introduced. There is an urge for elaborating well defined and clear representativeness criteria for the CSOs involved at international, national and regional policy making level. The idea has been promoted by the European Commission and supported by the civil society sector at European level in the face of organisations such as the European Economic and Social Committee and the Platform of European Social NGOs. Among the most used tools for ensuring smooth collaboration between public institutions and civil society organisations there are different guidelines and handbooks outlining the rights and obligations of both sides in the policy process. Examples of such guidebooks include the OECD Handbook on Information, Consultation and Public Participation in Policy-making, the guidelines for participation of Major Groups and Stakeholders elaborated by the United Nations Environment Programme, etc. The development of e-technologies have reshaped the delivery of public services and substituted many of the traditional governmental mechanisms. eGovernment has become a synonym for a modern and innovative state where quality, trust and speed are central elements. Accordingly, the means for provision of information, public consultation and monitoring have changed giving more room to Internet tools as better and faster channels for government-citizen communication. Therefore, governments across the globe have actively promoted the use of e-governance tools in all spheres of interaction with their citizens.
Transparency The right of access to information and public documents has been comprehended as a key feature of good governance that strengthens public authorities’ legitimacy in the eyes of the public, and its confidence in them. The right of access to information has been stipulated in various international legal instruments (e.g. CoE Convention on access to official documents, Charter of Fundamental Rights of the European Union, UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, etc.) and in the legal frameworks of EU Member States. At national level, the right to access information is considered fundamental and is broadly guaranteed by constitutional provisions. The implementation of transparency standards at international level is guided by the internal rules (Regulation No 1049/2001 on public access to European Parliament, Council and Commission documents), guides explaining in a simple manner how to get access to information (e.g. European Commission’s guide) or is embedded in different Codes of Conduct (Code of Good Administrative Behaviour for the General Secretariat of the Council of the European Union and its Staff in their Professional Relations with the Public, Code for Good Administrative behaviour in relation with the public adopted by the European Commission, etc). International practices on confidence-building measures ... 217
The right to access of information in the selected EU countries is guaranteed by their constitutions and specialised laws. In all of them, government authorities are required to take proactive stand in the process of information delivery, thus, ensuring that activities of public bodies can be closely scrutinised. Standards and requirements for mandatory provision of information have been elaborated and stipulated in the respective normative acts. The UK Publication schemes and the Slovenian model catalogue for information are good examples for government commitments to routinely and proactively provide information to the public. Governmental web portals have become the main channels for exchange of information between authorities and their citizens. Good examples for such portals are the Austrian “Help” portal, Estonian X-Road, the Finnish Suomi.fi and the UK Direct.gov portal.uk. Good practice for stimulating the development of e-government from a citizen’s point of view is the Dutch e-Citizen Programme and e-Citizen Charter. The Charter summarises the vision of the Dutch citizens on the government as a whole and provides the main principles to be followed by public authorities in their interaction with the citizens.
Participation and Accountability The mechanisms for holding public authorities to account are often used in conjunction with transparency and participatory measures. Public consultations are comprehended as “win-win” interactions that enable the elaboration of effective and efficient policies. Citizen participation is ensured throughout the whole policy chain – from conception to implementation. The Green Papers published by the European Commission constitute a major consultation tool enabling wider public debate at European level. It is supported by various consultation initiatives such as the Citizen Agora, Interactive Policy Making Initiative, the web portal “Your voice in Europe”, the European Citizens’ Consultations projects etc. Expert groups are widely used as consultative bodies that provide advice in preparation of legislative proposals and policy initiatives. Public registers ensure the transparency of their work and the integrity of their members. The general rules for public consultations at national levels are set in national legal frameworks (Bulgaria) or are embedded in “soft instruments” as Social compacts or charters (the UK, the Netherlands). Despite the fact that they are not legally binding documents, their rules are widely endorsed as the “comply or explain” principle is introduced. The consultation process is additionally supported by the elaboration of specific handbooks aiming to ensure the proper conduct of consultation procedures (Austria, Bulgaria, the UK). Participation is enabled at all policy levels – local, regional, national and international. Public participation is further facilitated by the establishment of consultation portals. Such practices are found both at the European level (e.g. European Interactive Policy Making Initiative, the web portal “Your voice in Europe”, etc.) and in the selected member states: Bulgarian strategy. bg, Estonian participation portal osale.ee,, Austrian partizipation.at, Dutch Citizenlink. In order to facilitate government-citizen collaboration, a number of strategic documents have been elaborated jointly by government authorities and civil society sector (Estonian Civil Society Development Concept, Social Compact in England and Wales, etc). Their objective is to outline the main roles, principles and mechanisms for cooperation of public authorities and CSOs. Codes of good practices on involvement of the civil society have been published to support the implementation of the strategy papers (Estonia, the United Kingdom). Similarly the Austrian Chancellery has adopted Standards of Public Participation while the British government has proposed a National Framework for Greater Citizen Engagement. Citizen summits, citizen juries, e-petitions, civic forums and public policies assessment tools are among the main mechanism used for “hearing” the voice of the people. 218 International practices on confidence-building measures ...
Good examples of civil society based monitoring bodies at international level are the UNDP Civil Society committees, the UN Economic and Social Council and the European Economic and Social Committee. The practice for establishing bodies which comprise representatives of civil society organisations that aim to scrutinise public policies implementation and get involved in policy shaping is widely spread in the EU member states. Examples of such bodies can be found in Ireland, Bulgaria, and Slovenia. At the local level, the collaboration of citizens and local authorities is widely developed to ensure that a citizen have a say in the development of the environment they live in. Local Strategic Partnerships (UK) and participatory budgeting (Spain, Belgium, Italy, Germany, France, Portugal, Denmark, the Netherlands and the UK) are among the best practices for building trust between public authorities and citizens. International practices on confidence-building measures ... 219
I. INTRODUCTION AND METHODOLOGY
This paper is elaborated in the framework of the OSCE Project “Civil Society – International Best Practice Research”. The overall objective of the project is to contribute to further development of civil society in Ukraine by learning and transferring successful international practices in the field of civil society organizations funding and confidence building measures between state authorities and civil society organizations (CSOs). The concrete aim of the current research is to present a comprehensive overview of some successful international practices in the framework of cooperation between government authorities and CSOs and outline existing confidence building measures and mechanisms that facilitate the dialogue and can be applied in the Ukrainian context.
In the last decades both “old” and “new” democracies have been facing a common challenge: the widening gap between citizen expectations and the state performance. The constantly declining trust and the overall dissatisfaction towards the ways the countries are governed lead unsurprisingly to declining performance indicators both at “micro-economic” and “macro- political” levels. The current paper will focus on the macro political level where the confidence building measures may strengthen democratic governance, improve the efficiency of state institutions and the quality of economic policies. Providing that confidence building attempts may encompass a wide variety of measures and taking into consideration their depth and perplex structure, it will focus on one of their main aspects and will look at confidence building measures through the prism of the principles of good governance. The principles of accountability, transparency and participation will be taken as benchmarks for comparing and showing empirical examples from five selected European countries. The added value of the current paper is the provision of focused comprehensive information, specially targeted for the needs of representatives of state and non-state bodies, practitioners and experts dealing with CSOs in Ukraine and thus tailored to the needs of local environment.
Given research is guided by the understanding that civil society participation in the decision making is a key factor for the democratic development and economic sustainability of every state.
Lost in translation – the widening gap between citizens and their institutions Globally, 65% of people don’t think their country is governed by the will of its people with the figure rising to three out of four in the former Soviet bloc. These shocking figures were revealed by one of the biggest surveys of world-wide public opinion undertaken in 2005 by Gallup International2. The figures though were not that surprising either for politicians or for political scientists as the problem of the “lost trust” has been subject to vigorous discussions at least for the last two decades. The results however shifted the question high on the international political agenda. The main reason behind that being the fact that public trust is among the main determinants of the economic development and social cohesion and is often viewed as an indicator for social capital. Trust also indicates people’s attitudes towards the state and its ability to provide social welfare, promote common economic and human values. It also indicates the way the citizens perceive their state – as their “defensive shield” and partner or rather as an opponent that they should overpower. The more people consider the state as their partner the better they will align their personal aims and objectives with those of the community and as a consequence will contribute to the overall prosperity of the state. 2 Voice of the People 2005 poll included more than 50,000 people in 68 countries – representing the views of 1.3 billion people worldwide – about who has power, who wants it and how it is used. ( More info available at http://news. bbc.co.uk/2/hi/4247158.stm) 220 International practices on confidence-building measures ...
While for the “old” democracies the declining trust raises serious concerns but yet does not damage that severely the performance indicators, for transitional societies the issues related to social and political trust and the state and citizen welfare are much more crucial as political environment tainted with corruption, fragmented power and lack of consensus hampers additionally the implementation of sound economic policies. “Consequently, trust issues become embedded, directly or indirectly, in every action taken by leaders in crisis and post-crisis countries.” (Blind 2007). Blind also argues that the versatility of associations between social and political trust in different countries, regions and time periods brings the following conclusion: “A certain degree of social distrust may generate increased political involvement on the part of some people, under some circumstances, and with respect to some kinds of political activities only…. At the same time, “high dissatisfaction with democracy and extremely low levels of trust almost unequivocally go together” (Norris 1999, 228-33). This implies that while it is healthy for citizens to suspect that their political representatives might not act in line with the wishes of their constituencies, prolonged periods of social and political distrust on the part of the majority of the population can produce deleterious consequences for governments and governance.’ The issues related to trust are even more perplexed when it comes to transition societies. As building trust is a two-way street, the mistrust of state institutions towards civil society organisations and the “real” interests they may represent is also a question to be addressed. From this perspective, implementing the principles of accountability, transparency and openness should not be considered a sole responsibility of the state institutions but should be equally embedded in the work of the civil society organisations. Thus by safeguarding the policy shaping process from both sides of the “fence” the efficiency of the democratic governance on behalf of the people will be properly guaranteed.
Good governance principles as confidence building mechanisms Trust has considerable influence towards building a prosperous and competent state where citizen feel they can impact the policy process and the development of state as such. And the elaboration of the principles of good governance was an inevitable result of the striving for better life and future. These principles3 were outlined by the European Commission as major contributors to the European democratic process. At a broader international perspective, United Nations Development Programme defined good governance as “among other things, participatory, transparent and accountable...Good governance ensures that political, social and economic priorities are based on broad consensus in society and that the voices of the poorest and the most vulnerable are heard in decision-making over the allocation of development resources.”4 Based on the core principles of good governance concept, the current paper presents the mechanisms that the European states implemented in order to ensure better citizen involvement and bridge the existing gap between state institutions and civil society. The implementation of the following principles is closely observed:
Accountability: Members of the public should legitimately expect to have accountable and responsive public authorities. Such expectation envisages rights vested upon every member of the society to examine and question the performance of public authorities on one hand, and on the other hand the obligations imposed on public authorities to be accountable towards their citizens. 3 The principles of good governance are defined by the European Commission in the “European Governance. A White Paper (COM (2001) 428 final). They largely correlate to the common administrative principles proclaimed by SIGMA (“European Principles for Public Administration”, Sigma Paper #27) 4 Governance for sustainable human development. A UNDP policy document, available at: (http://mirror.undp.org/ magnet/policy/chapter1.htm) International practices on confidence-building measures ... 221
Such entitlement holds the public authorities responsive to the public in relation to performance of their duties and improves the governance within the public sector.
Participation: introduction of any changes within the public sector requires involvement and participation of all interested individuals and groups. In order to facilitate the process, clear and precise rules should be enforced to ensure user-friendly framework for public consultations. Setting the right preconditions that will enable the civil society to actively engage in the policy process requires mutual efforts and new approach towards the social and political participation.
Openness and Transparency: I nformation sharing and public awareness are among the core elements for achieving greater transparency. It is a well recognized practice within the European Community that “information-sharing is a well proven confidence-building measure”5. Such practice should entail publishing information about the activities and projects, as well as use of public funds by public authorities on regular basis.
5 Extract from “Communication to the Commission from the President, Ms. Wallstrom, Mr. Kallas, Ms. Hubner and Ms. Fischer Boel. Proposing the Launch of a European Transparency Initiative. Memorandum to the Commission” 222 International practices on confidence-building measures ...
II. METHODOLOGY
In order to ensure comprehensiveness of the report and at the same time to present a paper that is tailored to the needs of the Ukrainian society, the method of comparative analysis will be used. The current review is based on the desk top overview of European policy documents, theoretical researches and briefing papers, best practices from 5 selected European countries and analysis elaborated by state and non-state actors as well as major donor organisations working in the area of promoting good governance and building trust between state and its citizens. The desk top study is combined with interviews and expert opinions along with on-site visits to Ukraine, meetings with stakeholders and round table discussions. The analysis is also based on the comparative benchmarking technique that aims at performance improvement by studying and comparing best practices. In this respect two main approaches are used for the purposes of the current research: • Analysis of the relevant strategic documents adopted by major international organizations in the area of confidence building measures. The analysis focuses on the main strategies adopted by the European Union in order to overcome the declining citizen trust and promote principles of good governance. It also elaborates on the recommendations and strategic directions outlined by the Council of Europe, United Nations and the Organization for Economic Cooperation and Development. The research makes a comprehensive overview of the latest trends, methods and instruments used at global governance level to regain public trust and bridge the gap between the citizen and their multi-governance structures. The section aims at showing good examples at macro level that can be followed and adapted in the Ukrainian contexts. • Analysis of the best practices applied in five selected EU countries. The research focuses on trust building approaches implemented in the Netherlands, the United Kingdom, Austria, Estonia and Bulgaria with a particular attention paid to the implementation of measures that promote transparency, accountability and citizen participation in the decision-making process. The relevant national legal frameworks for promoting the above mechanisms along with soft non-legal approaches for better citizen involvement are presented. The selection of the countries is based on the diversity of the socio-economic, political and administrative culture that they present. The selected countries present a mixture of highly developed “old” western democracies and new member states that have suffered the hardship of political, economic and social transition. The common feature with all of them is that their good governance approaches have developed and improved during the last decades paving the way to better citizen involvement in the policy process. As it is hard to measure the impact of individual implementation of the principles of transparency, accountability and participation, the perception of the citizens towards the levels of corruption is used as common denominator on how successfully the selected countries have implemented the good governance concept and managed to “rebuild the ship at sea”6. At the same time, the World Bank (WB) voice and accountability index7 will be used as valuable indicator showing how the citizen participation is linked to the overall country ranking and good governance perspective.
6 See Elster J.,1998. Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea, Cambridge University Press 7 The WB Voice and Accountability Index captures the perceptions of the extent to which a country’s citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. International practices on confidence-building measures ... 223
The countries, selected for the case studies present a whole range of variety in the index development and aim to show both highly advanced and relatively “standard” practices from a socio-political context that is close to the Ukrainian one.
Structure of the research The research is divided in four main sections that give general overview of the latest international standards and trends, specific details of some good national practices and recommendations on possible measures to be implemented in Ukraine. Following this logic, the second section gives an overview of the existing instruments and policies adopted by major international organizations in the area of civil society participation in the policy process. The third chapter presents different European and national best practices facilitating active civic participation. Following the main principles of good governance discussed above, the chapter is divided in three main subsections focusing on: • Provisions granting better transparency and openness of the decision-making process (e.g. laws of freedom/access of/to information, e-government applications, etc.) • Practices for ensuring civic participation (e.g. setting procedures for public consultations and better involvement of citizens in a decision-making process); • Accountability mechanisms, e.g. establishing strategic partnerships with NGOs to foster consultations and monitoring mechanisms. 224 International practices on confidence-building measures ...
Each subdivision presents highlights of the European policies adopted to promote confidence building mechanisms and at the same time elaborates on how these policies have been embedded in the legal framework of the selected EU member states.
Based on the practices and policies presented in the previous two chapters, the forth one outlines the practices that are potentially applicable in Ukraine and elaborates on proposals for future development of an effective framework of the civil society participation. International practices on confidence-building measures ... 225
III. OVERVIEW OF THE MAJOR INTERNATIONAL INSTRUMENTS AND POLICIES
3.1 The role of the civil society in the provision of democratic governance Depending on the level and form of democratic development as well as on the political, administrative and social environment, countries across the globe have used different approaches of CSO’s inclusion. The Code of Good Practice for Civil Participation in the Decision-Making Process adopted by the Council of Europe gives a very well defined explanation on the different stages of civil society involvement: information, consultation, dialogue and partnership. The so called “ladder of participation” reveals the breadth (the extent to which it is inclusive or exclusive) and may give indications to depth (the extent to which it is superficial or more intensive) of the participation process8. It also indicates the process of evolution of the society and the state over time and the level of development of participatory governance practices. The research on the international practices in this respect, presents in a comparative manner different “levels” and mechanisms ensuring better participation of the society in the policy process. In order to clarify the notion that stands behind the term “civil society” used in the research paper, the following working definition given by the Centre for Civil Society, London School of Economics and Political Science will be used: “Civil society refers to the arena of uncoerced collective action around shared interests, purposes and values. In theory, its institutional forms are distinct from those of the state, family and market, though in practice, the boundaries between state, civil society, family and market are often complex, blurred and negotiated. Civil society commonly embraces a diversity of spaces, actors and institutional forms, varying in their degree of formality, autonomy and power. Civil societies are often populated by organisations such as registered charities, development non-governmental organisations, community groups, women’s organisations, faith-based organisations, professional associations, trades unions, self- help groups, social movements, business associations, coalitions and advocacy group”.9 This definition is broadly used by the European Union institutions and donor organisations10 as it fits to the newest concepts that have occurred with the process of globalization and the emerg- ing concepts of multi-form, multi-dimensional and multi-level civil society organisations. During the last decades, the civil society notion has been gradually evolving, changing the citi- zens and bureaucrats’ perspectives about its role and its added value. For many years, governments across the globe have considered civil society organizations as hindrances with obstructive rather than supportive influence towards government activities. The gradual shift towards the understanding that CSOs are indispensible and valuable partners was driven by the need to respond to the diminish- ing trust in government institutions and the widening gap between the citizens and their authorities. The need for establishing structural dialogue between citizens and their institutions along with the necessity to provide more transparent, open and accountable governance that is responsive to the needs of its citizens, has shaped the current global understanding about the role of the civil dialogue in the decision-making process. At the heart of this new concept is the need to develop participatory democracy and responsive government that mutually reinforce and support each other.
8 CIVICUS Participatory Governance Programme 2006-2008, Concept Note, June 2006, World Alliance for Citizen Participation 9 http://www.lse.ac.uk/collections/CCS/what_is_civil_society.htm 10 See Council of Europe, 2009, Code of Good Practice for Civil Participation in the Decision Making Process; the definitions given by DIFID (http://www.dfid.gov.uk/About-DFID/Who-we-work-with1/Civil-society/) and Civil Society Index Programme of CIVICUS 226 International practices on confidence-building measures ...
3.2 European instruments for better civic involvement (EU and CoE) “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union
The entry into force of the Lisbon treaty11 marked a new era in the European democratic development. It brought more transparency, accountability, openness and participation in the European decision-making process thus responding to the citizens’ expectations for more efficient and effective governance. It reconfirmed some of the already established democratic values and added new mechanisms for better civic involvement. The process of identifying, promoting and embedding the above principle at European and national legal frameworks was however not smooth and was preconditioned by the widening gap between the citizens and their institutions. Acknowledging the constantly decreasing trust in the European and national authorities and the alienation of the Europeans from the political process, in early 2000 the European Commission set the launch of European governance reform as one of its strategic objectives. The new reform agenda was geared towards the understanding that the democratic institutions at both European and national level should try to “reconnect” with their citizens thus ensuring better government performance. In the White Paper on European Governance12, the Commission further developed its concept stating that the set objective can be only reached trough enhancing citizen participation in the policy process and adopting open and transparent decision-making procedures. In practice, the EC committed itself to: • Provide up-to-date, on-line information on preparation of policy through all stages of decision-making; • Establish and publish minimum standards for consultations; • Enhance communication with the general public on European issues thus allowing it to scrutinize the policy-making process throughout all its stages; • Establish partnership arrangements going beyond the minimum standards in selected areas committing the Commission to additional consultation in return for more guarantees for openness and representativeness of the organisations consulted. The Commission outlined five core principles that underpin democracy and good governance: • Openness. The Institutions should work in more open manner. Together with the Member States, they should actively communicate about what the EU does and the decisions it takes. They should use language that is accessible and understandable for the general public. This is of particular importance in order to improve the confidence in complex institutions; • Participation. The quality, relevance and effectiveness of EU policies depend on ensuring wide participation throughout the policy chain – from conception to implementation. Improved participation is likely to create more confidence in the end result and in the Institutions which deliver policies. Participation crucially depends on central governments following an inclusive approach when developing and implementing EU policies; • Accountability. Roles in the legislative and executive processes need to be clearer. Each of the EU Institutions must explain and take responsibility for what it does in Europe. But there is also a need for greater clarity and responsibility from Member States and all those involved in developing and implementing EU policy at whatever level;
11 Treaty of Lisbon was signed on 13 December 2007 in Lisbon and entered into force on 1 December 2009. 12 Commission of the European Communities (2001), European Governance, A White Paper, COM (2001) 428 final International practices on confidence-building measures ... 227
• Effectiveness. Policies must be effective and timely, delivering what is needed on the basis of clear objectives, an evaluation of future impact and, where available, of past experience. Effectiveness also depends on implementing EU policies in a proportionate manner and on taking decisions at the most appropriate level; • Coherence. Policies and action must be coherent and easily understood. The need for coherence in the Union is increasing: the range of tasks has grown; enlargement will increase diversity; challenges such as climate and demographic change cross the boundaries of the specific related policies on which the Union has been built; regional and local authorities are increasingly involved in EU policies. Coherence requires political leadership and a strong responsibility on the part of the Institutions to ensure a consistent approach within a complex system13. These principles are applicable to all levels of governance – global, European, regional and national and their implementation is a key mechanism for facing the challenges of the new reform governance agenda. Each of those principles is important by itself. But only the joint application of all of them can guarantee better future and the economic and political development. The application of those principles requires also joint efforts from all stakeholders and shared responsibility. Despite the fact that the responsibility for restoring public trust in the EU and national institutions lies primarily in the hands of the respective institutions, in its White Paper, the Commission explicitly noted that greater involvement of the civil society also means greater responsibility. Providing the new role envisaged for the citizens’ organizations, they were urged to follow the same good governance principles and pay particular need to the accountability and openness of their work. The public consultations on the adopted White paper ran over a period of nine months and received 260 contributions. The public response supported largely the identified five principles of good governance and widely endorsed openness, better involvement and participation as means of reinforcing accountability in the policy making procedures14. The need for establishing effective collaboration with the civil society was tackled once again in the Commission’s strategic objectives for 2005-2009. In its vision for European renewal, the EC stressed that the perplexity and variety of challenges that Europe is facing can only be tackled jointly. This approach requires: • All actors to work together: not only institutions but social partners and civil society at all levels; • The involvement of individual citizens: through clarity about what Europe is trying to achieve, and participation in the common effort; • Shared responsibility: every European citizen should have a stake in the work of the Union, and every European has to share the responsibility into realizing European common goals15. Following the strong conviction that European general public deserves efficient, accountable and service-minded public institutions, in May 2006 the EC published its Green paper on “European Transparency Initiative”16. The initiative was based on the previous measures undertaken by the community in this area (like access to documents legislation, the Code of Good Administrative Behaviour, different consultation procedures, multi-stakeholders dialogues, etc.) and on the policy highlights of the White Paper on Good Governance. It aimed to help reconnecting Europe with its citizens by overcoming political alienation and misunderstanding of the European policy process. One of the four pillars of the initiative was the provision of greater transparency in the activities of interest representatives (lobbyists). The Green Paper provided definition of lobbying 13 Ibid 14 See European Commission (2003), Report from the Commission on European Governance 15 Strategic Objectives 2005 – 2009, Europe 2010: A Partnership for European Renewal Prosperity, Solidarity and Security, Communication from the President in agreement with Vice-President Wallström, COM(2005) 12 final 16 European Commission (2005), Green paper, European Transparency Initiative, Brussels, COM (2006) yyy final 228 International practices on confidence-building measures ...
that encompass all activities carried out with the objective of influencing the policy formulation and decision-making processes of the European institutions17. The guidelines given by the European Commission further classified the following actions as lobbying: “contacting members or officials of the EU institutions, preparing, circulating and communicating letters, information material or argumentation and position papers, organising events, meetings or promotional activities (in the offices or in other venues) in support of an objective of interest representation. This also includes activities that are part of formal consultations on legislative proposals and other open consultations’18. Thus in practice all civil society organisations were included in the scope of the regulation. In order to enhance their transparency, all interest representatives were requested to disclose financial data providing clear picture on their sources of funding and possible interests that may stand behind their policy recommendations. The registration on the EC’s register requires submission of: • the overall budget and breakdown of the main sources of funding of NGOs and think- tanks; • the turnover of professional consultancies and law firms attributable to lobbying EU institutions, as well as the relative weight of their major clients; • an estimate of the costs associated with direct lobbying of EU institutions incurred by in- house lobbyists and trade associations. The need for imposing strict transparency rules on all policy shaping attempts arose on one hand from the urge for better involvement of the citizens in the decision-making process and on the other hand, from the peculiarity of the policy shaping process. Despite the fact that policy influencing is a part of the European democratic system, it is marked as highly sensitive process with high corruption risk profile. As the major policymakers, handling a budget of around 134 billion Euro19 and representing 492 million citizens from 27 member states, the European Parliament and the European Commission are the European institutions most exposed to pressure and influences – a fact supported by the presence of about 15 000 lobbyists and 2 500 lobby organizations, registered in Brussels alone20. These figures are though just indicative as the number of unregistered lobbyists and pressure groups in unknown. Stressing again on the principle that “with better involvement comes greater responsibility”21, the European Commission and European Parliament introduced measures aiming at increasing the openness and outside scrutiny over the relations between EU institutions and interest representatives. Following the establishment of EC’s voluntary lobbying register, the European Parliament22 urged EU institutions to adopt a common joint approach to tighten lobbying regulations and ensure utmost transparency of the policy-shaping process. As initial step, the two institutions agreed23 to establish a common non-mandatory register of interest representatives24. It was particularly underlined that interest representatives are required to apply the principles of
17 According to the Green Paper, lobbyists are defined as persons carrying out lobbying activities, working in a variety of organisations such as public affairs consultancies, law firms, NGOs, think-tanks, corporate lobby units (“in- house representatives”) or trade associations’. 18 European Transparency Initiative – Frequently Asked Questions on the Commission’s register for Interest Representatives ( available at : http://ec.europa.eu/transparency/docs/reg/FAQ_en.pdf) 19 The Budget of the EU for 2009 available at http://eur-lex.europa.eu/budget/www/index-en.htm 20 European Parliament, Report on the development of the framework for the activities of interest representatives (lobbyists) in the European institutions(2007/2115(INI)) 21 Commission of the European Communities (2001), European Governance, A White Paper, COM (2001) 428 final 22 Report on the development of framework for the activities of interest representatives (lobbyists) in the European Institutions, (2007/2115(INI), European Parliament 23 Joint statement regarding the progress achieved to date High level Working Group on a common register and Code of Conduct for lobbyists (available at: http://ec.europa.eu/archives/commission_2004-2009/kallas/doc/joint_ statement_register.pdf) 24 The register can be viewed at http://europa.eu/lobbyists/interest_representative_registers/index_en.html International practices on confidence-building measures ... 229
openness, transparency, honesty and integrity, as legitimately expected from them by citizens and other stakeholders. According to the Code of Conduct this means that as a minimum, the interest representatives will always: • “identify themselves by name and by the Article 10 entity(ies) they work for or represent; 3. Every citizen shall have the right to • not misrepresent themselves as to the effect participate in the democratic life of the of registration to mislead third parties and/or EU Union. Decisions shall be taken as openly and as closely as possible to the citizen. staff; • declare the interests, and where applicable Article 11 1. The institutions shall, by appropriate the clients or the members, which they represent; means, give citizens and representative • ensure that, to the best of their knowledge, associations the opportunity to make information which they provide is unbiased, known and publicly exchange their views complete, up-to-date and not misleading; in all areas of Union action. • not obtain or try to obtain information, or any 2. The institutions shall maintain an open, transparent and regular dialogue decision, dishonestly; with representative associations and civil • not induce EU staff to contravene rules and society. standards of behaviour applicable to them; 3. The European Commission shall • if employing former EU staff, respect their carry out broad consultations with obligation to abide by the rules and confidentiality parties concerned in order to ensure that the Union’s actions are coherent and requirements which apply to them.” (Code of transparent. Conduct for Interest Representatives) In its resolution from 8th of May 2008 on the Consolidated version of the Treaty on development of the framework for the activities of European Union interest representatives in the European institutions, the European Parliament went further in its proposals for strengthening the transparency rules. The Parliament proposed the introduction of so called “legislative footprint” (indicative list, attached to a Parliamentary report, of registered interest representatives who were consulted and had significant input during the preparation of the report or legislative proposal) and mandatory registration for all lobbyists who want to access EU institutions. Despite the fact that the proposals have not yet been accepted by the Commission and the Council they are indicative for the way forward and the new tendency for greater openness of the policy formulation process. The new European vision regarding the role of the citizens in the decision-making process was clearly stressed in the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union as amended after the Lisbon Treaty. The Lisbon treaty practically gave to the civil dialogue a status of fundamental principle, covering all spheres of EU activities. The Treaty on the European Union in its provisions of democratic principles particularly proclaimed openness and civic participation as the core values of the democratic life of the Union. It also obliged the institutions to provide necessary means that will enable citizens and their organizations to have a real say in the European policy process. Providing access to information and holding public consultations have been pointed out as the main channels for communication. The Treaty also introduced a new concept for citizen involvement enabling citizen to have legislative initiative. According to article 11.4, not less than one million citizens coming from a significant number of Member States may invite the European Commission to submit proposal on matters where citizens consider that a legal act of the Union is needed. Following the new provisions of the Treaty, the European parliament in its Resolution from 13th of January 2009 on the perspectives for developing civil dialogue under the Treaty of Lisbon, called upon the EU institutions to adopt in an inter-institutional agreement and binding guidelines concerning the appointment of civil society representatives, methods for organising 230 International practices on confidence-building measures ...
consultations and their funding, in accordance with the general principles and minimum standards for consultation of interested parties25. The need for better regulations and clearer framework was fed by another challenging issue – the existing mistrust of authorities towards the capacities and representativeness of civil society organisations. In the preamble of the European Charter of Active Citizenship, this paradox is presented as follows: “while citizens and their autonomous organizations are usually asked to contribute with material and immaterial resources to filling the “democratic deficit” of the European Union, they are, at the same time, hardly considered and often mistrusted by Public institutions.” The problem has been linked to the EU normative framework that fails to define the roles, rights and responsibilities of CSOs, as well as the related obligations of public institutions. The elaboration of the Citizen Charter26 is an attempt initiated by the civil society sector to fill in the existing gap. In order to do so, the Chapter gives definitions on the “autonomous citizens organisations”, explaining their rights and obligations, along with the obligations of the authorities. The right of consultation, access to information and monitoring have been set in the core of the citizen participation process. The obligations to provide information and feedback in a timely manner on the other hand have been highlighted as a core responsibility of the public institutions. They have been also urged to define and apply a set of criteria for identification of citizen organizations when they plan to establish collaboration and partnership. The criteria should be adapted to the concrete situation and should vary according to the type of relationship being considered but by no means should restrict and narrow the dialogue with the civil society. Building trust and bridging the existing gap between the citizen and their governments is crucial policy area that guarantees proper execution of all horizontal policies and ensures the area of freedom, security and justice within the Union. These efforts should however not be limited only to the internal EU area but should spread beyond the external boundaries and embrace the entire European continent. The institution that plays a central role in this process is the Council of Europe (CoE). Parallel to the EU framework, the Council of Europe has developed additional tools for building trust between the state and civil society. The framework under which the Council of Europe27 is operating has provided opportunities for wider acknowledgement of the reinforced cooperation. At the same time it enabled elaboration of standards that are applicable to countries, outside the EU area. In order to ensure coherent approach towards the civil society organizations, in 2007 the Council of Europe adopted recommendations on the legal status of non-governmental organisations in Europe. The document was built upon the principles embedded in the “Guidelines for the Development and Reinforcement of NGOs in Europe” adopted by the CoE in 1996 and the “Fundamental Principles on the Status of Non-governmental organisations in Europe” elaborated in 2002. The recommendations aimed at giving minimum standards that should be followed when shaping the national CSO legislation. It also stressed that “Governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue
25 See the Commission’s communication of 11 December 2002 entitled “Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission” (COM(2002)0704). 26 The text of the European Charter of Active Citizenship is the outcome of a project managed by Active Citizenship Network with the participation of World of NGOs (Austria); Consumers Defence Association (Czech Republic); Sozialburo Main-Taunus (Germany); Ghaqda-tal-Konsumatori (Malta); Association of Polish Consumers (Poland); Animar (Portugal); Romanian Association for Consumer Protection (Romania); Legal Information Center for NGOs (Slovenia); Helsinki Citizens Assembly (Turkey). The project was supported by a grant from the DG Education and Culture of the European Commission and Unicredito. 27 Council of Europe has 47 members and virtually covers the entire European continent. The Council of Europe seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals.( information available at: http://www.coe.int/ aboutCoe/index.asp?page=quisommesnous&l=en) International practices on confidence-building measures ... 231
and consultation on public policy objectives and decisions... This participation and co-operation should be facilitated by ensuring appropriate disclosure or access to official information.” 28 The practical guidelines on what kind of mechanisms for better civic involvement should be established were given in the Code of Good Practice for Civil Participation in the Decision-making Process adopted in October 2009 by the Conference of International Non-Government organizations29. The Code not only outlined the parameters of civil society engagement but stressed that “acting in the public interest requires openness, responsibility, clarity and accountability from both the NGOs and public authorities, with transparency at all stages”30. It also highlighted the main role of a CSO in the different stages of policy process, the respective responsibilities of the authorities and the main mechanisms to bridge the gap between the two actors.
Source: Code of Good Practice for Civil Participation in the Decision Making Process, CONF/PLE(2009)CODE1
In order to illustrate and clarify the relations marking CSOs interventions in the different stages of a policy process, a matrix of civil participation was elaborated (see Annex 1). The Code of good practice have identified four levels of participation, dependent on the intensity of participation in the decision-making process. These levels are • Information – this level is a base for development of all other steps of intervention. Usually at this point, the process is concentrated towards provision of information from the authorities to the civil society sector. Not much interaction or involvement of the CSOs at this step; • Consultation – Comments, feedback and recommendations are expected from the CSOs upon request. Usually the initiative to organize consultations lies with the public authorities. Consultation is in the heart of all steps of the decision-making process, especially for drafting, monitoring and reformulation; • Dialogue – Highly valued approach, applicable at all stages of policy process. The initiative can be taken from either parties and be comprised of two-way communication built on mutual interests in a specific field (a collaborative dialogue) or on broader policy agenda (a broad dialogue). The forms vary from open hearings to regular or ad hoc specialized meetings; 28 Article 76, Recommendation to member states on the legal status of non-governmental organisations in Europe (CM/Rec(2007)14). 29 With participatory status in the Council of Europe 30 Code of Good Practice for Civil Participation in the Decision Making Process, CONF/PLE(2009)CODE1 232 International practices on confidence-building measures ...
• Partnership – the highest form of participation that implies shared responsibilities during all stages of policy process. It may take the form of participatory forums, joint co-decision bodies or outsourcing the delivery of some services to CSOs. The participation in the decision-making process however can be effective only if mutual trust has been built not only from the civil society perspective but from the governmental side as well. In order to respond to the greater responsibilities vested to the civil society sector, the Platform of European Social NGOs explicitly stated that non-governmental organisations should be “representative of their mandate, accountable, transparent, and effective. European NGOs and the Commission should together examine ways of elaborating these and other standards, and NGOs themselves should develop guidelines in this area”31. The above criteria have been listed among the main tools for facilitating trust in the CSO activities and opinions. In its discussion paper on building partnership with NGO sector32, the European Commission have proposed that some of the transparency measures may include setting objective and pre- established criteria that could include the following: • Structure and membership of NGOs; • Transparency of their organisation and the way they work; • Previous participation in committees and working groups; • Track record as regards competence to advise in a specific field; • Capacity to work as a catalyst for exchange of information and opinions between the Commission and the citizens. It has been an acknowledged thought that the use of these criteria may not be always feasible or appropriate. Useful alternative in these cases may be self-selection by the NGO Community, through appointment of representatives and setting of networks or platforms. The European Economic and Social Committee has further communicated the need for developing clear criteria for the EU interest groups. In its Opinion on the White Paper on European Governance, the Committee defined nine representativeness criteria that should be met by European organizations in order to legitimately express the views of EU citizens in the consultative procedures: • Exist permanently at a Community level; • Provide direct access to its members’ expertise, and hence to rapid and constructive consultation; • Represent general concerns that tally with the interest of European society; • Comprise bodies that are recognised at a member-state level as representatives of particular interests; • Have member organisations in most of the EU member states; • Provide accountability for its members; • Have authority to represent and act at a European level; • Be independent and mandatory, not bound by instructions from outside bodies; • Be transparent, especially financially, and in its decision-making structures33. The Explanatory Memorandum to CoE’s Recommendation on the Legal Status of Non-Gov- ernmental Organisations in Europe sets additional transparency and accountability requirements. Following the Memorandum, the NGOs that receive public financial support should annually sub- mit a report on the activities they have undertaken and accounts for the public money spent. In or- der to grant greater transparency and overcome the mistrust on whether the money of the NGOs are spent for public good, the NGOs may also be asked to disclose their proportion in fundraising and administrative overheads and be subject to independent audits. 31 Democracy, Governance and European NGOs, Building a Stronger Structured Dialogue, 2001, Platform of European Social NGOs 32 Commission Discussion Paper, The Commission and Non-Governmental Organisations: Building a Stronger Partnership”, COM(2001) 11 final ( available at: http://ec.europa.eu/civil_society/ngo/docs/communication_en.pdf) 33 Opinion of the Economic and Social Committee on European Governance – a White Paper (COM(2001) 428 final) International practices on confidence-building measures ... 233
3.3. International framework for citizens participation in the decision- making process (OECD, UN) Similarly to the CoE’s Code of Good Practices, the Organisation for Economic Cooperation and Development (OECD) has identified34 three main stages marking government-citizen relations: information, consultation and active participation (partnership). The basic preconditions for the development of each of these stages are: • The provision and access to information requires clear legal framework, sound institutional setting, strict oversight mechanisms and society that knows its rights and acts accordingly. While the adoption of laws and policies of freedom of information along with the setting of relevant institutional mechanism is a pure responsibility of state authorities, the creation of strong watchdogs that will monitor the law’s implementation along with building strong civic culture are areas that require active civil society involvement. When government engages in “active” provision of information it may use different tools (e.g. annual reports, leaflets, catalogues) and delivery mechanisms which can be either direct (information and call centres) or indirect (media coverage, advertisements, etc.); • Consultation practices in different countries vary from setting strong normative framework (e.g laws and government decisions) to establishing informal rules and practices. The legal framework may be either broad (establishing petition rights, referendums on certain topics, general obligation to consult) or narrow (mandatory obligation for consultation on a concrete issue with certain groups: trade unions, professional communities, minorities, etc.) The process is further fostered by the creation of permanent or ad hoc advisory bodies and committees with the participation of CSO. The tools used by the governments to receive feedback on policy proposals may vary from opinion pools and surveys, to workshops, public hearings, focus groups, comments and notice periods, etc (in case of legislative proposals); • Active participation recognises the ability of CSO to identify and formulate policy proposals independently. It requires the governments to share their reform agenda and to take into consideration the proposals elaborated jointly by CSO and public authorities. The framework may vary from legal regulations to flexible policies allowing citizens to take more active participation in the decision-making process (e.g working groups). The active engagement of the citizens may be fostered by using the tools provided by citizen’s agora, consensus conferences, etc. It should be however clearly underlined that no single approach or tool is suitable for every country or situation. The OECD has stressed that the choice of tools will very much depend on the resources, skills and timeframe. It also has noted that often a mix of tools is required to be adapted to the local culture and environment. The first step however always remains the same: clearly defining the objective of the exercise on the basis of which the target group is identified (this approach is largely coherent with the approach applied by the European Commission as well). The guiding principles for engaging citizens in policy-making elaborated by OECD are attached as Annex 2. In order to support the government officials in their confidence building efforts, in 2001 OECD issued a Handbook on Information, Consultation and Public Participation in Policy-making. The Handbook is designed as a road map for building efficient framework for provision of information, consultation and participation. It gives concrete guidelines on how to put principles into practice. The Handbook has also provided 10 tips on how the government-citizen relations could be strengthened. In summary, the tips are as follows:
34 Engaging citizens in policy making: Information, Consultation and Public Participation,2001, OECD Public Management Policy Brief, N 10 234 International practices on confidence-building measures ...
Take it seriously: Producing lots of brochures and videos is not enough to strengthen government-citizen relations. The main questions to be answered before the start of each campaign should be: What happens to these products? What information do they carry? Do they reach the public, or do they lie around in some cupboard? Do citizens actually use the information, or do they reject it? Does government acknowledge and value the reactions of citizens – or does it turn a deaf ear? Do its activities strengthen relations with citizens, leave them unaffected or worse? Start from the citizen’s perspective: Consider the citizen’s perspective first and treat them with respect. Why should citizens be interested in being informed or giving input in the first place? In order to catch citizens’ attention and encourage them to engage, governments must adapt their activities to citizens’ needs. This means adapting language and style to the public while making the interaction attractive and interesting, friendly, honest, and non-condescending; Deliver what you promise: Keeping your word and building trust is essential. If governments want to strengthen their relations with citizens, then they have to deliver what they promise;
Watch the timing: Information, consultation and active participation need time – there is no quick fix. To put it bluntly, citizens are not suddenly going to show greater trust in government, just because it has just started to engage them in a single policy initiative. Nor are citizens able to contribute to policy-making without having time to become familiar with the issues and to develop their own proposals;
Be creative: Relations between government and citizens are not the same from country to country. This is why governments need to develop their activities in the context of their specific situation and challenges – creatively and innovatively;
Balance different interests: Information, consultation and active participation may lead to a broad accommodation of interests and broad consensus. However, they can also reveal divergent views and raise open questions from different sides. What strengthening government-citizens relations does, is to foster understanding and clarification of a policy issue, to provide citizens and interested parties with the opportunity to have their voices heard, to provide their input and to share it with others;
Be prepared for criticism: The golden rule in information, consultation and active participation is: if you invite citizens to say what they think then do not be surprised if they end up doing exactly that;
Involve your staff: Governments may use information, consultation and active participation activities as an occasion to look into the mirror and ask themselves: How do we deal with policy-making and implementation internally, within the government? Are employees informed about new policy initiatives? Is their input requested and taken into account? Do employees actively participate in developing and planning policies and their implementation?
Develop a coherent policy: Strengthening government citizen relations is itself a policy. Governments may want to consider how far it makes sense to formalise this policy. A basic set of formal laws, rules and structures seems to be adequate in order to provide the framework for relations to be developed further. Transparency, accountability, responsibility and the need for oversight apply in this, as in any other, field of policy;
Act now: Prevention is better than cure. Restoring lost trust in government is much harder than keeping it. For governments with little previous experience with the tools it is important to make a start – but not necessarily with everything at once. A step-by-step approach is called for. Governments may start by building the overall legal, policy and institutional framework and launching specific pilot actions to gather experience
Source: Summary of the tips provided in the Handbook for governments on information, consultation and public participation in policy-making, 2001, OECD
While these tips are directly targeted to the everyday work of public servants and policy makers, they can be easily applied by civil society organisations as well. A good example on how civil participation may be streamlined when it comes to a very concrete but yet policy with global importance are the guidelines for participation of Major Groups and International practices on confidence-building measures ... 235
Stakeholders elaborated by the United Nations Environment Programme (UNEP). The document aims at providing clear and balanced engagement framework and is guided by the understanding that “Engagement between UNEP and civil society is necessary, both for UNEP and for the protection of the planet’s fragile web of life. In this engagement lies the potential for resurgence of democracy and ecological awareness…”35. The document describes the main expectations that UNEP and the Major Groups and stakeholders have in regard to their mutual collaboration. It also outlines the framework for management of the Major Group input to the UNEP policy work. In order to facilitate better cooperation, the following consultative mechanisms are used: • Establishment of a Global Major Groups and Stakeholders Forum (the successor of the «Global Civil Society Forum»). The aim of the forum is to increase major groups and stakeholders influence and inputs into decision-making process; • Organisation of regional consultation meetings on annual basis. The meetings are also used as a networking and capacity building platform and provide opportunity for exchange of views at a regional level; • Establishment of UNEP Major Groups Facilitating Committee (successor of the Global Civil Society Steering Committee). The role of the Committee is to provide guidance and to coordinate the engagement of Major Groups in the Global Civil Society Forum cycle. The global concern about the diminishing citizen trust has also been in the focus of the 7th UN Global Forum on reinventing government held in 2007 in Vienna. In its Vienna Declaration on building trust in government, the participants elaborated a set of recommendations on the ways to build trust in the public authorities. The recommendations were related to: • Securing the legitimacy of the government; • Prioritizing the service delivery and access; • Increasing transparency and accountability to fight corruption; • Improving access to ICTs; • Support effective civil society engagement; • Engaging the constructive interest of a free media; • Bringing government closer to the citizens; • Enabling public private partnerships; • Promoting innovations in the public sector reform; • Rebuilding trust in crisis and post-conflict countries. The recommendations once again reconfirmed the main principles and tools to be followed in the process of trust building. They also showed the growing understanding and policy synergy of all major international organisations regarding the need and the mechanisms for bridging the confidence gap between citizens and their governments.
35 Guidelines for Participation of Major Groups and Stakeholders in Policy Design at UNEP,2009, United Nations Environmental Programme 236 International practices on confidence-building measures ...
IV. EUROPEAN BEST PRACTICES FACILITATING ACTIVE CIVIC PARTICIPATION
4.1. Openness and Transparency – provision of information
“… Democracy depends on people being able to take part in public debate. To do this, they must have access to reliable information... and be able to scrutinize the policy process in its various stages”. White Paper on European Governance, European Commission, 2001
The principles of openness and transparency are closely related to the fundamental human right to receive information and hold into account public authorities for their actions. In 2001, when the Vice-president of the European Commission Kallas launched the European Transparency Initiative, he underlined that “information sharing is a well-proven confidence building measure that can regain citizens trust in the capacity of the state authorities to govern in efficient and effective manner36. The same notion has been further developed in the explanatory report to the Council of Europe Convention on Access to Official Documents where transparency of public authorities is described as “a key feature of good governance and an indicator of whether or not a society is genuinely democratic and pluralist, opposed to all forms of corruption, capable of criticising those who govern it, and open to enlightened participation of citizens in matters of public interest. The right of access to official documents is also essential to the self-development of people and to the exercise of fundamental human rights. It also strengthens public authorities’ legitimacy in the eyes of the public, and its confidence in them”. Deriving from this understanding, the Council of Europe urged the national legal systems to recognise and properly enforce the right of access for everyone to official documents produced or held by the public authorities. Thus, in order to ensure access to public information and to increase public awareness on issues related to the state governance, public authorities should at least: • Publish annual and periodic reports about their activities; • Make available online the statutes and the by-laws regulating the functions of the given state authority; • Strictly observe the regulations stipulated in the relevant freedom of information acts; • Implement «one stop shop» principle in the process of delivery of information. In the context of the constantly growing public expectations for provision of more transparent and open governance, the CoE Convention on access to official documents introduced the principle that public authorities should become proactive agents and at their own initiative make public official documents they hold “in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest” (Article 10). Despite the fact that transparency and openness have been long acknowledged as main principles for provision of trustworthy governance, the right of access to information has become widely recognized only in the last 20 years. From 1990 onwards, more than 90 countries worldwide have adopted specialized laws regulating the access to information. The majority of the national legal frameworks of the EU Member States have been based on the principles stipulated in the following founding documents: 36 Extract from “Communication to the Commission from the President, Ms. Wallstrom, Mr. Kallas, Ms. Hubner and Ms. Fischer Boel. Proposing the Launch of a European Transparency Initiative. Memorandum to the Commission”. International practices on confidence-building measures ... 237
• Recommendation N R (81) 19 of the Committee of Ministers to Member States on the Access to Information Held by Public Authorities (Adopted by the Committee of Ministers on 25 November 1981 at the 340th meeting of the Ministers’ Deputies); • Recommendation N (2002) 2 on Access to Official Documents (Adopted by the Committee of Ministers on 21 February 2002 at the 784th meeting of the Ministers’ Deputies); • UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted on 25th June 1998 at the Fourth Ministerial Conference in the “Environment for Europe” process); • A Model Freedom of Information Law, elaborated by Article 19 NGO in 2001; • Council of Europe Convention on Access to Official Documents (Adopted by the Committee of Ministers on 27 November 2008 at the 1042bis meeting of the Ministers’ Deputies). The main principles stipulated in the Model law and in the CoE Convention on access to official documents were once again reconfirmed in the Brisbane Declaration37 adopted at the UNESCO World Press Freedom Day conference in Australia. The declaration urges its members: • To enact legislation guaranteeing the right to information in accordance with the internationally-recognized principle of maximum disclosure. Such legislation should establish limited exceptions, proactive obligations to disclose information, clear and simple procedures for making requests, an independent and effective oversight system, and adequate promotional measures; • To ensure the effective implementation of the right to information by allocating sufficient financial and human resources for the structures and systems that are required to successfully implement legislation; • To ensure that the wider legal environment is consistent with and supports the right to information, including by protecting freedom of expression and press freedom, by establishing other disclosure systems, and by bringing secrecy rules into line with the principle of maximum disclosure; • To foster public awareness about the right to information and to develop the capacity of everyone to exercise that right, placing particular emphasis on disadvantaged and vulnerable groups, including women, minority language groups, indigenous peoples and disabled persons; • To harness the power of information communication technologies (ICTs) to realize the right to information and to foster enhanced pluralism in information flows38. The right of access to information is also explicitly stipulated in the Charter of Fundamental Rights of the European Union. In particular, article 42 prescribes that “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium”39. The procedures for access to information and official documents are further developed in the Code of good administrative behaviour, adopted by the European Parliament in 2001. These principles are broadly implemented in national legal frameworks of the EU Member states through the adoption and enforcement of laws for freedom of information. A study commissioned in 2006 by the Open Society Institute tried to identify the impact and the added value of the adoption of specific laws related to free access to information. The empirical evidences gathered by the report proved that the freedom of information laws increase the responsiveness and have significant positive impact on the overall governance environment. It also revealed that the main factors that have influenced the development of the legal framework include: political will and external political incentives. The study showed that active involvement 37 Freedom of Information: The right to Know, declaration adopted by the participants at the UNESCO World Press Freedom 38 Full text available at: http://portal.unesco.org/ci/en/ev.php URL_ID=30318&URL_DO=DO_TOPIC&URL_ SECTION=201.html 39 Charter of Fundamental Rights of the European Union, (2007/C 303/01) 238 International practices on confidence-building measures ...
of civil society organisations in the process of drafting, adopting, and implementing access to information laws leads to increased responses in more instances than in countries where civil society movements were not as active in the processes. Based on the findings of the study, the following main recommendations for better access to information were drown: • National and local legislatures should adopt laws and implementation regulations that provide all persons access to information held by government bodies and bodies performing public functions; • National governments should make clear to officials, civil servants, and all other relevant personnel in public bodies that discrimination in treatment of information requests and in provision of information is unacceptable and will result in disciplinary and possibly legal consequences; • Civil society organizations should monitor freedom of information practices, investigate suspected instances of discrimination, file lawsuits in instances where discrimination is found, and seek the imposition of penalties as set forth in anti-discrimination laws; • Public bodies should respond to requests for information in a consistent manner. They can achieve this by training officials, civil servants, and other relevant personnel and by establishing transparent, internal systems and procedures for processing requests for information. Such systems and procedures might include assigning responsible officials to manage responses to information requests and introducing a tracking system for such requests40.
How these principles and recommendations are implemented in practice? Following the adoption of the Amsterdam Treaty41, in 2001 the European Council and the European Parliament adopted regulation No 1049/2001 on public access to European Parliament, Council and Commission documents. The implementation of the regulation is guided by the internal rules adopted by the three institutions and goes beyond the former framework providing more openness and transparency of the policy process by: • Providing framework for access to unpublished documents of the EU institutions and bodies through register of documents or following individual requests; • Extending the access to documents originating with third parties (e.g. Member States, third countries, the other institutions); • Creating the rule that even if a document is protected by an exception (other than the protection of public interest or of privacy) it can still be released where serving the public interest is more important than protecting the document; • Reducing the time limits to 15 working days and creating document register42. In order to facilitate the implementation, European Commission has issued a Guide explaining in a simple manner how to get access to information. The Guide is divided in two main subsections: the first explains how to get access to information which has already been published and the second how to get access to unpublished documents. Further standards regarding openness and provision of information are embedded in the Code of Good Administrative Behaviour for the General Secretariat of the Council of the European Union and its Staff in their Professional Relations with the Public43 and in the Code for Good Administrative behaviour in relation with the public adopted by the European Commission. The Codes establish general standards for provision of information and dealing with public requests. Following the provisions, all information
40 Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute, New York 41 The Treaty introduced in its Article 255 citizens right of access to European Parliament, Council and Commission documents 42 The Commission register is accessible at http://ec.europa.eu/transparency/access_documents/index_en.htm# 43 Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 25 June 2001 on a code of good administrative behavior for the General Secretariat of the Council of the European Union and its staff in their professional relations with the public International practices on confidence-building measures ... 239
(unless protected by a particular law) should be provided in a clear and comprehensive manner. If a staff member considers that he/she is unable to divulge the information requested, the reasons why such information cannot be provided shall be given to the person concerned. All channels of communication – mail, telephone or email are considered equally valid for sending and receiving request for information. In order to promote the accountability principle, the Codes oblige their staff to identify themselves, their service and position when interacting with the public.
Provisions for access to documents
Source: Principles of Good Administration, In the Member States of the European Union, 2005, Swedish Agency for Public Management
Stipulations similar to the provision given by the EU Regulation and the Codes of good administrative behaviour can be found in national legal frameworks of the majority of the EU Member states. The right to access information is considered a fundamental right that is broadly guaranteed by constitutional provisions. The basic prevailing tendencies in the majority of the legal acts are summarised in a study44 conducted by the Swedish Agency for Public Management and are described as follows: 44 Principles of Good Administration, In the Member States of the European Union,2005, Swedish Agency for Public Management 240 International practices on confidence-building measures ...
• The right of access to documents may be restricted when disclosure of information may damage state/public service/commercial or bank secrets or may threaten the foreign policy. Access to documents may be also denied when they contain private information about third person; • The person requesting the information is not in general expected to identify himself nor explain the reason for the request; • There are usually established charges for provision of information, but they should not exceed the expenses for the searching and coping of the documents and information.
In addition, the development of e-technologies have reshaped the delivery of public services and substituted many of the traditional governmental mechanisms. The e-technologies and e-governmental applications slowly “invaded” the governance space and provided solutions to long lasting problems that have puzzled governments around the world. Accordingly, the means for provision of information have changed giving more room to the Internet tools as better and faster channels for government-citizen communication. In the 21st century, e-Government has become a synonym for a modern and innovative state in which quality, trust and speed are central elements. E-Government solutions have transformed governments by making them more accessible to their citizens, more accountable, effective and transparent. The properly implemented e-government mechanisms have the ability to strengthen the cement between government and citizens and subsequently enable governments to gain public trust by implementing policies that have been influenced by citizens’ inputs. Therefore, governments across the globe have actively promoted the use of e-governance tools in all spheres of interaction with their citizens. The provision of information to the wider public in this respect is a major cornerstone.
Access to information and e-solutions in selected member states Estonia In Estonia, the main legal instrument that guarantees access to public information is the Estonian constitution. Its stipulations have been further developed in the Public Information Act aiming among other things to create applicable mechanism for monitoring the activities of the public bodies. In order to do so, the law explicitly obliges the authorities to take proactive position in the process of information delivery and sets requirements for the information that should be mandatory disclosed (Article 28). Such information includes: draft laws, reports, concepts and policy papers, statistics, draft budgets and use of assets and budgetary funds, etc. Article 4 further stipulates that in order to ensure the democratic process, public authorities should provide the requested information in the quickest and easiest manner possible. The law also binds public institutions to clearly explain the procedures for access to information and to further assist the person making request for information. The requests can be made either orally, or in writing by the means of post, fax or electronic mail. A good example on the practical implementation of the Estonian Public Information Act is the webpage of the Estonian Tax and Customs Board (www.emta.ee). The webpage provides all needed information to the taxpayers by displaying tax return forms, guidelines for filling in the tax returns, the texts of legal acts, etc. Thorough information is provided also in regard to telephone accessibility, written questions, service bureaus, as well as refund of income tax to taxpayers who have submitted their income tax returns via E-Tax Board. Over the last decade, Estonia has systematically pursued the development of the e-state and e-government as a bridging tool between citizens and their institutions. As a result, the World Economic Forum ranked the country 25th out of 134 countries in the Networked Readiness Index45 for 2009-2010 which made Estonia the highest-ranking Central and Eastern European country. 45 The Global Information Technology Report 2009–2010, ICT for Sustainability, World Economic Forum International practices on confidence-building measures ... 241
Excellent illustration on how new technologies can foster the provision of information and thus enable greater government transparency and openness, is the X-Road system applied in Estonia. The X-Road tool enables secure access to public services including e-elections, e-schools, e-government, e-police, e-health and the e-tax office. In 2008, 88% of income taxes were declared on this system. The parliamentary elections in 2007 were the second opportunity for Estonian citizens to vote from home and turnout using this method represented 5.5% of the total. X-Road has promoted culture of transparency in the public sector and active citizen participation in decision-making processes. The system has facilitated data transfer between digital state databases and enabled secure data transfer between individuals and state institutions46. Parallel to the development of the X-Road tool, the Government created a web portal called “Today I Make Decisions” in 2001. Public Institutions were urged to upload all their draft bills and amendments there, allowing people to review, comment and make proposals on the legislative process as well as propose amendments to existing legislation. Proposals made through the web page have been forwarded to responsible ministries for compulsory response (see more information in the next chapter).
Austria In Austria, the Fundamental act on the duty to grant information and the Act on the duty to grant information provide the general legal framework for access to information. The main responsibilities for defining the concrete scope of the information provision lay within the Laender that should adopt rules defining to what extent information shall be given and to what extent special institutions shall be in charge of complying with such duty to give information. The Federal law however prescribes that everyone is entitled to request information in writing, orally or by telephone. The information should be given without undue delay, at the latest within 8 weeks after the receipt of the request for information. Since 2001 one of the main channels for information exchange between Austrian authorities and their citizens is the web portal “Help”47. HELP provides information on nearly 200 different topics related to official procedures, including the required documents, applicable fees, deadlines and online forms and templates. The portal technology provides 24/7 interface between the state authorities and their citizens. Since its launch, the portal has provided growing number of procedures that can be performed online. It delivers information on all sorts of dealings with Austrian authorities such as, childbirth, marriage, housing, or passport matters and enables the electronic processing of some of these procedures. The content of the website is organised in four main sections, targeting different groups: citizen, business, young people and senior citizens. The common criteria around building the services are transparency, comprehensiveness, clarity of information, and focus on essential facts. Parallel to this, the government has launched online federal government legal information system48 which provides free access to the entire Austrian legislation. The system simplifies and standardises the procedure and enables citizen to get acquainted with the new legislative bases in the moment of its promulgation.
The Finish web portal “Suomi.fi49 – one address for public services” is build following the same logic stated behind the elaboration of the Austrian HELP portal. Suomi.fi provides information on all major situations during lifetime. Some of the information packages provided are collections of web pages aimed at specific target groups, while others contain general information on Finnish society and the public sector in Finland. The main purposes of the portal are: • to strengthen the openness, visibility and unity of the public sector;
46 More information available at: http://www.ria.ee/indexphpid27309 47 http://help.gv.at 48 http://www.ris.bka.gv.at 49 http://www.suomi.fi/suomifi/english/index.html 242 International practices on confidence-building measures ...
• to promote a common standard among the public sector in web-services; • to improve accessibility and quality of public sector services for the needs of citizens; • to make it easier to find public sector information; • to promote interactivity between citizens and authorities; • to minimize the overlapping of work among authorities; • to advise citizens to find the right authority in their special needs.
Netherlands The Government Information Act is based on the constitutional right of access to information. It creates presumption that documents created by public agencies should be available to every- one. The decisions on request for information should be given verbally or in writing but in case of refusal, the applicant may request written notification. The application should be examined at the earliest possible opportunity, and in any event no more than two weeks after the date of receipt of the application. If for some reasons the authority cannot answer within this timeframe, it should notify the applicant in writing explaining the reasons for the delay. This should be done before the first two-week period has elapsed. The law also obliges the public authorities to provide on their own initiative information on their policies and implementation, whenever the provision of such information is in the interests of ef- fective, democratic governance. This information should be provided in comprehensible form and in such a way that it can reach as many interested members of the public as possible at a time which will allow them to make their views known to the administrative authority. In order to fulfil these requirements the Dutch authorities have been extensively using different e-tools. E-technologies have been used for improving information exchange, service delivery and in- teractive participation by introducing new partnerships between citizens and government. This is achieved by giving more choices but also more responsibilities to the public. In order to stimulate the development of e-government from a citizen’s point of view, the Dutch government estab- lished e-Citizen Programme. It is an independent forum involving citizens in the policy process by enabling them to advise government bodies and monitor progress. To help citizens in their new role, the e-Citizen Program has developed e-Citizen Charter. The Charter is based on conducted surveys of citizen expectations and existing quality systems. It summarises the vision of the Dutch citizens on the government as a whole. Despite the fact that its provisions are not obligatory for the administrations, the principle: “Comply or Explain” is promoted. The e-Citizen Charter con- tains the following ten principles that are largely based on the internationally recognized princi- ples of good governance and on the modern trends in government delivery: With the launch of eCitizen programme, the Dutch government has recognised the importance of building transparent official websites as a way to boost citizen trust. Therefore in 2007 a set of Web Guidelines were introduced. The Guidelines are mandatory for all government websites and consist of 125 requirements that deal with all aspects of the digital relationship: accessibility, transparency, clarity, openness, predictability. To measure the performance of its websites, the Dutch government uses self-assessment tool that covers 78 out of 125 criteria to measure performance. The close link between the transparent provision of information and in particular the transparent websites of government authorities was once again reconfirmed by a study made by Federal Communications Commission in the United States. After surveying data from 36,000 visitors to federal websites in 14 participating agencies they found out that when citizens find a website highly transparent, they are 85% more satisfied than citizens who rate a federal website’s transparency poorly. Citizens who perceive a federal website to be highly transparent tend to trust the overall government activities more (46%) and are more likely to participate by expressing their thoughts and ideas with that agency in the future, offline or online (40%). These kinds of citizen behaviours and attitudes are qualified as “the holy grail of open, cost-effective, democratic, efficient government”50.
50 The Inaugural ForeSee Results’, E-Government Transparency Index: Quantifying the Relationship Between Online Transparency and Trust in Government, 2010, Larry Freed International practices on confidence-building measures ... 243
Choice of Channel: As a citizen I can choose for myself in which way to interact with government. Government ensures multi channel service delivery, i.e. the availability of all communication channels: counter, letter, phone, e-mail, Internet.
Transparent Public Sector: As a citizen I know where to apply for official information and public services. Government guaranties one-stop-shop service delivery and acts as one seamless entity with no wrong doors.
Overview of Rights and Duties: As a citizen I know which services I am entitled to under which conditions. Government ensures that my rights and duties are at all times transparent.
Personalized Information: As a citizen I am entitled to information that is complete, up to date and consistent. Government supplies appropriate information tailored to my needs.
Convenient Services: As a citizen I can choose to provide personal data once and to be served in a proactive way. Government makes it clear what records it keeps about me and does not use data without my consent.
Comprehensive Procedures: As a citizen I can easily get to know how government works and monitor progress. Government keeps me informed of procedures I am involved in by way of tracking and tracing.
Trust and Reliability: As a citizen I presume government to be electronically competent. Government guarantees secure identity management and reliable storage of electronic documents.
Considerate Administration: As a citizen I can file ideas for improvement and lodge complaints. Government compensates for mistakes and uses feedback information to improve its products and procedures.
Accountability and Benchmarking: As a citizen I am able to compare, check and measure government outcome. Government actively supplies benchmark information about its performance.
Involvement and Empowerment: As a citizen I am invited to participate in decision-making and to promote my interests. Government supports empowerment and ensures that the necessary information and instruments are available.
Source: E-Citizen Charter, Citizenlink, Netherlands (available at: http://www.burgerlink.nl/ englishsite/e-citizen-charter/e-Citizen-Charter.xml)
United Kingdom The Freedom of Information Act aims at increasing government accountability, making public authorities’ work more visible. It also ensures that policy-making processes are fair, democratic and open. The act creates obligation for the public institutions to disclose requested public information and to inform in writing the applicant in case the request should be forwarded to another competent authority. The law also binds the institutions to provide advice and assistance to persons who propose to make or have made requests for information. Following the law, all public authorities are required to adopt and maintain publication schemes. The publication scheme is a commitment to routinely and proactively provide information to the public. A model scheme (see Annex 3) that contains seven classes of information has been elaborated. These classes are: • Who we are and what we do; • What we spend and how we spend it; • What our priorities are and how we are doing; • How we make decisions; • Our policies and procedures; • Lists and registers; • The services we offer51.
51 Model Publication Scheme available at: http://www.ico.gov.uk/upload/documents/library/freedom_of_ information/detailed_specialist_guides/generic_scheme_v1.0.pdf 244 International practices on confidence-building measures ...
Sample catalogue of public information 1. Basic details of the catalogue
Title of the body - Full title of the body, or of bodies which, in accordance with Article 2(3) of the Decree on the provision of public information, can draw up a joint catalogue
Responsible officer - (Academic title), full name, (professional title), position of the responsible officer Date of the first publication of the - Date on which the catalogue was adopted catalogue Date of the last change - Date (last day of the month when a change was last entered) Web address at which the catalogue - Web address can be accessed Other forms of the catalogue - Hard copy, CD, DVD or other media and details of its physical accessibility
2. General details about the body and the public information at its disposal 2a. Organisational chart and details of the body’s organisation Brief description of the area in which - Description of the field of work as set out in the founding acts the body works List of all internal organisational units - Title of an organisational unit - Address of the unit - Contact details for the unit (for each unit separately) - Note (link to the catalogue of bodies, if the internal organisational unit is an independent body) Organisational chart of the body Link to a separate document 2b. List of other bodies in the area of work (only for ministries) List of all other bodies in the area of - Title of the body work - Address of the body - Contact details for the body (for each unit separately) - Note (link to the catalogue of bodies) 2c. Contact details of officer(s) responsible for providing information Responsible officer - Full name, title, position, address, telephone number, email address 2d. List of laws, implementing acts and regulations of the European Communities concerning the area in which the body works (via the national, local or European register of regulations) National regulations - Link to the national register of regulations Local authority regulations - Link to the local register of regulations (only for local authority bodies) EU regulations - Link to the European register of regulations 2e. List of proposed regulations (via the national or local register of regulations) Proposed regulations - Link to the national or local register of regulations - Link to the EU portal 2f. List of strategic and programming documents by subject area List of strategic and programming - Adopted strategic and programming documents by subject area – documents links to separate documents - Proposed strategic and programming documents by subject area – links to separate documents 2g. List of types of administrative, judicial or legislative procedures Types of procedures conducted by - Types of procedure the body - Details of the conditions relating to individual types of procedure in accordance with Article 10 of the Decree 2h. List of public records managed by the body International practices on confidence-building measures ... 245
List of records - Title of the record - Record based on (legal basis) and contains data on (substantive framework as defined in the legal basis) - How the body obtains information to enter into the record (ex officio, on the basis of submissions) - Description and conditions of access to the records in accordance with Article 10 of the Decree - Links to other public records 2i. List of other computerised databases List of databases - Name of the computerised database - Brief description of purpose of the database - Brief description of how data is obtained from the database - Description of access to the database 2j. Most important subject areas for other public information or list of individual documents Areas of information – following the - Other public information in accordance with Article 11 of the Decree description of the area in which the - Breakdown of other subject areas body works, broken down - List of important documents (optional)
3. Description of method of access to other public information Description of access to individual – Description of access via the web stating the technical conditions areas of information and forms in which the public information exists – Description of “physical” access stating office hours, premises and method of viewing information – Description of access for people with special needs in accordance with Article 13 of the Decree – Description of partial access – Link to the cost schedule
4. List of most frequently requested public information List of the ten most frequently 1. requested items or subjects of 2. information (automatically generated 3. list determined by demand for 4….. particular information)
Source: Decree on the provision of public information, published in the Official Gazette of the Republic of Slovenia, no. 76/05, on 12. august 2005
The implementation of the law on freedom of information is further facilitated by adoption of the Code of Practice on the discharge of public authorities’ functions. The Code aims to transform the “culture of the public sector to one of greater openness, enabling members of the public to better understand the decisions of public authorities, and ensuring that services provided by the public sector are seen to be efficiently and properly delivered.” The Office of the Information Commissioner has produced specific guidelines to show the types of information the particular authority is expected to publish. In addition, the British government has launched an online platform that provides citizens with a single point of access to public sector information and services. The portal (www.direct.gov.uk) is used as a focal point for delivery of information, on-line services and provision of opinion on issues put under discussion from the government. Five sections provide additional information for specific groups like young people, Britons leaving abroad, parents, disabled and people caring for someone. 246 International practices on confidence-building measures ...
Similar to the publication schemes in the UK, the Slovenian government adopted a common approach to the delivery of public information. The decree on the provision of public information lays down the method, by which public information should be provided, published in Internet and the method by which a catalogue of public information shall be drawn up. The government has bound all public institutions to provide updated catalogue of public information on their websites. The model catalogue, annexed to the governmental decree is the following:
Bulgaria The Law on Access to Information was adopted in 2000 with the aim to provide more transparency in the decision-making process and enable citizens to make well-informed choices while at the same time to monitor the implementation of the state policies. The law provides everyone with the right to access any kind of information available in all public bodies. The application for information may be written or oral, requested also by using the means of Internet technologies. All requests should be answered within 14 days of the application date. If for any reason the required information cannot be provided within the time frame, the authority should notify the applicant about the extension of the processing period. The overall deadline for answering the request however cannot exceed 24 days. The authorities are also obliged to announce information, which has been collected, or came to their knowledge during the performance of their activities in two specific cases: • if the information disproves a previously disseminated incorrect information that affects important social interests; • could be, of interest to the public. In order to secure greater transparency, public authorities are bound to publish on a regular basis up-to-date information containing: • description of their powers as well as data on the organizational structure, functions and responsibilities of the administration; • list of the acts issued within the scope of their powers; • description of the data volumes and resources used by the respective administration; • the name, address, telephone number and working hours of the respective administration’s office which is authorized to receive applications for access to public information. In addition, some public authorities have launched additional transparency initiatives such as life on-line broadcasting of the meetings of Sofia Municipal Council. The debates in the local Assembly are then archived and posted on the webpage of the municipality. In 2009, in order to facilitate transparency and enable citizen to have a “close look” at the deliberations during Ministerial meetings, the Government launched a new e-system providing the full version of the minutes and decisions taken during government meetings. They are published in special section on the government website at the day of the discussion. Government decisions dating back up to 1990 were scanned and posted on the web as well. Thus CSOs, media and citizen are enabled to follow the policy development, to get acquaint with the grounds for adoption/overruling, to monitor the process and hold the ministers into account. A key role in the monitoring of the implementation of the Bulgarian Public Access to Information law plays a NGO called: Access to Information Programme (AIP). The foundation was established in 1996 by a group of Bulgarian journalists, lawyers, sociologists, and economists who worked in the area of human rights. For the years of its existence, the foundation managed to become the major watchdog in the area but at the same time a governmental partner, whose opinions are respected and usually complied with. The main activities of the AIP are related to: • Monitoring the freedom of information legislation in Bulgaria and participating in the debates for its compliance with the international standards in the area; • Work with an established network of journalists in 26 cities throughout the country that monitors the access to information implementation practices and gives recommendations for their improvement; International practices on confidence-building measures ... 247
• Provision of consultations on cases concerning the right of access to information and legal help in individual cases of information seeking; • Organising specialized freedom of information trainings for civil servants and local administration officials, journalists, and nongovernmental organizations; • Preparation and publishing of handbooks on how to exercise the right of access to information, as well as publications clarifying particular aspects of the access to information legislation52. Since 2006, the AIP issues regular evaluation on the implementation for active disclosure of information on the Internet sites of the executive authorities. On a yearly basis it evaluates the implementation of the Access to Information Law. In 2010 after 10 years of implementation, AIP evaluated the development of the freedom of information framework like this: “The implementation of the law has passed different stages in Bulgaria. From complete ignorance by the administration, through unwillingness and resistance against the implementation of the provisions, to the increase of the number of paragon public bodies which Access to Information Programme (AIP) awards on the Right to Know Day”53. In the era of ICT, provision of information and e-technologies go hand in hand. This tendency is explicitly visible in the legal framework of access to information that with the development of the e-technologies embedded and promoted them as equally viable source of communication as the standard models applicable so far. The following table presents a comparative overview on how some of the major international standards that foster confidence building between citizen and their authorities are applied in the freedom of information legislation acts of some EU member states.
Major international standards and their application in the freedom of information legislation acts of some EU member states.
International Instruments Similar provisions in Freedom of Information Laws of EU Addressing Freedom of member states Information Article 19: Global Campaign for Poland: The Law On Access to Public Information Free Expression Article 1 of the Law on Access to Public Information defines public information as “any information on public matters constitutes public Definition information in the understanding of the Act.” Information should be defined broadly. Bulgaria: Access to Public Information Act “Information” includes all records Article 2.1 defines “public information shall be any information relating held by a public body, regardless of to the social life in the Republic of Bulgaria, and giving opportunity to the form in which the information is the citizens to form their own opinion on the activities of the persons stored (document, tape, electronic having obligations under this act. recording and so on), its source (2) The information under sub-article 1 shall be deemed public (whether it was produced by the irrespective of the kind of its physical bearer.” public body or some other body) and the date of production. Estonia: Public Information Act § 3. (1) Public information is information which is recorded and documented in any manner and on any medium and which is obtained or created upon performance of public duties provided by law or legislation issued on the basis thereof. Principle 2. Obligation to Publish Bulgaria: Access to Public Information Act Access to Public Information Act of the Republic of Bulgaria provides the Public bodies should be under an following mechanism for publication of up-to-date public information. obligation to publish key information 52 More information is available at: http://www.aip-bg.org/index_eng.htm 53 Access to Information Report 2009, Access to Information Programme, 2010, Bulgaria 248 International practices on confidence-building measures ...
Freedom of information implies not Duties for disclosing public information only that public body accede to Art. 14. (1) The bodies shall inform of its activities by making requests for information but also that publications or using other form of announcements. they publish and disseminate widely (2) The bodies shall be obliged to announce information, which has documents of significant public been collected, or came to its knowledge during the performance of interest, subject only to reasonable their activities, where such information: limits based on resources and 1. is of a nature to prevent some threat to the citizens’ life, health or capacity. security, or to their property; 2. disproves a previously disseminated incorrect information that Council of Europe Convention on affects important social interests; Access to Official Documents 3. is, or could be, of interest to the public; Article 10 – Documents made public 4. must be prepared and released by virtue of law. at the initiative of the public authorities Art. 15. (1) In order to achieve transparency of the administration’s At its own initiative and where activities, and for the purpose of maximum facilitation of access to appropriate, a public authority shall public information, every chief officer of an administrative structure take the necessary measures to make within the system of the executive power shall publish on a regular public official documents which it basis up-to-date information containing: holds in the interest of promoting 1. description of his/her powers as well as data on the organizational transparency and efficiency of public structure, the functions and the responsibilities of the administration administration and to encourage led by him/her. informed participation by the public in 2. list of the acts issued within the scope of its powers; matters of general interest. 3. description of the data volumes and resources, used by the respective administration, 4. the name, address, telephone number and working hours of the respective administration’s office which is authorized to receive applications for access to public information.
Estonia: Public Information Act § 28. Obligation of holder of information to disclose information (1) A holder of information is required to disclose the following existing information relating to the duties thereof: 1) generalised economic statistics and economic forecasts of the state and local governments; 2) generalised statistics relating to crime and misdemeanours; 3) statutes of state or local government agencies and their structural units; 4) formats of petitions and other documents submitted to state and local government agencies and instructions for the completion thereof; 5) job descriptions of state and local government officials; 6) positions in state and local government agencies, and the given names, surnames, education, areas of specialisation, telephone numbers and electronic mail addresses of officials filling the positions prescribed in such agencies; 7) information concerning danger posed to the life, health and property of persons; 8) reports on work results and the performance of duties in state and local government agencies; 9) names and electronic mail addresses of members of the supervisory boards and management boards of legal persons in public law; 10) management reports and income / expense statements of legal persons in public law; 11) budgets and draft budgets of state agencies, local governments and local government agencies, and reports on the implementation thereof; 12) information concerning the receipt of state budget revenues; 13) information concerning the state of the environment, environmental damage and dangerous environmental impacts; International practices on confidence-building measures ... 249
14) precepts or decisions relating to state supervision or supervisory control as of the entry into force thereof; 15) draft Acts prepared by ministries and draft Government of the Republic regulations, together with explanatory memoranda, when such drafts are sent for approval or presentation to the Government of the Republic; 16) draft regulations of ministers and local governments together with explanatory memoranda before such drafts are presented for passage; 17) draft concepts, development plans, programmes and other projects of general importance before such drafts are presented to the competent bodies for approval, and the corresponding approved or adopted documents; 18) information concerning research and analyses ordered by state or local government agencies; 19) information concerning unfilled positions in state or local government agencies; 20) information concerning public procurements which are being organised or have been organised by the state or local governments; 21) information concerning the use of assets and budgetary funds which the state or a local government has transferred to legal persons in private law founded by the state or local government or with the participation thereof; 22) programmes of public events; 23) changes in the work and duties of state and local government agencies which are related to services provided for persons, not later than ten days before implementation of the changes; 24) information concerning the office hours of heads of state and local government agencies; 25) salary rates and guides valid in state and local government agencies, and the procedure for payment of additional remuneration and the grant of fringe benefits in such agencies; 26) information concerning the price formation of companies which have a dominant position in the market or special or exclusive rights or which are natural monopolies; 27) information concerning the provision of public services and concerning changes in the conditions and price for provision of the service before implementation of such changes; 28) lists of the members of political parties; 29) court judgments which have entered into force; 30) information in general national registers and state registers to the extent prescribed by law; 31) the document register of the agency; 32) other information and documents concerning which the obligation to disclose is provided by an international agreement, an Act or legislation passed on the basis thereof or which the holder of information deems necessary to disclose.
Netherlands: Act of 31 October 1991, containing regulations governing public access to government information Section 8 1. The administrative authority directly concerned shall provide, of its own accord, information on its policy and the preparation and implementation thereof, whenever the provision of such information is in the interests of effective, democratic governance. 250 International practices on confidence-building measures ...
2. The administrative authority shall ensure that the information is supplied in a comprehensible form and in such a way as to reach the interested party and as many interested members of the public as possible at a time which will allow them to make their views known to the administrative authority in good time.
United Kingdom - Freedom of Information Act Publication schemes. 19. (1) It shall be the duty of every public authority- (a) to adopt and maintain a scheme which relates to the publication of information by the authority and is approved by the Commissioner (in this Act referred to as a “publication scheme”), (b) to publish information in accordance with its publication scheme, and (c) from time to time to review its publication scheme. (2) A publication scheme must- (a) specify classes of information which the public authority publishes or intends to publish, (b) specify the manner in which information of each class is, or is intended to be, published, and (c) specify whether the material is, or is intended to be, available to the public free of charge or on payment. (3) In adopting or reviewing a publication scheme, a public authority shall have regard to the public interest- (a) in allowing public access to information held by the authority, and (b) in the publication of reasons for decisions made by the authority. (4) A public authority shall publish its publication scheme in such manner as it thinks fit.
Article 19: Global Campaign for Estonia: Public Information Act Free Expression Article 4.2 of the Public Information Act provides that access to information shall be ensured for every person in the quickest and Principle 1. Maximum Disclosure easiest manner possible. Public bodies have an obligation to disclose information and every member Poland: Law on Access to Public Information of the public has a corresponding Article 2. Each person is entitled to the right of access to public right to receive information. Everyone information, hereinafter referred to as “the right to public information”. present in the territory of the country should benefit from this right. Austria: Fundamental Act on the duty to grant Information The organs of the Laender, of the municipalities as well as of the A Model Freedom of Information self administration as regulated by Laender legislation, shall give Law information on matters within their scope of activities, to the extent not being in contradiction with a statutory duty of secrecy. Part II: The Right to Access § 2. Anyone is entitled to request information. Information Held by Public and § 3. The Laender legislation regulates to what extent information shall Private Bodies be given and to what extent special institutions shall be in charge of Freedom of Information complying with such duty to give information. Laender legislation shall 3. Everyone shall have the right to provide for professional organisations that they are only liable to give freedom of information, including information to persons being their members and only to the extent as the right to access information held this does not prevent the proper compliance with their statutory duties. by public bodies, subject only to the provisions of this Act. Netherlands: Act of 31 October 1991, containing regulations governing public access to government information Council of Europe Convention on Section 3 Access to Official Documents 1. Anyone may apply to an administrative authority or to an agency, service or company carrying out work for which it is accountable to an administrative authority for information contained in documents concerning an administrative matter. International practices on confidence-building measures ... 251
Article 2 – Right of access to official 2. The applicant shall specify the administrative matter or the document documents relevant to it as to which he wishes to get information. Each Party shall guarantee the right United Kingdom – Freedom of Information Act of everyone, without discrimination 1. (1) Any person making a request for information to a public on any ground, to have access, on authority is entitled– request, to official documents held by (a) to be informed in writing by the public authority whether it holds public authorities. information of the description specified in the request, and Article 5 – Processing of requests (b) if that is the case, to have that information communicated to him. for access to official documents 3. Requests for access to official documents shall be dealt with on an equal basis. 4. A request for access to an official document shall be dealt with promptly. The decision shall be reached, communicated and executed as soon as possible or within a reasonable time limit which has been specified beforehand. Article 19: Global Campaign for Bulgaria: Access to Public Information Act Free Expression Art. 24. (1) The request for granting access to public information shall be made in the form of a written application or verbal request. Principle 5. Processes to Facilitate (2) The application is deemed written also in cases where it is sent Access electronically subject to conditions determined by the respective body. All public bodies should be required to establish open, accessible internal Czech Republic: The Law on Free Access to Information systems for ensuring the public’s right § 13 Application for providing information to receive information. (1) The application asking for information is submitted either in writing or orally, and also by means of telecommunications equipment. Council of Europe Convention on Access to Official Documents United Kingdom – Freedom of Information Act Request for information. Article 4 – Requests for access to 8. (1) In this Act any reference to a “request for information” is a official documents reference to such a request which– 1. An applicant for an official document (a) is in writing, shall not be obliged to give reasons for (b) states the name of the applicant and an address for having access to the official document. correspondence, and 2. Parties may give applicants the right (c) describes the information requested. to remain anonymous except when (2) For the purposes of subsection (1)(a), a request is to be treated as disclosure of identity is essential in made in writing where the text of the request– order to process the request. (a) is transmitted by electronic means, 3. Formalities for requests shall not (b) is received in legible form, and exceed what is essential in order to (c) is capable of being used for subsequent reference. process the request.
Article 19: Global Campaign for Estonia: Public Information Act Free Expression § 15. Obligation of holders of information to assist persons making requests for information Principle 5. Processes to Facilitate (1) Holders of information are required to clearly explain the procedure Access for and the conditions and manners of access to information to persons Public bodies should also be required making requests for information. to assist applicants whose requests (2) Officials and employees of holders of information are required to relate to published information, or assist persons making requests for information in every way during are unclear, excessively broad or the making of requests for information and the identification of the otherwise in need of reformulation. information necessary for the persons making requests for information, the location of the information and the most suitable manners of access thereto. 252 International practices on confidence-building measures ...
A Model Freedom of Information (3) An official or employee of a holder of information who is not Law competent to comply with a request for information is required promptly to send the person making the request for information to an official or Part II: The Right to Access employee who has the corresponding competence, or promptly to Information Held by Public and communicate the request for information in writing to the specified Private Bodies official or employee. Request for Information 8(2) Where a request for information Netherlands: Act of 31 October 1991, containing regulations does not comply with provisions of governing public access to government information the law, the official who receives the Section 4 If the application concerns documents held by an request shall render such reasonable administrative authority other than that to which the application has assistance, free of charge, as may be been submitted, the applicant shall, if necessary, be referred to that necessary to enable the request to authority. If the application was made in writing, it shall be forwarded comply with the law. and the applicant shall be notified accordingly. Council of Europe Convention on Access to Official Documents United Kingdom – Freedom of Information Act Article 5 – Processing of requests 16. (1) It shall be the duty of a public authority to provide advice and for access to official documents assistance, so far as it would be reasonable to expect the authority to 1. The public authority shall help do so, to persons who propose to make, or have made, requests for the applicant, as far as reasonably information to it. possible, to identify the requested official document.
4.2. Participation – citizens involvement in the decision-making process “The quality of… EU policy depends on ensuring wide participation throughout the policy chain – from conception to implementation.” White Paper on European Governance, European Commission, 2001
For many years, public consultations have been perceived as useless and time consuming exercises. On one hand, public institutions believed that the only valuable expertise is concentrated within their own internal system and considered the “interference” of outside parties as cumbersome and fruitless. On the other side, the civil society organizations were dispirited by the lack of response to their comments and the general neglect towards their opinion. The process of globalization, combined with the fall of the “iron curtain”, the strengthening of advocacy capacities of the civil sector and the declining citizen trust in political systems gradually lead to the change of this perspective and brought along a new governance “thinking”. Public consultations have gradually taken their right place as key policy mechanism, fostering the notion that consulting the public can only be comprehended as a “win-win” solution. This was explicitly underlined in the Explanatory Memorandum to the Recommendation on the Legal Status of Non- Governmental Organisations in Europe where the Council of Europe stated that “Notwithstanding the different perspective of NGOs and public authorities, it is in their common interest and that of society as a whole for them to have available effective mechanisms for consultation and dialogue so that their expertise is fully exploited. Certainly competent and responsible input by NGOs to the process of public policy formulation can contribute greatly to efforts to find solutions to the many problems that need to be addressed”54. The CoE urged its members to adopt techniques that facilitate CSOs input through bodies playing a co-ordinating role. Realising that the civil society organisations play an important role of facilitators of broad policy dialogue, in 2001 the European commission proclaimed public participation as one of the five core 54 Explanatory Memorandum to Recommendation CM/Rec (2007) 14 of the Committee of Ministers to member states on the Legal Status of Non-Governmental Organisations in Europe, Council of Europe International practices on confidence-building measures ... 253
principles of good governance. In its White Paper on European Governance it clearly signalled that: “the quality, relevance and effectiveness of EU policies depend on ensuring wide participation throughout the policy chain – from conception to implementation. Improved participation is likely to create more confidence in the end result and in the Institutions which deliver policies. Participation crucially depends on central governments following an inclusive approach when developing and implementing EU policies”55. And while the White Paper on European Governance dealt with the principle of participation at macro level, the Model Code of Good Administration adopted by the Council of Europe went beyond the policy level, stipulating that even at the level of individual decisions, “unless action needs to be taken urgently, public authorities shall provide private persons with the opportunity through appropriate means to participate in the preparation and implementation of administrative decisions which affect their rights or interests”56. At the same time, the European commission explicitly stressed that the culture of consultations cannot be achieved only trough adoption of legal rules but should be underpinned by a code of conduct that sets minimum standards, prescribing what to consult on, when, whom and how to do it. This will not only help regaining public trust but will promote culture of consultation, will institute it and efficiently implement it within public institutions.
How these principles are implemented in practice? At European level, the Green Papers published by the European Commission are among the main tools enabling wider public debate. The Green Papers are documents aiming to stimulate discussion on given topics at a European level. They invite the relevant parties (bodies or individuals) to participate in consultation process and debate on the basis of the proposals put forward. Green Papers may give rise to legislative developments that are then outlined in White Papers. The comments and proposals received are usually integrated in the Commission’s suggestion for policy launch summarised in White Paper. With the adoption of the General principles and minimum standards for consultation of interested parties (see Annex 4) in 2002, the EC took a leading role in shaping the consultative process in Europe and provided practical example on how Member States should implement the principles embedded in the White Paper on European governance. The Code of standards was aimed at reshaping the current EC’s consultation practices and providing structured and consistent approach in the area. It was also aimed at ensuring that all interested parties have equal access to information and are equally presented in the policy formulation process. The observance of this principle grants that the proposals of the EC are widely agreed, technically viable, practically workable and based on a bottom-up approach. Following the good practices that the EC wanted to introduce, the draft Minimal standards for public consultations were also consulted with the interested parties. The proposals and recommendations received along with the information about the parties that submitted them were posted on the website of the Commission. By doing this, the EC not only ensured the openness and transparency of the policy process but made sure that the same principles apply to the civil society organizations that contributed to the elaboration of the standards. Thus the Commission reconfirmed its belief that “for the consultation relationship to succeed, the commitment to these principles cannot be unilateral: both sides involved in the consultation process have a role in applying them effectively”57. Viewed through the lenses of better civil involvement, the application of the principles of good governance in practice means that the Commission will:
55 European Governance – A White Paper” of the Commission of the European Communities. Brussels, 25.7.2001. COM (2001) 428 final. 56 Article 8, Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration 57 Communication from the Commission, Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 final 254 International practices on confidence-building measures ...
• Consult as widely as possible on major policy initiatives and in particular legislative proposals (Participation); • Make sure that both those who are directly involved and the general public have clear understanding on: what issues are being developed; what mechanisms are being used to consult; who is being consulted and why; what has influenced decisions in the formulation of policy; • Require all interested parties that are seeking to contribute to EU policy development to submit information regarding the interests they represent and on how inclusive that representation is (Openness and Accountability); • Start the consultation process as early as possible and make sure that the interested parties will be involved at a stage where they can have impact on the formulation of the main aims, methods of delivery, performance indicators and, where appropriate, the initial outlines of that policy (Effectiveness); • Ensure that there is consistency in the operations of its own departments and will provide mechanisms for feedback, evaluation and review (Coherence). The adopted general principles and minimal standards for consultations aimed at providing practical guidelines, answering three main questions: who to consult, how to consult and when to consult. However, to make them more effective and to ensure their proper implementation, the EC envisioned the following accompanying measures: • Provision of practical guidelines, including best practices examples assessable via the Commission’s Intranet website; • Establishing a help-desk facility using mail-box, to which staff can send questions on the application of the general principles and minimum standards; • Provision of trainings and awareness rising measures. In order to create a clear framework of CSO involvement in the decision-making process, in 2004 the European Commission published Guidelines on Principles and Good Practices for the Participation of Non-State Actors in the development dialogues and consultations. The document gives practical guidelines to the EU Delegations on how to promote “confidence building” and trust between Governments and non-state actors. One of the first recommended measures to start with is the conduct of “a mapping study” on the situation of NSAs in the country or in the region. The study can support the launch of participatory process by reviewing the CSOs networks and the most relevant existing process of dialogue at a country/region level. The study may also assess the capacity of the CSOs, the role they play and the constraints they face, in terms of advocacy, monitoring, policy dialogue and service delivery. In order to achieve its objectives, the study should analyse the following organizational benchmarks: • mission and functions of the CSOs and their ability to carry out them; • relations vis-à-vis each other; • level of involvement in policy dialogue, monitoring and implementation both at central and district levels, with either the national authorities or the donors community; including the current status of participation in relation to the EC and other donors’ co-operation; • voice of the grassroots; • funding environment and strategies (legislative framework on funding and foreign aid dependency); • civil society organisations’ views, expectations and strategies on partnership with central and local government; • flow of information within the civil society and between CSOs themselves at central and community levels: nature (“backward”, i.e. from central level to the districts and to the International practices on confidence-building measures ... 255
communities, and/or “forward”, i.e. from communities to the districts and to the central level) and contents; • flow of information between donors, government and civil society: nature (“backward”/”forward”) and contents (strategies, policies, accountability, procedures, access to funding, etc); • Indication (geographical, sector, etc) as to where CSOs are not organised and capacity- building is needed, taking into consideration of possible synergies and linkages with programmes and initiatives already existing within this field58. The European Commission paid special attention to the creation of new ad hoc civil society dialogue IPM Achievements structures other than those already existing. It have • The IPM tool is used in the context underlined that establishment of new structures of the European Business Test Panel, should be avoided in principle as to avoid donor-driven a joint project between the European or government-driven structures for dialogue with civil Commission and Member States society. The opposite may create structures that will aimed at evaluating the impact of new be neither truly representative of the interest of civil proposals on business. Launched in society, nor be part of civil society genuine dynamics, 2003, the European Business Test and will exists with the very reason of benefiting Panel now includes more than 3.200 from donor funding. The existence of such CSOs companies of all sizes and sectors, usually undermines the government trust in the CSOs located in all EU Member States. activities as a whole and raises questions regarding • The IPM technology has been their objectives and interest that stay behind them. used in the “Feedback Mechanism” The European Commission have also noted that (2000–2005) project, which aimed the consultation process requires a good balance at collecting problems relating to between economic and social partners and NGOs different EU policies that citizens and representing various groups or areas of concern. businesses encounter in their daily The inclusive approach in the consultation grants the life, through a network of 300 contact ownership of the agreed policy initiative at all levels. points (such as Euro Info Centres, The Guidelines have prescribed that apart from the European Consumer Centres and monitoring process over the citizen participation in the Citizens Signpost Service). This the decision-making process, a monitoring on the project has been given a new impetus trends of the CSOs attitudes should also be carried through the “SME feedback” lead by out. It should assess the CSOs capacities and their DG Entreprise, which focuses on the added value for policy formulation, their willingness problems that SME encounter while to ensure inclusive and transparent processes doing business in Europe. etc. The following three main questions should be • IPM also serves internal addressed in this respect: communication and staff management, • Are CSOs willing to capitalise on opportunities as internal surveys are regularly to get involved in the development process conducted within the European (by increasing their own capacities, by raising Commission, and is used by awareness)? Commission services to prepare events • Are CSOs willing to reinforce networks (central and conferences (registration, etc), to level to give voice to the grassroots, to inform conduct websites users surveys, etc. constituencies to prepare consultations, to (Information available at http:// provide feed-back on consultations, etc.)? ec.europa.eu/yourvoice/ipm/index_ • Are inputs provided by CSOs in consultations en.htm) and dialogues of good quality and relevance?
58 Guidelines on Principles and Good Practices for the Participation of Non-State Actors in the development dialogues and consultations, DG Development, European Commission (available at: http://ec.europa.eu/europeaid/ what/civil-society/documents/guidelines_principles_good_practices_en.pdf) 256 International practices on confidence-building measures ...
The monitoring will allow identifying the weak spots and the aspects to be improved, including the appropriate entry points. The European NGO Confederation for Relief and Development in its opinion59 towards the draft Commission document strongly supported the introduction of the mapping studies. It noted that specific efforts are needed in order to “segment” opinion in consultation and to allow for the diversity of different viewpoints while at the same time a “conflict sensitive approach” should be adopted in politically instable countries. Indicators for assessing CSOs participation should be elaborated at a country level in close cooperation with CSOs representatives. One of the widely used tools that accommodate the concept of diversity interest representation is the European Commission’s Interactive Policy Making Initiative (PMI) launched in 2001. At the backbone of the initiative are the e-technologies that enable wider public involvement. The Internet based IPM tool is an application used to create and conduct surveys and public consultations. It provides easy-to-use and straightforward online questionnaires making it easier for respondents to participate and for policy makers to analyse the results. It enables policy developers to get more rapid and targeted response to controversial issues and problems and to improve the assessment of the impact of policies. The initiative rapidly became a major instrument for evaluating existing EU policies and facilitating open consultations on new initiatives. Since its launch, the IPM tool has fostered more than 100 public consultations, available on the web portal “Your voice in Europe”. The “Your voice for Europe”60 is a “single access point” allowing the general public to receive information and get involved in various consultation processes and discussions. The collection of comments and recommendations coming from a wide variety of organisations has twofold purpose. Apart from getting a second opinion on the draft policies, the Commission uses them as a valuable source of expert opinion. Given the new competences and tasks allocated to the European Commission, expert knowledge has become critical factor for delivery of sound and better policies. And since in many cases the needed knowledge has become increasingly technical, the need for external expertise has grown and has marked the need for establishment of expert groups. The expert groups are consultative bodies set up by the EC to provide advice in the preparation of legislative proposals and policy initiatives as well as to support the EC in its tasks of monitoring, coordination and cooperation with the Member States. They may comprise of representative from the national, regional or local authorities, representatives from civil society organizations or other interested parties as well as individuals possessing high expert knowledge in the relevant field. In order to ensure high level of transparency, the lists of experts group along with information on those groups (e.g. the lead department in the EC, the group’s tasks as well as the category of participants) are published at the public register of Commission’s expert groups. In addition the websites of the relevant Directorates-General may provide lists with the names of the experts, the organizations they represent, summaries, conclusions or other working documents from the group. The work of the expert groups can be complimented by other means of mobilising expertise, including publication of consultative documents (green papers, white papers and communications), internet consultations, hearings, workshops, conferences, seminars, etc. With the extension of the competences of the EC, the number of expert groups has gradually increased from 537 in 1975 to 1041 in August 2010. The large number of expert groups attached to the European Commission made this mechanism for consultation a rather standardised and very significant element of the European governance structure. And while the experts groups act primarily as an EC’s supportive policy tool, the European Parliament has established another tool for “hearing the voice” of the civil society. The European 59 Available at: http://www.concordeurope.org/Files/media/0_internetdocumentsENG/olddocumentsFRE/3_ Sujets_traites/3_2_sujets_traites/3_2_16_acteurs_non_etatiques/3_2_16_1_2_documents_de_concord/ documentsdediscussiondecondord.pdf 60 http://ec.europa.eu/yourvoice/index_en.htm International practices on confidence-building measures ... 257
Parliament’s Citizen Agora is consultation mechanism, set by the European Parliament to bridge the gap between: • The European institutions and citizens: the Agora is direct and large-scale tool for improving communication and mutual understanding of the European institutions and people living in the Union. It facilitates the European Parliament’s understanding about citizens’ expectations and needs; • The different sectors of European civil society: often, civil society organizations may have diverging interests when it comes to sensitive issues. In the consultative process they act separately, rarely setting their arguments against others thus letting the European authorities reach often unbalanced compromises on their own. The Agora facilitates consultation between whole sectors of European civil society that are usually ignorant of each other. By setting the Citizen Agora, the European Parliament tried to establish structured dialogue with European civil society and create close link with the tens of thousands nongovernmental organisations and the millions of members of civil society in Europe. The aim of the Agora is to discuss the major topics of the European Agenda by providing open and transparent tool for public consultations. At the same time, the Agora can be used as a tool for dissemination of information and confidence building as the first Agora was taken by civil society to be a genuine sign of trust. The Agora is made up of 500 organisations which have been identified by the parliamentary committees with areas of responsibility relevant to the subject of the Agora and all members of the European Parliament concerned. Each organisation invited may be represented by no more than one person per Member State. This rule makes it possible also to invite organisations from outside the European Union. The first Agora was organized in 2007 and discussed the future direction of Europe – principally the new Treaty and opportunities ahead; the second one took place in 2008 and was focused on climate change. With the second Agora the testing phase of the initiative was completed. Its future will be decided by Parliamental bodies and, as appropriate, the other European institutions after the completion of its monitoring. Similar form to the Citizen Agora, but this time, initiated by the civil society sector is the European Citizens Consultation Project. The European Citizens’ Consultations (ECC) 2009 were run by a unique consortium of more than 40 independent European partner organisations, that include foundations, NGOs, universities and think-tanks from all 27 European Union Member States. On the eve of the 2009 European elections, the ECC 2009 provided to the EU citizens a platform for pan-European dialogue on the challenges brought by the economic and financial crisis. During the first stage of the project, about 200 000 citizen have visited the online consultation platform and expressed their ideas on the ways of shaping the economic and social future of the Union. These ideas were further discussed at national consultation stages that took place in all 27 Member States and involved a total of 1,600 randomly chosen citizens. Ten recommendations for action at the EU level at each “European Citizens” Consultations specially organised national event were produced. provide a unique opportunity for the At a later stage, all participants were asked to vote public to discuss their concerns and ideas and choose their top 15 policy recommendations with each other, and with policy-makers. They inform and enrich the debate on from all proposals generated at the national events. how to shape effective policies to address These recommendations were discussed with top EU the challenges we face, adding to the policy-makers, including the European Commission, information we get from opinion polls European Parliament, the EU Presidency. and consultations with stakeholders.” The ECC 2009 is built up on the success of ECC José Manuel Barroso, President of the 2007, which established a new model for citizen European Commission participation enabled by the first pan-European 258 International practices on confidence-building measures ...
participatory project. The European Citizen Consultations’ objectives are very much the same as the objectives set by the European Parliament in the process of establishing Citizen Agora. The ECC 2009 aimed at: • Fostering debate between citizens and policy-makers in the run-up to and after the European elections; • Closing the gap between the EU and its citizens by bringing the EU closer to citizens and citizens closer to the EU; • Mainstreaming trend-setting and long-term oriented citizen consultations at the European level; • Feeding citizens’ opinions into the political debate at both European and national levels; • Increasing the general public’s interest in the EU: generating substantial media coverage of the dialogue between the EU and its citizens; • Deepening European co-operation within existing civil society networks and their respective partner networks, as well as e-participation providers61. The European Citizen Panel is another civil society initiative very similar to the one, promoted by the ECC but in contrast to the ECC it was focused on a specific policy filed. The panel was launched in 2006-2007 as a pilot initiative engaging citizens from ten different regions of Europe to discuss issues that affect rural areas. The objective of the initiative was to promote a bottom-up driven policy approach and create mechanism that empowers citizens to disseminate proposals on the future policy on the European rural areas. The initiative operated at two levels: regional and European. • At the regional level, citizens, who have been randomly selected and who capture the diversity of populations, participated in panels to debate rural issues and make recommendations to their respective policy-makers. Their work was facilitated by the information provided by key stakeholders and experts with interest in rural affairs; • At the European level a number of citizens from each regional panel have met to deliberate and reflect on the future roles of rural areas. The initiative established 8 panels in ten regions in Europe. All regional panels followed a common methodology of deliberation. After the regional meetings, 87 delegate citizens from all regions took part in the final Pan-European deliberative session. The participants compared their views and developed a common report on their perceptions and recommendations of the future for rural areas in tomorrow’s Europe. The European citizens’ opinion was publicly addressed to the relevant European and regional authorities from the offices of the EU’s Committee of the Regions.
The mechanisms for public consultations adopted in the Member States broadly follow the EU trends in involving citizen in the decision-making process. The different countries however due to their different political, economic and administrative development have adopted different approaches. The most distinctive and innovative of them will be presented in the following section.
Bulgaria The general mechanisms for public participation in the decision-making process are stipulated in the Law on Normative Acts, Administrative Procedure Code, Law on Local Governance and Local Administration as well as in a variety of sub normative acts adopted by the government. This framework ensures that the involvement of interested parties is legally guaranteed at all levels of public life – from adoption of legal acts at the national level, to elaboration of local policies and individual administrative acts.
The Law on Normative Acts prescribes that all citizens have the right to participate in the legal drafting procedures by initiating legal changes for improving the current legal 61 More information about ECC 2009 is available at http://www.european-citizens-consultations.eu International practices on confidence-building measures ... 259
framework or by consulting already drafted legal acts. The obligation to consult with the public is explicitly stipulated as a main principle of legal drafting procedures along with the principles of validity, stability and openness. Consultation on draft normative acts may take place at two stages: • Before the submission of the act to the Council of Ministers: • All draft bills should be published on the website of the relevant authorities along with the grounds for their adoption. A minimum of 14 days is given to the general public to submit its comments and recommendations. Only after the expiration of this period and review of the comments and suggestions, the draft act can be submitted to the Council of Ministers. • Before the adoption of the act by the National Assembly: • Following article 28 of the Rules of Organisation and Procedure of the National Assembly, the meetings of Standing Committees are open and members of the public may attend them. Representatives of civil, trade unions, professional and industries’ associations have the right to attend the meetings, submit written opinions and participate in the Standing Committees’ deliberations on draft legislation concerning their activities and issues of interest. The same principle is applied at the level of local government. The Act on Local Government and Local Administration prescribes that among the main tasks of the local standing committees are to study community’s needs in the relevant field and to make proposals as to how the problems are to be settled. In this process the committees may ask for support of external experts and consultants. All citizen and their organizations have the right to submit proposals and opinions related to the issues discussed. The sessions of all committees and the local assemblies are public and may be broadcasted. Participation of the interested parties in solving issues of “local” or “specific” character is regulated by the Administrative Procedure Code. The Code prescribes that the general public may participate in the process of elaboration of general administrative acts62 by submitting comments and proposals. The public authority issuing the act is obliged to open the proceedings on issuing of the general administrative act by announcing it in public through the mass media, by sending the draft to organisations of the interested persons or in another suitable way. The notification should include main reasons for the issue of the act, as well as forms of participation of the interested persons in the proceedings. One of the following forms of participation may be chosen: • written proposals and objections; • participation in consultative bodies, supporting the body who is issuing the act; • participation in the meeting of the body, issuing the act, when it is collective; • social discussion. The period for public consultation may not be shorter than one month from the day of the notification. The general administrative act may be issued only after all facts and circumstances significant for the case have been clarified and all proposals and objections of the interested citizens and their organizations have been considered. The finalized general administrative act should be announced by the same means the notification for it was made. If separate interested persons or organisations have participated in the proceedings, a separate announcement for the issue of the act shall be sent to them (article 72.2). In addition to the legal framework, the Council of Ministers has published guidelines for public consultations. They aim to give practical information to public authorities on how to intensify and better facilitate public involvement in the policy process. The guidelines are geared around six main steps that outline how, when and who should be consulted. The main consultation phases are identified as follows: 62 Article 55, Administrative Procedure code prescribes that general administrative acts are acts with one-time legal action, by which rights or obligations will be created or rights, freedoms or legitimate interests of indefinite number of persons will be directly affected, as well as the refusals to be issued. 260 International practices on confidence-building measures ...
• Preliminary planning of consultation procedures; • Identification of interested parties; • Preparation of the documents to be consulted; • Choosing and conducting consultative procedures; • Analysis of the received comments and suggestions and their integration; • Feedback to the interested parties. In order to facilitate the national consultations on draft legal acts and national policies, a public consultation portal was created (www.strategy.bg).
Estonia The Estonian Civil Society Development Concept (EKAK) was adopted by the Estonian Parliament in 2002. Its objective is to outline the main roles, principles and mechanisms for cooperation of public authorities and CSOs. The Concept prescribes that public authorities should support citizen actions by creating favourable legislative environment, informing the public about their work, involving citizens and their associations in the planning and implementation of relevant decisions. In the process of policy development citizen associations and public sector commit themselves to: • co-operate in establishing, implementing and assessing policies of different areas through their authorized members or representatives according to their areas of activity and competence; • arrange the collection of opinions necessary for establishing policies and initiating legal acts, present them to the authorized bodies systematically and according to the agreed time schedules and form; • consider each other’s experience in establishing policies and initiating legal acts. Consult with various citizens’ associations during the drafting stage, giving them sufficient time for drafting their own opinion; • assess the effect of various policies and legal acts on the society and environment both in the drafting stage and later; • enhance the competence of their representatives for participating in the process of establishing, implementing and assessing policies; • in devising the policies concerning minority groups, consider opinions and viewpoints of the citizens’ associations representing such groups, and involve them in the drafting of legislation and in political debates; • jointly draft and follow the good co-operation practices in order to organize the drafting, implementation and assessment of policies and to involve the non-profit sector in the law- making process63. With the adoption of EKAK the Estonian Parliament committed itself to organise deliberations of its implementation once every two years. Based on the principles stipulated in the EKAK, the Estonian Code of Good Practices on Involvement for public institutions was published. The Code does not have binding character but public authorities are in general advised to follow it. It aims to harmonise public consultation practices and provide common standards for involving CSOs in the decision-making process. The document is geared upon eight major principles of participation, namely: 1. The goals of the consultation process should be clearly and comprehensively explained along with the expectations regarding the engaged parties and the feedback from them; 2. The interested parties should be clearly identified and their wishes, needs, and distinctive features will be taken into consideration. The public authorities will organise the registration of interest groups, in order to guarantee that all affected parties are informed about the beginning of preparation of and/or consultation on strategic documents;
63 Decision of the Estonian Parliament on the Approval of the Estonian Civil Society Development Concept, Tallinn, December 12, 2002 International practices on confidence-building measures ... 261
3. All interested parties will be involved in the preparation of drafts as early as possible and will continue the engagement throughout the entire course of the process; 4. Detailed plans for engagement should be prepared before the launch of the consultation procedures. The chosen form of engagement should correspond with the content of the draft document, its potential effects, needs, opportunities, and other conditions of the engaged parties; 5. Smooth communication on the draft documents should be ensured thus granting that the public, interest groups, and those possibly affected by the strategic document will be timely informed; 6. An interim summary and analysis of feedback should be provided to track whether the consultation process is proceeding smoothly and according to plan. Based on the interim summary, it should be decided if supplemental forms or methods of engagement are needed or if the circle of parties need to be expanded; 7. All engaged parties should be informed on the results of the engagement. They are entitled to receive summary answer from the initiator of the engagement, which will include all the proposals that have been presented, both those that have been accepted and those that have been rejected. The rejection of proposals should be explained.The engagement and applicability of its results should be assessed. The assessment results should be considered in the planning and implementation of the next engagement processes. The Code does not limit the scope of documents that should be consulted but does sets out minimal obligatory standards. As a must, at least the following documents should be consulted: • Drafts of laws and their amendments; • Drafts of regulations and directives of the Government of the Republic; • Drafts of Ministers’ decrees; • Documents, concepts, policies, development plans, and programs that are important for the development of the country; • Drafts of legislation of European Union institutions and other strategic documents (i.e. green and white books); • Instruction and procedures for rendering public service; • Conventions and international agreements, as well as documents that are worked out within their framework, and that influence the society. The process of public consultation in Estonia is very much linked to the electronic means of communication that over the last years has become a major channel for exchange of opinions. One of the practical implementation tools of the principles stated in EKAK is the Estonian participation portal (www.osale.ee) launched in 2007. The aim of the portal is to establish bilateral communication with constituencies thus providing greater transparency of the policy process at a governmental level. The portal has three main functions: • To provide a platform where citizens and interest groups can launch initiatives for new legislative proposals, present ideas and critique to government and submit petitions. All proposals submitted to the portal are subject to comments and voting by other users. After receiving feedback from other interested parties, the proposals are forwarded to the relevant government departments, which then post an official response explaining what action was or was not taken and why; • To enable citizen participation in public consultations/hearings. Citizens and CSOs can publicly give their opinion about draft legislation prepared by government agencies. All government agencies have been advised how to publish their draft policy papers, development plans, laws or provisions on the consultation website. Submission is however voluntary and is not regulated by administrative procedures; • To become a focal point of easily assessable public information: Public authorities are in general advised to publish information about forthcoming policy decisions and relevant 262 International practices on confidence-building measures ...
public consultations. The portal also enables search for legal acts according to their stage of preparation (i.e. from policy proposal to adoption in the parliament). The OSALE portal also serves as a tool for enabling people to better understand the aims and procedures of administrative agencies while at the same time it provides authorities with valuable feedback about public expectations. It integrated the web-based e-participation application known as TOM – the acronym for “Today I Decide” launched in 2001 by Estonian Chancellery. The use of internet technologies and the active civic participation has inspired the launch of large citizen initiatives like the “Let’s Do it” campaign where 50,000 volunteers helped to clean up waste in 2008 and the “My Estonia” campaign in 2009. My Estonia campaign was a civil initiative aiming to improve the quality of life in Estonia by using the natural interoperability of people as well as the means provided by the information technologies. On the 1st of May 2009 more than 11,000 people convened on brainstorming sessions to discuss common problems and support each other in achieving common goals. For this purpose, organizers provided 400 think tanks in cultural centres, schools and other popular institutions. Discussions were simultaneously held online and later linked to the central website. Brainstorming sessions were also organized by Estonian communities in 12 other countries.
Austria In 2008 the Austrian Chancellery adopted Standards of Public Participation64 with the aim to help the Austrian public servants ensure high-quality participation processes. The Standards were prepared by an inter-ministerial working group with the participation of legally established representations of interest, NGOs and external experts. The document covers the three main phases of the participation process: preparation, implementation, monitoring and evaluation and is applicable every time policies, plans, programmes, and general legal instruments are developed. The Standards recommend an obligatory conduct of public consultation especially in cases where: • many people are affected by / interested in the topic; • the topic might be controversial; • the implementation of the policies, plans, programmes, and legal instruments requires the cooperation with those affected and interested; • broader comprehension, acceptance, and result of a high quality are aimed at. Transparency and traceability are among the main principles proclaimed to govern the participatory process. The Standards underline that public participation requires joint responsibility for the jointly performed work and its outcome. This is believed to improve both the quality of the outcome and people’s identification. The Standards are divided into three main categories: • standards for informative participation (information); • standards for consultative participation (consultation); • standards for cooperative public consultation (cooperation). They are elaborated in the form of questionnaires that should be answered during the conduct of each participation process. If all questions can be answered and be affirmed, it is considered that the standards of high-quality public participation are met. In order to facilitate application of the Standards, a practical manual have been elaborated. The Manual targets both civil servants and citizen by giving them easily comprehensible and clear information on the tools and mechanisms they may use during the public participation procedures. The Manual also provides a list of success stories that illustrate the participatory mechanisms implemented in practice and show the impact of the citizen involvement in the decision-making process. The start of every participatory process is recommended to be linked to the following activities: • Getting and spreading information; • Assessing if the conditions necessary for a formal participation process are fulfilled; 64 The standards are available at: http://www.partizipation.at/standards_pp.html International practices on confidence-building measures ... 263
• Measuring possible benefits of an informal participation process; • Identifying possible forms of a participation process with other stakeholders, politicians and the administration. All these guidelines are written in a way that enables their application by both civil society and public servants, irrespectively who initiates the participatory process. Along with the Standards and the Manual, a public consultation web portal (http://www. partizipation.at) was created. The portal provides synopsis of all needed information regarding the participation process, additional information on best practices and platform for exchange of views. It also contains useful information on the selection of appropriate methods for participation. Apart from the portal, among the most interesting Austrian e-participation projects implemented in 2006 stands out the mitmachen.at project. It represents e-participation procedure enabling young citizens to develop politically relevant future concepts for Austria. The project aims at connecting youth with the public institutions while at the same time builds trust in the young generation about the way their country is governed. The project focuses on the target group of young people living in Austria or abroad. During the project implementation, all Austrian schools informed their students about the project in their information technology classes. Beside schools, all youth-organisations (youth-groups, Austrian Employment Service, Austrian students union, etc.) were included in the same way. The project adopted a 3-step- model. The content of considerations in Phase 1 (Contributions or Deliberation) is citizen- produced and the concepts aggregated by experts in Phase 2 have been verified in Phase 3 by citizen prioritisation. In Phase 1, 2,074 contributions were received, geared around 8 topics. During Phase 2, 174 future concepts were aggregated based on contributions from phase 1. Phase 3 received 2,578 questionnaires (54,626 hits on single questions). The project took place directly after the Austrian national elections and was considered as supportive information on youth topics for future political actions.
Netherlands In 2005, the vigorous discussions on the need for changing the Dutch electoral system came to a dead end. Since no agreement on a political party level was reached, the Dutch government decided to use an innovative approach and to consult the voters – the ones with the greatest unbiased interest in the electoral system. Inspired by the British Columbia experience65, the Dutch government announced the setting of Electoral System Civic Forum. The task of the Forum was to identify the most suitable electoral system for the Lower House of Parliament. The Civic Forum was built as entirely independent platform that performed its work as transparently as possible. The plenary meetings were open to the public and the media. The Forum’s work was divided in three phases: training phase; consultation phase and a decision-making phase. The Forum was comprised of 142 citizens who were chosen after first being selected as a random sample of 50,000; then those interested within the sample were asked to self-nominate; then lots were drawing from that group. The group was chosen to include equal numbers of men and women, to ensure geographical distribution of the country”s population. It was also constructed in a way to match the age distribution of Dutch population as closely as possible. The Civic Assembly conducted its meetings from March to November 2006 and submitted its recommendations to Parliament in December 2006. Similar approach was adopted by the Dutch government to assess the citizen expectations from the e-government implementation. The e-Citizen Program was established as an independent forum which stimulates the development of e-government from the citizen’s point of view. The forum was part of the Dutch implementation organization for ICT and government. A specially created Steering Committee was representing citizen’s interest and supervising the programmes
65 The Civic forums are relatively new method for civic engagement implemented first in Ontario and Canadian British Columbia. 264 International practices on confidence-building measures ...
activities. The main objectives of the e-Citizen Programme was to elaborate an e-Citizen Charter to regularly conduct surveys regarding citizen expectations, and to give Web Awards for good practices. The e-Citizen programme was succeeded in 2007 by the Citizenlink (Burgerlink). The Citizenlink is an initiative of the Dutch Government aiming to improve performance of the public sector through citizen involvement. As such, Citizenlink is entitled with the promotion of quality standards, measuring citizen satisfaction and stimulating e-Participation. The platform enabled the development of four e-Participation instruments that reflect the three main level of participation (political, policy and social participation): • Voting Assistant and Voting Tracker (watstemtmijnraad.nl) are examples of the Dutch success in using e-technologies for electoral and accountability purposes. The Voting Assistant provides comparison between the programmes of political parties on the basis of 30 main issues thus helping voters to make their choice. About 5 million voters used the assistant (almost half of those eligible to vote) during the latest national elections. The Voting Tracker on the other side assembles the voting record of parties and politicians and thus makes transparent what their positions have been on certain issues. In this way, the voters can make their electoral choices on actual behaviour rather than on future promises. • e-Petitions (www.petities.nl): According to the Dutch law, apart from the right to petition, citizens have also the right to launch citizens’ initiatives. If enough people support the issue, it can be tabled with a representative body like a city council or the parliament, which has to discuss it. As getting the requested number of signatures may be hard, the internet site facilitates the process. A number of Dutch municipalities have created their own platforms to stimulate citizen e-initiatives. • WeEvaluate (wijwaarderen.nl) is a web platform where citizens can give their judgement about services with a social importance. The website is based on the examples of ratings of commercial websites (restaurants, hotels, etc.). Citizens can either design their own rating system or can use a simplified model of the National Citizen Satisfaction Survey, based on the criteria of the e-Citizen Charter.
United Kingdom In July 2008, the Ministry of Justice published “A National Framework for Greater Citizen Engagement” reflecting on the Governance of Britain Green Paper proposals for constitutional renewal. The paper outlined the following issues of national importance that should be obligatory discussed and jointly elaborated with the citizens: • issues that may result in significant constitutional change; • issues where individuals themselves need to act in addition to the government to make a significant impact – for example, on behavioural issues such as smoking or obesity; • where there are several policy options on which government has an open mind; • where there is public benefit in exploring complex and difficult trade-offs between different policy options – for example, between a personal desire to purchase cheap flights and the societal need to reduce carbon emissions66. The consultation paper also set the main criteria that distinguish the effective mechanisms for building people’s trust and elaborated on two new forms that can be used along with the standard consultation procedures: • Citizen summits: They bring together a large body of people (usually between 500-1000) to deliberate on an issue or a number of related issues. This can either take place face- to-face or online. The recommendation of a summit would then be put to Parliament for consideration; 66 A national framework for greater citizen engagement. A discussion paper, July 2008, Ministry of Justice, UK International practices on confidence-building measures ... 265
• Citizens’ Juries: an independent Any mechanisms to strengthen people’s forum for members of the public to examine engagement with democratic processes and and discuss an important issue of public enhance trust will only do so if they meet the policy. The citizens juries to a great extend following criteria: resemble the juries in the court system. The jury receives expert information about the • They register with the appropriate public. To achieve this, they must be viewed as issues in question, may ask questions to a beneficial experience and participants should the experts involved and after that takes its feel better informed as a result; decision. Government then should publish • They are as broadly representative and a response, either as part of a broader accessible as possible involving a broad spread response to any wider consultation exercise of the population and ensuring that a good cross or as a stand-alone public document; section of relevant audiences are engaged as • Petitions for Westminster: The part of the process; House of Commons Procedure Committee • They are credible so that people believe has proposed a system for e-petitioning, they matter. To achieve this, there should be to run alongside the traditional petitioning a robust objective standard in place for how engagement mechanisms should be applied to system. It is proposed that on three occasions a national policy issue and effectively delivered: each year, certain e-petitions to be debated there must be feedback to participants in by the House of Commons. deliberative engagement exercises and a The e-Petition principle was also introduced commitment to appropriate levels of evaluation; as valuable mechanism for public participation • They are open and transparent in that in the Local Government White Paper67. But participants must be aware in advance of the even before the introduction of the policy degree of influence they might have, and the paper, many local authorities have voluntarily way in which the government will consider and introduced e-petitioning to run alongside with take on their conclusions. There must be a the paper process. The e-tool have proved to shared understanding of when and how these mechanisms will be used; be among the most effective mechanisms for • They are systemic and embedded in provision of greater citizen involvement in the the policy making process otherwise people local decision-making process. could regard them as gimmicks damaging the Following its commitment for more legitimacy of the process; responsible and transparent policies, • They are consistent with the the UK government has also launched fundamental principles of representative consultation platform “Have your say” democracy. Government and Parliament must (http://www.homeoffice.gov.uk/about- continue to have the space to consider the impact us/consultations). The portal reflects the of any changes in policy, for example where main principle embedded in the Home there are substantial resource implications. The Government believes it is important that Office Work, namely that the change of these mechanisms should complement and every policy should be preceded by public not challenge the supremacy of our system of consultations. For that purposes, the Home representative democracy and there should Office publishes consultation proposals on a be a clear understanding of the relationship particular issue and requests comments and to the parliamentary consideration of issues. recommendations. Each consultation paper contains instructions on how to respond (Source: A national framework for greater cit- and what is the deadline for submission of izen engagement. A discussion paper, July 2008, comments. The mechanism is very similar to Ministry of Justice, UK) the Green and White Paper consultation one, adopted by the European Commission.
67 Strong and prosperous communities. The Local Government White Paper, Department of Communities and Local Government, October 2006, London 266 International practices on confidence-building measures ...
Germany Citizen Juries as mentioned in the UK Government proposal constitute a strong tool for civic participation. In the period 2001-2003 the city of Berlin joined the “Social City Programme” that involves authorities from Federal, Landers and communes level. During the three year period, Citizen Juries were launched in the 17th Berlin neighbourhood with the aim of: • mobilizing citizen participation; • improving the image of public officials; • rationalisation of public expenditures. Half of the Juries were comprised of randomly selected citizens and the other half of citizen representatives of local civil society. The Juries deliberated on projects presented by different citizens and had the power to decide whether to finance the project according to its “usefulness” and general quality. Final decisions were generally taken through secret-ballot voting. The juries met at an average 15 times per year to evaluate about 72 projects. Half of them were eventually financed.
4.3. Accountability – monitoring mechanisms In the last decade accountability has become a central part of the international political and social agenda. The term “accountability” has been generally applied to a range of different forms of interactions between different groups and stakeholders and is seen as a crucial prerequisite for building an efficient and effective democratic state. Accountability as such is never an aim or an end by its self, but a mechanism for achieving much broader goals as social justice, equity and proper redistribution of resources (J. Gaventa, 2006). In general it can be described as a legal, political or moral duty to provide account, to explain and justify one’s actions and to respond questions about a particular matter. Accountability includes also the liability to moral, legal or political sanctions for those who fail to meet the set criteria. The concept of accountability prescribes two major dimensions for achieving effective accountability: answerability (the right to make claims and demand response) and enforceability (mechanism for sanctioning non-responsiveness). Accountability from institutional prospective is a set of relationships and mechanisms of control. From political and social point of view, it is a general obligation to comply with the will of the electorate and general public. Accountability is often conceived as operating in deferent dimensions – political, social, administrative and legal. The current research focuses on the social accountability, identified by the World Bank as “approach towards building accountability that relies on civic engagement, i.e. in which it is ordinary citizens and/or civil society organizations who participate directly or indirectly in exacting accountability”68. Social accountability mechanisms often aim at shedding or reinforcing the activities of different horizontal accountability actors by levering change through media and law. They rely to a great extent on the readiness of the state to tolerate criticism and on the presence of easily assessable and functional legal system that can back up the claims of the citizens towards the state. Social accountability reflects the fundamental democratic right of citizens to demand accountability and is a part of the “social compact” between the agents in democracy69. Positive social accountability is a prerequisite for going beyond mere protest towards political decisions by building constrictive and systematic process that increases the chances of positive change and better civic engagement. Namely the active participation and involvement of the citizens distinguishes social accountability from other kinds of accountability where general public is perceived as observer or as passive actor to which the authorities should report.
68 World Bank web site; http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEVELOPMENT/EX TPCENG/0,,contentMDK:20509424~menuPK:1278120~pagePK:148956~piPK:216618~theSitePK:410306,00.html 69 Carmen Malena, Reiner Forster and Jenmejay Singh (2004), “Social Accountability, An Introduction to the Concept and Emerging Practice”, Social Development Papers – Participation and Civic Engagement,#76, World Bank International practices on confidence-building measures ... 267
Accountability is among the core values of the European governance process. It has been proclaimed by the White Paper on European Governance as one of the five key good governance principles. Accountability is comprehended as a universal principle applicable not only to EU and national institutions but to the civil society sector as well. The mechanisms for holding public authorities into account are often used in conjunction with transparency, accountability and participatory measures. The close interaction of the accountability principle with the rest of the good governance principles is very clearly outlined by the World Bank Institute working paper70 on social accountability. The paper refers to the following three practical approaches to enforce accountability: • Scrutiny: initiatives that enhance assessment, analysis and scrutiny of government actions, focusing on the power of information to extract accountability. Such initiatives are most often led by CSOs (e.g. expenditure tracking) or by the legislative and/or judiciary branches of government (e.g. ombudsman); • Proximity: these initiatives are usually led by governments and aim to reduce the “distance” between citizens and governments. They often seek to identify citizens’ needs or preferences but are not designed to seek direct public participation in government actions (e.g. public consultations, community cabinets). • Engagement: these initiatives are essentially government-led and effectively incorporate citizens in the decision-making process itself (e.g. participatory budgeting) in the budgeting cycle71. The three approaches may either be combined in the functions of one body or be scattered and allocated in different forms of accountability tools. Malena, Foster and Singh (2004) have suggested that “social accountability initiatives are most effective when these are “institutionalized” and when the states’ “internal” (horizontal) accountability mechanisms are “more transparent and open to civic involvement”. Thus, transparency and accountability are ultimately linked to each other.
Civil Councils and Social Compacts as monitoring mechanisms UNDP CSO committees are both participatory and accountability tools that enable civil society organization to take active stand in shaping the priorities and monitor the activities of the UNDP offices all around the globe. The first CSO Committee was established in 2000 at the UNDP headquarters as advisory platform aiming to ensure that senior management receives proper guidance on policy issues critical to the future directions of the organization. The committee comprises of 14 CSO leaders working in areas of mutual concern such as: poverty reduction and sustainable debt; inclusive globalization – democratizing trade and finance; conflict prevention and peace-building; human rights and human development; private-sector engagement. The CSO Advisory Committee provides mechanism for mutual agenda-setting, policy debate, individual accountability, and eases the exchange of opinions between senior managers and civil society leaders on the UNDP future directions. These elements provide a sound basis for building strong partnership based on principles of horizontality and trust. The positive experience of the first CSO committee encouraged the establishment of local CSO advisory committees at the UNDP country offices. The role of civil society organizations in the global decision-making and monitoring process is further facilitated by their involvement in the UN Economic and Social Council (ECOSOC). The Council is an advisory body that coordinates the economic, social, and related work of the 14 UN specialized agencies, functional commissions and five regional commissions. It serves 70 J.Caddy, T. Peixoto,M. McNeil, 2007,Beyond Public Scrutiny: Stocktaking of Social Accountability in OECD Countries, World Bank Institute 71 Ibid 268 International practices on confidence-building measures ...
as a platform for discussing international economic and social issues and formulating policy recommendations. In order to facilitate civic participation in the policy process and raise the trust in its activities, ECOSOC carries out broad consultations with academics, business sector and over 3,400 nongovernmental actors. Civil Society Organisations have consultative status and depending on the level of participation may gain one of the following statuses: • General Status: applies to large international NGOs whose interests cover most of the ECOSOC’s agenda. They may speak before delegates, circulate statements up to 2,000 words long, and place items on the agenda. They must provide a quadrennial report outlining their contributions to the UN; • Special Status: concerns NGOs with “special competence in some fields of activity of the Council”. They must provide a quadrennial report, but cannot place items on the agenda. Written statements are limited to 500 words; • Roster NGOs: concerns NGOs with one or more specific issues. They may attend meetings, but cannot speak or circulate statements72. The eligibility criteria requires NGOs to have: at least 2 years of existence, established headquarters; democratically adopted constitution; authority to speak for their members; representative structure, appropriate mechanisms of accountability and democratic and transparent decision-making processes. In order to facilitate efficient communication and to boost the dialogue with the increasing number of NGOs enjoying consultative status, the NGO Branch, Office for ECOSOC Support and Coordination, has developed a CSO net web portal (http://esango. un.org/irene) devoted to non-governmental organizations, the United Nations agencies, funds and programmes. The web portal enables CSOs and UN Agencies to share best practices, submit recommendations and consultative opinions, raise questions and point out weaknesses to be addressed. Similarly to the ECOSOC, the European Union has established its own consultative structure in the face of the European Economic and Social Committee (EESC). Following the stipulations of the Treaty on the Functioning of the European Union, the EESC consists of “representatives of organisations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas”73. The Committee’s aim is to ensure better civil involvement in the European agenda setting and bridge the gap between the EU institutions and European civil society. While the role and composition of the EESC was first set in the Treaty of Nice, the Lisbon treaty increased additionally its functions explicitly binding the European Commission to submit reports on a wide variety of issues. At the same time it stated that the European Parliament, the Council and the Commission will be assisted by the Economic and Social Committee in its advisory capacity74. In 2009, the EESC reconfirmed its active role as a bridge between civil society and EU institutions by elaborating “A Programme for Europe: proposals of civil society”. The programme has reflected the main challenges the EU should address in order to support progress-oriented and sustainable economic and social recovery. The Committee’s proposals are grouped under four headings: economic recovery; fundamental rights and the European social model; sustainable development and governance. In the area of democratic governance, the Committee stressed that basic precondition and legitimising basis for civil society participation is the adequate representativeness of those speaking for organised civil society and noted that representativeness must be qualitative as well as quantitative. The EESC and ECOSOC models have been successfully applied at the level of Member states as well.
72 Information from: http://www.un-ngls.org/spip.php?page=article_s&id_article=799 73 Article 300, Treaty on the Functioning of the European Union, Official Journal of the European Union, C83 74 Article, 13.4, Treaty of the European Union, Official Journal of the European Union, C83 International practices on confidence-building measures ... 269
Ireland The National Irish Economic and Social Council has a long standing tradition in bridging the gap between civil society and public authorities dating back from 1973. The Council consists of representatives of trade unions, employers, farmers’ organisations, NGOs, key government departments and independent experts. The main functions of the Council are related to: • Submission of analysis and reports to the Prime Minister on strategic issues related to the efficient development of the economy and the achievement of social justice; • Development of strategic framework for cooperation facilitating relations and negotiations between the government and social partners. The first social partnership agreement was reached in 1987 with the adoption of the National Recovery Programme, followed by seven other agreements, with the most recent one titled “Towards 2016: Ten Year Framework Social Partnership Agreement 2006-2015”.
Slovenia A good example of advisory body that has a strong say in the decision-making process is the National Council of the Republic of Slovenia. According to the Slovenian Constitution, the Council is a representative body for social, economic, professional and local interests and consists of representatives of labour and social interests and representatives of local interests. The National Council has 40 members from the following CSO groups: • four representatives of employers; • four representatives of employees; • four representatives of farmers, crafts and trades, and independent professions; • six representatives of non-commercial fields; • 22 representatives of local interests. The National Council provides platform where interest groups can deliberate and address issues of mutual concern. But its role goes far beyond that. According to the Slovenian Constitution, the National Council may: • propose to the National Assembly the passing of laws; • require the National Assembly to decide again on a given law prior to its promulgation; • require the calling of a referendum; • require inquiries on matters of public importance; • convey to the National Assembly its opinion on all matters within the competence of the National Assembly. The vast competences of the National Council make it a major policy influencing body at the national level. The work of the Council is organized in working groups that deal with individual issues related to legislation, initiatives and requests within specific sphere of competence. The opinions formed by the working groups are being sent to the National Council for approval, or directly to the National Assembly and its working bodies. The National Council holds regular sessions once a month. Extraordinary sessions may be also convened when there is need for a decision on urgent matters. All sessions of the Council and its working bodies are open to the public.
Bulgaria The Economic and Social Council (ESC) perceives itself as a “civil parliament” that bridges the gap between the citizen and national government. It was established in 2001 with the Law on Economic and Social Council. The Act states that the ESC is a “consultative body expressing the will of civil society organisations regarding the economic and social development” (article 1). The Council succeeded the National Tripartite Council and provided wider civil participation in the decision making process. It expresses and protects civil society interests by communicating agreed statements and proposals to the executive and legislative authorities. In this relation, ESC 270 International practices on confidence-building measures ...
adopts opinions on draft policies and draft laws; issues resolutions and analyses; organises public consultations on key economic, social, demographic, health or other issues. The main objectives of the Council are: • to ensure wider participation of civil society organizations in the social and economic life of the country; • to serve as a permanent institutional form for social dialogue and consultations on economic and social policies between the government and structures of the civil society; • to answer to legal aspirations of social and economic groups and structures of the civil society; • to express opinion, statements and proposals regarding acts of the legislative and executive authority; • to affirm the principles of direct democracy and apply experience and best practices of the European Economic and Social Committee and other similar organizations. The Council comprises of 36 members, divided in three main groups: • 12 members appointed by the managing bodies of the representative organisations of employers on the national level acknowledged by the Council of Ministers by the order of the Labour Code; • 12 members appointed by the managing bodies of the representative organisations of workers and employees on the national level acknowledged by the Council of Ministers by the order of the Labour Code. • 12 members of CSO distributed as follows: one representative of the organisations of agricultural producers; one representative of the organisations of industrial cooperations; one representative of the organisations of craftsmen; one representative of the professional branch organisations; one representative of the organisations of consumers; one representative of the organisations of women; one representative of the ecological organisations; one representative of the organisations of the disabled; one representative of the organisations of the retired; one representative of the organisations supporting the socially weak, disabled or persons in need of care; two independent scientists – specialists on the issues of economic and social policy appointed by the Council of Ministers upon proposal of the Minister of Economy and the Minister of Labour and Social Policy. The basic principle of participation is that one organisation may be represented only in one of the groups. The mandate of the chairman and of the council members is 4 years. Parallel with the ESC framework, different specialised acts provide opportunities to establish public consultative bodies at the local level. These bodies aim at combining efforts of the local interested parties while at the same time providing opportunities for controlling and monitoring of the activities of local authorities and public institutions in a concrete field of public interests. The typical areas they supervise are: • Social Support: Following the stipulations of the Law on Social Patronage, the Municipal Councils may establish public committees consisting of maximum 9 representatives from the civil society sector, business, citizen and local government; • Tourism: The Law on Tourism provides the opportunity for mayors to create public committees on tourism. Their activities, mandate and composition are subject to decision of the Municipal council; • Employment: The Act on Stimulating Employment prescribes the creation of two types of public bodies: a committee on employment and a council for collaboration. These bodies International practices on confidence-building measures ... 271
are established at the regional level by the decision of the Council of Ministers. Their concrete terms of references are adopted by regional councils for regional development; • Culture: Public committees on culture are created to support municipal administration in promoting cultural heritage. • Education: The Law on Education prescribes the establishment of two types of public consultative bodies: a board of trustees and pedagogical councils. The councils are attached to the management structure of schools and kindergartens. In addition, the Law on Local Governance and Local Administration vests local authorities with the competence to create public consultative bodies that are not mentioned in any law. The aim of these bodies is to support and monitor the work of local governments in specific fields of particular local importance.
United Kingdom The Compact on Relations between the Government and Voluntary and Community Sector in England was established in 1998. Its objective is to outline the relationship between the government and the third sector thus enhancing the efficiency of their joint interventions. The Compact does not aim to create a legally binding structure but rather to establish a framework that sets out common principles and undertakings for both government and CSOs. The main guiding principles of the Compact’s partners include: • Respect: Government and the third sector are accountable in different ways, but both need to act with transparency and integrity. Effective partnerships are built on mutual understanding and an appreciation of the differences between partners of the Compact; • Honesty: It is only through open communication that strong partnerships can be built and maintained. Full and frank discussions should be the basis for resolving difficulties; • Independence: The independence of the third sector is recognised and supported. This includes its right within the law to campaign, to comment on and to challenge government policy (whatever funding or other relationship may exist with government) and to determine and manage its own affairs; • Diversity: The Government and the third sector value a thriving civil society, which brings innovation and choice through a multitude of voices; • Equality: Fairness for everyone, regardless of their background, is a fundamental goal, and government and the third sector will work together to achieve this; • Citizen empowerment: By working together, the Government and the third sector can deliver change that is built around communities and people, meeting their needs and reflecting their choices; • Volunteering: The energy and commitment of people giving their time for the public good contributes to a vibrant society, and should be recognised and appreciated75. The Compact describes the main stages of policy development and affirms the commitments of the government and the third sector in the policy process. On one side, the Compact draws clear guidelines for the government officials regarding whom, when and how to consult. For the third sector, it outlines the commitment for effective involvement that helps establishing valuable links between the two sectors and build the government’s trust. The Compact was widely recognised by the third sector and was signed by the Local Government Association (representing English and Welsh local authorities) and the Compact Voice (an independent body representing the voluntary and community sector with more than 2,000 members representing over 20,000 voluntary and community groups). In order to further stimulate the application of the Compact, the Cabinet Office has elaborated the Code of Practice on Consultations. The Code is used in conjunction with the Code of Good Practice on Consultation and Policy Appraisal developed as part of a broader Compact on relations between 75 The Compact on relations between Government and the Third Sector in England, December 2009, U 272 International practices on confidence-building measures ...
the government and the voluntary sector. Both documents are of legally non-binding character but are regarded as mandatory for all UK departments and their agencies. Apart from addressing many of the conventional principles (e.g. early involvement in the policy-making process, clarification of objectives, feedback on the views received, etc) the Codes install explicit responsibilities on CSOs such as: to organise efficiently, to demonstrate their legitimacy and to consult their own constituents. At the local level, the Local Strategic Partnerships (LSP) are another trust building initiative that brings together local councils, public sector agencies, business sector, and voluntary organisations with the aim of identifying and delivering priorities for the local community. LSPs are non-statutory, non-executive organisations that operate at the level which enables strategic decisions to be taken and is close enough to individual neighbourhoods to allow actions to be determined at community level76. Each LSP has the freedom to decide what its roles and responsibilities will be. The responsibilities of the LSP are usually set out in written constitutions, terms of reference or protocols. In terms of internal structures, virtually all 152 LSPs with Local area agreement responsibilities have adopted similar management model: they have established main core group/board that monitors the delivery of the Sustainable Community strategy and the Local government agreements. In order to better explain their role, terms of reference, mandate and methodology of work, a number of LSPs have publish “governance handbooks”. A good example of such a handbook is the Newcastle Partnership Guidance. The Guidance outlines the way the LPS will work for the elaboration and implementation of the long-term Sustainable Community Strategy (SCS) and the shorter-term, a 3-year long Local Area Agreement (LAA). The main working approaches are: • making sure partners work well together, with a common purpose and a commitment to the SCS and LAA; • involving the public, private, community and voluntary sectors in the partnership, including hard-to-reach groups such as disabled people, older people, young people and those from faith, black and ethnic minority communities; • monitoring and managing the SCS and LAA – and making sure it improves overall conditions and narrows the gaps between deprived communities and the rest of the city and the country; • making sure the public knows about its achievements and where to go for information and help; • consulting the community in a coordinated and organised way; • developing a common performance management framework across all the partner organisations; • linking all the funding available to help deliver the SCS and LAA priorities; • aiming to simplify all the partnerships, plans and initiatives already in place, reducing duplication and getting everyone working together; • encouraging partnership members to constantly improve their skills, knowledge and ways of working77. The Handbook also contains detailed terms of references for an agreement between the Delivery Board and delivery Partnerships, the List of “Duty to Cooperate” public partners, Voluntary and Community Sector Compact and Partnership Structure.
Liaison Offices Following the international trend, many governments in Central and Eastern Europe have established NGO liaison offices in order to enhance their cooperation with the civil society sector. A study published in 2005 in the International Journal of Not-for-Profit Law revealed that liaison offices in the region fall into four distinct models:
76 Local Strategic Partnership. Governmental Guideline, March 2001, Department of the Environment, Transport and the Regions: London 77 Newcastle Partnership: Guidance and Members’ Handbook, 2009, New Castle Partnership International practices on confidence-building measures ... 273
• “Five out of ten countries examined (Poland, Croatia, Slovenia, Czech Republic, and Slovakia), have the functions of the NGO liaison office carried out by a bureaucratic unit and a broadly representative advisory body, which work in partnership as stipulated in laws, decrees, or charters; • The Directorate of Institutional Analysis and Relations with Associative Environment in Romania and the Directorate for Civil Relations in Hungary, both Government entities, represent a second model. These offices oversee NGO-government cooperation alone, without an advisory body; • In Latvia and Estonia, existing departments handle NGO-government liaison functions in addition to their other responsibilities, which include society integration, local government, and regional administration; • Lithuania does not have a single, centralized NGO liaison office. Instead, various government departments are responsible for coordinating with NGOs in their areas of authority’78. The definition adopted by the study prescribes that “Liaison office refers to a variety of structures with two common characteristics: (1) they are institutionalized within the government and have some measure of government authority to act; and (2) they have responsibility for further strengthening cooperation with civil society”79.
Estonia With the adoption of the Estonian Civil Society Development Concept, the Ministry of Interior has been assigned with the responsibility to coordinate and support the work of the Joint Committee of the Government and representatives of citizens’ associations. The Committee was formed in 2003 with the mandate to elaborate system for evaluation of the preparation, implementation and completion of the activity plans for EKAK. Since then, the Committee has developed two action plans for the period 2004-2006 and 2007-2010. The Committee consists of 16 representatives from umbrella organisations of specialised citizens’ associations and 11 representatives from the public sector. The main objective of the Committee has been to elaborate and launch a system to evaluate preparation, implementation and completion of the implementation plans for the Estonian Civil Society Development Concept. The Committee is chaired by the Minister of Regional Affairs and its work is divided between three working groups: legislation and involvement; citizens’ education and public awareness; and sustainability. The main responsibilities of the Ministry of Interior in supporting the work of the groups are concentrated towards: • delivering the Action Plan for the implementation of the Development Plan for Civic Initiative Support; • evaluating and supplementing the Development Plan for Civic Initiative Support if necessary; • actively informing and engaging other associated institutions, incl. other ministries, public authorities, non-profit and business sectors, in supporting the development of civil society; • Representing Estonia and the Estonian positions in respect of supporting the development of civil society at the international level, incl. in the international organisations associated with the government area of the Ministry of the Interior80.
78 M. Gerasimova, The Liaison Office as a Tool for Successful NGO-Government Cooperation: An Overview of the Central and Eastern European and Baltic Countries’ Experiences, 2005, The International Journal of Not-for-Profit Law,Vol. 7, Issue 3 79 Ibid 80 Development Plan for Civic Initiative Support 2007-2010, Ministry of Interior, Estonia 274 International practices on confidence-building measures ...
Poland The methods of collaboration between the CSOs and the government in Poland have been described in the Law on Public Benefit Activities and Volunteerism adopted in 2003. The law established a Council on Public Benefit Activities that serves as an advisory and opinion-forming body to the minister responsible for social security issues. Following article 35, the main duties of the Council include: • to express its opinion on the issues relevant for the application of the Law; • to express its opinion about government’s legal acts concerning public benefit activities and volunteering; • to provide assistance and express its opinion concerning conflicts between public administration institutions and public benefit organizations; • to participate in the process of inspection; • to collect and analyse information about the performed inspections and their outcomes; • to express its opinion in the field of public tasks, to commission non-governmental organizations and entities to perform such tasks, and to recommend standards of performing public tasks; • to create, in co-operation with non-governmental organizations and entities, public dissemination mechanisms related to the standards of performing public benefit activities and instances of violating such standards. The Council has the mandate of 3 years and consists of 20 members: • 5 representatives of the central administration; • 5 representatives of local government authorities; • 10 representatives of NGOs nominated chosen from the candidates proposed by civil society organisations.
Participatory Budgeting – how a citizen can get involved in the money allocation As the budgets and their execution reflect the policy decisions and their implementation, the participatory budgeting is key mechanisms for “installing” more accountability in the policy process. By enabling public access to budget information, citizens can exercise their legitimate right for transparent fiscal policy and public expenditure management that reduces corruption and ensures that resources are allocated in a more inclusive and equitable way. Major international organizations such as the World Bank, UNDP and the Asian Bank for Development have supported the efforts of CSOs in the participatory budgetary process where the main role of the CSOs as partners of local government emerged in areas such as: • Having a say in the local development planning and budgeting processes; • Holding local governments accountable in the allocation of local resources; • Tracking the use of resources and the impact of local policies and programs. A study conducted by the Manchester Community Pride Initiative81 on the current best practices in participatory budgeting outlined the following main strengths and weaknesses of the participatory budgeting process:
Main Strengths • Improvement of provision of services and infrastructure; • Strengthening of community organizations and voluntary sector; • Renewing democratic and political process; • Tackling neighbourhood deprivation; • Attractive to business and international recognition. 81 Citizen Budgeting. Regenerating local democracy through community participation in public budgeting, Manchester Community Pride Initiative International practices on confidence-building measures ... 275
Main weaknesses • Complexity and bureaucracy; • The need for strong commitment; • The need for capacity building; • The danger of rising expectations.ы Thus two main preconditions for enabling efficient participatory budget process were outlined: sufficient information and opportunities for the CSOs to participate in the budget process; and sufficient knowledge enabling CSOs to understand and advocate for better policies. Based on the need for the latter, the International Budget Partnership (IBP) was formed within the Centre on Budget and Policy Priorities in 199782. The aim of the initiative is to help the CSOs better understand, deliberate and participate in the budgetary process thus creating mutual trust and confidence in the ways public authorities spend public money. Presently IBP collaborates with CSOs from over 100 countries in the world, with the bulk of them based in developing countries and new democracies. Participatory Budgeting was first developed in Brazil in the 1980s as part of a larger effort to establish democracy and citizen participation after decades of military dictatorship, political patronage and corruption. Despite the different political environment, it became well recognised practice in “old” Europe where increasing number of local governments have introduced the process thus ensuring transparent, accountable, and effective budget processes and growing citizen trust. A number of European cities have initiated participatory budgeting processes in Spain, Belgium, Italy, Germany, France, Portugal, Denmark, Switzerland, the Netherlands and the UK. Among them it was the UK and France who got top two positions in the world by the Open Budget Index83 for 2008, while two new member states – Slovenia and Poland – got into the top 10 countries out of those 85 surveyed. The implementation of participatory budgeting in the Central and Eastern European countries however follows a slightly different trend preconditioned by the differences in political development. A study conducted within the framework of the World Bank’s Public Sector Governance and Accountability series outlined that the implementation of participatory budgeting in CEEC should take into consideration the following conditions, characterizing their political, administrative, legal and social environment: • Historically citizens have been detached from decisions that affect them, they are mistrustful of collective action, and are passive receivers of public services; • Collective forms of political and social organization, such as political parties and civil society organizations (CSOs), are relatively new, as is an elected, independent, and autonomous local level of government; • Intergovernmental fiscal relations systems are still being developed; roles and responsibilities are weakly and ambiguously assigned to local levels; • The expenditure responsibilities of local governments do not match their revenue capacity, and transfers from upper levels are non-transparent and unreliable; • Local governments have insufficient authority to make decisions and often they are still developing the capacity to use resources effectively and efficiently to solve local problems; • Citizens are dissatisfied with local services but do not believe that they can affect them or that local governments are able to do anything to alleviate or solve problems84.
82 Information about the Centre’s activities is available at: http://www.cbpp.org 83 More info available at :http://openbudgetindex.org/ 84 A.Shah, Participatory Budgeting, 2007, Public Sector Governance and Accountability series, The International Bank for Reconstruction and Development / The World Bank 276 International practices on confidence-building measures ...
United Kingdom The Salford City Council was the first local authority in the UK that expressed its commitment to introduce participatory budgeting in its procedures. A special group was set to elaborate the concrete steps of introduction in 2003. The Salford City Council introduced the devoted budget scheme that enables each community committee to make decisions on how allocated budget sums (approximately £3.00 per person) should be spent. The Community committees assess all submitted applications and elaborate recommendations on how the money should be spent. The Committees comprise of local residents and local councillors that gather to discuss how to most efficiently deliver priorities in the community action plans. In 2006 the City Council allocated £100,000 from highway funding to each of the eight community committees in the city which were entitled to decide on how the money will be spent. The initiative aimed at identifying schemes which are important to the local people and let them prioritise those schemes directly through an open scoring process. The participatory budgeting process was designed as follows: First potential schemes for funding have been generated by local councillors, by direct proposals from citizens, proposals elaborated at residents’ group meetings etc. Potential schemes have been then briefly assessed by a highways engineer, who provides a comment on viability of the scheme, its design and the estimated cost. Viable schemes costing £100,000 or less are then presented in large public discussion events. The process enables large number of local citizens to get involved and decide on their own living environment thus not only building effective collaboration schemes but preventing potential social conflicts. The launch of the initiative was further supported by the introduction of the Local Strategic Partnerships and the government funding for 12 pilots in 2007. The UK government also expressed its support to have all local authorities engaged with their citizens in policy budgeting by 2012. The Local Government White Paper published in 2006 gave additional incentive to the process. The main steps for bridging the gap between citizens and their authorities, recommended in the White Paper are: • Informing citizens – providing good, accessible information on how to access services and on how local services are performing; through, for example, newsletters, information on websites, text messages, local media, or staff working in neighbourhoods; • Consulting citizens and communities – about the shape of local services and policies using, for example, surveys, focus groups or neighbourhood and parish plans; • Involving citizens directly in designing, delivering or assessing a service – for example by co-opting a group of young people to help manage a youth centre; • Devolving responsibility for the delivery of a service – for example through community management and ownership of a local community hall. The document also advised that each authority should jointly with its partners from CSOs decide how best to discharge the duties to inform, consult, involve and devolve, taking into account factors such as the cost effectiveness of engagement activities, the amount of discretion and the differing needs and requirements of the different communities within their area85.
Netherlands Similarly to the UK, local authorities have introduced different forms of neighbourhood-based participatory budgeting where citizens can decide on how money is allocated in their area. An example of local authority that distinguishes itself in bridging the confidence gap is the town of Hoogeveen where major competences are transfer to the citizens. The core idea of the local authorities is to give to the citizens the decision-making powers in designing the environment they live in, while at the same time stimulating their social participation and collaboration. Neighbourhood Based Revitalization Budgets were introduced to enable citizen to plan, spend
85 Strong and prosperous communities. The Local Government White Paper, Department of Communities and Local Government, October 2006, London International practices on confidence-building measures ... 277
and monitor the spending of the money devoted to the areas they live. Thus citizens do not only have a say in the policy planning but share the policy making responsibilities, understand better the governance mechanisms and accordingly trust the authorities more. “Find Your Way in Local Government” is another success story implemented in various local municipalities in Netherlands. The main objective of the project is to give young people aged 14-19 the opportunity to acquire skills necessary to actively take part in local democratic decision-making processes. In order to overcome the wide spread youth disengagement with political process, the project gave young people funding and responsibility to develop and implement local government measures. Participants involved in the project had the chance to create their own plans, determine how to spend their budgets and work with the municipalities on their implementation. The final outputs were regained trust and strong believe that active citizen involvement may bring positive change. The methodology used by the project has been the following: • Students prepare for the action day during two classes at school that give them general introduction to local government/politics and practical information on the action day; • During the action day, students are divided into small groups to create policy proposals around a theme or policy field that has been selected by local government in agreement with their teachers. Throughout the day, students meet with politicians, civil servants, council and interest group representatives to discuss their ideas and concerns; • The elaborated project proposals are presented at a youth council meeting where delegates decide by majority vote which project proposal will be executed. The local government creates a budget to execute the «best» project, selected by students during the action day. Since its initiation in 1994, between 20 and 30 action days are organized in the Netherlands each year. The project gives unique opportunity for municipalities to “connect” with their future voters and build trust relationship at this early stage of citizen and political involvement.
Assessing the delivery of services Hungary The e-Government Assessment, Measuring and Evaluation System project (eGAMES) was launched in Hungary in 2005 with the aim to assess and evaluate public administration services and citizen interest in different issues. E-GAMES is an online forum integrated into the Hungarian governmental portal enabling citizen to provide their views on the quality of the governmental services. In order to ensure effective and responsible communication, all citizens willing to participate in the online forum have been requested to register with the Client Gate and provide their real names and identity. The legal background of the online forum and e-GAMES was defined carefully in order to counterbalance data protection, freedom of expression and the moderation of online contributions. The registration requirement is based on the view that every citizen willing to get involved in the participatory government mechanisms should take the responsibility for his/her actions. Once registered, every user can assess all comments with positive and negative points, providing a value judgment on every user’s participation. The aggregated points show a picture of public opinion. Public officials can also be among the users, but they cannot comment on the opinions expressed. High level government representatives have been regularly invited to chat with citizens at a predefined time. The responses during these online debates, as well as their other contributions, are measured by points from the users. The opinions expressed by the audience of the forum also carry out a media watch function which is a lot more effective and efficient than software based solutions. Thus in practice eGAMES provides a tool for ex-ante control for decision-makers for the social debate of various planned measures while at the same time it promotes interaction among citizens, and between citizens and the public. 278 International practices on confidence-building measures ...
United Kingdom In the urge of ensuring more accountability and better responsiveness, local authorities in the UK have been widely using means provided by the information technologies. A good example for this is the LoveCleanStreets scheme that allows residents of the Lewisham Borough of London to text or email community problems that require action by the local authority. The pictures appear on a website of the local authority and allow the public to track what action is being taken. It is expected that this initiative will be rolled out across the United Kingdom (U.K.) by the end of 2010.
4.4. Implementing good governance principles in the organisational strategies of CSOs – international trends Following the need for enhanced transparency and accountability of the CSO sector and in the framework of the Commission’s Communication on the Prevention and Fight against Terrorist Financing through Enhanced National Level Coordination and Greater Transparency of the Non- profit Sector, EC published in 2009 a Study on recent public and self-regulatory initiatives improving transparency and accountability of non-profit organisations in the European Union86. The aim of the research was to explore the existing government and NPO initiatives which aim to improve NGO accountability and transparency. The study have identified that the strong regulatory role of the state in Central and Eastern European countries has been preconditioned by the relevant immaturity and weakness of the civil society sector. Development of self-regulating regimes has not been very effective as the sector’s identity and cohesion is still in formation whereas in Western Europe, the regulatory role of the states has lessened giving way to self regulations as the expectation towards NGOs performance and greater accountability have increased. The study has outlined ten major tendencies on the EU and Member states levels: 1. There is a definite trend towards introducing more accountability and transparency into the NPO sector in all EU member states; 2. Countries across the EU where a comprehensive legal framework for NPOs had not yet been developed, have recently engaged in creating such frameworks. Countries with an existing framework have undertaken comprehensive reforms to revise and improve it; 3. There is a clear trend on behalf of member states to attempt to create a central registry or at least to integrate already existing registration data into a central, publicly available database; 4. In civil law countries, introducing a Public Benefit Organisations (PBO) status seems to have become the most straightforward way of unifying accountability, obligations and corresponding state benefits for NPOs. A range of countries, both from old and new member states that already have some sort of PBO regulation have recently engaged in strengthening the accountability and reporting requirements for PBOs (Bulgaria, Italy, Latvia, Malta, Netherlands, Poland and Romania). 5. A range of countries have recently introduced stricter regulations in relation to fundraising whether in a separate act (e.g. Finland’s Money Collection Act) or as part of a more comprehensive reform (e.g. Austria, Bulgaria Ireland). Notably, nearly all reform initiatives involve the principle of using funds for proper purposes and strengthening rules of reporting on the use of funds raised. 6. As an overall trend, self-regulatory initiatives take the lead in attempts to improve NPO governance. These initiatives are taking place on sub-sectoral level, instead of national level; 86 Study on recent public and self-regulatory initiatives improving transparency and accountability of non-profit organisations in the European Union, 2009, commissioned by the European Commission Directorate-General of Justice, Freedom and Security and elaborated by the European Centre for Not-for-Profit Law International practices on confidence-building measures ... 279
7. Several countries have revised and clarified the roles of supervision agencies and introduced rules to increase inter-agency cooperation (in Bulgaria). In addition, powers to share information and cooperate in investigations have been extended along with the introduction of higher accountability standards for NPOs (in Austria) and a central registration database in Austria and Hungary; 8. Trend to improve transparency in public funding that aims to influence behaviour by putting forward a framework for the financial relationship between the government and the voluntary and community sector, setting out undertakings for both sides, based on what each of them can expect from the other. Another interesting development in this field is the spread of pre-qualification systems introduced primarily in the field of funding international development, under which NGOs who satisfy certain criteria become eligible for a simplified procedure on administrative checks of the grant applications; 9. Consultation procedures with civil society are taking up slowly in countries where such tradition is lacking. The UK and Ireland are best practice models, especially in regard to early consultations, when the policy approach and the concept for regulation are being developed. This approach seems to be a key in gaining support and cooperation of the NPO sector in the adoption and implementation of legislation. Good models can also be found in Austria, the Netherlands, France, Estonia, Bulgaria and Malta. 10. Partnerships between corporations and NGOs are growing and corporations are increasingly assuming a role and influence in improving accountability and transparency of NPOs. In response to the need for strengthening the integrity and accountability of civil society organisations, the Independent Sector (leadership forum for charities, foundations, and corporate giving programs in America and around the world) elaborated 33 principles for good governance and ethical practice87.The principles are clustered under four main categories: • Legal Compliance and Public Disclosure – responsibilities and practices, such as implementing conflict of interest and whistleblower policies, that will assist charitable organizations in complying with their legal obligations and providing information to the public; • Effective Governance – and procedures that the board of directors should implement to fulfil its oversight and governance responsibilities effectively; • Strong Financial Oversight – policies and procedures that organization should follow to ensure wise stewardship of charitable resources; • Responsible Fundraising – policies and procedures that organizations soliciting funds from the public should follow to build donor support and confidence. • More or less, the same principles are stated in the European Foundation Centre Principles of Good Practice88. The Principles aim at giving general recommendations of the enforcement of good practice, openness and transparency in the European foundation community and refer to both national and international dimension of the foundation’s work. As a response to the growing concerns about the transparency and accountability of the NGOs activities and following the increased role of the CSO sector in the decision-making process, a group of international NGOs have designed and publicly endorsed the first global accountability charter targeting international advocacy. The elaborated self-regulation aims at committing its signatories to clear principles and standards that beneficiaries, supporters, donors and the wider public may use as benchmarks for holding the CSOs into account. The International Non- Governmental Accountability Charter was launched in 2006 by eleven leading international NGOs as a voluntary self regulating initiative outlining the common values, policies and practices that
87 The principles are available at: http://www.independentsector.org/uploads/Accountability_Documents/ Principles_for_Good_Governance_and_Ethical_Practice.pdf 88 Available at: http://www.efc.be/Legal/Documents/EFCPrinciplesGoodPractice.pdf 280 International practices on confidence-building measures ...
should lead NGOs activities. The Charter recognizes that transparency and accountability are essential for good governance and acknowledges that the NGOs should observe the same high standards they demand of others. Seeking to ensure greater transparency of the NGOs activities, the Charter commits its signatories to report at least once a year on their activities and achievements. Report should include: • Mission and values; • Objectives and outcomes achieved in programme and advocacy; • Environmental impact; • Governance structure and processes, and main office bearers; • Main sources of funding from corporations, foundations, governments, and individuals; • Financial performance; • Compliance with this Charter; • Contact details89. At the national level, CSOs in the EU Member States have developed different Codes of Conduct that laid down the foundations for the Non-Governmental Accountability Charter. The Estonian Code of Ethics for Non-profit organizations was adopted in 2002 at the General Assembly of the Roundtable of Estonian Non-profit Organizations. The main principles proclaimed in the code are: integrity, equality, dignity, openness, solidarity, collaboration, diversity and reliability. The core principles of action described in the Code relate to: • Democratic governance; • Civic courage and care; • Sustainability and prudence in using funds and resources; • Responsibility and accountability; • Openness and transparency; • Independence and avoiding conflicts of interest; • Honouring commitments and recognition of authorship of ideas; • Tolerance. Complimentary to these initiatives, the Central and Eastern European Working Group on Non- profit Governance has elaborated a Hand book of NGO Governance. The handbook provides a set of guidelines that could promote a shared regional understanding on NGO good governance. The handbook promotes eight founding principles: • NGOs are accountable to their communities; • Good governance has a formal structure; • Good governance is a basic form of accountability; • Good governance involves the separation of governance and management; • NGOs are mission-based organizations; • NGOs promote the highest professional and ethical standards; • NGOs exercise responsible resource management and mobilization; • NGOs are responsive to the communities they serve. The guide provides implementation checklist that can help CSOs to monitor their compliance. Another self regulation tool aiming at upholding the integrity within the CSO sector and building trust in the government-citizen relations is the Certification scheme that some CSOs use in order to assess integrity compliance. The schemes can be based on self-evaluation or on third party certification. The self-certification schemes usually follow the adoption of code of conduct/accountability charter and require the CSOs to undergo internal verification process and make a formal declaration of compliance with a clear set of standards. Typical example of such self-certification scheme is the National Chapter Accreditation of Transparency International. The objective of
89 International Non Governmental Organizations Accountability Charter, available at: http://www. ingoaccountabilitycharter.org/wpcms/wp-content/uploads/ingo-accountability-charter-eng.pdf International practices on confidence-building measures ... 281
the scheme is to ensure that all national chapters meet the highest integrity standards and are strongly motivated, effective and accountable for their actions. The accreditation of a new chapter consists of three main phases: 1. Pre-accreditation process during which the group of persons (individuals or an existing organisation) signs with TI Management a “National Contact Agreement”. This status is granted for two years; 2. Provisional accreditation: Within two years from gaining the National Contact point status, the “National Chapter in Formation” should be established. The status gives the right for attendance of TI Membership Meetings, but it has no voting rights; 3. Accreditation: within two years of gaining the “National Chapter in Formation” if the sufficient determination, diligence and competence to combat corruption are demonstrated the organization may apply for full accreditation. The application sent to TI will include: Completed National Chapter Self-evaluation form for Initial Accreditation; Copy of the latest audited or independently examined accounts; Summary of the finances as requested by the TI Board’s Finance, Committee; Evidence that registration of the TI name and logo in the National Chapter’s country/ territorial entity in the name of TI has been initiated or completed; Code of conduct; Publication of a Registry of Interest for the members of National Chapter in Formation’s governing body, along the lines of the TI Conflict of Interest Policy; Most recent work plan and budget; Last annual report90. Every three years, the TI National Chapters undergo review aiming to ensure that they continue to comply with the Umbrella Statement, the basic principles and goals of TI. This is done by completion of a self-evaluation form, consisting of answers to a standard accreditation review questionnaire. In addition the Board of the Management Accreditation Committee may at any time initiate review specifying the reasons for it. Similarly to the self-accreditation scheme, the One World Trust’s Global Accountability Project has developed GAP framework which provides organisations with a practical tool for operationalising accountability. The GAP Framework sets the benchmark for improving organizational accountability towards the stakeholders. The framework has the form of a questionnaire, and is geared around four main dimensions, namely: • Transparency; • Participation; • Evaluation; • Complaints and response mechanisms. The integration of these dimensions in the organisation’s practice and processes enables the organisation to give an account to, take account of, and when necessary be held to account by stakeholders. The GAP Framework is elaborated as complimentary instrument to the already existing regulatory frameworks, codes of conducts and accountability initiatives. In contrast to these schemes, some countries and organizations have introduced third party certification schemes that involve independent organisation verifying the compliance against a set of principles or standards. An example of such a mechanism is the Austrian Seal of Quality for Donations. The tool has been developed after a huge donation scandal that burst out in 1998. In 1999 the Austrian Institute for Fundraising Organisations set a working group with the task to elaborate clear and transparent donation standards. The group consisted of members of NPO umbrella organisations, government departments, the media, fundraising associations and consumer protection organisations. Thus in 2001 the Austrian seal of approval for charities was introduced. It comprised a list of criteria that the organizations should comply with and will 90 http://www.transparency.org/about_us/organisation/accreditation#accred 282 International practices on confidence-building measures ...
be checked annually against by external accounting. As in Austria all accounting institutions are members of the Austrian Chamber of Chartered Accountants and Tax Advisers, the organizations are free to choose the auditing institution. Similar accreditation systems are built in Netherlands and Germany. At international level, the International Committee on Fundraising Organizations established standards aiming to help the national accrediting bodies to ensure that the CSO meet high integrity standards and spend public money in the prescribed way. These standards cover five key activity areas: • Membership and responsibilities of the governing body; • Fulfilment of public benefit goals; • Fiscal control, management and reporting; • Fundraising practices; • Provision of public information. They aim at harmonising the national accreditation systems and provide guidelines to be followed by international non-governmental, or not-for-profit, private organizations that raise funds from the public for charitable or public benefit purposes. The urge for greater transparency and accountability of the civil society sector has become even more vigorous after the terrorist attacks on the 9/11 that put additional pressure on imposing strict accountability mechanisms over the NGO sector. In its Interpretative Note to Special Recommendation on Non-Profit Organisations, the Financial Action Task Force (FATF) among other measures prescribed to the governments to: • Undertake domestic reviews of their NPO sector or have the capacity to obtain timely information on its activities, size and other relevant features; • Promote clear policies to promote transparency, integrity and public confidence in the administration and management of all NPOs; • Take steps to promote effective supervision or monitoring of their NPO sector; • Make sure that NPOs are either licensed or registered and publicly provide information on: the purpose and objectives of their stated activities; the identity of the persons who own, control or direct their activities, including senior officers, board members and trustees. In order to ensure greater transparency and integrity in the work of the civil society sector and thus to prevent terrorist financing, the FATF advises the authorities to oblige CSOs to issue annual financial statements with detailed breakdowns of incomes and expenditures and along with this to provide mechanism for monitoring the compliance of CSOs with the applicable rules and regulations. These recommendations do not differ substantially from the mechanisms already set in place in the majority of the EU countries. Different forms of registers, public databases and monitoring mechanisms have already been established in Ireland, Bulgaria, Malta, Hungary, Austria, Estonia, England, Poland, etc. Some self-regulation initiatives at European and national level have also fostered the implementation of the above requirements (Accountability charter, accreditation system in Netherlands etc.). At the same time, UNDP has elaborated criteria for assessing the CSOs capacities in the partner selection procedure (See Annex 5). The main criteria have been organised around the following sections: • Legal status and history; • Mandate, policies and governance; • Constituency and external support; • Technical capacity; • Managerial capacity; • Administrative capacity; • Financial capacity; International practices on confidence-building measures ... 283
The tool provides guidance for selection and is neither meant as a “one size fits all approach” nor as a scorecard for CSOs. It however provides valuable support in ensuring that the partner organizations are equally accountable, transparent and open as their donor organization. The framework acknowledges that countries and CSOs differ from one another in the civil society environments and in the CSOs competences and the role they play in society and therefore advised that the selection framework should be adjusted to the local needs and context. The introduction of accountability measure should by no means lead to overburdening the civil society sector and jeopardize their freedoms to express freely the voice and concerns of the citizens. 284 International practices on confidence-building measures ...
V. CONCLUSION
Government –civil society relations in the 21 century This study has showed modern tendencies in the development of government-citizen relations in the context of building mutual trust and providing good governance that promotes democracy, rule of law and sustainable economic development. It has presented international, European and national practices and notions that reveal the following main trends: • Civil society organisations play important role in the nowadays policy process. They are comprehended as valuable partners that bring added value and facilitate the elaboration and implementation of governmental policies; • Civil society organisations are required to be effective and active partners bringing constructive and well balanced opinions and suggestions thus becoming part of the decision-making process; • The responsibilities and «playing field» of CSOs have enormously increased and many new competences have been given to CSOs at all levels of governance: international, European, national, regional and local; • With the greater competences come greater responsibilities. The CSOs are expected and required to adhere to the same standards of conduct that are expected from the public authorities; • Civil society sector and the government authorities have been working together to ensure that the CSOs involved in the decision-making process are representing the true voice of the citizens; • Accountability, transparency and openness have become key principles equally applied to all partners in the government-civil society relations;
Mechanisms for facilitating citizen-government trust relations Citizen-government trust building relations are regulated both by hard (legal) and soft (codes of conduct etc.) instruments. The application of the latter depends on the political, administrative and cultural context of the particular country. The most commonly used tools for collaboration are: • Provision of information: The laws on provision/access of information along with the basic national laws (constitutions) are the main guarantees for the provision of timely, and comprehensible information; Guidelines for both public servants and citizens are elaborated to explain in an easy manner the procedures for access to information; The public authorities are required to take an active stand and be proactive in the process of provision of information. The main principle applied is that the authorities must provide all information that citizens may need without prior request; Minimal standards for the information that should be subject to mandatory publication by the public authorities have been elaborated by a number of EU Member states and EU institutions; Public authorities’ web sites/ portals have become focal points enabling easy access to information. Standards for unification of delivery of information have been elaborated. • Consultation: Establishing consultative bodies at all decision-making levels. The bodies may have joint membership of public authorities’ and civil society organisations’ or be International practices on confidence-building measures ... 285
comprised only of representatives of the CSOs. Their competences vary from pure advisory functions to the right of veto and formulation of certain policy documents; The consultation procedures are either regulated within the national legal framework or are adopted as non-binding policy documents; There is a common understanding regarding the main steps and phases of the public consultation process; Codes of good practices/Guidelines are generally comprehended as the best tool for ensuring inclusive, comprehensible and effective consultations; The consultation process is widely based on means provided by the e-technologies. Participation/consultation web-portals have been established to facilitate the exchange of opinions and ensure the involvement of the wider public; Citizens forums/agora/juries have been initiated as tools for “grasping the pulse” of the civil society sector enabling it to actively shape future policies at all policy levels; • Accountability: Monitoring bodies comprised of representatives of civil society organisations have been widely established to ensure that citizen’s interests and their needs are efficiently met; Social compacts/joint statements documents have been adopted as mechanisms ensuring transparency and answerability in the government-civil society relations. The documents describe the main areas of interventions, tools for collaborations and standards of behaviour to be followed by all interested parties; Participatory budgeting initiatives have paved their way as accountability tools at local government level. Apart from holding the public authorities into account for their actions they allow citizens to get actively involved in allocation and spending of public resources thus enabling them to shape the environment they live in; E-technologies have made it possible for the citizens to evaluate the performance of public authorities on a regular basis. Web-applications have been used to access the quality of elaborated policies and performance.
Mechanisms for facilitating government-CSOs trust relations Mainly soft tools in the form of guidelines and codes of conduct have been used to ensure the representativeness, accountability and openness of the CSOs activities. Initiatives coming both from the government and the CSOs sector have been implemented in the following directions: • Codes of conduct/accountability charters have been adopted by many CSOs as statements of the values and standards of behaviour they adhere to and can be hold into account of; • Self accreditation and third party accreditation mechanisms have been set in place to ensure that CSOs meet high integrity standards and spend public money in a prescribed way; • Practical tools for operationalising accountability (in the form of guidelines, gap assessment questionnaires, etc.) have been elaborated to support the implementation of the good governance principles in the CSOs activities; • There is a clear understanding that transparency, openness and accountability in the citizen-government relations require well defined framework describing the roles, rights and responsibilities of CSOs, as well as the related obligations of public institutions. This also means that CSOs and governments should jointly elaborate a set of criteria for identification of citizen organizations to be involved in the collaboration and partnership initiatives. 286 International practices on confidence-building measures ...
VI. PROPOSALS AND RECOMMENDATIONS ON PROMOTION CONFIDENCE BETWEEN THE STATE AND CSOS
Measures to build the citizen trust in the capacity of the public authorities to provide good governance • Elaboration of a joint statement of CSOs and governance priorities, objectives and mechanisms of work (possible sample suggestions are: the Social compact in the UK or the civil society development concept in Estonia). The aim is to create a clear framework for government-civil society collaboration. At the same time by signing such a document, both the civil society sector and the government will commit themselves to follow common standards of conduct; • Elaboration of minimal standards for consultation and/or clear guidelines for public consultations; • Drafting and signing of inter-institutional agreement and binding guidelines concerning the appointment of civil society representatives, methods for organising consultations and their funding. The guidelines should be jointly elaborated by the government and civil society sector. • Launching of consolidated consultation portal as a focal point of citizen opinions on policy proposals and draft regulations. The portal should provide a platform for bilateral communication between citizen and government institutions ( good examples can be seen in Estonia, Netherlands, UK); • Introducing public database of NGOs possessing expertise in different spheres of public life (the public register of the European Commission may be taken as a sample). The database will enforce transparency and accountability of CSOs. On the other hand it will facilitate cooperation between institutions and CSOs if the state institutions oblige themselves to send drafts of all normative acts to be consulted and discussed to the registered CSOs working in the relevant area. Thus additional guarantees will be built to ensure that all the affected parties are informed at the beginning of the preparation of and/or consultation on strategic documents (see: Estonian and EC procedures as good practices); • Introduction of a “legislative footprint” (indicative list, attached to a Parliamentary report, of registered interest representatives who were consulted and had significant input during the preparation of the report or legislative proposal); • Enabling easy access to documents and information by introducing rules on unification of the governmental websites; • Introducing regulation on lobbying activities; • Establishing consultative body at the national level with wider advisory functions (good examples are the National Council in Slovenia and the Economic and Social Council of Bulgaria); • Building the capacities and abilities of civil servants and CSO representatives to actively and constructively communicate and collaborate with the CSOs/State institutions. Support the cultural change and better understanding on the role of CSOs in the decision-making process; • Enhancing the use of the e-technologies to facilitate public involvement and monitoring. Good example for such initiatives that can be applied are: the Interactive Policy Making Initiative (Internet based IPM tool provides easy-to- use and straightforward online questionnaires, making it easier for respondents to participate and for policy makers to analyse the results); International practices on confidence-building measures ... 287
e-Government Assessment, Measuring and Evaluation System (a tool for ex-ante control for decision-makers for the social debate of various planned measures while at the same time it promotes interaction among citizens, and between citizens and the public); Voting assistant and Voting Tracker
Measures to build government trust in the reliability of CSOs opinions and expertise • Elaboration of joint Accountability charters/Codes that set out common standards of behavior; • Introduction of Codes of conduct, self accreditation or third party accreditation; • Elaboration of CSO yearly reports that may include: Mission and values; Objectives and outcomes achieved in programme and advocacy; Environmental impact; Governance structure and processes, and main office bearers; Main sources of funding from corporations, foundations, governments, and individuals; Financial performance; Compliance with accountability Charter; Contact details • Defining and applying a set of criteria for identification of citizen organizations with which public authorities will establish relationships of collaboration and partnership. Setting objective and pre-established criteria that could include the following: Structure and membership of the NGOs; Transparency of their organisation and the way they work; Previous participation in committees and working groups; Track record as regards competence to advise in a specific field; Capacity to work as a catalyst for exchange of information and opinions between the authorities and citizens (Commission Discussion Paper, The Commission and Non-Governmental Organisations: Building a Stronger Partnership). Indicators for assessing CSOs participation should be elaborated at the country level in close cooperation with CSOs representatives. 288 International practices on confidence-building measures ...
ANNEX 1
Matrix of Civil Participation, Code of Good Practice for Civil Participation in the Decision Making Process
Source: Council of Europe, 2009, Code of Good Practice for Civil Participation in the Decision Making Process International practices on confidence-building measures ... 289
ANNEX 2
Source: Engaging citizens in policy making: Information, Consultation and Public Participation, 2001, OECD Public Management Policy Brief, N 10 290 International practices on confidence-building measures ...
ANNEX 3
Model Publication Scheme91 This model publication scheme has been prepared and approved by the Information Commissioner. It may be adopted without modification by any public authority without further approval and will be valid until further notice. This publication scheme commits an authority to make information available to the public as part of its normal business activities. The information covered is included in the classes of information mentioned below, where this information is held by the authority. Additional assistance is provided to the definition of these classes in sector specific guidance manuals issued by the Information Commissioner. The scheme commits an authority: • To proactively publish or otherwise make available as a matter of routine, information, including environmental information, which is held by the authority and falls within the classifications below. • To specify the information which is held by the authority and falls within the classifications below. • To proactively publish or otherwise make available as a matter of routine, information in line with the statements contained within this scheme. • To produce and publish the methods by which the specific information is made routinely available so that it can be easily identified and accessed by members of the public. • To review and update on a regular basis the information the authority makes available under this scheme. • To produce a schedule of any fees charged for access to information which is made proactively available. • To make this publication scheme available to the public.
Classes of Information • Who we are and what we do. Organisational information, locations and contacts, constitutional and legal governance • What we spend and how we spend it. Financial information relating to projected and actual income and expenditure, tendering, procurement and contracts • What our priorities are and how we are doing. Strategy and performance information, plans, assessments, inspections and reviews • How we make decisions. Policy proposals and decisions. Decision-making processes, internal criteria and procedures, consultations. • Our policies and procedures. Current written protocols for delivering our functions and responsibilities. • Lists and Registers. Information held in registers required by law and other lists and registers relating to the functions of the authority. • The Services we Offer. Advice and guidance, booklets and leaflets, transactions and media releases. A description of the services offered. The classes of information will not generally include: • Information the disclosure of which is prevented by law, or exempt under the Freedom of Information Act, or is otherwise properly considered to be protected from disclosure. 91 The model publication scheme is available at the website of the UK Information Commissioner’s Office at: http:// www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/generic_scheme_ v1.0.pdf International practices on confidence-building measures ... 291
• Information in draft form. • Information that is no longer readily available as it is contained in files that have been placed in archive storage, or is difficult to access for similar reasons.
The method by which information published under this scheme will be made available The authority will indicate clearly to the public what information is covered by this scheme and how it can be obtained. Where it is within the capability of a public authority, information will be provided on a website. Where it is impracticable to make information available on a website or when an individual does not wish to access the information by the website, a public authority will indicate how information can be obtained by other means and provide it by those means. In exceptional circumstances some information may be available only by viewing in person. Where this manner is specified, contact details will be provided. An appointment to view the information will be arranged within a reasonable timescale. Information will be provided in the language in which it is held or in ather language that is legally required. Where an authority is legally required to translate any information, it will do so. Obligations under disability and discrimination legisla- tion and any other legislation to provide information in other forms and formats will be adhered to when providing information under this scheme.
Charges which may be made for Information published under this scheme The purpose of this scheme is to make the maximum amount of information readily available at minimum inconvenience and cost to the public. Charges made by the authority for routinely published material will be justified and transparent and kept to a minimum. Material which is pub- lished and accessed on a website will be provided free of charge. Charges may be made for infor- mation subject to a charging regime specified by the Parliament. Charges may be made for actual disbursements incurred such as: • photocopying; • postage and packaging; • the costs directly incurred as a result of viewing information.
Charges may also be made for information provided under this scheme where they are legally authorised, they are in all the circumstances, including the general principles of the right of access to information held by public authorities, justified and are in accordance with a published schedule or schedules of fees which is readily available to the public. If a charge is to be made, confirmation of the payment due will be given before the information is provided. Payment may be requested prior to provision of the information.
Written Requests Information held by a public authority that is not published under this scheme can be requested in writing, when its provision will be considered in accordance with the provisions of the Freedom of Information Act. 292 International practices on confidence-building measures ...
ANNEX 4
Minimum standards for consultation of interested parties92 A. CLEAR CONTENT OF THE CONSULTATION PROCESS All communications relating to consultation should be clear and concise, and should include all necessary information to facilitate responses.
The information in publicity and consultation documents should include: • A summary of the context, scope and objectives of consultation, including a description of the specific issues open for discussion or questions with particular importance for the Commission; • Details of any hearings, meetings or conferences, where relevant; • Contact details and deadlines; • Explanation of the Commission’s processes for dealing with contributions, what feed- back to expect, and details of the next stages involved in the development of the policy; • If not enclosed, reference to related documentation (including, where applicable, Commission supporting documents).
B. CONSULTATION TARGET GROUPS When defining target group(s) in a consultation process, the Commission should ensure that relevant parties have an opportunity to express their opinions.
For consultation to be equitable, the Commission should ensure adequate coverage of the following parties in a consultation process: • those affected by the policy • those who will be involved in implementation of the policy, or • bodies that have stated objectives giving them a direct interest in the policy. In determining the relevant parties for consultation, the Commission should take into account the following elements as well: • the wider impact of the policy on other policy areas, e.g. environmental interests or consumer policy; • the need for specific experience, expertise or technical knowledge, where applicable; • the need to involve non-organised interests, where appropriate, the track record of participants in previous consultations; • the need for a proper balance, where relevant, between the representatives of: social and economic bodies; large and small organisations or companies; wider constituencies (e.g. churches and religious communities) and specific target groups (e.g. women, the elderly, the unemployed, or ethnic minorities); organisations in the European Union and those in non-member countries (e.g. in the candidate or developing countries or in countries that are major trading partners of the European Union).
Where appropriate, the Commission encourages contributions from interested parties organised at the European level. 92 Extract from the “Communication from the Commission Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission”, COM(2002) 704 final International practices on confidence-building measures ... 293
Where a formal or structured consultation body exists, the Commission should take steps to ensure that its composition properly reflects the sector it represents. If this is not the case, the Commission should consider how to ensure that all interests are being taken into account (e.g. through other forms of consultation).
C. PUBLICATION The Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet the needs of all target audiences. Without excluding other communication tools, open public consultations should be published on the Internet and announced at the “single access point”. For addressing the broader public, a single access point for consultation will be established where interested parties should find information and relevant documentation. For this purpose, the Commission will use the “Your-Voice-in-Europe” web portal. However, at the same time it might be useful to maintain more traditional alternatives to the Internet (e.g. press releases, mailings). Where appropriate and feasible, the Commission should provide consultation documents in alternative formats so as to make them more accessible to the disabled.
D. TIME LIMITS FOR PARTICIPATION The Commission should provide sufficient time for planning and responses to invitations and written contributions. The Commission should strive to allow at least 8 weeks for reception of responses to written public consultations and 20 working days notice for meetings.
The main rule is to give those participating in Commission consultations sufficient time for preparation and planning. Consultation periods should strike a reasonable balance between the need for adequate input and the need for swift decision-making. In urgent cases, or where interested parties have already had sufficient opportunities to express themselves, the period may be shortened. On the other hand, a consultation period longer than eight weeks might be required in order to take account of: • the need for European or national organisations to consult their members in order to produce a consolidated viewpoint; • certain existing binding instruments (this applies, in particular, to notification requirements under the WTO agreement); • the specificity of a given proposal (e.g. because of the diversity of the interested parties or the complexity of the issue at stake); • main holiday periods. When the deadline for transmission of comments has expired, the Commission will close the consultation and take the next steps in the administrative process (e.g. prepare for the decision by the Commission).
E. ACKNOWLEDGEMENT AND FEEDBACK Receipt of contributions should be acknowledged. Results of open public consultation should be displayed on websites linked to the single access point on the Internet.
Depending on the number of comments received and the resources available, acknowledgement can take the form of: • an individual response (by e-mail or acknowledgement slip) or • a collective response (by e-mail or on the Commission’s single access point for consultation on the Internet; if comments are posted on the single access point within 15 working days, this will be considered as acknowledgement of receipt). 294 International practices on confidence-building measures ...
Contributions will be analysed carefully to see whether, and to what extent, the views expressed can be accommodated in the policy proposals. Contributions to open public consultations will be made public on the single access point. Results of other forms of consultation should, as far as possible, also be subject to public scrutiny on the single access point on the Internet. The Commission will provide adequate feedback to responding parties and to the public at large. To this end, explanatory memoranda accompanying legislative proposals by the Commission or Commission communications following a consultation process will include the results of these consultations and an explanation as to how these were conducted and how the results were taken into account in the proposal. In addition, the results of consultations carried out in the Impact Assessment process will be summarised in the related reports. International practices on confidence-building measures ... 295
ANNEX 5
UNDP CSO Assessment Tool 296 International practices on confidence-building measures ... International practices on confidence-building measures ... 297 298 International practices on confidence-building measures ... International practices on confidence-building measures ... 299
Source: A Toolkit for Strengthening Partnership, UNDP 2006 300 International practices on confidence-building measures ...
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The Global Information Technology Report 2009–2010, ICT for Sustainability, World Economic Forum
The Prevention of and Fight against Terrorist Financing through enhanced national level coordination and greater transparency of the non-profit sector” COM (2005) 620 final
Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute
Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute, New York
Vienna Declaration on building trust in government, UN Headquarters, Vienna, 26 – 29 June 2007 NATIONAL AND INTERNATIONAL MECHANISMS OF FUNDING CIVIL SOCIETY
INTERNATIONAL PRACTICES ON CONFIDENCE-BUILDING MEASURES BETWEEN THE STATE AND CIVIL SOCIETY
Дане видання містить три дослідження, проведені Координатором проектів ОБСЄ в Україні упродовж 2010–2011 років, які аналізують та наводять приклади кращих практик регіону ОБСЄ щодо ефективного функціонування організацій громадянсько- го суспільства шляхом запровадження успішних схем фінансування й покращення ді- алогу між державою та громадянським суспільством.
Підписано до друку 18.11.2011 р. Формат 60х84/8. Друк офсетний. Умовн. друк. арк. 39,99 Наклад 400 прим. Зам. 11-526
Віддруковано в друкарні “Видавництво “Фенікс”. Св-во суб’єкта видавничої справи ДК №271 від 07.12.2000 р. 03680, м. Київ, вул. Шутова, 13б. www.kniga.kiev.ua
КИЇВ-2011 УДК 347.73:061.2 ББК 67.402 Н35
Національні та міжнародні механізми фінансування громадянського суспільства. Н35 Міжнародні заходи зміцнення довіри між державою та громадянським суспіль- ством.– К.: Фенікс, 2011.– 336 с. ISBN 978-966-651-917-0
Дане видання містить три дослідження, проведені Координатором проектів ОБСЄ в Україні упродовж 2010–2011 років, які аналізують та наводять приклади кращих практик регіону ОБСЄ щодо ефективного функціонування організацій громадянського суспільства шляхом запровадження успішних схем фінансу- вання й покращення діалогу між державою та громадянським суспільством.
ОБСЄ, інститути ОБСЄ та Координатор проектів ОБСЄ в Україні, а також Міністерство закордонних справ і у справах Співдружності не несуть відповідальності за зміст та погляди, висловлені експертами або організаціями, посилання на які подаються у даному матеріалі.
Опубліковано Координатором проектів ОБСЄ в Україні вул. Стрілецька, 16 Київ, 01034, Україна www.osce.org/ukraine © ОБСЄ 2010
ISBN 978-966-651-917-0 Вступ 3
Дане видання містить три дослідження, проведені Координатором проектів ОБСЄ в Укра- їні упродовж 2010–2011 років, які аналізують та наводять приклади кращих практик регіону ОБСЄ щодо ефективного функціонування організацій громадянського суспільства шляхом за- провадження успішних схем фінансування та покращення діалогу між державою і громадян- ським суспільством. Аналітичні дослідження проводилися одним національним та двома між- народними експертами, залученими Координатором проектів ОБСЄ в Україні. Інститут сіль- ського розвитку (українська неурядова організація) провів дослідження існуючих практик та за- конодавства України в галузі фінансування організацій громадянського суспільства урядовими структурами, місцевими органами самоврядування та приватним сектором. Албена Куюмджи- єва дослідила міжнародні практики заходів покращення довіри між державою та організаціями громадянського суспільства, а Балаж Шатор є автором дослідження міжнародних практик фі- нансування громадських організацій. Секретаріат Кабінету Міністрів України також зробив свій внесок у розробку цих досліджень, надаючи цінні коментарі та рекомендації. У 2010 році низка громадських організацій та Секретаріат Кабінету Міністрів України звер- нулися до Координатора проектів ОБСЄ в Україні з проханням сприяти покращенню спромож- ності України виконувати зобов’язання як країни – учасниці ОБСЄ щодо розвитку громадян- ського суспільства. Разом із партнером проекту, Секретаріатом Кабінету Міністрів України, Ко- ординатор проектів ОБСЄ в Україні розробив та запустив два окремих, але пов’язаних між со- бою проекти: «Громадянське суспільство – дослідження найкращих міжнародних практик» та «Сприяння розробці інституціональної бази фінансування громадянського суспільства в Украї- ні», які мали на меті допомогти покращити законодавчу та інституційну бази фінансування гро- мадянського суспільства та встановити придатну для України відповідну модель фінансування. Проекти ставили на меті проаналізувати існуючі національні на міжнародні приклади законодавчого регулювання державного та недержавного фінансування організацій гро- мадянського суспільства. Крім того, експерти ідентифікували кращі міжнародні приклади зміцнення довіри між державою та організаціями громадянського суспільства. Наведені іс- нуючі моделі фінансування цих організацій та заходи, спрямовані на покращення довіри та діалогу в обраних країнах Європи, не є кінцевою відповіддю на питання щодо покращення життєздатності громадянського суспільства в Україні. Скоріше, це описові приклади, до- свід яких міг би частково або повністю бути використаним в Україні. Дослідження також містять результати та коментарі, отримані під час регіональних обго- ворень, організованих Координатором проектів ОБСЄ в Україні за участі партнерів, які пра- цюють з питаннями громадянського суспільства на національному та регіональному рівнях. Обговорення було проведено у п’яти містах України – Сімферополі, Одесі, Львові, Києві та Донецьку, обраних з урахуванням максимального регіонального представництва. В регі- ональних обговореннях взяли участь понад 230 представників місцевої виконавчої влади, громадянського суспільства та бізнес-кіл. Вони обговорювали попередні результати дослі- джень і презентували існуючі регіональні практики механізмів фінансування громадянсько- го суспільства та приклади тривалих і ефективних відносин між державою та організаціями громадянського суспільства на основі взаємодовіри. Координатор проектів ОБСЄ в Україні висловлює щиру подяку Міністерству закордон- них справ та у справах Співдружності (Великобританія) за фінансування реалізації проек- ту «Сприяння розробці інституціональної бази фінансування громадянського суспільства в Україні», в рамках якого було опубліковане це видання. Ця книга адресована державним службовцям та законодавцям відповідних міністерств, які займаються питаннями громадянського суспільства, представникам українських та між- народних організацій громадянського суспільства, представникам українського бізнесу, дослідницьких установ, консультантам та відповідним експертам, а також міжнародним ор- ганізаціям, які працюють у сфері розвитку громадянського суспільства в Україні.
З дослідженнями також можна ознайомитися в режимі он-лайн на www.osce.org/ukraine. 4 Зміст
ЗМІСТ
Вступ ................................................................................................... 3 Зміст ................................................................................................... 4
Дослідження існуючого досвіду та законодавства України у сфері фінансування громадянського суспільства органами державної влади, органами місцевого самоврядування та приватним сектором
1. Введення в проблематику та доцільність дослідження .............................. 8
2. Аналіз чинного законодавства, яке регулює питання фінансування організацій громадянського суспільства в Україні ...................................... 14 2.1. Фінансування з боку органів державної влади та органів місцевого самоврядування....................................................................................................... 16 2.2. Фінансування з боку приватного сектора та окремих громадян ........................... 28 2.3. Фінансування за рахунок надання платних послуг ............................................... 33 2.4. Фінансування з інших джерел............................................................................. 39 2.5. Аналіз чинного законодавства України щодо участі організацій громадянського суспільства в процесі обговорення та прийняття рішень............................................ 44 2.6. Проміжні висновки з аналізу чинного законодавства ........................................... 48
3. Аналіз існуючих практик фінансування організацій громадянського суспільства в Україні .............................................................................................. 50 3.1. Характеристика кола опитуваних ....................................................................... 51 3.2. Проблеми фінансування з боку органів державної влади та органів місцевого самоврядування....................................................................................................... 52 3.2.1. Основні проблеми існуючої системи державного фінансування та їх важливість для розвитку ................................................................................... 52 3.2.2. Уявлення респондентів щодо моделі державного фінансування .................. 58 3.2.3. Основні проблеми існуючої системи фінансування органами місцевого самоврядування .................................................................................. 61 3.2.4. Уявлення респондентів щодо моделі фінансування органами місцевого самоврядування .................................................................................. 63 3.3. Проблеми фінансування з боку приватного сектора та окремих громадян .......... 65 3.4. Проблеми фінансування за рахунок надання платних послуг ............................. 70 3.5. Проблеми фінансування з інших джерел ............................................................ 71 3.6. Позитивні приклади фінансування організацій громадянського суспільства ....... 73 3.7. Пропозиції щодо вдосконалення фінансування ОГС, отримані в ході опитування та регіональних «круглих столів» ............................................................. 77 3.8. Проміжні висновки аналізу опитування та обговорень в ході «круглих столів» ...... 81
4. Вплив Податкового кодексу України від 02.12.2010 р. №2755 на фінансовий стан ОГС.....................................................................................................................82
5. Рекомендації щодо вдосконалення існуючої нормативно-правової бази України з питань фінансування організацій громадянського суспільства ........ 89 5.1. Фінансування з боку органів державної влади та органів місцевого самоврядування....................................................................................................... 90 5.2. Фінансування з боку приватного сектору та окремих громадян ........................... 95 Зміст 5
5.3. Фінансування за рахунок надання платних послуг ............................................. 100 5.4. Громадський монетарний фонд ........................................................................ 102
Додаток 1. Список використаних джерел .................................................103 Додаток 2. Анкета Дослідження існуючих практик державного та недержавного фінансування організацій громадянського суспільства (ОГС) ..106
Міжнародні практики фінансування організацій громадянського суспільства
Перелік скорочень ...............................................................................116 Короткий зміст ....................................................................................117
I. Вступ ..............................................................................................120
II. Розуміння механізмів фінансування громадських організацій ..................125 II.1. Моделі розвитку громадського сектору в Європі ................................................125 II.2. Фінансова життєздатність громадських організацій в Європі ..............................128 II.3. Визначення джерел фінансування громадських організацій .............................. 130 II.4. Державне фінансування громадських організацій ..............................................134 II.5. Фінансування громадських організацій з боку приватного сектору .................... 136 II.6.Фінансування з боку фізичних осіб .................................................................... 140 II.7. Зароблений дохід громадських організацій .......................................................143
III. Загальні висновки ...........................................................................149
IV. Конкретні висновки по країнах ...........................................................154 IV.1. Угорщина ........................................................................................................154 IV.2. Хорватія ...........................................................................................................170 IV.3. Німеччина ........................................................................................................181 IV.4. Великобританія ...............................................................................................196 IV.5. Чеська Республіка ..............................................................................................213
V. Висновки за результатами аналізу країн ...............................................226
VI. Рекомендації ..................................................................................229
Бібліографія та посилання .....................................................................233
Міжнародна практика заходів, спрямованих на зміцнення довіри між державою та організаціями громадянського суспільства
Короткий зміст ....................................................................................238
I. Вступ і методологія ........................................................................... 242
II. Методологія .................................................................................... 245 III. Загальний огляд провідних міжнародних документів і програмних заходів ..............................................................................................248 6 Зміст
3.1. Роль громадянського суспільства у забезпеченні демократичного управління ....248 3.2. Європейські документи, спрямовані на більше залучення громадськості (ЄС і Рада Європи) ..................................................................................................250 3.3. Міжнародна правова база для участі громадян у процесі прийняття рішень (ОЕСР, ООН) ...........................................................................................................257
IV.Передова європейська практика сприяння активній громадській участі .....261 4.1. Відкритість і прозорість – надання інформації ....................................................261 4.2. Участь – залучення громадян до процесу прийняття рішень ...............................278 4.3. Підзвітність – механізми моніторингу ................................................................293 4.4. Застосування принципів належного управління в організаційних стратегіях ОГС – міжнародні тенденції .....................................................................................307
V. Висновки ........................................................................................313
VI. Пропозиції та рекомендації щодо шляхів зміцнення довіри між державою та ОГС ...........................................................................316
Часто вживані скорочення .....................................................................318 Додатки .............................................................................................319 Посилання ..........................................................................................331 ДОСЛІДЖЕННЯ ІСНУЮЧОГО ДОСВІДУ ТА ЗАКОНОДАВСТВА УКРАЇНИ У СФЕРІ ФІНАНСУВАННЯ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА ОРГАНАМИ ДЕРЖАВНОЇ ВЛАДИ, ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАННЯ ТА ПРИВАТНИМ СЕКТОРОМ
ГО «ІНСТИТУТ СІЛЬСЬКОГО РОЗВИТКУ» 8 Дослідження існуючого досвіду та законодавства України ...
1. ВВЕДЕННЯ В ПРОБЛЕМАТИКУ ТА ДОЦІЛЬНІСТЬ ДОСЛІДЖЕННЯ
Громадянське суспільство – це суспільний простір, який лежить поза владними, бізнес- орієнтованими та сімейними зв’язками й діями та в якому індивіди об’єднуються на до- бровільних засадах для відстоювання спільних інтересів. У широкому розумінні до суб’єктів громадянського суспільства можна віднести громадські організації, благодійні фонди, бізнес-асоціації, органи самоорганізації населення, медіа, профспілки, організації робото- давців, релігійні організації, ініціативні групи громадян тощо1. Просування України в напрямі розвитку демократії безпосередньо залежить від розви- неності громадянського суспільства та можливостей його фактичного впливу на соціально- економічні та політичні процеси, які відбуваються в країні. Сьогодні діяльність організацій гро- мадянського суспільства (ОГС) спрямована на проведення консультацій та вироблення ефек- тивних рішень щодо окремих проблем, надання соціальних послуг громадянам, за які не бе- реться бізнес через їхню неприбутковість, поширення благодійництва, здійснення громадсько- го контролю й участь у боротьбі з корупцією, тобто охоплює широке коло питань, які прямо чи опосередковано позитивно впливають на економічний та соціальний стан суспільства. Відтак ОГС є ефективними партнерами держави в розв’язанні гуманітарних та соціально-економічних проблем. Оскільки через це вони перебирають на себе окремі функції держави, то в обмін на більшу відкритість та контроль за своєю діяльністю з боку держави та суспільства мають отри- мувати від неї додаткові фінансові заохочення. Проте сьогодні українські ОГС фінансують пе- реважно поодинокі місцеві благодійники та іноземні донори (75–85%). Річний бюджет пере- січної української громадської організації становить близько 50–60 тис. грн, лише 2–3% цьо- го бюджету припадає на державне фінансування. За даним показником Україна наближається до Філіппін, Пакистану та Кенії. Водночас річний бюджет пересічної ОГС у країнах Східної Євро- пи – членах ЄС еквівалентний 560–670 тис. грн, при цьому 40–60% цієї суми формує держава2. Недостатнє державне фінансування українських ОГС є головною, але не єдиною про- блемою. Лише 12 із 65 центральних органів виконавчої влади фінансують окремі катего- рії ОГС, причому на державну підтримку можуть сподіватися всеукраїнські громадські ор- ганізації інвалідів, молоді та дітей, чорнобильців, творчі спілки, організації національних меншин, спортивні федерації. Слід зауважити, що фінансування діяльності правозахисних, екологічних, моніторингових ОГС не передбачено. Наявні кошти не завжди використовуються ефективно і прозоро. Тільки три органи ви- конавчої влади України – Міністерство сім’ї, молоді та спорту, Міністерство праці та соці- альної політики та Державний комітет телебачення та радіомовлення розподіляють кошти на конкурсних прозорих засадах. Але, скажімо, Мінсім'ямолодьспорту з 10 млн грн, отри- маних у 2009 році для підтримки молодіжних організацій, розподілило на конкурсній основі лише 5 млн грн, решта була розподілена непрозоро, без публічних конкурсів2. Залишається складною та суперечливою процедура державних закупівель. За першу по- ловину 2009 року держава за тендерними процедурами закупила робіт, товарів і послуг на 58,4 млрд грн, у громадських же організацій – лише в трьох! – закуплено послуг на 2,5 млн грн. Відсутня достатня кількість конкурсних програм фінансування місцевих проектів. Тільки 8 із 25 міст обласного значення мають такі програми фінансування ОГС: міські ради Одеси, Чернівців, Києва, Хмельницького, Миколаєва, Львова, Харкова, Чернігова, Полтави3. 1 М. Лациба. Державна політика та стан розвитку громадянського суспільства в Україні / Український неза- лежний центр політичних досліджень. – Київ, 2006. 2 Державне фінансування організацій громадянського суспільства. Як запровадити європейські стандар- ти? / [О.Вінніков, Д.Ковриженко, А.Красносільська та.ін.]; Український незалежний центр політичних дослі- джень. – Київ, 2010. 3 Державне фінансування організацій громадянського суспільства. Як запровадити європейські стандарти? [Електронний ресурс] / [Матеріали всеукраїнської конференції (Київ, 2010 р.)]. – Доступний з: <http://gurt.org. ua/news/conferences/5535> Дослідження існуючого досвіду та законодавства України... 9
Згідно з чинним законодавством, організації громадянського суспільства для підтримки статутної діяльності, крім бюджетних коштів, можуть залучати також інші джерела фінансу- вання – кошти зацікавлених громадян, підприємств, підприємців. Проте бізнес тільки почи- нає сприймати ОГС як партнерів у розв’язанні соціальних проблем, як фактор соціального впливу на органи державної влади. У деяких випадках бізнес сприяє утворенню, майже без виключення, саме галузевих громадських об’єднань та фінансово підтримує їхню життєді- яльність. Прикладом можуть слугувати такі галузеві організації, як ВГО «Сільськогосподар- ська палата України» та ВГО «Аграрна конфедерація України», членами яких є представни- ки аграрних підприємств та самі аграрні підприємства. Закони багатьох країн дозволяють фізичним особам жертвувати більш значну час- тину своїх доходів зі звільненням від податків, аніж юридичним. Наприклад, у США – 50 відсотків Іспанії – 20–30 відсотків. Це пояснюється тим, що для юридичних осіб можли- вості жертвувати частину прибутку природно обмежені необхідністю реінвестування. Ве- ликий розмір пожертвувань, звільнених від податків, сприяє появі в таких країнах потуж- них благодійних фондів, які надають відчутну фінансову та іншу підтримку як іншим непри- бутковим громадським організаціям, так і групам найбільш соціально вразливих громадян. Окрім дефіциту державної фінансової підтримки ОГС, наявне державне регулювання не створило у нашій країні необхідних стимулів для громадян і бізнесу фінансово підтримува- ти громадські соціальні проекти та діяльність громадських і благодійних об’єднань. Нероз- виненість національної бази фінансування та критична залежність від міжнародних доно- рів створюють для діяльності ОГС значні ризики. З огляду на це вони ще не стали основним партнером держави у розв’язанні суспільних проблем, тому більшість громадян не сприй- мають їх як щось корисне і потрібне. Загалом ні органи державної влади, ні приватний сектор ще не мають достатнього до- свіду й навичок застосування різноманітних форм та механізмів фінансової підтримки ОГС, яка безпосередньо впливає на сталий розвиток «третього сектора». А існуючі прак- тики фінансової підтримки ОГС з боку держави, бізнесу та приватних осіб потребують свого детального вивчення та аналізу. Тому метою даної роботи є дослідження існуючого досвіду та законодавства України у сфері фінансування громадських організацій органа- ми державної влади, органами місцевого самоврядування та приватним сектором і роз- робка консолідованих рекомендацій щодо вдосконалення існуючої законодавчої бази у питаннях їх фінансування з точки зору її відповідності кращим зразкам міжнародної прак- тики, сприяння сталому розвитку та фінансовій незалежності організацій громадянсько- го суспільства. Окремі проблеми розвитку організацій громадянського суспільства та деяких їх ви- дів (благодійні, громадські) вивчало чимало дослідників та зацікавлених осіб4. Ми у своїй роботі досліджуємо теоретичні (законодавчі) та фактичні (за результатами соціологічно- го опитування) проблеми фінансування всіх видів суб’єктів громадянського суспільства. Тобто проводимо всебічне дослідження існуючої законодавчої бази України, що регулює питання фінансування ОГС органами державної влади, органами місцевого самовряду- вання, бізнес-сектором та іншими джерелами, а також досвіду в сфері державного та не- 4 Стан та динаміка розвитку неурядових організацій України. 2002–2006 роки: звіт за даними досліджен- ня / [Л. Паливода, О. Кікоть]; Творчий центр Каунтерпарт. – К.: Макрос, 2006. – С. 35; Шевчук Т. Недержавні організації в громадському житті Рівненщини [Електронний ресурс]. – Доступний з: < http://postua.info/news. php?nid=6>; Степаненко І. Концептуальна невизначеність громадянського суспільства в Україні: можливості подолання / Розвиток демократії в Україні [Матеріали міжнародної наукової конференції (Київ, 29 вересня – 1 жовтня 2000 р.)]. – К.: Центр освітніх ініціатив, 2001. – С. 593; Держалюк О. Динаміка та розширення спек- тру діяльності громадських організацій як складової демократизації українського суспільства [Електронний ре- сурс]. – Доступний з: < http://www.niss.gov.ua/Monitor/May08/03.htm>; Рева С. Участь громадськості у процесі формування та реалізації державної політики // Політичний менеджмент. – 2006. – №3 (18). – С. 7; Оцінка си- стеми державного фінансування діяльності громадських організацій в Україні: аналітичний звіт за результатами дослідження / UNITER/PACT. – Київ, 2010. 10 Дослідження існуючого досвіду та законодавства України ...
державного їх фінансування відповідно до поставлених цілей дослідницького компоненту проекту «Сприяння розробці інституціональної бази фінансування громадянського сус- пільства в Україні». Наше дослідження складається з трьох взаємопов’язаних часстин. Перша – «кабінет- не» дослідження, присвячується огляду та детальному аналізу чинного українського зако- нодавства, що регулює питання фінансування та оподаткування ОГС із фокусуванням ува- ги на проблемних питаннях застосування норм законодавства та їх доречності. До аналі- зованих джерел фінансування включені органи державної влади та органи місцевого са- моврядування (підтримка статутної діяльності ОГС, гранти на реалізацію певної діяльнос- ті (конкурси проектів, закупівля послуг); приватний сектор (закупівля послуг, благодійни- цтво); окремі громадяни (благодійництво); платні послуги з боку ОГС та інші джерела фі- нансування. Також у першій частині буде проведено ретельний аналіз національного зако- нодавства щодо створення державою сприятливих умов для отримання ОГС активних до- ходів від надання платних послуг, спрямованих на виконання статутної діяльності, та щодо участі ОГС у процесі обговорення і прийняття рішень, розбудови умов співпраці та взаємо- дії з владними структурами в питаннях сприяння розвитку та нарощування фінансового по- тенціалу ОГС. Наприкінці першої частини дослідження ми зробимо проміжні висновки, які слугуватимуть певним підґрунтям для надання рекомендацій щодо вдосконалення існуючої законодавчої бази України в питаннях фінансування ОГС. Друга частина дослідження присвячується аналізу існуючих в Україні практик дер- жавного і недержавного фінансування ОГС, виявленню недоліків та успішних форм. Існуючі сьогодні практики вивчені на основі проведеного опитування, в якому взяли участь 300 респондентів із різних регіонів України. Також вагомий внесок у висвітлення цього питання сформувався за результатами обговорення проблем та практик фінан- сування ОГС на регіональних «круглих столах», у яких брали участь представники орга- нів місцевої влади, громадянського суспільства та зацікавлені особи. Наприкінці дру- гої частини дослідження ми надамо проміжні висновки щодо існуючих практик фінансу- вання ОГС з боку органів державної влади, органів місцевого самоврядування та при- ватного сектора. У третій частині дослідження представлені рекомендації щодо вдосконалення існуючої нормативно-правової бази України з питань фінансування організацій громадянського сус- пільства з точки зору відповідності її кращим зразкам міжнародної практики, послідовності та ефективності для сприяння сталому розвитку та фінансовій незалежності ОГС. Рекомен- дації розроблені у співпраці з дослідницьким компонентом бюджетного проекту «Грома- дянське суспільство – дослідження найкращих міжнародних практик», за матеріалами кабі- нетного та польового досліджень.
Методологія дослідження Дослідження чинної законодавчої бази України, яка регулює питання фінансування ор- ганізацій громадянського суспільства (ОГС) органами державної влади, органами місцево- го самоврядування, бізнес-сектором та іншими джерелами, а також досвіду у сфері дер- жавного та недержавного їх фінансування у відповідності із поставленими цілями дослід- ницького компоненту проекту «Сприяння розробці інституціональної бази фінансування громадянського суспільства в Україні» фактично включає три такі частини: кабінетна, «по- льова» та вироблення рекомендацій.
Кабінетне дослідження За своєю методикою кабінетне дослідження чинного законодавства України у сфері фінансу- вання ОГС органами державної влади, органами місцевого самоврядування та приватним сек- тором проводиться за методом аналізу документів. У період «кабінетного» етапу дослі- Дослідження існуючого досвіду та законодавства України... 11
дження наша увага концентруватиметься на аналізі законодавства, що регулює питання фі- нансування ОГС та можливостей їхньої участі у процесі обговорення та прийняття законо- давчих рішень. Регулююча функція держави виявляється як у Законах України, так і в розмаїтті під- законних актів, починаючи з постанов Кабінету Міністрів України і закінчуючи безліччю листів та роз’яснень профільних міністерств та фіскальних органів. Тому із національної нормативно-правової бази, що регулює фінансування ОГС, аналізуються, по-перше, Кон- ституція України, Цивільний, Господарський та Бюджетний кодекси України; закони Украї- ни, які врегульовують питання діяльності об'єднань громадян, органів самоорганізації на- селення та місцевого самоврядування, професійних і творчих спілок, благодійних, моло- діжних та дитячих громадських організацій; державної реєстрації, правового статусу та оподаткування ОГС. По-друге, аналізуються постанови Кабінету Міністрів України, які ре- гулюють питання участі громадськості у формуванні та реалізації державної політики, за- безпечення відкритості діяльності органів державної влади тощо. По-третє, для повного розуміння проблеми аналізуються відповідні накази, листи-роз’яснення та інформаційні довідки Міністерства юстиції України і Державної податкової адміністрації України (ДПА), інші підзаконні акти та судова практика, пов’язана з вирішенням спорів з питань оподат- кування між органами ДПА та ОГС. У державі існує практика, коли державне фінансування отримують певні громадські ор- ганізації, на відміну від інших, котрі функціонують за рахунок власної діяльності та надхо- джень з інших джерел. Щороку Законом України «Про Державний бюджет» передбачають- ся кошти на підтримку окремих неприбуткових організацій, зокрема організацій інвалідів, товариства глухих (УТОГ), товариства сліпих (УТОС) та інші. Проте на сьогодні неприбут- кові організації мають реальні можливості виступати в якості партнерів у реалізації місце- вих програм, а певна незалежність місцевих бюджетів від держави та можливість депута- тів місцевих рад впливати на їх формування сповнює надією, що кількість соціальних про- грам, у яких беруть участь неприбуткові організації, збільшуватиметься. Тому в процесі ка- бінетного етапу дослідження ми звертаємо увагу на особливості та проблеми, які виника- ють при фінансуванні ОГС з боку органів державної влади та органів місцевого самовряду- вання (підтримка статутної діяльності, цільові гранти на реалізацію певної діяльності (кон- курси проектів), виконання певних заходів за затвердженими місцевою владою програма- ми соціально-економічного розвитку, закупівля послуг, у т.ч. в ОСГ цільового спрямування: молодіжних організацій, професійних спілок, організацій інвалідів, ветеранів тощо. На етапі кабінетного дослідження також будуть проаналізовані юридичні проблеми фі- нансування ОГС з боку приватного сектора та окремих громадян (наприклад, закупівля по- слуг, благодійництво, безповоротна фінансова допомога). Чинним законодавством перед- бачено, що добровільно перераховані (передані) протягом звітного року до Державного бюджету України або бюджетів місцевого самоврядування, неприбуткових організацій, ви- значених у пункті 7.11 статті 7 Закону України «Про оподаткування прибутку підприємств», суми коштів, надані юридичним особам, у тому числі неприбутковим організаціям – засно- вникам постійно діючого третейського суду, у розмірі, що перевищує два відсотки, але не більше п'яти відсотків оподатковуваного прибутку попереднього звітного року (п. 5.2.2. За- кону України «Про оподаткування прибутку підприємств»), включаються до складу валових витрат. Ця пільга не є суттєвою і не призводить до значного перерахування коштів від гос- подарюючих суб’єктів до неприбуткових організацій. Проблема надання коштів неприбутковим організаціям з боку бізнесу на сьогодні не може бути вирішена простим підвищенням цієї планки на 1–2 відсотки, як це практикуєть- ся у нашій державі, оскільки в ці п’ять відсотків включаються добровільні перерахування до бюджету. Крім того, значна частина бізнесу сьогодні практично не має прибутків або ж сплачує фіксований (єдиний) податок (дрібний бізнес). А у разі прийняття Податкового ко- 12 Дослідження існуючого досвіду та законодавства України ...
дексу в запропонованій редакції, яким суттєво утискаються права насамперед малого біз- несу, більшість дрібних підприємств та приватних підприємців припинять своє існування. Кабінетне дослідження також включатиме аналіз можливостей чинного законодавства щодо створення сприятливих умов для отримання ОГС активних доходів від надання плат- них послуг, спрямованих на виконання статутної діяльності. В Україні неприбуткові органі- зації практично не займаються підприємницькою діяльністю. Допускається господарська діяльність благодійних організацій у будь-якій формі, але за умови її спрямування на ви- конання статутних завдань. Але якщо благодійна організація здійснюватиме господарську діяльність від свого імені без створення власної підприємницької структури, вона одразу втратить статус неприбуткової і буде змушена сплачувати податок на прибуток. Законо- давець надав право НПО бути засновником у господарюючих суб’єктах, які можуть части- ну свого прибутку спрямовувати на надання благодійної та іншої допомоги ОГС, проте ця допомога, без шкоди для фінансового стану господарюючого суб’єкта, обмежена п’ятьма відсотками, про що йшлося вище. На етапі кабінетного дослідження також будуть проаналізовані легітимні можливості ін- ших джерел фінансування ОГС та наявні вторинні джерела відповідної тематики: аналітичні дослідження та статистичні матеріали. Наприклад: Стан та динаміка розвитку неурядових організацій України. 2002–2006 роки: звіт за даними дослідження / [Л. Паливода, О. Кікоть]; підготовлено Творчим центром Каунтерпарт. – К.: Макрос, 2006. – С. 35; Степаненко І. Кон- цептуальна невизначеність громадянського суспільства в Україні: можливості подолання // Розвиток демократії в Україні [Матеріали міжнародної наукової конференції (Київ, 29 ве- ресня – 1 жовтня 2000 р.)]. – К.: Центр освітніх ініціатив, 2001. – С. 593; Шевчук Т. Недер- жавні організації в громадському житті Рівненщини [Електронний ресурс]. – Доступний з: <http://postua.info/news.php?nid=6>; Держалюк О. Динаміка та розширення спектру діяль- ності громадських організацій як складові демократизації українського суспільства [Елек- тронний ресурс]. – Доступний з: <http://www.niss.gov.ua/Monitor/May08/03.htm>; Рева С. Участь громадськості у процесі формування та реалізації державної політики // Політичний менеджмент. – 2006. – №3 (18). – С. 7; Державне фінансування організацій громадянського суспільства. Як запровадити європейські стандарти? / Український незалежний центр по- літичних досліджень. – Київ. – 2010; Аналітичний звіт за результатами дослідження «Оцін- ка системи державного фінансування діяльності громадських організацій в Україні» / UNITER/ PACT. – Київ. – 2010 тощо.
Польове дослідження Перед початком польового дослідження ми розробили підходи щодо визначення оди- ниць експертної оцінки та територіальних одиниць дослідження, визначили структуру роз- поділу респондентів за належністю до групи одиниць експертної оцінки та територіальної одиниці дослідження, інструменти польового дослідження. Польове дослідження існуючого досвіду у сфері фінансування ОГС органами державної влади, органами місцевого самоврядування та приватним сектором проводиться за мето- дом структурованого експертного інтерв’ю із 300 відповідними респондентами в п’яти ре- презентативних регіонах України, а саме: 1. Східний – Донецька область; 2. Західний – Во- линська область; 3. Південний – Одеська область; 4. Північний – Київська область; 5. Цен- тральний – Полтавська область та в м. Києві з відвідуванням організацій та використанням очного контакту з респондентами (віч-на-віч). Зазначені області є характерними для регіонів не тільки за принципом географічної та історичної близькості, а й за рівнем і галузевою структурою економіки. Серед респонден- тів, які брали участь в опитуванні, представники органів законодавчої та виконавчої влади національного та місцевого рівнів, організацій громадянського суспільства, експерти гро- мадянського суспільства, бізнес-кіл. Дослідження існуючого досвіду та законодавства України... 13
20 відсотків респондентів опитано у сільській місцевості. Причиною цього є те, що поряд із труднощами, яких зазнають сільські ОГС (обмеженість знань та ресурсів, у т.ч. інформа- ційних, для підготовки проектних пропозицій на отримання фінансування), є цікаві прикла- ди їх тісної співпраці та фінансування органами місцевого самоврядування і підприємця- ми, технічні внески (працею, знаряддям, обладнанням) з боку членів громади на виконан- ня проектів соціально-економічного її розвитку та ведення статутної діяльності. Саме такі внески зменшують залежність місцевих ОГС від грантового фінансування як з боку місцевої влади, так і міжнародних донорів. Опитування респондентів у сільській місцевості дозволить зробити дослідження досві- ду в сфері державного та недержавного фінансування ОГС більш повним і репрезентатив- ним для всієї території України. Соціологічні дані, отримані у ході польового етапу дослідження з опитуванням 300 рес- пондентів, оброблятимуться за допомогою комп’ютерної програми SPSS.
Рекомендації У співпраці з дослідницьким компонентом бюджетного проекту «Громадянське суспіль- ство – дослідження найкращих міжнародних практик», за матеріалами кабінетного та по- льового досліджень розроблені рекомендації щодо вдосконалення існуючої нормативно- правової бази України з питань фінансування організацій громадянського суспільства щодо відповідності кращим зразкам міжнародної практики, послідовності та ефективності для сприяння сталому розвитку і фінансовій незалежності ОГС. Дослідження існуючого досвіду та законодавства України в сфері фінансування громад- ських організацій органами державної влади, органами місцевого самоврядування та при- ватним сектором є дослідницьким компонентом проекту «Сприяння розробці інституцій- ної бази фінансування громадянського суспільства в Україні». Аналітичні дані, експеримен- тальні матеріали та висновки національного дослідження утворили інформаційне підґрунтя для розробки заходів щодо підвищення інституційного розвитку системи фінансування ор- ганізацій громадянського суспільства. Результати цього дослідження безпосередньо впливатимуть на розробку цілісної сис- теми та інституційних механізмів фінансування громадського сектора в національному масштабі, що забезпечує крос-регіональний та крос-секторальний підхід у проведенні до- слідження. Також важливо, що в дослідженні, до якого залучалися державні (міністерства, ЦОВВ) та місцеві (органи самоврядування) розпорядники бюджетних коштів і представни- ки приватного сектора, враховані різноманітні джерела й форми фінансування ОГС. Дослідження має стратегічне значення, оскільки його результати сприятимуть форму- ванню прозорої та сталої системи фінансування громадянського суспільства і матимуть довгострокову перспективу її інституційного розвитку. Впровадження в нормотворчу прак- тику отриманих аналітичних та емпіричних результатів національного дослідження, які є часткою інших міжнародних порівняльних досліджень, суттєво впливатимуть на динаміку інтеграційних процесів України у світову спільноту. 14 Дослідження існуючого досвіду та законодавства України ...
2. АНАЛІЗ ЧИННОГО ЗАКОНОДАВСТВА, ЯКЕ РЕГУЛЮЄ ПИТАННЯ ФІНАНСУВАННЯ ОРГАНІЗАЦІЙ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА В УКРАЇНІ За роки незалежності Україна досягла помітного прогресу у створенні демократичних інсти- туцій та зміцненні демократичних процедур. Міжнародна організація Freedom House, за рейтин- гом якої Україна з 2005 року має оцінку «вільної» країни, у своєму звіті за 2009 рік відзначила, що Україна є «демократією, що динамічно розвивається, в регіоні, де цінують фундаментальні пра- ва і свободи людини»5. Організації громадянського суспільства відносяться саме до демократич- них інституцій, які допомагають громадянам реалізувати свої фундаментальні права і свободи, та є дієвим інструментом створення ефективної системи державної влади та її легітимації шляхом більш широкого залучення ОГС до вироблення і реалізації державної політики. До вивчення проблем розвитку громадянського суспільства в Україні, зокрема таких, як залучення фінансування різними видами ОГС, пошуку можливих шляхів удосконалення форм співпраці та посилення підгрунтя взаємодії органів влади з громадськістю, доклали зусиль чимало експертів-дослідників та дослідних інституцій. Значну увагу у висвітленні проблем діяльності та розвитку неурядових організацій (НУО) приділяє Творчий центр Каунтерпарт (ТЦК). За оцінкою дослідників ТЦК, кількість активно діючих організацій в Україні (за даними Єдиного державного реєстру підприємств та ор- ганізацій України, на початок 2009 р. їх налічується 59 321)6, може становити близько 4–5 тисяч7. Значна частина зареєстрованих організацій існує лише формально або ж функціо- нує епізодично. За критеріями, які вони розробили, активно діючими можна вважати лише ті НУО, які працюють не менше двох років, мають досвід виконання двох і більше проектів та є відомими в своєму регіоні. Так, за даними щорічного дослідження ТЦК, загальний рі- вень організаційної спроможності українських НУО у 2006 році вперше перевищив серед- ній рівень (2,9 бала за п’ятибальною шкалою), хоча у 2007 році він знизився, досягши зна- чення 2,65 бала. Поняття організаційної спроможності НУО інтегрує з оцінкою стратегіч- ного менеджменту, системи керівництва, системи лідерства та менеджменту, стратегіями НУО щодо залучення коштів, відповідністю фінансового менеджменту стандартам бухгал- терського обліку, менеджменту людських та матеріальних ресурсів. Порівняно незначну кількість активно діючих НУО можна пояснити не тільки нестачею фінансових ресурсів, які формуються через державні програми, відповідні гранти та в де- яких випадках за рахунок членських внесків (це стосується насамперед професійних спі- лок), а також, на жаль, відсутністю попиту на діяльність неурядових організацій. Громадяни України майже не знають про роль, функції та можливості НУО і практично не беруть учас- ті в їхній діяльності. До активної громадської участі в Україні, за даними опитування Центру Разумкова, залучено 4,7% громадян, а не залучено 82,6% опитаних. Стосовно членства, то 69,3% заявили, що вони не належать до жодних організацій, 21,2% є членами профспілок, 3,6% – партій, 3% – клубів за інтересами8. Такі сумні дані наводять на думку, що держава не приділяє відповідної уваги нарощуван- ню потенціалу громадянського суспільства для реалізації його цілей та завдань. І, на жаль, спроби влади сформувати якісну систему державного управління поки що не включають визначення ролі організацій громадянського суспільства у системі врядування державою.
5 [Електронний ресурс]. – Доступний з:< http://tsn.ua/ukrayina/.html>. 6 Кількість суб’єктів ЄДРПОУ за організаційно-правовими формами господарювання станом на 1 січня 2009 року [Електронний ресурс]. – Доступний з:< http://www.ukrstat.gov.ua/ >. 7 Стан та динаміка розвитку неурядових організацій України. 2002-2006 роки: звіт за даними дослідження / [Л. Паливода, О. Кікоть]; підготовлено Творчим центром Каунтерпарт. – К.: БФ «Творчий центр Каунтерпарт», 2006. – С. 4. 8 Шевчук Т. Недержавні організації в громадському житті Рівненщини [Електронний ресурс]. – Доступний з:< http://postua.info/news.php?nid=6>. Дослідження існуючого досвіду та законодавства України... 15
Тому сьогодні ОГС фактично знаходяться поза межами процесу трансформації українсько- го суспільства в напрямі демократизації. Як ми відзначали вище, сьогодні державне фінансування ОГС в Україні є кількісно не- адекватним, і діяльність організацій громадянського суспільства підтримують переваж- но іноземні донори та місцеві благодійники. Можливості громадян та бізнесу щодо благо- дійності обмежуються наявністю вільних коштів, заплутаним законодавством та практично відсутністю податкових пільг. У суспільстві існує стереотип, що благодійна діяльність ОГС не повинна оплачуватись, та відповідно категоричний споживацький підхід до отриман- ня підтримки та послуг від недержавних організацій. З іншого боку, організації громадян- ського суспільства не мають ресурсного потенціалу та інвестицій для організації кампаній із збирання і заробляння коштів, вони надають перевагу організованому та досить дешево- му джерелу ресурсів – міжнародним донорам. Цю думку підтверджено результатами дослідження, проведеного Творчим центром Каунтер- парт9. Зокрема, ситуація з джерелами фінансування НУО у 2008 році відображена на рис. 1: від- сотки характеризують кількість організацій, які отримують фінансування із зазначених джерел. Також експерти ТЦК вивчили структуру річних бюджетів НУО у динаміці (табл. 1). Аналі- зуючи дані за 2008 рік, вони зробили висновки щодо бюджету середньостатистичної НУО. Так, про допомогу від бізнес-сектора вказали 45% опитаних НУО, проте частка благодійних пожертв бізнесу становить у бюджеті організації лише 18%.
Рис. 1. Структура джерел фінансування українських НУО
Кількість НУО, які отримали фінансування від міжнародних донорів, порівняно більша і становить 55% опитаних НУО, але в річному бюджеті частка грантів від міжнародних орга- нізацій становить 41%. Аналогічно, державні виплати отримують 36% респондентів, але це лише 15% у бюджеті НУО. Пожертви громадян отримують 42% опитаних організацій, а їхня частка в бюджеті ста- новить лише 14%. Гранти від місцевих організацій отримують 15% НУО, їхня частка в бю- джеті також становить 15%. Власна комерційна діяльність є джерелом фінансування у 10% респондентів, але їх частка в бюджеті становить лише 6%. І попри те, що законодавство України стосовно залучення ресурсів до ОГС у цілому відпові- дає міжнародним нормам та стандартам, воно «не працює» через недосконалість нормативної бази, непослідовність та складність в її тлумаченні, відсутність ключових законодавчих актів10. 9 Стан та динаміка розвитку неурядових організацій України. 2002–2009 роки: звіт за даними дослідження [Електронний ресурс] / ТЦК. – 2009. – Доступний з:<http://ccc-tck.org.ua/file/biblioteka/CSO_2009UA.pdf>. 10 Куц С. «Відсоткова філантропія» як запорука розвитку громадянського суспільства, шлях до участі грома- дян і підтримки громадянського суспільства, ресурс громадянського суспільства і для громадянського суспіль- ства в Україні. Аналітична записка за результатами аналізу державної політики в галузі фінансування організацій громадянського суспільства [Електронний ресурс] / Центр філантропії. – Доступний з:<http://philanthropy.org. ua/chi-mozhliva-vidsotkova-filantropiya-v-ukra%D1%97ni/>. 16 Дослідження існуючого досвіду та законодавства України ...
Таблиця 1 Структура бюджетів українських НУО у динаміці,% Вид джерел фінансування 2002 2003 2004 2005 2006 2008 Благодійні пожертви громадян 11 11 12 11 12 14 Гранти від місцевих організацій 3 3 4 5 17 15 Членські внески 12 14 12 9 15 12 Власна комерційна діяльність, така як со- 4 3 4 4 4 6 ціальне підприємництво Державний бюджет 11 10 9 10 13 15 Благодійні пожертви бізнесу 20 21 19 19 17 18 Інші джерела 4 6 3 4 4 5 Гранти від міжнародних організацій 35 32 37 38 45 41
2.1. Фінансування з боку органів державної влади та органів місцевого самоврядування Право громадських організацій на отримання державної фінансової підтримки закріплено Законом України «Про об’єднання громадян» (ст. 8)11 і Бюджетним кодексом України (ст. 87)12. Чинну сьогодні систему нормативно-правового регулювання державного фінансування ОГС можна поділити на: – нормативно-правові акти, що регулюють діяльність ОГС; – нормативно-правові документи стосовно державних бюджетів (у тому числі Бюджет- ний кодекс) та державних цільових програм; – нормативно-правові акти, що регулюють порядок використання коштів, передбачених Державним бюджетом та державними цільовими програмами (зокрема, постанови Кабіне- ту Міністрів України, накази профільних міністерств); – нормативно-правові документи, які регулюють процедури організації державних кон- курсів соціальних проектів та прямого фінансування діяльності і проектів для ОГС. Разом з тим, законодавчі акти, котрі регулюють фінансування ОГС державою, часто і безсистемно змінюються. Як замовники, так і виконавці неправильно розуміють їхній зміст або не встигають за змінами, які в них вносяться, що викликає потребу в їх роз’ясненнях компетентними державними органами. Проте сьогодні вже склалася певна система фінансової підтримки державою україн- ських ОГС, яка застосовує декілька механізмів. Субсидії – форма державного фінансування, спрямована на підтримку діяльності ОГС у цілому, а не на конкретні проекти. В Україні субсидії отримують тільки окремі громадські організації, наприклад ветеранські. Гранти – розподіл державних коштів на конкурсних засадах відповідно до визначених пріоритетів. Система проведення конкурсів ще достатньо нова для України. Соціальні контракти – застосування контрактної форми у галузі соціальної політики, приміром, для громадських організацій інвалідів. Державні закупівлі робіт і послуг, які реалізуються на базі відповідних нормативно- правових актів. Участь ОГС та їніх представників у заходах, які організують органи влади Фінансування ОГС проводиться у двох площинах: на загальнодержавному та місцево- му рівнях. Правовим підґрунтям для здійснення такого фінансування є Бюджетний кодекс 11 Закон України від 16. 06. 1992 р. №2460-XII «Про об’єднання громадян» [Електронний ресурс]. – Доступ- ний з:< http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12>. 12 Бюджетний кодекс України від 21. 06. 2001 р., №2542-ІІІ [Електронний ресурс]. – Доступний з:<http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2542-14&p=1288600175262795>. Дослідження існуючого досвіду та законодавства України... 17
України, закони України «Про державний бюджет» на визначений рік, постанови Кабінету Міністрів України, відповідні акти центральних органів виконавчої влади про визначення певних ОГС (на конкурсній та позаконкурсній основах). На загальнодержавному рівні система бюджетного фінансування, зокрема і ОГС, за- тверджується Верховною Радою України через Бюджетний кодекс України, спеціальні за- кони, в тому числі щорічні закони України «Про Державний бюджет». Верховна Рада України встановлює правила фінансової підтримки ОГС, а також можливі її розміри з боку органів місцевого самоврядування (визначає обсяг коштів, які залишаються у розпорядженні органів місцевої влади, та затверджує розрахунки щодо того, чи будуть враховувати- ся фінансові відносини між ОГС і місцевим самоврядуванням у формулах міжбюджетних відносин). Законами України «Про Державний бюджет» щороку визначаються конкретні суми фінансової підтримки ОГС на загальнодержавному рівні. Однак у більшості випадків конкретні ОГС та суми їх державної фінансової підтримки Верховна Рада України не визначає, натомість встановлює види організацій, які її отрима- ють. Аналогічно система працює і на місцевому рівні, коли місцеві ради лише в окремих ви- падках визначають конкретні ОГС, яким планують надавати підтримку. Слід зауважити, що на рівні Верховної Ради України щороку визначається близько десяти ОГС різних напрямів діяльності, а на рівні місцевої ради – у середньому від двох до 20 організацій, залежно від регіону та місцевих фінансових можливостей. На місцевому та державному рівнях органи виконавчої влади самостійно визначають порядок і обсяг фінансової підтримки тих чи інших ОГС, при цьому можна припустити, що конкурсні процедури або формальні, або ж їх взагалі уникають. Зазвичай органи влади лише інколи ухвалюють рішення про підтримку тих чи інших ор- ганізацій у цілому. Як правило, найчастіше таке рішення приймається підрозділом уряду, а уряд лише затверджує порядок проведення фінансування. На місцевому рівні ситуація при- близно така ж сама – конкретного одержувача підтримки з числа ОГС звичайно визначають на рівні управління або відділу виконавчого комітету органу влади. Крім того, на обох рівнях фінансування задіяне Державне казначейство України, що ви- ступає також регулятором фінансової підтримки і виконує дві головні функції: перевіряє до- кументи ОГС під час безпосереднього здійснення фінансування та визначає пріоритетність отримання коштів за тими чи іншими статтями, виходячи, зокрема, з поняття «захищених» статей бюджету. У чинному законодавстві України відсутні чітко визначені окремі особливості здійснення фінансування, фінансової підтримки проектів громадських організацій. Хоча загалом воно передбачає можливості цього у Законі Україні «Про об’єднання громадян»: «держава за- тверджує перелік всеукраїнських громадських організацій, яким надає матеріальну допо- могу». Фактично Закон встановлює обмеження за статусом громадських організацій (вра- ховуючи, що для громадських організацій існують три види статусів – міжнародні, всеукра- їнські, місцеві), які можуть претендувати на матеріальну допомогу (очевидно, що під нею слід розуміти субсидійну або статутну підтримку з Державного бюджету). І цей Закон ви- значає, що підтримку статутної діяльності громадська організація може отримати тільки у тому випадку, якщо вона має всеукраїнський статус, а згадування у ньому про всі інші фор- ми підтримки громадських організацій як основного виду ОГС на сьогодні відсутні. Біль- шість правників розуміють цю форму в такому сенсі, що держава надає матеріальну допо- могу тим ОГС, діяльність яких їй необхідна та співпадає з її інтересами, причому відбуваєть- ся це через механізм затвердження. Таким чином, у базовій нормі Закону закладено необ- хідні підвалини для визначення пріоритетів співпраці держави та ОГС, а також основу для розвитку конкурсного механізму. Бюджетний кодекс України визначає три види ОГС, на які може виділятися державне фінансування, а саме: 18 Дослідження існуючого досвіду та законодавства України ...
– державна підтримка громадських організацій інвалідів і ветеранів, які мають статус всеукраїнських; – державна підтримка молодіжних громадських організацій на виконання загальнодер- жавних програм і заходів стосовно дітей, молоді, жінок, сім'ї; – державна підтримка громадських організацій культури і мистецтва, що мають статус національних. Але відзначимо, що фінансуються й інші організації, наприклад «чорнобильські» (засно- вані постраждалими від аварії на Чорнобильській атомній електростанції), незважаючи на відсутність прямих вказівок щодо цього у Бюджетному кодексі України. При здійсненні фі- нансування у такому випадку органи влади керуються нормами інших законів, які це дозво- ляють. Аналіз Закону України «Про Державний бюджет України на 2010 рік»13 дає можливість визначити, що там передбачено такі видатки на фінансування ОГС: – суми коштів на фінансування для конкретних ОГС на 2010 рік; – обсяги фінансування конкретних видів ОГС на 2010 рік; – обсяги коштів для проведення конкурсів проектів між ОГС на 2010 рік; – суми фінансування заходів, які здійснюють урядові органи, але участь у реалізації яких можуть взяти ОГС. Таким чином, Державний бюджет як основний фінансовий документ у державі сьогод- ні передбачає такі основні напрямки співпраці між урядом та організаціями громадянсько- го суспільства: пряма фінансова підтримка конкретних ОГС, фінансування ОГС через спеці- ально визначені механізми, опосередкована і можлива їх участь через співпрацю з урядо- вими органами. Щодо реалізації державних коштів можна зазначити: діючі правові документи практич- ного характеру зазвичай є підзаконними нормативно-правовими актами, які ухвалюються з урахуванням існуючої системи законів та кодексів, при цьому Кабінет Міністрів України своїми актами встановлює порядок фінансування діяльності тих чи інших категорій ОГС. Зазвичай кошти Державного бюджету України для ОГС спрямовуються на: – оплату праці; – оплату внесків міжнародним організаціям (наприклад, Товариства Червоного Хреста); – оплату оренди приміщень та обладнання, комунальних послуг та енергоносіїв; – оплату транспортних витрат, транспортних послуг та утримання транспортних засобів; – придбання малоцінних або таких, котрі швидко зношуються, предметів, матеріалів, обладнання та інвентарю; – поточний ремонт та технічне обслуговування обладнання; – обслуговування оргтехніки, встановлення і супроводження програмного забезпечен- ня, обслуговування комп'ютерних програм, послуги з перезарядки картриджів, тонерів; – оплату банківських, юридичних, друкарських та поліграфічних послуг; – оплату участі у короткострокових семінарах, нарадах, нарадах-навчаннях; – оплату послуг поштового, телеграфного та телефонного зв'язку, електронної пошти; – оплату проведення поточного ремонту; – страхування приміщень, забезпечення їхньої охорони, в тому числі обслуговування охоронної та пожежної сигналізації; – оплату витрат, пов'язаних із забезпеченням функціонування установ громадських ор- ганізацій та спілок, діяльності та поліпшення технічного стану приміщень; – організацію проведення масових заходів, змагань, забезпечення навчально- тренувального процесу, організаційно-методичних та інших заходів, пов'язаних з реаліза- цією затверджених програм. 13 Закон України від 27.04.2010 р. №2154-IV «Про Державний бюджет України на 2010 рік» [Електронний ре- сурс]. – Доступний з:< http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2154-17>. Дослідження існуючого досвіду та законодавства України... 19
Серед цих підзаконних актів можна відзначити низку постанов Кабінету Міністрів Укра- їни, наказів Міністерства культури і туризму України, Міністерства регіонального розвитку та будівництва України, Державного комітету України у справах національностей та релігій тощо. Також слід зазначити, що, окрім прямого фінансування, Державний бюджет України на 2010 рік, як і у попередні роки, встановлює, що оренда державного та комунального майна здійснюється без конкурсних засад у тому випадку, якщо державне або комунальне майно передається в оренду громадським організаціям у сфері культури і мистецтв (у тому чис- лі національним творчим спілкам та їхнім членам під творчі майстерні); громадським орга- нізаціям ветеранів; громадським організаціям інвалідів; центрам професійної, соціальної реабілітації інвалідів та центрам ранньої соціальної реабілітації дітей-інвалідів, а також під- приємствам та організаціям громадських організацій інвалідів, яким визначена доцільність надання державної допомоги відповідно до ст. 14-1, 14-2 Закону України «Про основи соці- альної захищеності інвалідів в Україні»14. Міністерство праці та соціальної політики України користується всіма можливостями, що передбачені чинним законодавством для фінансування ОГС. Відповідно до ст. 87 Бюджетно- го кодексу України за рахунок асигнувань, що надходять до Державного бюджету, міністер- ство надає пряму фінансову підтримку всеукраїнським громадським організаціям інвалідів та всеукраїнським громадським організаціям ветеранів. При розподілі коштів для організацій інвалідів з 2009 року застосовується напівконкурсний механізм. Окрім того, з 2010 року За- коном України «Про Державний бюджет України на 2010 рік» запроваджено пряму підтримку для Українського товариства глухих (УТОГ) та Українського товариства сліпих (УТОС). Безпосередньо механізми підтримки регулюються Порядком використання коштів, що визначений Постановою Кабінету Міністрів України №236 від 26 березня 2008 року «Про затвердження Порядку використання у 2008 році коштів Державного бюджету для надан- ня фінансової підтримки громадським організаціям інвалідів»15 та Постановою Кабінету Мі- ністрів України №285 від 2 квітня 2008 року «Про порядок використання у 2008 році коштів, передбачених у Державному бюджеті для надання фінансової підтримки громадським ор- ганізаціям ветеранів та відвідування військових поховань і військових пам'ятників»16. Чин- ність цих постанов подовжено на 2009 рік Постановою Кабінету Міністрів України №32 від 14 січня 2009 року «Про порядок використання у 2009 році коштів Державного бюджету, пе- редбачених за деякими програмами»17. Наразі ці документи чинні і у 2010 році з урахуван- ням Постанови Кабінету Міністрів України №411 від 09.06.2010 року18 та наказу Державно- го казначейства України №89 від 25.05.2004 року19. 14 Закон України від 21.03.1991р. №875-12 «Про основи соціальної захищеності інвалідів в Україні» [Елек- тронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=875-12>. 15 Постанова Кабінету Міністрів України від 26 березня 2008 року №236 «Про затвердження Порядку викорис- тання у 2008 році коштів Державного бюджету для надання фінансової підтримки громадським організаціям інва- лідів» [Електронний ресурс]. – Доступний з: <zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=236-2008-%EF>. 16 Постанова Кабінету Міністрів України від 2 квітня 2008 року №285 «Про порядок використання у 2008 році коштів, передбачених у Державному бюджеті для надання фінансової підтримки громадським організаці- ям ветеранів та відвідування військових поховань і військових пам’ятників» [Електронний ресурс]. – Доступний з: <zakon.nau.ua/doc/?code=32-2009-п>. 17 Постанова Кабінету Міністрів України від 14 січня 2009 року №32 «Про порядок використання у 2009 році коштів Державного бюджету, передбачених за деякими програмами» [Електронний ресурс]. – Доступний з: < zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=32-2009-%EF>. 18 Постанова Кабінету Міністрів України від 9. 06. 2010 р. №411 «Про порядок використання у 2010 р. коштів, передбачених Міністерству праці і соціальної політики за окремими бюджетними програмами» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=411-2010-%EF>. 19 Наказ Державного казначейства України від 25. 05. 2004 р. №89 «Про затвердження Порядку обслуго- вування державного бюджету за видатками та операціями з надання та повернення кредитів, наданих за раху- нок коштів державного бюджету» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/ main.cgi?nreg=z0716-04>. 20 Дослідження існуючого досвіду та законодавства України ...
Згідно цього Порядку, одержувачами бюджетних коштів є громадські організації інвалі- дів, які визначені ст. 12 Закону України «Про основи соціальної захищеності інвалідів в Укра- їні» та мають статус всеукраїнських, їхні місцеві (обласні) осередки та підприємства і орга- нізації невиробничої сфери УТОГу та УТОСу, а також підприємства та об'єднання зазначе- них товариств, які спрямовують такі кошти на утримання соціально-культурних підрозділів. У відповідності із зазначеною Постановою, кошти, отримані від держави використову- ються для: – проведення конгресів, симпозіумів, зборів, конференцій, пленумів, з'їздів, тренінгів, курсів, навчальних семінарів, фестивалів, виставок, концертів, фізкультурних заходів, кон- курсів – за умови, що інваліди становлять не менше 60% від загальної кількості учасни- ків, проведення засідань за «круглим столом», заходів з нагоди Міжнародного дня інвалідів (окрім оплати фуршетів та банкетів), а також забезпечення участі представників громад- ських організацій у цих та аналогічних міжнародних заходах; – навчання голови та членів тендерних комітетів (не більше 6 осіб) громадських органі- зацій інвалідів, що здійснюють закупівлю товарів, робіт і послуг у встановленому законо- давством порядку; – провадження видів діяльності, визначених для громадських організацій інвалідів ука- зами Президента України; – випуску згідно з укладеними договорами вітчизняними суб'єктами господарської ді- яльності книжок, підручників, довідників, брошур, інформаційних листівок, зокрема надру- кованих шрифтом Брайля, виданих спеціалізованими мовами та озвучених, а також газет і журналів з питань соціального захисту інвалідів, доходи від реалізації яких використовують- ся лише для цілей, визначених цим пунктом; – підтримки підприємств і організацій невиробничої сфери УТОГу та УТОСу, а також під- приємств та об'єднань зазначених товариств, які спрямовують такі кошти на утримання соціально-культурних підрозділів, у тому числі матеріального заохочення працівників у об- сязі, що не перевищує (разом із нарахуваннями) 80% від загального обсягу бюджетних ко- штів, передбачених для зазначених товариств; – підтримки громадських організацій інвалідів, що входять до складу всеукраїнської громадської організації інвалідів, які надають інвалідам з розумовою відсталістю послуги з денного догляду за окремим списком, погодженим із Мінпраці; – оплати, але не більше 20% від загального обсягу передбачених громадській організа- ції бюджетних коштів: оренди обладнання, інвентарю та приміщень; комунальних послуг у межах середніх норм споживання; послуг поштового та електрозв'язку; поточного ремонту інвентарю та приміщень; встановлення, користування та обслуговування веб-сторінки громадської організації, довідково-інформаційних програм і програм бухгалтерського обліку, забезпечення доступу до електронної пошти; придбання канцелярських виробів; передплати та придбання періодичних, довідкових, інформаційних, аналітичних та методичних видань з питань соціального захисту і реабілітації інвалідів, діяльності громадських організацій та бухгалтерського обліку; матеріального заохочення працівників організації (в обсязі, що не перевищує разом із нарахуваннями 35% від загального обсягу передбачених громадській організації бюджетних коштів). По лінії Державного комітету України у справах ветеранів підтримка з Державного бю- джету здійснюється шляхом надання прямого фінансування громадським організаціям ве- теранів для здійснення їхньої статутної діяльності та відвідування військових поховань і вій- Дослідження існуючого досвіду та законодавства України... 21
ськових пам’ятників. Розподілені комітетом кошти на адресу ОГС є безповоротною допо- могою, яка використовується організаціями для підтримки діяльності. Реальний моніто- ринг використання коштів як такий відсутній, оскільки існує загальне розуміння, що кошти виділяються для статутної підтримки ОГС. Розмір суми фінансування конкретної організа- ції визначається винятково політичною лояльністю керівництва ветеранської організації до уряду. Фактор величини та кількості членів організації є другорядним20. На сьогодні існує суттєва проблема, пов’язана із порушенням зазначеною постано- вою норм Закону України «Про молодіжні та дитячі громадські організації»21: вона містить дискримінаційні положення, які не допускають до участі у конкурсі молодіжні організації з міжнародним та місцевим статусами, що суттєво зменшує конкуренцію між учасниками, а отже, негативно впливає на якість проектів, що подаються. Проте щороку кількість органі- зацій – учасників конкурсів та кількість поданих проектів зростає. Міністерство культури і туризму України також використовує всі чотири напрями фінан- сування, що виражається у прямій та опосередкованій підтримці творчих спілок і проектів громадських організацій та благодійних фондів відповідного спрямування. Згідно з п. «в» пункту 10 статті 87 Бюджетного кодексу України, до видатків, які здійсню- ються зазначеним міністерством за рахунок коштів Державного бюджету, віднесені видат- ки на державну підтримку громадських організацій культури і мистецтва, що мають статус національних, зокрема: Національної спілки художників України, Національної спілки кра- єзнавців України, Національної хореографічної спілки України, Національної спілки фотоху- дожників України, Національної спілки театральних діячів України, Національної спілки ком- позиторів України, Національної спілки кобзарів України, Національної спілки кінематогра- фістів України, Національної спілки майстрів народного мистецтва України. Законом України «Про державний бюджет України на 2010 рік» було подовжено дію двох бюджетних програм, а саме «Заходів щодо відтворення культури національних меншин та фінансової підтримки газет мовами національних меншин», а також «Заходи з реалізації Європейської хартії регіональних мов та мов меншин». Головним розпорядником коштів цих бюджетних програм є Державний комітет України у справах національностей та релігій. Комітет спрямовує дані кошти на підтримку культурологічних та просвітницьких заходів, що проводяться громадськими організаціями національних меншин. Таким чином, можна кон- статувати, що сьогодні в наданні фінансової підтримки громадським організаціям комітет використовує лише один інструмент – бюджетні кошти. Державний комітет України у справах національностей та релігій розглядає державну підтримку як практичний механізм реалізації державної політики щодо збереження етнічної самобутності національних меншин. Так, за підтримки держави національні меншини ма- ють можливість проводити культурно-мистецькі фестивалі, дні національної культури, кон- курси та олімпіади на краще знання мов національних меншин, огляди та виставки творів майстрів образотворчого мистецтва, конференції, конгреси, семінари, видавати словники, посібники, науково-методичні видання для недільних шкіл, довідники з різних мов, збірни- ки інформаційно-аналітичних матеріалів з питань національно-культурного розвитку тощо. Разом з тим, ми бачимо, що інші напрями суспільного життя, за які відповідає Держав- ний комітет України у справах національностей та релігій як державний орган, не потрапи- ли до списку пріоритетних для державного фінансування. Державний комітет телебачення та радіомовлення України, як і інші органи влади, окрім конкурсних, одночасно застосовує цілий набір інструментів фінансової підтримки. Відпо- відно до Закону України «Про професійних творчих працівників та творчі спілки» №554/97-
20 Оцінка системи державного фінансування діяльності громадських організацій в Україні: аналі- тичний звіт за результатами дослідження / UNITER/PACT. – Київ, 2010. 21 Закон України від 1. 12. 1998 р. №281 – XIV «Про молодіжні та дитячі громадські організації» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=281-14>. 22 Дослідження існуючого досвіду та законодавства України ...
ВР вiд 07.10.199722 зазначений комітет за бюджетною програмою «Фінансова підтрим- ка творчих спілок у сфері засобів масової інформації» надає фінансову підтримку Націо- нальній спілці журналістів України, а саме обласним організаціям Спілки у виконанні ними статутних завдань. Рішення за цією програмою, як і за іншими, ухвалюється керівництвом Держкомтелерадіо. Встановлені правила і процедури ухвалення рішень про фінансування тих чи інших статей видатків обмежуються виключно порядком фінансування. За іншою бюджетною програмою «Інформаційно-культурне забезпечення населен- ня Криму у відродженні та розвитку культур народів Криму», відповідно до Закону України «Основи законодавства про культуру» №2117-XII від 14.02.1992 р.23, постанов Кабінету Міні- стрів України №636 від 11.08.1995 року «Про заходи щодо розв’язання політико-правових, соціально-економічних та етнічних проблем в Автономній Республіці Крим»24 та №1570 від 28.12.1996 року «Про створення у м. Сімферополі Всеукраїнського інформаційно- культурного центру»25 Державний комітет телебачення та радіомовлення України фінансує зазначену бюджетну програму. Сьогодні на загальнодержавному рівні запроваджено і діє декілька моделей проведен- ня конкурсів на залучення до надання соціальних послуг, міні-грантів та фінансування про- ектів/програм громадських і благодійних організацій, а саме: 1) гранти для обдарованої молоді (Указ Президента України №945/99 від 02.08.2000 року26); 2) конкурси проектів програм, розроблених громадськими організаціями, стосовно ді- тей, молоді, жінок та сім'ї (Постанова КМУ №1062 від 26.07.2002 року27); 3) конкурси на залучення бюджетних коштів для надання соціальних послуг (Постанова КМУ №559 від 29.04.2004 року28); 4) конкурси проектів і програм громадських організацій щодо інформування громад- ськості з питань європейської інтеграції (Постанова КМУ №956 від 30.10.2008 року29). Недоліком зазначених нормативно-правових актів є те, що вони визначають конкурсну процедуру досить схематично. Найбільш чітко прописано процедуру щодо конкурсу із за- лучення коштів для надання соціальних послуг. Водночас практично всі проаналізовані до- кументи передбачають прийняття відповідним центральним органом виконавчої влади, зо- крема міністерствами, окремих актів щодо їхньої реалізації (критерії оцінки, форми заявок тощо). Об’єднуючою рисою зазначених нормативно-правових актів є делегування функцій 22 Закон України вiд 07.10.1997 №554/97-ВР «Про професійних творчих працівників та творчі спілки» [Елек- тронний ресурс]. – Доступний з: <zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=554%2F97>. 23 Закон України від 14.02.1992 р. №2117-XII «Основи законодавства про культуру» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2117-12>. 24 Постанова Кабінету Міністрів України від 11.08.1995 року №636 «Про заходи щодо розв’язання політико- правових, соціально-економічних та етнічних проблем в Автономній Республіці Крим» [Електронний ресурс]. – Доступний з: < zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=636-95-%EF>. 25 Постанова Кабінету Міністрів України від 28.12.1996 р. №1570 «Про створення у м. Сімферополі Всеукра- їнського інформаційно-культурного центру» [Електронний ресурс]. – Доступний з: <zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=1570-96-%EF>. 26 Указ Президента України від 02.08.2000 р. №945/99 «Про гранти для обдарованої молоді» [Електронний ресурс]. – Доступний з: <zakon.rada.gov.ua/cgiin/laws/main.cgi?nreg=945%2F2000>. 27 Постанова Кабінету Міністрів України від 25.07.2002 р. №1062 «Про затвердження Порядку проведен- ня конкурсу проектів програм, розроблених молодіжними, дитячими громадськими організаціями та їх спілка- ми, стосовно дітей, молоді, жінок та сім’ї» [Електронний ресурс]. – Доступний з: <uapravo.net/data2008/g2002/ list8.htm>. 28 Постанова Кабінету Міністрів України від 29.04.2004 р. №559 «Про затвердження Правил організації та проведення конкурсу на залучення бюджетних коштів для надання соціальних послуг» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=559-2004-%EF>. 29 Постанова Кабінету Міністрів України від 30.10.2008 р. №956 «Про затвердження Порядку проведення конкурсного відбору проектів і програм інформування громадськості з питань європейської інтеграції, розро- блених громадськими організаціями» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=956-2008-%EF>. Дослідження існуючого досвіду та законодавства України... 23
з організації та проведення конкурсів не безпосередньо тому, хто такий акт видав, а іншим органам державної влади. Усі наведені документи передбачають періодичне проведення конкурсів. Відповідно до згаданих постанов уряду, конкурси чітко прив'язані до бюджетного процесу – їхньому ого- лошенню передує затвердження державного чи місцевих бюджетів, що не завжди відпові- дає нагальним потребам сьогодення. Коло учасників конкурсів у кожному випадку різне. Потенційними отримувачами гран- тів Президента України є громадяни України. При залученні бюджетних коштів до фінан- сування соціальних послуг учасниками конкурсів є юридичні особи (крім державних і ко- мунальних спеціалізованих підприємств, установ та закладів соціального обслуговування) та фізичні особи, які мають право надавати соціальні послуги на професійній основі. Учас- никами конкурсів проектів програм стосовно дітей, молоді, жінок та сім'ї, а також щодо ін- формування громадськості з питань європейської інтеграції є громадські організації, заре- єстровані як юридичні особи. Також слід відзначити, що проаналізовані нормативно-правові акти в своїй більшості не дають чіткої та однозначної відповіді на запитання, якими ж насправді є критерії оцінки, за якими визначаються переможці конкурсів. Фінансування отримувачів грантів Президента України та переможців конкурсів проек- тів програм для дітей, молоді, сім'ї та жінок здійснюється з Державного бюджету України. Переможці конкурсів на залучення бюджетних коштів до надання соціальних послуг та кон- курсів щодо інформування громадськості з питань європейської інтеграції фінансуються як з Державного, так і з відповідних місцевих бюджетів. На місцевому рівні фінансування НУО за рахунок бюджетних коштів проводиться із за- стосуванням таких процедур: соціального замовлення; конкурсу соціальних проектів (програм); конкурсу соціально-культурних проектів; конкурсу проектів громадських та благодійних організацій; конкурсу проектів та програм неприбуткових організацій. Слід зазначити, що тісна співпраця між ОГС та органами державної влади на місцях не- можлива без наявності політичної волі місцевої влади та відповідної підтримки територі- альної громади. Разом з тим, на практиці часто виникають питання щодо здійснення фінансування про- ектів громадських та благодійних організацій за рахунок коштів місцевих бюджетів. Так, якщо на рівні певної територіальної громади не розроблено і не прийнято певних цільових програм, посилання на які у відповідних положеннях/порядках та актах, якими було врегу- льовано порядок проведення конкурсів, здебільшого відсутні, то згідно з чинним законо- давством видаються сумнівними підстави для здійснення фінансування проектів суб’єктів, які не є розпорядниками бюджетних коштів чи виконавцями цільових програм. На рівні міст України на сьогодні затверджені та діють дуже різні за рівнем складності, структурою та якістю документи: від достатньо деталізованих і доволі складних описів про- цедур до декларативних документів, які практично не врегульовують жодних процедурних питань. Поширені нині в Україні моделі соціального замовлення/соціального контрактування та муніципальних грантів спрямовані як на загальну підтримку суспільно корисної діяльнос- ті НУО, часто переважно соціального спрямування, так і конкретних цільових груп, зокрема молоді, або ж безпосередньо на залучення до надання соціальних послуг НУО. Отже, чинні в Україні моделі фінансування НУО на місцевому рівні умовно можна поділити на: реаліза- цію системи муніципальних грантів та впровадження механізмів соціального замовлення/ соціального контрактування. 24 Дослідження існуючого досвіду та законодавства України ...
Одним із основних механізмів забезпечення реалізації стратегій і бачень соціально- економічного розвитку країни, зокрема, є розробка, затвердження та впровадження цільо- вих програм на різних рівнях. Через них здійснюється нормативно закріплена необхідність планування та прогнозування надання соціальних послуг, вирішення певних проблем на місцях, що потребують фінансування з Державного та місцевих бюджетів. Існування проблеми на рівні регіону, вирішення якої потребує залучення бюджетних ко- штів, координації спільних дій місцевих органів виконавчої влади й органів місцевого са- моврядування, підприємств, установ і організацій, наявність у місцевому бюджеті реальної можливості ресурсного забезпечення виконання запланованих заходів дозволяють на рів- ні області, району, міста впроваджувати відповідні місцеві програми. Відповідно до Порядку залучення громадян до формування та реалізації державної по- літики, затвердженого Постановою Кабінету Міністрів України №10 від 06.01.2010 року30, передбачено, що консультації з громадськістю щодо державних і регіональних програм економічного, соціального і культурного розвитку, рішень стосовно стану їх виконання про- водяться в обов'язковому порядку. Таким чином, держава має на меті залучити громадян та ОГС до формування та реалізації державної політики, контролю за діяльністю державних органів, доступу до інформації. В Україні питання фінансування цільових програм урегульовано Законом України «Про Державні цільові програми»31, який визначає, що Державна цільова програма – це комплекс взаємопов'язаних завдань і заходів, які спрямовані на розв'язання найважливіших проблем розвитку держави, окремих галузей економіки або адміністративно-територіальних оди- ниць, здійснюються з використанням коштів Державного бюджету України та узгоджені за термінами виконання, складом виконавців, ресурсним забезпеченням. З метою забезпечення реалізації норм зазначеного Закону, Міністерством економіки України розроблено відповідний наказ32, яким було затверджено методичні рекомендації щодо порядку розроблення регіональних цільових програм, моніторингу та звітності про їх виконання. Дане положення визначає, що регіональна цільова програма – це сукупність взаємопов'язаних завдань і заходів, узгоджених за термінами та ресурсним забезпечен- ням з усіма задіяними виконавцями, спрямованих на розв'язання найактуальніших про- блем розвитку регіону або окремих галузей економіки чи соціально-культурної сфери регі- ону, реалізація яких здійснюється за рахунок коштів місцевого бюджету і є складовою що- річної програми соціально-економічного розвитку Автономної Республіки Крим, областей, міст Києва та Севастополя на відповідний рік. Програма вважається комплексною, якщо вона об'єднує декілька програм споріднених напрямів відповідної галузі та передбачає їхнє фінансування за кількома кодами функціо- нальної класифікації видатків місцевого бюджету. Ініціатором розроблення програм може бути місцевий орган виконавчої влади, орган місцевого самоврядування. Підставою для розроблення програми є: існування на рівні регіону проблеми, розв'язання якої потребує залучення бюджет- них коштів, координації спільних зусиль місцевих органів виконавчої влади та органів міс- цевого самоврядування, підприємств, установ та організацій; наявність у місцевому бюджеті реальної можливості ресурсного забезпечення виконан- ня заходів програми та відповідність мети програми пріоритетним напрямам розвитку регіону. 30 Постанова Кабінету Міністрів України від 06. 01. 2010 р. №10 «Порядок залучення громадян до формуван- ня та реалізації державної політики» [Електронний ресурс]. – Доступний з: <zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=10-2010-%EF>. 31 Закон України «Про Державні цільові програми» №1621- IV від 18. 03. 2004 р. [Електронний ресурс]. – До- ступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1621-15>. 32 Наказ Міністерства економіки України від 04. 12. 2006 р. №367 [Електронний ресурс]. – Доступний з: <http://www.yurist-online.com/zakoni/007/04/012399.php>. Дослідження існуючого досвіду та законодавства України... 25
Пріоритетними сферами залучення громадських організацій до програм регіонального розвитку можуть бути: – мобілізація місцевих громад і трансформація їхніх потреб у програмні положення; – організація захисту прав споживачів; – розвиток регіональних профспілок за стандартами ЄС; – здійснення моніторингу політики та практики місцевих органів влади і донорів; – реалізація проектів соціальної спрямованості, надання соціальних послуг; – аналіз потреб місцевих громад та доведення їх до органів влади, пропозиції відповід- них проектів та їх реалізація. Представивши нормативно-правове поле щодо регулювання процесу фінансування ОГС з боку органів державної влади та органів місцевого самоврядування, ми не можемо не зупинитися на практиці та проблемах, які виникають при реалізації державного фінансу- вання. Український незалежний центр політичних досліджень провів 16 грудня 2009 року в Києві грунтовне дослідження – колективне глибинне інтерв’ю «Оцінка системи державно- го фінансування діяльності громадських організацій»33, головною метою якого було вивчен- ня оцінки керівниками громадських організацій проблем, що виникають у процесі держав- ного фінансування проектів і програм таких організацій. Цільовою групою даного фокус- групового дослідження були визначені громадські організації, що мають досвід одержання державного фінансування проектів. Представники організацій були відібрані з громадських організацій, вказаних на сайтах центральних органів виконавчої влади України як такі, що отримували державне фінансування в 2007–2009 роках. Загальна дискусія підтвердила, що міністерства та інші органи виконавчої влади визна- чають пріоритети фінансування проектів ОГС відповідно до суто відомчих повноважень. Як зазначили учасники, критерії відбору проектів і прозорість прийняття рішень міністерства- ми залишаються для більшості організацій незрозумілими. Наприклад, Міністерство України з надзвичайних ситуацій не проводить конкурсів се- ред ОГС, а постійно працює з кількома всеукраїнськими громадськими організаціями. Кон- кретна сума фінансування обговорюється на підставі річної заявки організації та перегово- рів з представниками міністерства. Зазначене міністерство – начебто з метою забезпечення цільового використання коштів та запобігання багаторазовому одержанню допомоги – вимагає, щоб кожна людина, яка одержує державну допомогу, була членом Всеукраїнської громадської організації «Союз Чорнобиль України» і подала заяву про вступ до організації в районі чи місті, де перебуває на обліку. Така вимога суперечить чинному Закону України «Про об’єднання громадян»34, (ст. 2), але захищає партнерів міністерства від конкуренції. У Міністерстві праці та соціальної політики України конкурсна комісія на початку року розглядає запити на фінансування (кошториси заходів). Склад комісії затверджується на- казом міністра. До складу конкурсної комісії включено одного представника громадських організацій на підставі щорічної ротації; інші члени комісії є представниками профільних департаментів міністерства. Закон України «Про основи соціальної захищеності інвалідів в Україні»35 зобов’язує дер- жаву надавати фінансову підтримку всеукраїнським громадським організаціям інвалідів. З метою відбору з-поміж кількадесяти таких організацій Міністерство праці та соціальної політики України перевіряє роботу громадських організацій-заявників за попередній рік. 33 Глибинне інтерв’ю «Оцінка системи державного фінансування діяльності громадських організацій» [Елек- тронний ресурс] / Український незалежний центр політичних досліджень. – 2009. – Доступний з: <http://www. ucipr.kiev.ua/modules.php?op=modload&name=News&file=index&catid=26&topic=>. 34 Закон України «Про об’єднання громадян» від 16. 06. 1992 р. №2460-XII [Електронний ресурс]. – Доступ- ний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12>. 35 Закон України від 21.03.1991 р. №875-XII «Про основи соціальної захищеності інвалідів в Україні» [Елек- тронний ресурс]. – Доступний з: <. http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=875-12>. 26 Дослідження існуючого досвіду та законодавства України ...
Окрім того, надсилається запит Міністерству юстиції України на підтвердження їхнього все- українського статусу, і якщо деякі організації з тих чи інших причин такого підтвердження не отримали, отже, не змогли одержати і державне фінансування. Найбільша квота, особливо щодо матеріального заохочення працівників, постійно при- падає на УТОГ та УТОС, решта громадських організацій, на думку учасників дискусії, фі- нансується Міністерством праці та соціальної політики України за залишковим принципом. Окрім кошторисів заходів, кожна організація, яка одержує державне фінансування від за- значеного міністерства, має розробити анкети власних програм. Унікальні заходи міністер- ство, як правило, підтримує, а якщо їх пропонує декілька організацій, то кого підтримати, воно обирає за власним рішенням. Учасники інтерв’ю повідомили, що в Міністерстві України у справах сім’ї, молоді та спорту склад конкурсної комісії щороку змінюється наказом міністра. До складу комісії обов’язково включають представників молодіжних громадських організацій. Раніше діяла заборона на участь у конкурсній комісії представників організацій, які подавали проекти, але фактично її не виконують. На конкурсах для молодіжних організацій проекти презенту- ють і захищають перед конкурсною комісією особисто керівники організацій або проектів. Разом з тим, учасники дискусії підтвердили, що кількість випадків призначення державного фінансування організаціям, які раніше його не одержували, щороку зростає. Міністерства, за винятком Міністерства України у справах сім’ї, молоді та спорту, як пра- вило, не укладають контрактів із ОГС, чиї проекти було підтримано. Міністерство праці та соціальної політики України, наприклад, видає наказ про затвердження паспорту бюджет- ної програми. Перший заступник міністра затверджує плани використання коштів громад- ською організацією (третій примірник документа передається казначейству). Стосовно можливого вдосконалення процедури: на сьогодні «єдиного вікна» щодо проведення конкурсів у міністерствах немає, тому доводиться візувати документи в різ- них чиновників, навіть у різних офісах. Окрім того, надмірна кількість документів має бути нотаріально посвідчена. Це забирає багато часу й іноді навіть перешкоджає учас- ті у конкурсах. Також неодноразово підтверджувався учасниками інтерв’ю факт, що державне фінансу- вання проектів ОГС значно відрізняється від передбачених законодавством процедур. По- ряд з цим процедури державного фінансування мають відомчу специфіку стосовно таких важливих питань, як графік платежів, вимоги до власних внесків ОГС. Наприклад, Міністерство праці та соціальної політики України на початку року видає план асигнувань, наказ про затвердження паспорту бюджетної програми, лімітну довідку. На підставі офіційного запиту Міністерство фінансів України переказує кошти на рахунок ОГС. Якщо фактично бюджетні кошти не надходять на рахунок, реєструється кредиторська заборгованість організації, але практично це мало допомагає діяльності ОГС. Крім того, суми бюджетних асигнувань у цілому доволі умовні: із передбачених бюдже- том сум фактично сплачується, як правило, лише 50%. Авансові платежі наразі не практи- куються, хоча в 2007–2008 роках така практика була звичайною, що для більшості ОГС, без- умовно, зручно. Учасники дискусії підтвердили також, що жодне міністерство не фінансує 100% ви- трат громадських організацій, постійно наголошуючи, що ОГС мають можливість отриман- ня грантів, створення дочірніх підприємств та інші джерела додаткових коштів. Тому влас- ний внесок є, по суті, обов’язковою умовою одержання державного фінансування. Власний внесок ОГС становить, як правило, 25% коштів для молодіжних організацій, а деякі заходи організації змушені проводити за власні кошти. Для окремих проектів такий внесок є над- мірно великим. Так, Міністерство України у справах сім’ї, молоді та спорту наполягає, щоб внесок був саме грошовий, а не в формі волонтерської праці, використання обладнання тощо. Напри- Дослідження існуючого досвіду та законодавства України... 27
клад, власний внесок ОГС може бути прийнятий у формі платежів за оренду приміщень з рахунку організації або її партнерів. Значну проблему створює також відсутність, на відміну від грантів міжнародних органі- зацій, періодичних траншів у бюджетному фінансуванні, що змушує організації більшу час- тину року або навіть цілий рік працювати на власних коштах. Розподіл бюджетних коштів здійснюється без проведення оцінки потреб інвалідів та інших цільових груп, а організації просто намагаються ділити річні асигнування на щомісячні кошториси. Крім того, під час проведення згаданого вище інтерв’ю Українського незалежного цен- тру політичних досліджень підтвердився той факт, що Державне казначейство має щоден- ні ліміти стосовно фінансування так званих незахищених статей витрат. Бюджетні класифі- катори не включають державну підтримку програм і проектів організацій громадянського суспільства до захищених статей, а отже, ОГС доводиться розносити якомога більше ви- трат за такими захищеними статтями, як заробітна плата (код 1111), комунальні послуги (код 1160), харчування учасників заходів тощо. Це значно зменшує ефективність багатьох заходів. Наприклад, Порядок використання коштів державного бюджету для надання фінансо- вої підтримки громадським організаціям інвалідів36 дозволяє використовувати до 35% бю- джетних коштів на матеріальне заохочення працівників організації. Але відповідний код бю- джетного класифікатора 1310 не належить до захищених статей витрат, тому ОГС фактично не можуть скористатися цими коштами до кінця фінансового року. Органи казначейства можуть тримати платіжні документи на незахищені статті витрат до 10 днів, доки не прийде дозвіл, що практично унеможливлює проведення організаціями багатьох заходів. Вказаний Порядок встановлює чимало безпідставних обмежень на напрями викорис- тання коштів. Наприклад, дозволяється тільки оренда, а не придбання і ремонт основних засобів (код 2000), оргтехніки тощо. Проблематично для громадських організацій дотри- муватися і деяких інших вимог Порядку, як-от: квоти на учасників заходів – не менше 60% інвалідів. Також сьогодні існують значні розбіжності у відомчих практиках звітності, контролю, моніторингу та оцінки проектів ОГС. Зокрема, квартальна і річна звітність до Міністерства України з надзвичайних ситуацій оцінюється як нескладна та достатньо адекватна, що не приводить до конфліктних ситуацій між ОГС та департаментами міністерства. Звітність до Міністерства праці та соціальної політики України дозволяє чиновникам зрозуміти загальну картину діяльності ОГС, оцінити ефективність використання коштів та результати окремих заходів. Але вона значно більша за обсягом, ніж в Міністерстві з над- звичайних ситуацій. Міністерство України у справах сім’ї, молоді та спорту також не вимагає надмірної звіт- ності. На його сайті є окрема електронна сторінка, де громадські організації, які одержують державне фінансування, самостійно розміщують свою звітність – така умова включається в договори, і копії того, що організації розміщують на цій сторінці, вони мають додавати до своїх звітів. Обов’язкові звіти організації подають наприкінці проектів – через особливості графіку державного фінансування це відбувається, як правило, у другій половині року. Якщо проек- ти обмежуються окремими заходами (конференції тощо), звітність подається через один– два місяці. Часто звітність про проекти розміщується на власних сайтах громадських орга- нізацій або їхніх партнерських організацій. На сайтах усіх вказаних міністерств розміщено календарні плани заходів, де розписано участь певних ОГС у їхній реалізації.
36 Постанова Кабінету Міністрів України від 26. 03.1998 р. №236 «Про затвердження Порядку використання у 2008 році коштів державного бюджету для надання фінансової підтримки громадським організаціям інвалідів» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=236-2008-%EF>. 28 Дослідження існуючого досвіду та законодавства України ...
Учасники дискусії підтвердили: фінансовий контроль використання бюджетних коштів постійно здійснюють органи Контрольно-ревізійного управління Міністерства фінансів України відповідно до законодавства. Програмний (операційний) контроль проводиться переважно щодо окремих заходів, на яких присутні представники міністерств, котрі складають власні звіти. Але через обмежен- ня бюджетного фінансування подібних витрат цей контроль досить формальний. Наприклад, Міністерству праці та соціальної політики України ОГС раніше не надава- ли інформації для оцінки ефективності заходів, тепер інформування про проведені заходи обов’язкове, як і запрошення представників міністерства, котрі потім пишуть окремі висно- вки. Втім, оцінка ефективності заходів досить формальна (за бальною системою) і не сто- сується якісних змін. На сьогодні досить поширеною в середовищі ОГС є думка про те, що необхідна окрема постанова Кабінету Міністрів, яка б ухвалила єдину для всіх міністерств методику організа- ції конкурсів, що мають ґрунтуватися на затверджених пріоритетах. Утім, хоча уніфіковані правила мають залишати і певний простір для дій окремих міністерств, проблема полягає в тому, щоб уникнути дублювання відомчих функцій. Уже неодноразово наголошувалося на важливості вивчення і використання практично- го досвіду європейських країн у сфері державного фінансування проектів організацій гро- мадянського суспільства, проте в Україні досі фінансують мережі таких організацій або за- хищені статті витрат, а не конкретні послуги з боку ОГС.
2.2. Фінансування з боку приватного сектора та окремих громадян Близько третини фінансування організації громадянського суспільства одержують у формі коштів і майна від приватних донорів – юридичних і фізичних осіб у якості благодій- них пожертв (безповоротної фінансової допомоги) (див. табл.1). Конкретний розмір частки доходів ОГС від безповоротної допомоги зазнає незначних коливань, наприклад, дещо зростаючи у роки, коли відбувалися президентські або парла- ментські вибори, або зменшуючись, коли зупинялася дія пільг щодо оподаткування інших доходів ОГС. Згідно з діючим законодавством (Закон України «Про оподаткування прибутку підпри- ємств», п. 1.22 ст. 1,)37, безповоротна фінансова допомога для ОГС включає: 1) суму коштів, передану за договорами дарування та іншими договорами, які не перед- бачають компенсації чи повернення коштів (окрім бюджетних дотацій і субсидій), чи без укладання цих угод; 2) суму безнадійної заборгованості, відшкодовану після її списання, якщо ця заборгова- ність раніше була включена до валових витрат кредитора; 3) суму заборгованості перед іншою особою, яка не стягнута після закінчення терміну позовної давності (як правило, три роки); 4) кредит чи депозит, наданий без встановлення термінів повернення основної суми, крім кредитів, наданих під безстрокові облігації, та депозитів до запитання у банках, вклю- чаючи нараховані на суму кредиту або депозиту відсотки; 5) суму відсотків, умовно нарахованих на суму поворотної фінансової допомоги, не по- верненої на кінець звітного кварталу, в розмірі облікової ставки Національного банку Укра- їни, розрахованої на день фактичного використання такої допомоги. Інколи підприємства-благодійники просять прорекламувати їхній внесок у діяльність ОГС. Проте досі не вирішено, чи включається до безповоротної фінансової допомоги дохід від спонсорства – реклами назви чи торговельної марки підприємства-спонсора. 37 Закон України від 28. 12. 1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p=1288600175262795>. Дослідження існуючого досвіду та законодавства України... 29
Хоча в Україні переважає фінансування саме у формі коштів, як окремий його вид виді- ляється також сума безоплатно наданих ОГС товарів і послуг (Закон України «Про оподат- кування прибутку підприємств», п. 1.23 ст. 1)38, до яких належать: 1) товари, надані відповідно до договорів дарування, інших договорів, які не передбача- ють грошову або іншу компенсацію вартості матеріальних цінностей і нематеріальних акти- вів або їх повернення, або без укладання таких угод; 2) роботи і послуги, які надаються без вимоги компенсації їхньої вартості; 3) товари, передані на відповідальне зберігання і використані ОГС у виробничому або господарському обороті. Представники ОГС та експерти постійно вказують на недостатність і нестабільність по- даткових стимулів для місцевих приватних донорів, зокрема юридичних осіб, як основну перешкоду фандрейзингу для ОГС. Згідно із Законом України «Про оподаткування прибутку підприємств», платники подат- ку на прибуток підприємств на загальних підставах можуть включати до своїх валових ви- трат вартість коштів або майна, безплатно переданих ОГС, у розмірі від 2 до 5% оподатко- ваного прибутку попереднього звітного року, а також до 10% оподаткованого прибутку при наданні допомоги підприємствам всеукраїнських об'єднань осіб, які постраждали внаслі- док Чорнобильської катастрофи, де працює за основним місцем роботи не менше 75% та- ких осіб, та цим об'єднанням для проведення їхньої благодійної діяльності39. Утім, вказані пільги для донорів – необхідний, але вочевидь недостатній крок у держав- ній політиці, якщо її очікуваним результатом має стати стабільніше фінансування україн- ських ОГС місцевими донорами. Разом з тим, прийнятий у поточному році в першому чи- танні Податковий кодекс, який фактично нищить спрощену систему оподаткування та звіт- ності і тим самим ставить під удар саме існування малого та значної частини середнього бізнесу, призведе до закриття діяльності понад 60% приватних підприємців (опитування, проведене на сайті газети «Приватний підприємець»40), що негативно позначиться на тако- му джерелі фінансування ОГС, як внески приватних донорів. Окрім того, і сьогодні передача коштів чи майна не змінює податкові зобов’язання юри- дичних осіб і підприємців, які обрали спрощену систему оподаткування. Тобто фінансуван- ня ОГС з їхнього боку може здійснюватися виключно з їх чистого прибутку. Проте до при- йняття закону про спрощену систему оподаткування суб’єктів малого підприємництва змі- ни державної політики малоймовірні, хоча порядок обліку та оподаткування доходів потре- бує уточнення (як-от: від гастрольних та інших благодійних заходів на користь ОГС). Значна кількість підприємців та підприємств в Україні щороку декларує нульові прибут- ки чи збитки. Внески на користь ОГС не можна включати до сум збитків або валових витрат за відсутності прибутку, тому значна група місцевих донорів взагалі позбавлена можливос- ті легально фінансувати ОГС у формі благодійних внесків. Якщо державна політика має на меті не лише короткострокові фіскальні результати, а й більшу прозорість фінансової діяльності ОГС, то такій ситуації не можна знайти виправдан- ня. Міжнародний досвід показує, що фактичний рівень підтримки бізнесом благодійнос- ті та неприбуткових організацій у цілому майже не залежить від наявності податкових пільг та власного задекларованого прибутку. Проте прозорість та можливість контролю за цільо- вим використанням цієї допомоги залежить переважно від адекватної державної політики. У нашій державі бізнесовим структурам вигідніше надавати благодійні внески з власного чистого прибутку, ніж скористатися такими пільгами. 38 Закон України від 28. 12. 1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» [Електрон- ний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p =1288600175262795>. 39 Пункт 5.2. ст. 5 Закону України від 28. 12. 1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2% F0&p=1288600175262795>. 40 [Електронний ресурс]. – Доступний з: <http://www.chp.com.ua/persp_43.php>. 30 Дослідження існуючого досвіду та законодавства України ...
У багатьох країнах сприятливі наслідки для фінансування ОГС мали норми про вклю- чення до валових витрат підприємств-донорів внесків до ОГС у розмірі 0,2–0,3% їхніх валових доходів. Подібний варіант, який грунтується на базі суми витрат підприємств- донорів на оплату праці, уже діє в Україні згідно із Законом України «Про оподаткування прибутку підприємств», але стосується тільки внесків в організації роботодавців, які та- кож мають статус громадських. Скористатися цією пільгою також можна, надаючи благо- дійні внески до ОГС та бюджетних організацій і установ, які мають статус неприбуткових. Тому часто ОГС, по суті, мають конкурувати за обмежені ресурси з бюджетними устано- вами, що не лише негативно впливає на їхню фінансову стабільність, а й може спричиня- ти негативне ставлення до співпраці між ОГС і державними органами та конфлікт інтере- сів у деяких державних органах. З огляду на практичний досвід співпраці українських ОГС та їхніх місцевих донорів, відносно ефективнішими для фандрейзингу є засоби соціального маркетингу, тобто продажу товарів і послуг з відрахуванням частини ціни на конкретні соціальні проек- ти ОГС. До них належать, зокрема, різноманітні благодійні заходи, як-от: речові лоте- реї, конкурсний розпродаж, дисконтні та дебетові картки, бонуси і купони, що пропа- гують цілі та символіку ОГС при продажу товарів і послуг бізнес-компаніями або під- приємцями41. Стаття 1 Закону України «Про благодійництво та благодійні організації» №531-97/ВР від 16.09.97 р.42 визначає, що благодійництво – це добровільне безкорисливе пожертвування фізичних та юридичних осіб для надання набувачам матеріальної, фінансової, організацій- ної та іншої благодійної допомоги; специфічними формами благодійництва є меценатство і спонсорство. Оподаткування операцій із надання благодійної допомоги податком на додану вар- тість залежатиме від того, яким саме організаціям підприємство її надає – зі статусом неприбуткових чи прибуткових. Якщо благодійні внески здійснюються прибутковим ор- ганізаціям, то податкове зобов’язання при цьому нараховується так само, як і при без- оплатній передачі. Але оскільки товари (роботи, послуги) придбали для благодійних ці- лей, то на підставі підпункту 7.4.4 Закону України «Про податок на додану вартість»43 пра- во на податковий кредит у сумі податку на додану вартість (ПДВ) у вартості цих товарів не виникне. Підпунктом 5.1.21 Закону про ПДВ встановлено пільгу з цього податку при наданні благодійних внесків неприбутковим організаціям, перелік яких визначено абзацами «а», «б», «е» підпункту 7.11.1 Закону України «Про оподаткування прибутку підприємств». Так, передача таким організаціям товарів, робіт, послуг як благодійної допомоги звільняєть- ся від оподаткування ПДВ. Але на цю пільгу можна розраховувати тільки при дотриманні певних умов. По-перше, необхідно, щоб надана благодійна допомога не мала жодних ознак ком- пенсації з боку її одержувача. Інакше це вважатиметься навмисним ухиленням від опо- даткування з боку особи, яка її надає. По-друге, одержувачі благодійної допомоги мають дотримуватися вимог Порядку розподілу товарів, отриманих як благодійну допомогу, та
41 Аналітичний звіт «Фінансування організацій громадянського суспільства (ОГС) в Україні, 2006 р. [Електронний ресурс]. – Доступний з: <http://www.ucipr.org.ua/modules.php?op=modload&name=News&file=arti cle&sid=5368&mode=thread&order=0&thold=0>. 42 Закон України від 16.09.97 р. №531-97/ ВР «Про благодійництво та благодійні організації» [Електро- нний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97-%E2%F0&p= 1288600175262795>. 43 Закон України від 03. 04. 1997 р. №168/97-ВР «Про податок на додану вартість» [Електронний ре- сурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nre g=168%2F97-%E2%F0&p= 1288600175262795>. Дослідження існуючого досвіду та законодавства України... 31
контролю за цільовим її розподілом у вигляді наданих послуг або виконаних робіт, затвер- дженого Постановою Кабінету Міністрів України №1295 від 17.08.98 р.44 Під звільнення від оподаткування ПДВ не підпадають операції з надання благодійної до- помоги у вигляді товарів (робіт, послуг), оподатковуваних акцизним збором, цінних папе- рів, нематеріальних активів і товарів (робіт, послуг), призначених для використання у гос- подарській діяльності, а також тих, що ввозяться на митну територію України, крім товарів, які підпадають під дію міжнародних договорів, згоду на укладення яких надано Верховною Радою України. Підприємство, що надає благодійну допомогу товарами та користується пільгою з ПДВ, на підставі підпункту 7.4.2 Закону про ПДВ при придбанні цих товарів не має права на по- датковий кредит з ПДВ. У разі якщо при придбанні товарів з метою їх подальшого використання в оподатковуваних операціях у межах господарської діяльності платника податку та при використанні їх надалі для надання благодійної допомоги неприбутковим організаціям, визначеним підпунктом 5.1.21 Закону про ПДВ, суму ПДВ включено до складу податкового кредиту з ПДВ, то відповідно до останнього абзацу підпункту 7.4.1 Закону про ПДВ слід нарахувати податкове зобов’язання з цього податку, виходячи зі звичайної ціни товарів, що передаються як благодійна допомога. Якщо підприємство, купуючи матеріали, що використовуються для виробництва готової продукції, яка буде передаватися як благодійна допомога, включає суму ПДВ до складу по- даткового кредиту з ПДВ, то податкові зобов’язання з ПДВ нараховуються на частину мате- ріалів, що були використані на виробництво продукції, переданої в благодійницьких цілях. До складу валових витрат платника податку включаються суми коштів або вартість това- рів (робіт, послуг), добровільно перераховані (передані) протягом звітного року до Держав- ного бюджету України або бюджетів місцевого самоврядування, до неприбуткових органі- зацій, визначених у пункті 7.11 Закону України «Про оподаткування прибутку підприємств»45, суми коштів, що перераховані юридичним особам, у тому числі неприбутковим організаці- ям – засновникам постійно діючого третейського суду в розмірі, що перевищує 2%, але не більше 5% оподатковуваного прибутку попереднього звітного року, за винятком внесків, передбачених підпунктами 5.6.2 та 5.2.17 Закону. Згідно з підпунктом 7.11.1 згаданого вище Закону, до неприбуткових установ і організа- цій належать: а) органи державної влади України, місцевого самоврядування та створені ними устано- ви чи організації, які утримуються за рахунок коштів відповідних бюджетів; б) благодійні фонди та організації, створені у порядку, визначеному законом для проведен- ня благодійної діяльності, в тому числі громадські організації, створені з метою проведення екологічної, оздоровчої, аматорської спортивної, культурної, освітньої та наукової діяльнос- ті, а також творчі спілки та політичні партії, громадські організації інвалідів та їхні місцеві осе- редки, створені відповідно до Закону України «Про об’єднання громадян»46, науково-дослідні установи та вищі навчальні заклади III–IV рівнів акредитації, внесені до Державного реєстру наукових установ, яким надається підтримка держави, заповідники, музеї-заповідники; в) пенсійні фонди, кредитні спілки, створені у порядку, визначеному законом; г) інші, ніж визначені в абзаці «б» цього підпункту, юридичні особи, діяльність яких не пе- редбачає одержання прибутку згідно з нормами відповідних законів; 44 Постанова Кабінету Міністрів України від 17.08.98 р. №1295 «Про затвердження Порядку розподілу то- варів, отриманих як благодійна допомога, та контролю за цільовим розподілом благодійної допомоги у вигля- ді наданих послуг або виконаних робіт» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/ laws/main.cgi?nreg=1295-98-%EF>. 45 Закон України від 28. 12. 1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» [Електро- нний ресурс]. – Доступний з: < http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p= 1288600175262795>. 46 Закон України від 16.06.92 р. №2460-XII «Про об’єднання громадян» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12>. 32 Дослідження існуючого досвіду та законодавства України ...
д) спілки, асоціації та інші об’єднання юридичних осіб, створені для представлення ін- тересів засновників, що утримуються лише за рахунок внесків таких засновників та не про- водять господарської діяльності, за винятком отримання пасивних доходів; е) релігійні організації, зареєстровані у порядку, передбаченому законом; є) житлово-будівельні кооперативи, об’єднання співвласників багатоквартирних будин- ків, створені у порядку, визначеному законом; ж) професійні спілки, їхні об’єднання та організації профспілок, утворені в порядку, ви- значеному законом. Залежно від статусу неприбуткової організації підпунктами 7.11.2–7.11.14 Закону Украї- ни «Про оподаткування прибутку підприємств» визначено види доходу, що звільняються від оподаткування податком на прибуток. Отже, підприємство, яке здійснило благодійний внесок коштами чи товарами, робота- ми, послугами, має право включити ці витрати до складу валових витрат у розмірі від 2 до 5% оподатковуваного прибутку минулого звітного року. Благодійник зможе скористатися «пільговим» підпунктом 5.2.2 Закону України «Про оподаткування прибутку підприємств» тільки за наявності підтвердження, що набувач благодійної допомоги має статус неприбут- кової організації. Підтвердженням статусу неприбутковості є копія Рішення про внесення, виключення, відмову у включенні організації (установи) до Реєстру неприбуткових органі- зацій (установ) (далі – Рішення) за формою, наведеною в додатку 2 до Положення про Ре- єстр неприбуткових організацій та установ, затвердженого наказом Державної податкової адміністрації України №232 від 11.07.97 р.47 Благодійність приватних осіб в Україні поступово починає розвиватися завдяки акціям та кампаніям по збиранню коштів організаціями громадянського суспільства48. На жаль, неба- гато громадян цікавляться громадським життям через низький рівень життя, хоча зацікав- лення населення громадянським суспільством зростає в першу чергу завдяки інтенсивному політичному життю України. Приватна благодійність реалізується кількома шляхами: пред- ставники заможних верств населення засновують власні благодійні структури, насамперед, з метою популяризації власного іміджу. Деякі заможні громадяни, навпаки, займаються бла- годійністю анонімно. Проте ресурси таких фондів загалом не доступні для організацій грома- дянського суспільства через бажання благодійників напряму контактувати з одержувачами пожертвувань. Інший шлях – це благодійність через невеликі пожертвування широких верств населення, яка відбувається на рівні громади і часто є відгуком на кризові ситуації в суспіль- стві або акції організацій. Ще один шлях, який не можна назвати благодійністю в повному сенсі цього слова,– членські внески (певна частина ОГС, насамперед професійні спілки, існу- ють завдяки членським внескам). На жаль, отримання приватних пожертв є технічно досить складною процедурою. В організацій є тільки два шляхи збору пожертв – безготівковий, че- рез переказ коштів на їхній розрахунковий рахунок, або готівковий – у їхню касу. Обидва шля- хи технічно незручні, насамперед для благодійників. Приватна благодійність підтримується державою через надання податкового кредиту фі- зичним особам у розмірі 2–5% річного оподаткованого доходу49. Проте ця норма обмежуєть- ся тільки платниками податку, поширюється тільки на заробітну плату та не враховує інтере- си пенсіонерів, непрацюючих осіб, фізичних осіб-підприємців. Також ця норма не стосується членських внесків до неприбуткових організацій. Тому донори – фізичні особи практично не ко- ристуються правом на податковий кредит за свої пожертви та інші внески в ОГС. З огляду на 47 Наказ Державної податкової адміністрації України від 11.07.97 р. №232 «Про затвердження форми Звіту про використання коштів неприбуткових організацій і установ та порядку її заповнення» [Електронний ресурс].– Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=z0290-97>. 48 Чи можлива відсоткова філантропія в Україні [Електронний ресурс] / Центр філантропії. – Доступний з: <philanthropy.org.ua/chi-mozhliva-vidsotkova-filantropiya-v-ukraїni>. 49 Підпункт 5.3.2. ст. 5 Закону України від 22. 05. 2003 р. №889-IV «Про оподаткування доходів фізичних осіб» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=889-15&p= 1288600175262795>. Дослідження існуючого досвіду та законодавства України... 33
низькі ставки податку з доходів фізичних осіб та абсолютні суми їхніх доходів у формі заробітної плати, податкові пільги для донорів – фізичних осіб не оцінюються як критичні для фінансуван- ня ОГС. Це стосується і перспектив застосування в Україні поширених у країнах Центральної і Східної Європи норм про так звану «1%-ву філантропію». Вона передбачає відрахування орга- нами податкової служби – за бажанням фізичної особи – певного відсотка від суми податку з доходів цієї особи на користь суспільно корисних організацій, визначених законом. Окрім того, фізичні особи надають допомогу ОГС переважно у формі безоплатних по- слуг і волонтерської праці, які наразі не враховуються в податковій звітності та держав- ній статистиці. В Україні уже чинні декілька нормативних актів стосовно волонтерів. Про- те окремого закону і до сьогодні немає, на відміну від, наприклад, Іспанії, хоча спроби його прийняти були. Зокрема, у 2007 році проект Закону України «Про волонтерство» вносився до розгляду у Верховну Раду України. Наразі правовий статус волонтерів досі є, по суті, не- визначеним та об’єднує в одній категорії і працівників ОГС, і виборних посадових осіб, і ви- конавців безоплатних послуг. Цивільний кодекс України надає ОГС значні можливості для фінансування також у рам- ках спадкового права (заповіти, спадкові вимоги та договори, а також створення установ на підставі заповітів)50. Втім, від 2004 року, коли цей кодекс набрав чинності, минуло ще надто мало часу, щоб подібна практика в Україні стала достатньо поширеною.
2.3. Фінансування за рахунок надання платних послуг Значний негатив у вирішення проблем фінансової стійкості організацій громадянсько- го суспільства вносить фактична заборона (з певними нюансами) займатися комерційною діяльністю. Закон України «Про об’єднання громадян»51 надає право громадським організаціям за- йматися комерційною діяльністю лише шляхом створення госпрозрахункових установ і організацій зі статусом юридичної особи. Разом з тим, Господарський кодекс України до- зволяє це робити, але при цьому ОГС має використати отриманий прибуток на виконання статутних завдань. На практиці в окремих випадках це спричинює однобоке трактування чинного законодавства податковими органами, що призводить до втрати окремими ОГС статусу неприбутковості. Це, в свою чергу, обмежує джерела фінансування та знижує фі- нансову сталість організацій. Ускладнення процесу правильного оформлення комерційної діяльності громадських організацій не відповідає практиці розвинених країн, де таке пра- во неприбуткових організацій передбачене за умови використання прибутків на здійснен- ня статутної діяльності, без будь-яких інших обмежень і трактувань. При вирішенні питань регулювання власної діяльності ОГС та їхнього оподаткуван- ня необхідно чітко визначитися, що є такою діяльністю. ОГС може мати банківський ра- хунок, інвестиції в цінні папери та інші інвестиції, які дають дохід у вигляді дивідендів та зростання ринкової вартості. Існує також періодична діяльність, така як благодійні лоте- реї та аукціони. Але така діяльність розглядається як форма залучення внесків і також не є підприємницькою. Не розглядаються як торгівля чи підприємницька діяльність, напри- клад, плата за вхід до музею чи послуги благодійного медичного центру – у більшості ви- падків вона є символічною. В окремих країнах надходження з таких джерел в податково- му законодавстві чітко визначені як непідприємницька діяльність, в інших – це не визна- чено, але є традицією. Що стосується підприємництва в таких сферах діяльності, як реалізація товарів та надан- ня послуг, то визначити, чи є така діяльність неприбутковою, складно. Наприклад, робота для 50 Цивільний кодекс України від 16. 01. 2003 р. №435-IV [Електронний ресурс]. – Доступний з: <http://zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nreg=435-15&p=1288600175262795>. 51 Стаття 24 Закону України від 16.06.92 р. №2460-XII «Про об’єднання громадян» [Електронний ресурс]. – Доступний з: < http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12>. 34 Дослідження існуючого досвіду та законодавства України ...
осіб з фізичними вадами основною своєю метою має не підприємництво та отримання прибут- ків, а працевлаштування. Окрім того, все більше організацій працюють за контрактами, що по- кладають на них зобов’язання надавати товари та послуги для третіх сторін (наприклад, освітні програми), при цьому самі організації розглядають таку свою діяльність як основну. В одних країнах, наприклад у Польщі, непідприємницька та підприємницька діяльність можуть здійснюватися однією організацією, в інших, наприклад у Великобританії, підприєм- ницька діяльність може здійснюватися лише дочірнім підприємством ОГС. Але у будь-якому випадку податок на прибуток не сплачується. У Франції ОГС не можуть займатися підприєм- ницькою діяльністю, тому проблеми оподаткування просто не виникає. У більшості країн ОГС дозволяється займатися підприємницькою діяльністю задля під- тримання своєї основної діяльності, але за двох умов: прибуток організації не розподіля- ється і спрямовується на основну діяльність, організація створюється та працює задля досягнення некомерційних цілей. Запропонований критерій можливості НПО здійснюва- ти підприємницьку діяльність називається критерієм «основної мети». За цим критерієм НПО, більше половини діяльності якої є підприємництво, втрачає свій статус та пільги52. Альтернативним є критерій «спрямування доходу». Згідно з цим критерієм організація матиме пільги доти, допоки дохід від підприємницької діяльності спрямовується на гума- нітарні цілі. Традиційно вважається, що друга концепція краща, оскільки з’являється мож- ливість для розвитку неприбуткового сектора в перехідних економіках. Проте проблема є суто податковою, світова практика оподаткування охоплює весь спектр можливостей: від заборони підприємницької діяльності до повного її дозволу. Так, у Болгарії прибуток від під- приємницької діяльності оподатковується незалежно від шляхів використання; у Польщі прибуток, що спрямовується на цілі НПО, не оподатковується. Надання дозволу недержавним організаціям займатися господарською діяльністю для виконання статутних завдань надзвичайно важливе, особливо в країнах із нерозви- неним приватним капіталом. Дозвіл здійснювати комерційну діяльність може суттєво під- тримати сектор неприбуткових організацій в умовах економічного спаду. Основною про- блемою регулювання оподаткування власної діяльності НПО є визначення меж та обсягу власної діяльності, яку може проводити неприбуткова організація. Загалом неприбутко- ві організації конкурують з підприємницькими не тільки на ринку, а й за державне замов- лення. Основним аргументом проти пільгового оподаткування неосновної діяльності НПО є загроза підриву діяльності підприємницького сектора. Вагомим джерелом підвищення фінансової стійкості ОГС може стати надання платних послуг, зокрема державі. Участь у процедурах державних закупівель можуть брати будь-які юридичні особи, у тому числі ОГС. Ці процедури обов’язково застосовуються, якщо розмір закупівель перевищує 100 тис. грн для товарів або 300 тис. грн – для робіт (Закон України від 01.06.2010 р. №2289-IV «Про здійснення державних закупівель»53). Наразі ОГС беруть участь майже виключно в процедурах відкритих торгів (тендерів), бо мають найбільшу регуляторну базу серед шістьох передбачених законом процедур (закри- ті торги, двоступеневі торги, котирування, закупівлі у одного виконавця). Участь ОГС у тен- дерах обмежує кілька чинників. По-перше, кваліфікаційні вимоги щодо виконавців дозволя- ють прямо чи опосередковано виключати зі складу учасників більшість ОГС на таких підста- вах, як територіальний статус, кількість штатних працівників або неспроможність внести тен- дерне забезпечення (певний відсоток від суми закупівлі). Також численні види господарської діяльності підлягають державному ліцензуванню чи сертифікації та внесенню до спеціальних державних реєстрів, що не завжди дозволяє ОГС зберігати статус неприбуткової організації. 52 Законодавче регулювання діяльності неприбуткових організацій: світовий досвід та рекомендації для України [Електронний ресурс] / Лабораторія законодавчих ініціатив. – 2001. – Доступний з: <http://www. parlament.org.ua/index.php?action=publication&id=8&ar_id=42&as=0>. 53 Стаття 2 Закону України від 01.06.2010 р. №2289-IV «Про здійснення державних закупівель» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2289-17&p=1288600175262795>. Дослідження існуючого досвіду та законодавства України... 35
Однією з умов державного фінансування ОГС, які діють у сфері соціальних послуг або беруть участь у процедурах державної закупівлі інших послуг, є вимоги щодо відсутності за- боргованості перед бюджетом та наявності аудиторського висновку. Малим ОГС виконати ці цілком слушні вимоги нелегко з огляду на чинну заборону списання і відстрочення виплат заборгованості перед бюджетами і державними цільовими фондами. Законом України «Про внесення змін до деяких законів України щодо спрощення умов ведення бізнесу в Україні»54 скасовані окремі норми Закону України «Про соціальні послу- ги», зокрема: • «недержавні суб’єкти, що бажають надавати соціальні послуги на професійній основі за рахунок власних коштів, залучених коштів або коштів державного чи місцевого бюдже- тів, надають їх на підставі ліцензії в порядку, встановленому Кабінетом Міністрів України»; • «професійна діяльність у сфері надання соціальних послуг підлягає ліцензуванню, умови і порядок якого визначаються Кабінетом Міністрів України». Цей закон створює сприятливіші порівняно з тими, які діяли раніше, умови для надан- ня соціальних послуг ОГС та створених ними підприємств і установ завдяки таким змінам: • скороченню мінімального розміру статутного капіталу товариств з обмеженою відпо- відальністю зі 100 мінімальних заробітних плат до однієї (з 66 900 до 907 грн (станом на 1 жовтня 2010 р.), що корелює з європейським підходом; • встановлення мінімального терміну оренди державного та комунального майна – не менше п’яти років (окрім випадків, коли орендар пропонує менший термін); • встановленню до січня 2011 року мораторію на підвищення чинної орендної плати за користування державним майном; • зміні з 28 лютого 2010 року ліцензування сфери господарської діяльності, в якій задія- на частина організацій громадянського суспільства та їхніх підприємств; • скасуванню вимоги щодо ліцензування діяльності ОГС у сфері соціальних послуг; • обмеженню терміну видачі дозвільних документів (до 10 робочих днів); • поширенню на всі дозвільні документи принципу: якщо дозвіл або відмова у його вида- чі не були відправлені у 10-денний термін, вважається, що дозвіл одержано без отримання відповідного дозвільного документа. Звичайно, ці зміни є позитивними, проте для створення сприятливого середовища для функціонування та діяльності ОГС у цій сфері їх послуг недостатньо. Слід зазначити, що ін- формація про благодійні заходи та соціальні послуги не визнається соціальною рекламою, а отже, не звільняється від оподаткування. Також усі ОГС, за винятком громадських орга- нізацій у сфері культури та мистецтв, організацій ветеранів та інвалідів, згідно із Законом України «Про оренду державного та комунального майна»55, мусять брати участь у конкур- сах на право оренди державного та комунального майна задля впровадження своєї діяль- ності. ОГС, що стали переможцями конкурсів проектів, не мають права на оренду примі- щень, необхідних для їхньої діяльності, без проведення додаткового конкурсу. Крім того, поки що відсутні державні стандарти, нормативи та стандарти якості надання соціальних послуг, не впроваджено державних програм підготовки та сертифікації волонтерів, які на довгостроковій основі надають соціальні та інші суспільно корисні послуги56, що, у свою чергу, також стримує розвиток ринку соціальних послуг.
54 Закон України від 15.12.2009 р. №1759-IV «Про внесення змін до деяких законів України щодо спрощен- ня умов ведення бізнесу в Україні» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/ main.cgi?nreg=1759-17>. 55 Закон України вiд 10.04.1992 р. №2269-12 «Про оренду державного та комунального майна» [Електрон- ний ресурс]. – Доступний з: < http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2269-12>. 56 Державне фінансування організацій громадянського суспільства. Як запровадити європейські стандар- ти? [Електронний ресурс] / [Матеріали Всеукраїнської конференції]; Український незалежний центр політичних досліджень (УНЦПД) за сприяння проекту «Об’єднуємося заради реформ» (UNITER) та Національного фонду демократії (NED). – Доступний з:<http://gurt.org.ua/news/conferences/5535/>. 36 Дослідження існуючого досвіду та законодавства України ...
В українському бюджетному законодавстві апріорі передбачається, що соціальні послу- ги надаються державними установами. Відповідно вся бюджетна політика спрямована на утримання державних бюджетних установ та їхню орієнтацію на потреби громадян, хоча є певні позитивні тенденції щодо фінансування ОГС, які готові надавати такі послуги. Проте законодавство та політична воля депутатів обмежують доступ ОГС до фінансу- вання з державного бюджету (фактично в більшості випадків воно надається тільки че- рез місцеві бюджети), а відтак у державному бюджеті не передбачено умов та розміру субвенцій із нього на виконання цільових програм надання соціальних послуг. Не більше 10% українських міст фінансують ОГС, які надають соціальні послуги, через конкурси со- ціальних проектів, що забезпечує більшу прозорість та ефективність їхньої діяльності та її орієнтацію на потреби громадян. У решті громад розподіл коштів здійснюється в «руч- ному» режимі57. Суттєві недоліки у системі соціального замовлення пов’язані також з відсутністю необ- хідної достовірної інформації. З одного боку, громадські організації через відсутність до- статніх ресурсів широко не інформують громадськість про ті соціальні послуги, які вони на- дають, з іншого – деякі учасники соціального співробітництва також не зацікавлені у по- ширенні певної інформації (наприклад, про перебіг обговорення статей бюджету місцеви- ми органами влади та благодійну діяльність бізнесових структур). Хоча обмін інформацією, знаннями та досвідом сприятиме розвитку кожного з них58. Також хочемо звернути увагу на дві суттєві проблеми, які виникають перед ОГС при на- данні платних послуг. Згідно зі змінами, які внесені до Закону України від 03.06.2005 р. №2642-IV «Про податок на додану вартість», неприбуткові організації повинні зареєстру- ватися як платники ПДВ, щойно загальна сума від здійснення операцій з поставки товарів (послуг), у тому числі з використанням локальної або глобальної комп'ютерної мережі, що підлягають оподаткуванню згідно з цим Законом, нарахована (сплачена, надана) такій осо- бі або в рахунок зобов'язань третім особам, протягом останніх 12 календарних місяців су- купно перевищить 300 000 грн (без урахування податку на додану вартість). Перша пробле- ма, яка при цьому може виникнути, – це втрата організацією статусу неприбутковості, дру- га ж стосується навіть сум, які не перевищують 300 000 грн, і вимагає постійного контролю з боку організації за рівномірністю надходження оплати послуг протягом 12 календарних мі- сяців. Якщо кошти отримуються нерівномірно або оплата здійснюється одноразово за ве- ликий обсяг послуг, ОГС може втратити шанси з надання послуг протягом достатньо трива- лого періоду, навіть до 11 місяців. Право самостійно проводити господарську діяльність належить до загальних цивільних прав недержавних юридичних осіб, у тому числі й неурядових неприбуткових організацій. Це право закріплено в Рекомендації 7 Комітету Міністрів Ради Європи державам-членам (прийнято Комітетом Міністрів 10 жовтня 2007 р. на 1006-му засіданні) стосовно право- вого статусу неурядових організацій (НУО) в Європі №СМ/Rec(2007)14: «НУО, які мають правосуб’єктність, повинні мати такі самі права, які зазвичай належать іншим юридичним особам, і на них мають поширюватися такі самі обов’язки та санкції у сфері адміністратив- ного, цивільного та кримінального права, які зазвичай застосовуються до таких юридич- них осіб»59. Конкретніші норми щодо права вести господарську діяльність встановлює п.14 Реко- мендацій: «НУО повинні мати можливість вільно здійснювати будь-яку законну економічну,
57 Взаємодія органів державної влади і організацій громадянського суспільства [Електронний ресурс] / На- ціональний інститут стратегічних досліджень. – 2007. – Доступний з: <www.niss.gov.ua/Monitor/juli/23.htm>. 58 Взаємодія органів влади і організацій громадянського суспільства: дослідження [Електронний ресурс] / Національний інститут стратегічних досліджень. – Доступний з: <http://www.niss.gov.ua/Monitor/juli/23.htm>. 59 Громадянське суспільство в Угоді про асоціацію між Україною та ЄС [Електронний ресурс]. – Доступний з: <eu.prostir.ua/.../civil%20society%20in%20EU-Ukraine%20association%20agreement.pdf>. Дослідження існуючого досвіду та законодавства України... 37
господарську або комерційну діяльність для сприяння своїй основній діяльності, без вимог жодних спеціальних дозволів, проте за умов виконання будь-яких ліцензійних або регуля- торних вимог, які зазвичай застосовуються щодо відповідної діяльності». На сьогодні тільки сім із 27 держав Євросоюзу оподатковують доходи суспільно корис- них організацій від господарської діяльності. В Німеччині звільнено від оподаткування на- віть доходи від неосновної чи не пов’язаної зі статутними цілями діяльності в розмірі до 35 тис. євро на рік, в Угорщині – до 41 тис., у Великій Британії – до 60 тис., а у Литві – навіть до 300 тис. євро60. Інші країни, як-от Чехія і Словаччина, звільняють від податку доходи від культурних та освітніх заходів, соціальних послуг, спортивних змагань, аукціонів та лотерей із благодійними цілями. Чи можуть українські організації займатися подібною діяльністю? Адже за умов еконо- мічної кризи можливості отримувати приватні пожертвування та інші добровільні внески значно обмежуються61. Проте українські НУО змушені розраховувати саме на ці пожертву- вання, бо отримують обмаль коштів від надання послуг чи іншої господарської діяльності: менше 12% загального доходу порівняно з 47% в Угорщині або 90% в Італії чи 96% в Японії. Навіть одержання доходу в рамках державних закупівель товарів і послуг, у тому чис- лі соціальних, потребує чітких гарантій права вести господарську діяльність, зокрема для громадських організацій. А таких гарантій немає, більше того, українські суди постійно від- мовляють організаціям у праві вести таку діяльність або в одержанні необхідних ліцензій у встановлених законодавством випадках, навіть якщо закон, наприклад Закон України «Про соціальні послуги»62, чітко вказує, що ці послуги мають надавати саме неприбуткові органі- зації, а не їхні підприємства. Також неврегульованими залишаються питання щодо благо- дійних аукціонів та лотерей. Основною проблемою законодавчого регулювання залишається протиріччя положень ст. 8 та 24 чинного Закону України «Про об’єднання громадян». З одного боку, в Законі йдеть- ся про право громадських організацій проводити господарську діяльність не тільки через до- чірні підприємства, а й безпосередньо. Проте адміністративна і судова практика чітко дотри- муються обмежувального тлумачення Закону і вимагають проводити будь-які види діяльнос- ті, які навіть потенційно можуть принести прибуток, через участь в інших підприємствах. У більшості країн, які стали членами Європейського Союзу до 2004 року (Австрія, Вели- ка Британія, Греція, Данія, Ірландія, Іспанія, Нідерланди, Німеччина, Португалія, Франція та Швеція), закони не встановлюють спеціальних обмежень щодо господарської діяльнос- ті НУО. У країнах, які недавно приєдналися до ЄС, загальне право вести таку діяльність ви- знають законодавства Естонії та Латвії63. Обґрунтуванням бюрократичної пильності до господарської діяльності НПО досі слу- гує ст. 24 Закону України «Про об’єднання громадян»: громадським організаціям дозво- лено здійснювати «господарську та іншу комерційну діяльність шляхом створення госп- розрахункових установ та організацій зі статусом юридичної особи, заснування підпри- ємств у встановленому законодавством порядку». Решта ніби не відповідає законодавству України, що й призводить до вказаних вище численних проблем. Фіскальні органи в пе- реважній більшості випадків вважають, що господарська діяльність включає безплатне на- дання послуг.
60 Comparative charts of foundation laws (2009). – European Foundation Centre, 2010. 61 Згідно з даними Міністерства економіки України в першому півріччі 2009 року прибуток українських під- приємств становив 20,6 млрд. грн порівняно зі 193 млрд грн протягом 2008 року. Це означає, зокрема, що у 2010 році підприємства зможуть включити до своїх валових витрат внески до НУО в сумі, що не перевищить 800 млн грн. Утім, у 2008 році такі пожертвування становили близько 2600 млн грн. 62 Закон України від 19. 06. 2003 р. №966-IV «Про соціальні послуги» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=966-15>. 63 Журнал «Громадянське суспільство» [Електронний ресурс]. – 2010. – №2(13). – С. 28. – Доступний з: <http://www.eternityclub.kiev.ua/pdf/gr_obsh_2.pdf>. 38 Дослідження існуючого досвіду та законодавства України ...
Таким чином, виникає патова ситуація, коли в будь-якому випадку НПО не уникнути фактичного порушення заборони на господарську діяльність. У пункті 1.32 Закону Украї- ни «Про оподаткування прибутку підприємств»64 чітко вказано, що господарською діяль- ністю є «будь-яка діяльність, спрямована на одержання доходу в грошовій, матеріальній чи нематеріальній формі», а участь НПО в організації такої діяльності є регулярною, по- стійною і суттєвою, в тому числі у разі здійснення цієї діяльності через представників від імені НПО. Пункт 1.31 цього ж Закону уточнює, що й безоплатне надання результатів ро- біт і послуг вважається продажем, тобто отриманням доходу, принаймні в нематеріаль- ній формі. Протиріччя містяться й у ст. 904 Цивільного кодексу України, яка дозволяє укладати дого- вори про безплатне надання послуг – не для реклами, а за умови відшкодування замовниками усіх витрат виконавцеві певних послуг, у тому числі НПО, тобто одержувати кошти. Проте чимало правників переконані, що положення Конституції та інших рамкових зако- нів про основні свободи і права не чинні, доки їх не регламентують спеціальні закони чи на- віть підзаконні регуляторні акти. Але у разі господарської діяльності НПО постійно нехтують тим фактом, що вже згада- ний Закон України «Про об’єднання громадян» є саме рамковим, а не спеціальним: він сто- сується і бірж, і житлових кооперативів, і політичних партій, і фондів, і навіть професійних та творчих спілок. Натомість спеціальні закони прямо дозволяють громадським організаціям проводити самостійну господарську діяльність. Йдеться не лише про громадські організації інвалідів або осіб, потерпілих від аварії на ЧАЕС. Це право підтверджують, зокрема, закони «Про ко- операцію» (ст. 23)65, «Про професійних творчих працівників та творчі спілки» (ст. 9)66, «Про організації роботодавців» (ст. 11)67, «Про кредитні спілки» (ст. 21)68, а також «Про благодій- ництво та благодійні організації» (ст. 20)69. Перелік спеціальних законів зростає щороку. Так, з травня 2004 року плату за послуги третейських судів без створення юридичної особи, якими є ОГС, у тому числі у складі все- українських громадських організацій, звільнено від податку на прибуток. Такі надходження не вважаються надходженнями від підприємницької діяльності. Стаття 36 Конституції України гарантує рівність усіх громадських організацій перед за- коном. Згідно зі ст. 8 Конституції, її положення мають пряму дію, що підтвердив і Конститу- ційний суд, скасувавши дискримінаційні положення законів «Про молодіжні та дитячі гро- мадські організації» і «Про професійні спілки, їх права та гарантії діяльності». Якщо кожному виду громадських організацій спеціальним законом дозволена господарська діяльність, то пряма дія ст. 36 Конституції означатиме і неконституційність загальної заборони на госпо- дарську діяльність таких організацій. У статті 42 Конституції гарантовано право кожної особи займатися підприємницькою ді- яльністю, яке є спеціальним правом щодо господарської діяльності. Це право НПО конкре- 64 Закон України від 28. 12. 1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» [Електро- нний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p= 1288600175262795>. 65 Закон України від 10. 07. 2003 р. №1087-IV «Про кооперацію» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1087>. 66 Закон України від 07. 10. 1997 р., №554/97 – ВР «Про професійних творчих працівників та творчі спіл- ки» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=554%2F97- %E2%F0>. 67 Закон України від 24. 05. 2001 р. №2436-ІІІ «Про організації роботодавців» [Електронний ресурс]. – До- ступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2436-14>. 68 Закон України від 20. 12. 2001 р. №2908-ІІІ «Про кредитні спілки» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2908-14&p=1288600175262795>. 69 Закон України від 16. 09. 1997 р. №531/97-ВР «Про благодійництво і благодійні організації» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97-%E2%F0>. Дослідження існуючого досвіду та законодавства України... 39
тизується у ст. 86 Цивільного кодексу: «непідприємницькі товариства та установи можуть, поряд зі своєю основною діяльністю, здійснювати підприємницьку діяльність, якщо інше не встановлено законом і якщо ця діяльність відповідає меті, для якої вони були створені, та сприяє її досягненню». Перехідні положення Конституції (п. 1) вказують, що закони та інші нормативні акти, прийняті до набрання нею чинності, застосовуються в частині, яка не суперечить Консти- туції. Цивільний кодекс України та спеціальні закони про НПО, прийняті в 1997–2004 рр., не суперечать Конституції та міжнародним договорам України, а застосування ст. 17 Закону України «Про об’єднання громадян» 1992 року суперечить фундаментально70. Господарський кодекс України71 водночас із Цивільним кодексом окремо виділяє господарську некомерційну діяльність як самостійну і систематичну господарську ді- яльність без мети одержання прибутку суб’єктів господарювання, тобто будь-яких за- реєстрованих юридичних осіб, окрім органів державної влади та місцевого самовряду- вання (ст. ст. 52–55). І власна підприємницька діяльність юридичних осіб може заборо- нятися виключно в окремих сферах, прямо визначених законом (ст. 43). Важливо, що в ст. 167 Господарського кодексу чітко розрізняється володіння корпоративними права- ми (в т.ч. дочірніми підприємствами НПО) як вид господарської діяльності та власна під- приємницька діяльність.
2.4. Фінансування з інших джерел Членські внески Значна кількість неурядових організацій використовують членські внески як джере- ло фінансових надходжень для своєї діяльності. Разом з тим, за логікою податківців та за- конодавства про оподаткування, вони мають оподатковуватися. Саме про це йдеться у Роз’ясненні ДПА від 10.08.2009 р. №16884/10/15-109/244 на лист Центру громадської ад- вокатури від 08.07.09 р. №0907 72. На сьогодні жодних питань з боку податкових органів не виникає тільки щодо оподаткування членських внесків професійних спілок. Закон України «Про оподаткування прибутку підприємств»73, який є підставою для звіль- нення від оподаткування відповідних доходів неприбуткових організацій, згадує про член- ські внески не у всіх пунктах. Відповідними частинами цього Закону для кожного виду не- прибуткових організацій визначено види джерел надходжень, які звільняються від оподат- кування. Більшість благодійних та громадських організацій належать до організацій, які перелічені у п. «б» ч. 7.11.1 статті 7 Закону «Про оподаткування прибутку підприємств», а саме: благодійні фонди і благодійні організації, створені у порядку, визначеному законом для проведення благодійної допомоги, в тому числі громадськими організаціями, створе- ними з метою провадження екологічної, оздоровчої, аматорської спортивної, культурної, освітньої та наукової діяльності, а також творчими спілками, громадськими організація- ми інвалідів та їхніми місцевими осередками, створеними згідно із Законом України «Про об'єднання громадян»74.
70 Вінников О. Пам’ятка про права НПО самостійно здійснювати господарську діяльність [Електронний ре- сурс]. – Доступний з: <http://www.ucipr.org.ua/modules.php?op=modload&name=News&file=article&sid=4035&m ode=thread&order=0&thold=0>. 71 Господарський кодекс України від 16. 01. 2003 р. №436-IV [Електронний ресурс]. – Доступний з: <http:// zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=436-15&p=1288600175262795>. 72 [Електронний ресурс] / Юридично-соціальний портал. – Доступний з: <http://www.pilga.in.ua/node/763>. 73 Закон України від 28.12.1994 р. №334/94-ВР «Про оподаткування прибутку підприємств» [Електро- нний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=334%2F94-%E2%F0&p= 1288600175262795>. 74 Закон України від 16.06.92 р. №2460-XII «Про об’єднання громадян» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2460-12>. 40 Дослідження існуючого досвіду та законодавства України ...
Відповідно у ч.7.11.3 статті 7 цього Закону визначено доходи зазначених неприбутко- вих організацій, які звільняються від оподаткування, зокрема це доходи, отримані у вигляді: – коштів або майна, які надходять безоплатно або у вигляді безповоротної фінансової допомоги чи добровільних пожертвувань; – пасивних доходів; – коштів або майна, які надходять таким неприбутковим організаціям від проведення їхньої основної діяльності, з урахуванням положень підпункту 7.11.11 цієї статті; – дотацій або субсидій, отриманих із державного або місцевого бюджетів, державних цільових фондів або у межах благодійної, у тому числі гуманітарної чи технічної до- помоги, що надаються таким неприбутковим організаціям відповідно до умов між- народних договорів, згода на обов'язковість яких надана Верховною Радою України, крім дотацій на регулювання цін на платні послуги, що надаються таким неприбутко- вим організаціям або через них їхнім отримувачам згідно із законодавством з метою зниження рівня таких цін. Як трактує Державна податкова адміністрація, «…відповідно до підпунктів 7.11.6–7.11.7 пункту 7.11 статті 7 Закону України «Про оподаткування прибутку підприємств» від оподат- кування звільняються доходи неприбуткових організацій, отримані у вигляді членських вне- сків, визначених в абзаці «д» (спілки, асоціації та інші об’єднання юридичних осіб), в абзаці «є» (житлово-будівельні кооперативи, об’єднання співвласників багатоквартирних будин- ків) та в абзаці «ж» (професійні спілки, їхні об’єднання та організації профспілок, утворені в порядку, визначеному законом)». Отже, сьогодні, на думку фіскальних органів, у випадку, якщо організація не є спіл- кою, асоціацією та іншим об’єднанням юридичних осіб (саме юридичних, а не фізичних), житлово-будівельним кооперативом, об’єднанням співвласників багатоквартирних будин- ків, профспілкою, об’єднанням організації профспілок, а належить до інших видів непри- буткових організацій, членські внески в таких організаціях підлягають оподаткуванню. Крім того, податкові органи вважають, що коли неприбуткова організація отримує дохід з інших джерел, ніж визначені відповідними підпунктами 7.11.2–7.11.7 цього пункту, вона зобов’язана сплатити податок на прибуток, котрий визначається як сума доходів, отрима- них із таких інших джерел, зменшена на суму витрат, пов’язаних з отриманням таких дохо- дів, але не вище суми таких доходів. Були спроби організацій та правозахисників віднести членські внески до «коштів та май- на, які надходять неприбутковим організаціям від проведення їх основної діяльністі», проте, як зазначається у Роз’ясненні, така «теорія» не має права на існування. Сьогодні, щоб уник- нути проблем з можливими звинуваченнями щодо несплати податків із членських внесків та дискусій з податковими органами, для організацій, що не належать до відповідних видів, які звільняються від оподаткування членських внесків, можливе оформлення таких внесків не як членських, а як «добровільні пожертвування» фізичних осіб, що наразі активно прак- тикується багатьма НУО. Такий вид джерел надходжень звільнений від оподаткування для громадських та благо- дійних організацій, які належать до п. «б» ч. 7.11.1 статті 7 Закону України «Про оподатку- вання прибутку підприємств». Спілки, асоціації та інші об'єднання юридичних осіб, створені для представлення ін- тересів засновників, які утримуються лише за рахунок внесків таких засновників та не проводять господарської діяльності, за винятком отримання пасивних доходів, можуть бути включені до Реєстру неприбуткових установ та організацій згідно з абзацом «д» підпункту 7.11.1 пункту 7.11 статті 7 Закону України «Про оподаткування прибутку під- приємств». Підпунктом 7.11.6 пункту 7.11 статті 7 цього Закону передбачено, що від оподатку- вання податком на прибуток звільняються доходи зазначених організацій, отримані у Дослідження існуючого досвіду та законодавства України... 41
вигляді: разових або періодичних внесків засновників та членів; пасивних доходів; до- тацій або субсидій, отриманих із державного або місцевого бюджетів, державних ці- льових фондів або у межах благодійної, у тому числі гуманітарної чи технічної допомо- ги, що надаються таким неприбутковим організаціям відповідно до умов міжнародних договорів, згода на обов'язковість яких надана Верховною Радою України, крім дота- цій на регулювання цін на платні послуги, які надаються таким неприбутковим органі- заціям або через них їхнім отримувачам згідно із законодавством з метою зниження рівня таких цін. Підпунктом 7.11.13 пункту 7.1 статті 7 Закону України «Про оподаткування прибут- ку підприємств» визначено, що під терміном «основна діяльність» слід розуміти діяль- ність неприбуткових організацій із надання благодійної допомоги, просвітніх, культур- них, наукових, освітніх та інших подібних послуг для суспільного споживання, зі створен- ня систем соціального самозабезпечення громадян (недержавні пенсійні фонди, кре- дитні спілки та інші подібні організації). До основної діяльності також включається про- даж неприбутковою організацією товарів (послуг), які пропагують принципи та ідеї, для захисту яких було створено таку неприбуткову організацію та які тісно пов'язані з її осно- вною діяльністю, якщо ціна таких товарів (послуг) нижча за звичайну або якщо вона ре- гулюється державою. Відповідно до абзацу другого підпункту 7.11.9 пункту 7.11 статті 7 зазначеного За- кону, незалежно від положень абзацу цього підпункту, у разі якщо неприбуткова орга- нізація отримує дохід з інших джерел, ніж визначено відповідними підпунктами 7.11.2– 7.11.7 цього пункту, вона зобов'язана сплатити податок на прибуток, що визначається як сума доходів, отриманих з таких інших джерел, зменшена на суму витрат, пов'язаних з отриманням таких доходів, але не вище суми таких доходів. Таким чином, операції з продажу товару, отриманого асоціацією як членський вне- сок, в контексті зазначеного Закону прирівнюються до господарської операції, що має на меті отримання прибутку. Відповідно сума коштів від продажу таких товарів підля- гає оподаткуванню податком на прибуток згідно з абзацом підпункту 9 пункту 11 статті 7 як дохід з інших джерел, ніж визначено відповідними підпунктами 7.11.1–7.11.7 цьо- го пункту. Щодо оподаткування податком на додану вартість членських внесків, слід зазначити, що відповідно до пункту 3.1 статті 3 Закону України «Про податок на додану вартість»75 об'єктом оподаткування податком на додану вартість є операції платників податку з поставки товарів та послуг, місце надання яких знаходиться на митній території України. Членські внески від членів організації фізичних та юридичних осіб, які отримує неприбуткова організація у ви- гляді грошових коштів, не є об'єктом оподаткування, податок на додану вартість не нарахо- вується, оскільки вони не є оплатою поставки товарів чи послуг.
Пасивні доходи Законодавство України про оподаткування включає до звільнених від податку пасивних доходів ОГС, тобто пов’язаних з використанням їхнього майна і результатів послуг іншими особами, відсотки, дивіденди, страхові виплати і роялті.
Відсотки та кредити ОГС мають обмежений доступ до фінансування у формі фінансових та товарних кре- дитів. Коли йдеться про благодійні організації, то діють прямі законодавчі заборони (За-
75 Закон України від 3. 04. 1997 р. №168/97-ВР «Про податок на додану вартість» [Електронний ре- сурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=168%2F97-%E2%F0&p= 128860 0175262795>. 42 Дослідження існуючого досвіду та законодавства України ...
кон України «Про благодійництво і благодійні організації»76) одержувати кредити і надавати власне майно у заставу. Для громадських організацій головними обмеженнями є відсутність активів забезпе- чення кредитів і низька фінансова стабільність. Нечисленні приклади одержання громад- ськими організаціями кредитів пов’язані насамперед із придбанням нерухомого майна та інших основних фондів. Це майно і виступає забезпеченням таких кредитів поряд із гаран- тіями членів виконавчого органу громадської організації. З іншого боку, в Україні ще дуже мало поширена практика прямого продажу ОГС власних товарів і послуг, зокрема на умовах одержання відсотків у вигляді товарного кредиту. Одержання відсотків за надання фінансових кредитів дозволено законодав- ством лише кредитним спілкам, пенсійним фондам та деяким іншим видам неприбутко- вих організацій. Поворотна фінансова допомога (позика) є важливим джерелом фінансування ОГС че- рез брак обігових коштів. Такі організації не мають страхових чи резервних фондів, а та- кож нерозподіленого прибутку для покриття непередбачених витрат (сплати штрафів або у зв’язку з несвоєчасним переказом коштів грантів, пожертвувань або бюджетних субсидій). Поворотна фінансова допомога регулюється і Цивільним кодексом України77, і законо- давством про оподаткування. Пожертва відсоткового доходу (ендавмент) не регулюється спеціальним законодав- ством. По суті, йдеться про особливі умови в договорах про депозит коштів або цінних паперів у банках та інших фінансових установах, які передбачають переказ суми відсо- тків, повністю або частково, на рахунок певного бенефіціара, вказаного власником ра- хунку. Для ефективного фінансування ОГС із власного ендавмента потрібні значні суми осно- вного капіталу, не задіяні для програмної та іншої поточної діяльності. Тому й іноземні, і міс- цеві донори не схильні дозволяти використання своїх благодійних внесків ОГС для розмі- щення на довгострокових депозитних рахунках. Приклади фінансування українських ОГС із власного ендавмента стосуються лише кіль- кох корпоративних благодійних фондів. Утім, створення індивідуальних ендавментів для фі- нансування обраних донором – фізичною особою ОГС стримується законодавством про оподаткування та неефективними «пільгами», які описано вище.
Дивіденди Доходи від корпоративних прав включають дивіденди від участі ОГС у господарських то- вариствах, приватних (дочірніх) підприємствах та інших підприємствах на праві власності цих організацій, а також від провадження спільної діяльності. Участь ОГС у господарських товариствах в Україні обмежувала потреба сплати міні- мального статутного капіталу. Загальна його сума в товаристві з обмеженою відповідаль- ністю та акціонерному товаристві становила відповідно 100 і 1250 мінімальних зарплат. На даний час ці суми значно зменшені. Оскільки зміни в законодавстві сталися не так давно, ОГС на сьогодні мають, як правило, незначну частку капіталу товариств, а отже, майже не контролюють їхню політику щодо використання дивідендів і збереження своєї частки в разі підвищення розміру статутного капіталу товариств. З іншого боку, організаційно-правові форми підприємницьких товариств з повною май- новою відповідальністю учасників мало поширені в Україні. Втім, основними (повними)
76 Стаття 20 Закону України від 16. 09. 1997 р. №531/97-ВР «Про благодійництво і благодійні організа- ції» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=531%2F97- %E2%F0>. 77 Статті 1046-1053 Цивільного кодексу України від 16. 01. 2003 р. №435-IV [Електронний ресурс]. – Доступ- ний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=435-15&p=1288600175262795>. Дослідження існуючого досвіду та законодавства України... 43
учасниками цих товариств, розмір статутного капіталу яких не регулюється законом, мо- жуть бути тільки зареєстровані суб’єкти підприємницької діяльності. Найпоширеніша форма доходів від корпоративних прав – дивіденди від приватних підпри- ємств, єдиним власником яких є ОГС. З огляду на фактичні обмеження господарської діяльнос- ті власне ОГС, ці підприємства часто здійснюють види діяльності, тотожні статутним цілям ОГС. Проте, за винятком підприємств громадських організацій інвалідів, такі підприємства не мають прав ні на спеціальні податкові пільги, ні на обрання спрощеної системи оподаткування. До пасивних доходів належать і дивіденди від спільної діяльності, сплату яких спеці- ально регулює законодавство про оподаткування. Крім того, договори про спільну діяль- ність потребують реєстрації в органах податкової служби. Через це ОГС віддають пере- вагу гібридним і не завжди прозорим правовим формам спільної діяльності, як-от: дого- вори «про співпрацю», спільні благодійні та інші програми, а також пропорційне фінансу- вання (co-sharing). Внески у такі види діяльності, в тому числі права користування приміщеннями чи іншим майном, часто не мають фінансової оцінки, що не дозволяє адекватно оцінити їхню частку в фінансуванні українських ОГС. Але поширеність подібних договорів дозволяє оцінити за- гальну частку дивідендів та пасивних доходів у фінансуванні ОГС як значно більшу, ніж свід- чить офіційна статистична інформація78.
Інші пасивні доходи Фінансування ОГС у формі страхових виплат обмежено поодинокими випадками через все ще слабкий розвиток страхових компаній в Україні. Натомість фінансування ОГС від ро- ялті, тобто платежів за право користування їхньою інтелектуальною власністю (в т.ч. симво- лікою, базою даних і ноу-хау) здебільшого стримує, як це не парадоксально, звільнення та- ких операцій від податку на додану вартість. Адже це позбавляє бізнес-компанії важливого для них податкового кредиту на ПДВ. Доходи від оренди майна ОГС виключено зі складу пасивних доходів, але вони є па- сивними за правовою суттю. ОГС можуть одержувати доходи, наприклад, від оперативної оренди (лізингу) в межах амортизаційних відрахувань, що не загрожує їм позбавленням статусу неприбутковості. Хоча доходи від оренди майна оцінювати важко, бо ОГС не повніс- тю їх декларують та часто одержують в обмін на інші послуги чи майно, вони також є важли- вим джерелом фінансування ОГС. Типовою є, наприклад, практика надання ОГС іншим осо- бам права безоплатно користуватися їхнім приміщенням за умови оплати комунальних по- слуг або ремонту. Крім того, органи місцевого самоврядування надають підтримку ОГС саме у формі піль- гової орендної плати за користування їхнім майном (зокрема, приміщеннями). Склалася думка, що здійснення ОГС видів діяльності, які не належать до основної чи прямо не передбачені в їхніх установчих документах, є неправомірним. Проте законодав- ство України вимагає, щоб така діяльність не суперечила статутним цілям ОГС та вимогам закону79. Але навіть за умови, якщо державні органи послідовно дотримуються такого тлума- чення, фінансування від продажу товарів і послуг, які не належать до основної діяльнос- ті ОГС, істотно обмежено ризиком відмови у наданні статусу неприбуткової організації чи позбавлення такого статусу на підставі дискредитаційних рішень органів ДПА. За не- чіткого регулювання основної діяльності, надання ОГС практично всіх послуг можна ви-
78 Фінансування організацій громадянського суспільства (ОГС) в Україні: аналітичний звіт, 2006 р. [Електро- нний ресурс]. – Доступний з: <http://www.ucipr.org.ua/modules.php?op=modload&name=News&file=article&sid= 5368&mode=thread&order=0&thold=0>. 79 Стаття 86 Цивільного кодексу України від 16. 01. 2003 р., №435-IV [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=435-15&p=1288600175262795>. 44 Дослідження існуючого досвіду та законодавства України ...
знати їхньою неосновною діяльністю, прибуток від якої оподатковується на загальних засадах. Законодавство України передбачає окремий облік доходів від неосновної діяльності та звільнених від оподаткування доходів. Він ведеться і в тому випадку, коли для отриман- ня доходів від основної та неосновної діяльності використовуються ті самі основні фонди.
2.5. Аналіз чинного законодавства України щодо участі організацій громадянського суспільства в процесі обговорення та прийняття рішень Стосовно використання владою існуючих механізмів консультацій із громадськістю, то останні продовжують відбуватися відповідно до стратегії згори–вниз, оскільки не стосу- ються конкретних пропозицій до влади у тій чи іншій сфері державної політики, а тому не здатні формувати предметне поле дискусії; не розроблено і законодавчо не визначено ме- ханізми інформування про врахування владою результатів обговорень. І навпаки, громадські організації частіше сприймають, наприклад, громадські ради при органах влади, не стільки як механізм впливу на владу, скільки як спосіб інкорпорації в її структури з перспективою виконання окремих функцій влади80. На сьогодні в Україні організації громадянського суспільства все ще не справляють від- чутного впливу на процес прийняття державних рішень. Органи державної влади та ОГС не мають достатнього досвіду і навичок застосування процедур публічної політики та консуль- тацій, що призводить до ухвалення неефективних рішень та незрозумілої політики. Сьогодні переважна більшість громадян позбавлені можливості реалізувати свої права на участь у процесі вирішення питань і на місцевому рівні. Також далеко не всі групи інтере- сів мають своє представництво у професійних організаціях, що ще більше ускладнює про- цес публічного консультування й урахування інтересів громадськості. ОГС повинні стати потрібними владі, тобто розробляти і надавати такі продукти та по- слуги, належну якість яких влада забезпечити не спроможна. Проте навіть наявні правові механізми консультування з громадськістю не використовуються повною мірою ані органа- ми влади, ані самими ОГС. Окремими засобами забезпечення відкритості місцевих пред- ставницьких органів, зокрема, є: – громадські слухання; – публічні форуми (ініційовані місцевою владою обговорення, спрямовані на визначен- ня позиції громадян щодо тих чи інших питань місцевого значення, результати яких не є обов’язковими); – подача звернень, пропозицій або скарг до органів місцевого управління; – громадські ініціативи (ініційовані громадянами обговорення, спрямовані на пошук ви- рішення проблем, які хвилюють громадськість); – оскарження рішень органів місцевої влади у судах безпосередньо або через правоза- хисні організації. Однією із форм співпраці ОГС та громадян з органами державної влади є громадські ради. Громадські ради – це неформальні громадські структури, які працюють з органами дер- жавної влади та місцевого самоврядування у визначених ними сферах та організаційних форматах. Іншими словами, під громадськими радами слід розуміти такі утворення за учас- тю представників громадськості, які мають формалізовану внутрішню структуру і яким дер- жавні органи чи органи місцевого самоврядування передають певні повноваження (своїм
80 Держалюк О. Динаміка та розширення спектру діяльності громадських організацій як складової демо- кратизації українського суспільства [Електронний ресурс]. – Доступний з: <http://www.niss.gov.ua/Monitor/ May08/03.htm>. Дослідження існуючого досвіду та законодавства України... 45
рішенням, ухваленим відповідно до компетенції) та/або з якими консультуються з приводу підготовки, прийняття і виконання власних владних повноважень (рішень). Підгрунтям для створення та діяльності громадських рад є насамперед стаття 38 Конституції, відповідно до якої громадяни мають право брати участь в управлінні державними справами, та Указ Пре- зидента України «Про забезпечення умов для більш широкої участі громадськості у форму- ванні та реалізації державної політики» від 31.07.2004 року №854/200481. На сьогодні, крім спеціалізованих громадських рад, що діють при певних органах дер- жавної влади чи співпрацюють з ними на національному рівні, значного поширення набу- ває процес утворення громадських рад у громадах (насамперед міст обласного значення, оскільки саме вони мають можливості реалізовувати повноваження місцевого самовряду- вання в реальному, а не віртуальному режимі). Діяльність громадських рад як консультативно-дорадчих органів при державних уста- новах здійснюється відповідно до постанов Кабінету Міністрів України «Деякі питання щодо забезпечення участі громадськості у формуванні та реалізації державної політики», що втратила чинність, та чинної нині «Про додаткові заходи щодо забезпечення участі громад- ськості у формуванні та реалізації державної політики»82. Дійсно, сьогодні при Кабінеті Міні- стрів України, більшості міністерств, державних комітетів існують громадські ради. Проте діям уряду щодо створення інших механізмів залучення громадськості до проце- су вироблення, прийняття рішень органами влади вочевидь бракує активності й ефектив- ності. Йдеться про консультації з громадськістю та сприйняття владою її пропозицій, про- ведення громадських експертиз, участь представників неурядових організацій у робочих групах при центральних органах виконавчої влади з розробки проектів нормативних актів тощо. Більшість таких заходів формальні й не з’ясовують думку громадськості з наступним її врахуванням, оскільки механізми консультацій із громадськістю: 1) не стосуються кон- кретних пропозицій влади у тій чи іншій сфері державної політики, а тому не спроможні формувати предметне поле дискусії; 2) іноді ініціюються як інформаційні приводи для по- зиціонування представників влади; 3) не надають учасникам консультацій та обговорень рівних прав щодо висловлення власних позицій і пропозицій. До того ж, не розроблені і законодавчо не визначені механізми інформування про врахування владою результатів обговорень. А між тим діяльність активних громадських рад висвітлюється недостатньо. На веб- сторінках багатьох центральних органів виконавчої влади інформація про створення таких органів (не кажучи вже про їхню діяльність) або взагалі відсутня, або ж обмежується лише наказом про створення таких органів, положенням про них та списком членів. Це певним чином обмежує можливість зацікавлених представників громадськості долучатися до ді- яльності таких органів. Отже, розвиток взаємодії політичної влади з інститутами громадян- ського суспільства гальмується значною мірою через те, що нормативно визначені концеп- туальні положення у цьому напрямі досі не знаходять свого застосування на практиці. З іншого боку, громадські організації частіше сприймають громадські ради не стільки як механізм впливу на владу, скільки як спосіб інкорпорації у її структури з перспективою ви- конання окремих функцій влади або просування вузьковідомчих і корпоративних інтересів. Сьогодні багато ОГС намагаються надавати ті послуги, за які раніше несла відповідаль- ність держава. Вони беруть на себе завдання поліпшення громадської поінформованості та посилення відповідальності уряду за ухвалення рішень. 81 Указ Президента України від 31.07.2004 р. №854/2004 «Про забезпечення умов для більш широкої учас- ті громадськості у формуванні та реалізації державної політики» [Електронний ресурс]. – Доступний з: <zakon. rada.gov.ua/cgi-bin/laws/main.cgi?nreg=854%2F2004>. 82 Постанова Кабінету Міністрів України від 26.11.2009 р. №1302 «Про додаткові заходи щодо забезпечен- ня участі громадськості у формуванні та реалізації державної політики» [Електронний ресурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1302-2009-%EF>. 46 Дослідження існуючого досвіду та законодавства України ...
Місцеві організації громадянського суспільства виявилися успішнішими, ніж національ- ні, завдяки своїй доступності та близькості до громадян83. У процесі співпраці між НДО та органами місцевого самоврядування зростає довіра громадян до влади. Виявлення гро- мадської ініціативи, через яку громадяни захищають свої інтереси, а також активна діяль- ність місцевих недержавних організацій сприяють налагодженню діалогу між громадяна- ми та органами влади. Такий діалог можливий за умови контролю за якістю надання дер- жавних послуг на місцевому рівні, а також зміцнення спроможності недержавних організа- цій залучати громадян до процесу формування політики. Ця спроможність передбачає, зо- крема, такі дії: – проведення громадських слухань; – створення органів самоорганізації населення; – здійснення опитувань щодо якості державних послуг; – дослідження державної політики за галузями; – організація тренінгів; – заснування консультативних органів, де державні службовці працюють разом з пред- ставниками громадських організацій. Зрозуміло, що перехід до демократичних форм управління державою через розвиток та посилення впливу громадянського суспільства є критично важливим для України. Приско- ренню цього процесу сприятимуть зміцнення недержавних організацій та їх дедалі тісніша співпраця з органами державної влади всіх рівнів. Закон України «Про місцеве самоврядування в Україні»84 визначає окремі форми участі громадян у місцевому самоврядуванні та особливості їх застосування: – місцеві референдуми (стаття 7); – загальні збори громадян (стаття 8); – місцеві ініціативи (стаття 9); – громадські слухання (стаття 13); – органи самоорганізації населення (стаття 14). Найбільш цікавими, на наш погляд, з точки зору обговорення та прийняття рішень, є такі форми, як громадські слухання та органи самоорганізації населення (ОСН). Створення та діяльність ОСН регулює Закон України «Про органи самоорганізації населення»85. Основними завданнями ОСН є: – участь у реалізації соціально-економічного, культурного розвитку відповідної тери- торії, інших місцевих програм; – створення умов для участі мешканців у розв’язанні питань місцевого значення в ме- жах Конституції та законів України; – задоволення соціальних, культурних, побутових та інших потреб жителів шляхом сприяння у наданні їм відповідних послуг. Для виконання цих завдань місцеві ради надають органам самоорганізації населення такі повноваження: – сприяти дотриманню Конституції та законів України, реалізації актів Президен- та України та органів виконавчої влади, рішень місцевих рад та їх виконавчих ор- ганів, розпоряджень сільського, селищного, міського голови, голови районної у місті (у разі її створення) ради, рішень, прийнятих місцевими референдумами;
83 Славко Т.О. Роль громадських організацій у становленні громадянського суспільства [Електронний ре- сурс]. – Доступний з: <www.nbuv.gov.ua/Portal/Soc_Gum/Npchdu/Politology/2005.../31-7>. 84 Закон України від 21.05.1997 р. №280/97-ВР «Про місцеве самоврядування в Україні» [Електро- нний ресурс]. – Доступний з: <http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=280%2F97-%E2%F0&p= 1288256627401397>. 85 Закон України від 11. 07. 2001 р. №2625-ІІІ «Про органи самоорганізації населення» [Електронний ре- сурс]. – Доступний з: <http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2625-14>. Дослідження існуючого досвіду та законодавства України... 47
– представляти разом із депутатами інтереси жителів будинку, вулиці, мікрорайону, села, селища, міста у відповідній місцевій раді та її органах, місцевих органах вико- навчої влади; – сприяти депутатам відповідних місцевих рад в організації їхніх зустрічей з виборця- ми, прийому громадян і проведенні іншої роботи у виборчих округах; – розглядати звернення громадян, вести прийом громадян; – інформувати громадян про діяльність органу самоорганізації населення, організову- вати обговорення проектів його рішень з найважливіших питань; – вносити у встановленому порядку пропозиції до проектів місцевих програм соціально- економічного і культурного розвитку відповідних адміністративно-територіальних одиниць та проектів місцевих бюджетів; – організовувати на добровільних засадах участь населення у здійсненні заходів щодо охорони навколишнього природного середовища, проведення робіт із благоустрою, озеленення та утримання в належному стані садиб, дворів, вулиць, площ, парків, кла- довищ, братських могил, обладнання дитячих і спортивних майданчиків, кімнат дитячої творчості, клубів за інтересами тощо; з цією метою можуть створюватися тимчасові або постійні бригади, використовуватися інші форми залучення населення; – організовувати на добровільних засадах населення для проведення заходів щодо охорони пам’яток історії та культури, ліквідації наслідків стихійного лиха, будівництва і ремонту шляхів, тротуарів, комунальних мереж, об’єктів загального користування із дотриманням встановленого законодавством порядку проведення таких робіт; – здійснювати контроль за якістю наданих житлово-комунальних послуг та проведе- них ремонтних робіт у жилих будинках громадянам, які проживають на території ді- яльності органу самоорганізації населення; – надавати допомогу навчальним закладам, закладам та організаціям культури, фізич- ної культури і спорту у проведенні культурно-освітньої, спортивно-оздоровчої та ви- ховної роботи серед населення, розвитку художньої творчості, фізичної культури і спорту; – сприяти збереженню культурної спадщини, традицій народної культури, охороні пам’яток історії та культури, впровадженню в побут нових обрядів; – організовувати допомогу громадянам похилого віку, інвалідам, сім’ям загиблих воїнів, партизанів та військовослужбовців, малозабезпеченим та багатодітним сім’ям, а також самотнім громадянам, дітям-сиротам та дітям, позбавленим бать- ківського піклування, вносити пропозиції з цих питань до органів місцевого само- врядування; – надавати необхідну допомогу органам пожежного нагляду в здійсненні протипо- жежних заходів, організовувати вивчення населенням правил пожежної безпеки, брати участь у здійсненні громадського контролю за дотриманням вимог пожежної безпеки; – сприяти правоохоронним органам у забезпеченні ними охорони громадського по- рядку. Територіальна громада має право проводити громадські слухання – зустрічатися з де- путатами відповідної ради та посадовими особами місцевого самоврядування, під час яких члени територіальної громади можуть заслуховувати їх, порушувати питання та вносити пропозиції щодо питань місцевого значення, що належать до компетенції місцевого само- врядування. Саме таке визначення дає частина перша статті 13 Закону України «Про місце- ве самоврядування в Україні»86.
86 Закон України від 21 травня 1997 року №280/97-ВР «Про місцеве самоврядування в Україні» [Електрон- ний ресурс]. – Доступний з: <http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=280%2F97-%E2%F0&p= 1288256627401397>. 48 Дослідження існуючого досвіду та законодавства України ...
Закон вимагає також проводити громадські слухання не рідше одного разу на рік, а про- позиції, які вносяться за результатами слухань, обов’язково розглядати органам місцевого самоврядування. Законодавець також визначив, що порядок організації громадських слу- хань регулюється статутами територіальних громад, тому всі процедури щодо порядку ор- ганізації громадських слухань мають бути чітко викладені в статуті або винесені в окреме по- ложення (у додаток), який є невід’ємною його частиною. Це важливо, оскільки внести змі- ни до статуту значно важче, ніж до окремого положення, яке ухвалюється рішенням місцевої ради. Зупинимося на основних важливих елементах процесу проведення громадських слу- хань. Про особливості організаційної роботи при їх підготовці та проведенні йтиметься далі. Згідно з положеннями Закону України «Про місцеве самоврядування в Україні», пред- метом слухань можуть бути будь-які питання місцевого значення, які є у віданні місцево- го самоврядування. Вимогою часу є винесення на громадські слухання проблем ресурс- ного становлення та розвитку територіальних громад, комунальної власності, житлово- комунального господарства, місцевого бюджету, будівництва тощо. Більшість місцевих нормативних актів до ініціаторів громадських слухань відносять: – ініціативні групи членів територіальної громади; – органи самоорганізації населення; – громадські організації; – голів територіальних громад; – депутатів місцевих рад тощо. Рішення за результатами громадських слухань приймаються шляхом відкритого голосу- вання та оформляються резолюцією, яка разом з протоколом їх проведення передається на розгляд органам місцевого самоврядування. Аналіз чинного законодавства України щодо фінансування ОГС показує, що його нор- ми переважно відповідають критеріям, встановленим у Фундаментальних принципах щодо статусу неурядових організацій в Європі. Проте між теорією і практикою його застосування існує значна розбіжність, яку можуть компенсувати тільки скоординовані дії щодо організа- ційного розвитку і ОГС, і державної служби, та незалежний громадський контроль за забез- печенням стандартів фінансування ОГС. Прийнятий Верховною Радою України Податковий кодекс із пропозиціями Президен- та України87 дещо покращив правове поле у можливостях фінансування ОГС. Позитивним є і виключення розділу, що стосувався спрощеної системи оподаткування, оскільки дія його фактично знищувала малий та середній бізнес в Україні, який цю спрощену систему опо- даткування застосовує, а отже, і одне із джерел надходжень для ОГС (значною мірою на місцях) – коштів від приватного сектора. Проте важким тягарем для бізнесу з 2011 року буде єдиний соціальний внесок, що також негативно позначиться на можливостях малого та середнього бізнесу в питанні підтримки ОГС на місцях. Механізми фінансування ОГС у зв’язку з прийняттям Податкового кодексу та інших пов’язаних із системою обов’язкових податків та платежів законодавчих та підзаконних ак- тів потребують додаткового вивчення, зокрема після їхнього практичного застосування.
2.6. Проміжні висновки з аналізу чинного законодавства За результатами проведеного «кабінетного» дослідження та згідно з висновками інших до- слідників даної проблематики, такими як М. Лациба, О. Солонтай, О. Держалюк та ін., ми може- мо зробити проміжні висновки, які слугуватимуть певним підґрунтям для надання рекомендацій щодо вдосконалення існуючої законодавчої бази України в питаннях фінансування ОГС. 1. Потребує вирішення суперечність положень статей 8 та 24 чинного Закону України «Про об’єднання громадян» щодо ведення громадськими організаціями господарської діяльності не тільки через дочірні підприємства, а й безпосередньо. 87 [Електронний ресурс]. – Доступний з: <http://www.sta.gov.ua/doccatalog/document?id=300427>. Дослідження існуючого досвіду та законодавства України... 49
2. Задля ліквідації певних обмежень щодо фінансування ОГС несприятливою регулятор- ною політикою необхідно поширити заходи дерегулювання господарської діяльності в Україні на основні ризики, пов’язані з фінансуванням ОГС, а саме: вимоги змін до уста- новчих документів ОГС, не передбачені законом; вимоги спеціальних державних до- зволів (ліцензії, включення в спеціальні реєстри, погодження тощо), якщо це прямо не передбачено законом; адміністративні обмеження прав ОГС на користування та розпо- рядження їхнім майном і майновими правами в окремих випадках; обмеження доступу ОГС до фінансових послуг та застосування адміністративних фінансових санкцій за не- значні чи не доведені у встановленому порядку порушення. 3. З метою мінімізації впливу нестабільної системи оподаткування безповоротної допо- моги ОГС на стан фінансування можна акцентувати увагу на необхідності: встановлен- ня альтернативної податкової бази для безповоротної допомоги донорів – юридичних осіб у розмірі 0,2–0,3% валових доходів платників податку на прибуток підприємств або їхніх витрат на оплату праці; скасувати прив’язку права фізичних осіб на податко- вий кредит у частині внесків та безповоротної допомоги ОГС до одержаної такими до- норами заробітної плати. 4. Для вирішення проблеми застосування деяких дискримінаційних повноважень органів виконавчої влади необхідні такі кроки: визначити основні положення щодо фінансуван- ня ОГС та адміністрування податків у відповідних законах і постановах КМУ; встановити чіткі і всім зрозумілі критерії відповідності видів основної діяльності ОГС статусу непри- бутковості; затвердити єдину для всіх міністерств методику організації та проведення конкурсів, які мають ґрунтуватися на затверджених міністром пріоритетах, проте запо- бігти дублюванню відомчих функцій. 5. Задля вирішення проблеми обмеженого доступу ОГС до довгострокового фінансування не- обхідні такі кроки: внесення змін до бюджетного законодавства, які дозволять довгостро- кове державне фінансування ОГС, наприклад, через спеціально створені державні фонди; встановлення окремого юридичного статусу ендавментів приватних донорів та ОГС. 6. Проблему дискримінації окремих видів ОГС, виходячи з їхнього статусу чи інших ознак, можна вирішити такими кроками: звільненням від податку на прибуток підприємств і на додану вартість разових та періодичних внесків засновників і членів ОГС, зазначених в абзацах «б», «в» та «г» п. 7.11.1 Закону України «Про оподаткування прибутку підпри- ємств»; на підставі конституційних гарантій рівності громадських організацій перед за- коном звільненням від податку на прибуток суми безповоротної допомоги ОГС, зазна- чених в абзацах «в» та «г» п. 7.11.1 Закону України «Про оподаткування прибутку підпри- ємств»; скасуванням поділу ОГС за територіальним статусом як перешкоди доступу до бюджетного фінансування та одержанню доходів від основної діяльності. 7. Існуючу проблему конкуренції між бюджетними установами та ОГС за безповоротну фі- нансову допомогу з боку приватних донорів можна вирішити так: виділити безпово- ротну допомогу бюджетним установам та ОГС в окрему квоту в п. 5.2.2 Закону Украї- ни «Про оподаткування прибутку підприємств», та у п. 5.3 Закону України «Про податок з доходів фізичних осіб»; цільову допомогу у формі соціальних послуг у межах держав- них стандартів і нормативів звільнити від податку з фізичних осіб для бенефіціарів цієї допомоги, бюджетних установ та ОГС. 8. Віднести до соціальної реклами інформування громадськості про ті соціальні послуги, які надають ОГС. 9. Внести зміни до Закону України «Про податок на додану вартість» щодо вартості по- ставки товарів або послуг, змінивши фразу «на протязі 12 календарних місяців» на «на протязі календарного року». 10. Внести зміни до Закону України «Про оподаткування прибутку підприємств», у яких чіт- ко визначити, що членські внески до всіх видів ОГС не оподатковуються. 50 Дослідження існуючого досвіду та законодавства України ...
3. АНАЛІЗ ІСНУЮЧИХ ПРАКТИК ФІНАНСУВАННЯ ОРГАНІЗАЦІЙ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА В УКРАЇНІ
Перед проведенням польового дослідження наявного досвіду у сфері фінансування ор- ганізацій громадянського суспільства органами державної влади, органами місцевого са- моврядування та приватним сектором нами були визначені одиниці експертної оцінки як первинний елемент об’єкта дослідження, що характеризується сукупністю певних ознак, які обмежують вибір залучених до дослідження респондентів. Ключовими ознаками одини- ці експертної оцінки в нашому випадку були обрані: належність кола респондентів до відпо- відних державних, самоврядних, приватних організацій та ОГС, а також наявність досвіду у фінансуванні ОГС з боку органів державної влади та місцевого самоврядування, приватно- го сектора та фізичних осіб. Задля отримання даних, які відображають цілісну картину наявного досвіду у сфері фі- нансування ОГС органами державної влади, органами місцевого самоврядування та при- ватним сектором, були визначені групи одиниць оцінки – організації громадянського сус- пільства як реципієнт фінансування, органи державної влади, органи місцевого самовря- дування та приватний сектор як фінансові донатори. Територіальною одиницею дослідження нами були обрані п’ять репрезентативних регіонів України за крос-географічною ознакою, рівнем економічного розвитку та га- лузевою структурою економіки, у яких були обрані області, представлені в досліджен- ні рівними частками: 1. Східний – Донецька область; 2. Західний – Волинська область; 3. Південний – Одеська область; 4. Північний – Київська область; 5. Центральний – Пол- тавська область та м. Київ. При відборі груп респондентів враховувалося, що не менше 20% опитуваних працюють у сільській місцевості. Опитування проведені з представни- ками цільових груп респондентів за рівномірним розподілом по кожній одиниці експерт- ної оцінки: органи державної влади, органи місцевого самоврядування, приватний сек- тор, ОГС. Рівний розподіл респондентів за крос-географічною ознакою дає можливість рівномір- но сфокусуватися на дослідженні існуючих практик фінансування в різних регіонах Украї- ни та провести порівняльний аналіз дієвості певних форм і механізмів фінансової підтрим- ки ОГС з урахуванням диференціації економічного розвитку областей та галузевою струк- турою економіки. Враховуючи наведене вище, польове дослідження проводилося за методом структуро- ваного експертного інтерв’ю з 300 відповідними респондентами у п’яти репрезентативних регіонах України та у м. Києві, з відвідуванням організацій та використанням очного контак- ту з респондентами (віч-на-віч). Інструментом польового дослідження є анкета, структурована на відповідні п’ять інфор- маційних блоків, яка загалом має сім частин, дві з них стосуються процедурних питань опи- тування (див. додаток 2): • Інструкція для інтерв’юера. • Блок I, який містить запитання, ким є особа, яку опитують: експертом у сфері розвитку громадянського суспільства, представником органу державної влади, представником бізнесу/приватного сектора, представником органу місцевого самоврядування, керівником або членом ОГС. Якщо опитувана особа є представником ОГС, то уточнюється статус та структура фінансових надходжень до організації. • Блок ІІ містить запитання щодо проблем фінансування ОГС органами державної влади. Дослідження існуючого досвіду та законодавства України... 51
• Блок ІІІ містить запитання щодо проблем фінансування ОГС органами місцевого самоврядування. • Блок ІV містить запитання щодо недержавного фінансування ОГС. • Блок V – пропозиції щодо вдосконалення фінансування ОГС. • Запитання інтерв’юеру. Дані, отримані в ході польового дослідження, були оброблені за допомогою комп’ютерної програми SPSS. Вони представили нам картину існуючих в Україні практик у сфері фінансування організацій громадянського суспільства органами державної вла- ди, органами місцевого самоврядування та приватним сектором.
3.1. Характеристика кола опитуваних У процесі дослідження було опитано 300 респондентів із п’яти репрезентативних регіо- нів України, а саме: 71 респондент (23,3%) – представники органів державної влади; 72 респонденти (24,0%) – представники бізнесу/приватного сектора; 74 респонденти (24,7%) – представники органів місцевого самоврядування; 84 респонденти (28,0%) – керівники або члени ОГС. Разом із опитуванням 223 респондентів (74,3%), які мешкають у містах, були опитані 77 осіб (25,7%), які проживають та працюють у сільській місцевості. У дослідженні взяли участь 84 респонденти – представники ОГС, які розподілилися та- ким чином: благодійні організації – 26,2%; фахові об’єднання – 19%; інші ОГС (молодіжні, жіночі, організації інвалідів, ветеранів, самоорганізації населення тощо) – 54,8%. Серед представників ОГС найбільшу частку зайняли представники організацій з кіль- кістю: понад 50 членів – 47,6%; 20–50 членів – 32,1%; 1–10 членів – 20,2%. За своїм ста- тусом ОГС, які взяли участь у дослідженні, розподілилися так: найбільша частка респон- дентів – 71,4% – була представлена місцевими організаціями; 19% – всеукраїнськими; 4,8% – міжнародними. На наше здивування, не змогли визначити свій статус 4,8% респон- дентів–представників ОГС. Опитування передбачало вивчення питання стосовно бюджету ОГС у 2009 році. Після ранжування учасників з’ясувалося таке: більшість (39,3%) становили учасники, бюджет організацій яких за 2009 рік не перевищив 10 тис. грн; 23,8% респондентів були пред- ставниками організацій, бюджет яких становив понад 200 тис. грн; 15,5% опитуваних ви- значили, що бюджет їхньої організації становив від 10 до 50 тис. грн; 10,7% респондентів були представниками організації з бюджетом від 50 до 100 тис. грн. Дуже незначна част- ку респондентів (2,4%) представляли організації, бюджет яких становив від 100 до 200 тис. грн. Ці дані продемонстрували, що серед організацій громадянського суспільства, які по- трапили у вибірку, існує суттєва різниця в бюджеті. Лише невелика частка, умовно ка- жучи «високобюджетних» організацій, може конкурувати з іншими, бюджет яких не пе- ревищує межу в 10–15 прожиткових мінімумів. Це може пояснюватися суб’єктивними факторами (непрофесійністю ОГС, їхньою «молодістю» та становленням організації) та об’єктивними, які пов’язані з існуючою політикою щодо розвитку громадянського су- спільства. За джерелами фінансування (державні кошти, бізнес, кошти громад, міжнародні фонди, вітчизняні благодійні фонди, членські внески) громадянські організації розподілилися в ці- лому рівномірно (від 1,2 до 4,8%), але найбільшою часткою у дослідженні були представле- ні організації, які існують за рахунок виключно: членських внесків – 20,2%, допомоги бізне- сових структу – 8,3%, міжнародних фондів – 7,1%. 52 Дослідження існуючого досвіду та законодавства України ...
3.2. Проблеми фінансування з боку органів державної влади та органів місцевого самоврядування 3.2.1. Основні проблеми існуючої системи державного фінансування та їх важливість для розвитку
Респонденти оцінювали формалізовані в анкеті основні проблеми чинної системи дер- жавного фінансування ОГС та визначали їх важливість для розвитку ОГС за шкалою «над- звичайно важлива», «важлива», «не має значення» та «важко відповісти». Крім проблем, окреслених в анкеті, респондентів просили назвати інші проблеми державного фінансуван- ня ОГС та оцінити їх важливість. Таким чином, досягалася мета якнайширшого охоплення об'єкта дослідження.
3,7 Недоліки в умовах пільгового оподаткування суб’єктів 40,3 28,7 27,3 фінансування ОГС та самих ОГС
1,7 Відсутність достатньої кількості конкурсних програм 45,0 31,3 22,0 фінансування проектів
Невизначеність у законодавстві цілей та критеріїв державного 1,0 фінансування ОГС, відсутність відповідної 43,7 35,7 19,7 державної методики відбору конкурсних програм
2,3 Непрозорість та складність процедур державних закупівель 39,3 34,0 24,3
1,0 Неефективне використання державних коштів 40,7 33,3 25,0
0,7 Недостатні обсяги державного фінансування 57,0 28,3 14,0
0% 25% 50% 75% 100% % респондентів надзвичайно важлива важлива не має значення важко відповісти
Рис. 3.1. Розподіл респондентів за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС», % РЕСПОНДЕНТІВ, N (кількість респондентів)=300
Загальні результати розподілу респондентів за варіантами відповідей на поставле- ні запитання представлені на рис. 3.1. Як бачимо, найбільшою проблемою державного фінансування організацій громадянського суспільства респонденти вважають недостат- ні обсяги державного фінансування, 57% опитаних вважають цю проблему надзвичайно важливою, 28,3% – важливою і тільки 0,7% вважають, що ця проблема не має значення. Якщо проранжувати проблеми державного фінансування за кількістю респондентів, ко- трі визначили їх як «надзвичайно важливі», то друге місце посіла проблема, сформульо- вана нами як «Відсутність достатньої кількості конкурсних програм фінансування проек- тів», а третє – проблема «Невизначеність у законодавстві цілей та критеріїв державного Дослідження існуючого досвіду та законодавства України... 53
фінансування ОГС, відсутність відповідної державної методики відбору конкурсних про- грам». Відповідно лише 1,7% та 1% респондентів вважають, що ці проблеми «не мають значення». Слід зауважити, що всі формалізовані нами в анкеті варіанти відповідей на запитання щодо проблем державного фінансування ОГС були підтримані більшою часткою респон- дентів (визначені як «надзвичайно важливі» або важливі»). Менше 4% по кожній окремій проблемі визначили її як таку, що «не має значення». Загалом опитування продемонструвало високий рівень обізнаності опитуваних щодо проблем державного фінансування ОГС. Природно, деякі групи респондентів, які без- посередньо не стикалися з проблемами державного фінансування ОГС, на окремі запи- тання анкети обрали відповідь «важко відповісти». Найбільшу кількість відповідей «важ- ко відповісти» отримано на запитання щодо важливості наступних проблем: – «недоліки в умовах пільгового оподаткування суб'єктів фінансування ОГС та самих ОГС» – 27,3%; – «неефективне використання державних коштів» – 25%; – «непрозорість та складність процедур державних закупівель» – 24,3%.
5,6% Недоліки в умовах пільгового оподаткування 42,3% 36,6% 15,5% суб’єктів фінансування ОГС та самих ОГС
1,4%
Відсутність достатньої кількості конкурсних 49,3% 38,0% 11,3% програм фінансування проектів
Невизначеність у законодавстві цілей та 2,8% критеріїв державного фінансування ОГС, 47,9% 43,7% 5,6% відсутність відповідної державної методики відбору конкурсних програм
2,8% Непрозорість та складність процедур 43,7% 39,4% 14,1% державних закупівель
1,4%
Неефектвне використання державних коштів 46,5% 40,8% 11,3%
1,4%
Недостатні обсяги державного фінансування 60,6% 36,6% 1,4%
0% 25% 50% 75% 100% % р е сп о н де н тів - п р е дстав н и к ів о р г ан ів де р ж ав н о ї в лади
надзвичайно важлива важлива не має значення важко відповісти
Рис. 3.2. Розподіл респондентів – представників органів державної влади за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС»,% РЕСПОНДЕНТІВ – ПРЕДСТАВНИКІВ ОРГАНІВ ДЕРЖАВНОЇ ВЛАДИ, N=71
Саме тому наступним кроком в аналізі результатів дослідження стало визначення ставлення до проблем державного фінансування ОГС найбільш обізнаних у цих пробле- мах груп респондентів, які уособлюють суб'єктів та об'єкти відповідного процесу – пред- ставників органів державної влади, з одного боку, та керівників або членів ОГС – з іншого. Порівняння їхніх відповідей на запитання щодо важливості основних проблем державного 54 Дослідження існуючого досвіду та законодавства України ...
фінансування ОГС дасть можливість з'ясувати, чи існує консенсус у баченні проблем дер- жавного фінансування ОГС між суб'єктом і об'єктом фінансування. Якщо такий консенсус існує, це закладає основу ефективного діалогу громадськості і держави задля вирішення таких проблем. На рис. 3.2 представлено розподіл респондентів – представників органів державної влади за відповідями на запитання «Оцініть, будь ласка, основні проблеми існуючої систе- ми державного фінансування ОГС та їх важливість для розвитку OГС». Кількість відповідної референтної групи – 71 особа. Наша гіпотеза щодо меншої кількості тих, хто дав відповідь «важко відповісти» на за- питання щодо важливості проблем державного фінансування ОГС, у референтній групі представників органів державної влади, підтвердилася. Менше 15% опитаних не змо- гли визначитися з відповіддю на цей блок запитань. Як і в цілому по вибірці, найбільш важливою проблемою державні службовці визнали «недостаті обсяги державного фі- нансування» – для 60,6% це «надзвичайно важлива» проблема, а для 36,6% – «важли- ва». Якщо проранжувати проблеми державного фінансування за кількістю респонден- тів – державних службовців, котрі визначили їх як «надзвичайно важливі», то друге міс- це серед проблем державного фінансування посіла проблема, сформульована нами та- ким чином: «Відсутність достатньої кількості конкурсних програм фінансування проек- тів», а третє – проблема «Невизначеність у законодавстві цілей та критеріїв державного фінансування ОГС, відсутність відповідної державної методики відбору конкурсних про- грам». Відповідно лише 1,4% та 2,8% респондентів – державних службовців вважають, що ці проблеми «не мають значення». Таким чином, респонденти – державні службов- ці визначили таку ж трійку найбільш актуальних проблем державного фінансування ОГС, як і всі респонденти вибірки. Показово, що 87,3% респондентів, які представляють органи державної влади, вважа- ють, що кошти на фінансування ОГС витрачаються неефективно, а 83,1% – що процедури державних закупівель є складними і непрозорими. Порівняємо відповіді державних службовців з відповідями керівників або членів ОГС, представленими на рис. 3.3. Кількість відповідної референтної групи – 84 особи. Керівники або члени ОГС виявилися менш обізнаними з проблемами державного фі- нансування. Наприклад, щодо проблеми «неефективного використання бюджетних ко- штів» відповідь «важко відповісти» дали 34,5% респондентів цієї групи, щодо проблеми «непрозорість та складність процедур державних закупівель» – 33,3% опитаних – чле- нів ОГС. З цього випливає дуже цікавий висновок, що, можливо, інформація про переможців за- купівель за бюджетні кошти та результати впровадження проектів або надання послуг у рамках цих закупівель просто не відомі широкому колу зацікавлених осіб. Зауважимо, що такий високий ступінь невизначеності стосується насамперед про- блем розподілу та використання бюджетних коштів, тобто етапів процесу бюджет- ного фінансування, з якими більшість громадських організацій просто не стикалася. Щодо решти визначених в анкеті проблем, частка тих, хто не визначився, не переви- щує третини. Наведемо результати ранжування проблем державного фінансування, проведеного за критерієм частки респондентів – членів ОГС, що вважають ту або іншу проблему «надзви- чайно важливою». На першому місці у рейтингу – проблема «недостатні обсяги державного фінансуван- ня (59,5% респондентів вважають її надзвичайно важливою), на другому – «відсутність до- статньої кількості конкурсних програм фінансування проектів», на третьому – «невизначе- ність у законодавстві цілей та критеріїв державного фінансування ОГС, відсутність відповід- ної державної методики відбору конкурсних програм». Дослідження існуючого досвіду та законодавства України... 55
1,2% Недоліки в умовах пільгового оподаткування 41,7% 25,0% 32,1% суб’єктів фінансування ОГС та самих ОГС
1,2% Відсутність достатньої кількості конкурсних 50,0% 22,6% 26,2% програм фінансування проектів
Невизначеність у законодавстві цілей та 0,0% критеріїв державного фінансування ОГС, 46,4% 29,8% 23,8% відсутність відповідної державної методики відбору конкурсних програм
3,6% Непрозорість та складність процедур 33,3% 29,8% 33,3% державних закупівель
1,2% Неефективне використання державних коштів 39,3% 25,0% 34,5%
1,2%
Недостатні обсяги державного фінансування 59,5% 19,0% 20,2%
0% 25% 50% 75% 100% % респондентів – керівників або членів ОГС
надзвичайно важлива важлива не має значення важко відповісти
Рис. 3.3. Розподіл респондентів – керівників або членів ГО за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС»,% РЕСПОНДЕНТІВ – КЕРІВНИКІВ АБО ЧЛЕНІВ ОГС, N=84
Висновок. Таким чином, аналіз результатів дослідження показав, що референтні групи державних службовців та членів ОГС одностайні у виборі найважливіших про- блем державного фінансування ОГС. Вони обрали три такі проблеми (у порядку зна- чимості): 1) недостатні обсяги державного фінансування; 2) відсутність достатньої кількості конкурсних програм фінансування проектів; 3) невизначеність у законодавстві цілей та критеріїв державного фінансування ОГС, від- сутність відповідної державної методики відбору конкурсних програм. 56 Дослідження існуючого досвіду та законодавства України ...
Одностайність думок суб'єктів та об'єктів процесу фінансування дає підстави очікувати конструктивного діалогу між владою та громадянським суспільством щодо вирішення про- блем державного фінансування ОГС.
3,6%
Недоліки в умовах пільгового оподаткування 42,2% 30,0% 24,2% суб’єктів фінансування ОГС та самих ОГС
2,2%
Відсутність достатньої кількості конкурсних 44,8% 32,7% 20,2% програм фінансування проектів
Невизначеність у законодавстві цілей та 0,4% критеріїв державного фінансування ОГС, 43,0% 38,6% 17,9% відсутність відповідної державної методики відбору конкурсних програм
2,2%
Непрозорість та складність процедур 36,3% 40,4% 21,1% державних закупівель
0,9%
Неефектвне використання державних коштів 38,6% 37,2% 23,3%
0,9%
Недостатні обсяги державного фінансування 54,3% 33,6% 11,2%
0% 25% 50% 75% 100% % респондентів з міст
надзвичайно важлива важлива не має значення важко відповісти Рис. 3.4. Розподіл респондентів, які проживають у містах, за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС»,% РЕСПОНДЕНТІВ, ЩО ПРОЖИВАВЮТЬ У МІСТАХ, N=223
Особливістю нашого дослідження є поглиблене вивчення думок респондентів із сіль- ської місцевості. На рис. 3.4 та 3.5 представлені відповіді респондентів із міст (223 респон- денти у вибірці) та з сільської місцевості (77 респондентів) на групу запитань анкети щодо проблем державного фінансування ОГС. Дослідження існуючого досвіду та законодавства України... 57
3,9% Недоліки в умовах пільгового оподаткування 35,1% 24,7% 36,4% суб’єктів фінансування ОГС та самих ОГС
0,0% Відсутність достатньої кількості конкурсних 45,5% 27,3% 27,3% програм фінансування проектів
Невизначеність у законодавстві цілей та критеріїв 2,6% державного фінансування ОГС, відсутність 45,5% 27,3% 24,7% відповідної державної методики відбору конкурсних програм 2,6% Непрозорість та складність процедур державних 48,1% 15,6% 33,8% закупівель
1,3%
Неефектвне використання державних коштів 46,8% 22,1% 29,9%
0,0%
Недостатні обсяги державного фінансування 64,9% 13,0% 22,1%
0% 25% 50% 75% 100% % респ ондентів з сільськ ої місцев ості
надзвичайно важлива важлива не має значення важко відповісти
Рис. 3.5. Розподіл респондентів із сільської місцевості за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС»,% РЕСПОНДЕНТІВ, ЩО ПРОЖИВАВЮТЬ У СІЛЬСЬКІЙ МІСЦЕВОСТІ, N=77
Порівняння даних рис. 3.4 та 3.5 свідчить: – значно більша частка респондентів із сільської місцевості не визначилася з оцін- кою проблем державного фінансування ОГС. Зокрема, 36,4% опитаних із сіль- ської місцевості не змогли оцінити проблему недоліків в умовах пільгового опо- даткування суб’єктів ОГС та самих ОГС, 33,8% – не змогли оцінити проблему процедури державного фінансування закупівель. Водночас частка респондентів із міст, що не визначилися з оцінками проблем держфінансування, не перевищи- ла чверті. У цілому ж оцінки респондентами із міст та з сільської місцевості проблем державно- го фінансування близькі – обидві референтні групи перші три місця віддали таким пробле- мам, як: 1) недостатні обсяги державного фінансування; 2) відсутність достатньої кількості конкурсних програм фінансування проектів; 3) невизначеність у законодавстві цілей та критеріїв державного фінансування ОГС, відсутність відповідної державної методики відбору конкурсних програм. 58 Дослідження існуючого досвіду та законодавства України ...
Крім формалізованого визначення проблем державного фінансування ОГС респонден- там ставили відкрите запитання щодо інших проблем державного фінансування, з якими їм доводилося мати справу. Нижче наведено перелік визначених респондентами проблем: – низька активність самих ОГС у спробах отримання державного фінансування: «мало стукають» – за образним висловом одного із респондентів; – відсутність системи інформування щодо державного фінансування. Думка одного із респондентів: «Незважаючи на те, що на регіональному рівні існує практика та окремі випадки оголошення про отримання коштів від місцевого бюджету на конкретні цілі та програми, на національному рівні ця система досі не впроваджена. Деяким ГО кошти надаються непрозоро»; – недоліки процедур державного фінансування. Один із респондентів сформулював недоліки так: «Навіть існуючі державні програми не завжди повністю фінансують- ся. Окрім того, кошти надають наприкінці року, коли їх витратити зазвичай ефек- тивно не вдається. Спочатку організація витрачає свої кошти, а потім держава їх не компенсує, бо змінили бюжет». Інший респондент доповнив цю інформацію: «Неможливо перенести залишки невикористаних коштів на наступний бюджетний рік»; – поряд із проблемою непрозорості та складності процедур державних закупівель, фор- малізованою в анкеті, респонденти виділили проблему складності оформлення звіт- ності по використанню бюджетних коштів; – на думку деяких респондентів – представників органів державної влади, проблемою є «низький авторитет ОГС в органах державної влади». З іншого боку, респонденти – члени Громадських Організацій говорять про «невизнання органами державної влади ОГС», «ігнорування ОГС державою»; – «відсутність законодавчої норми обов’язкового планування у бюджетах (області, райо- ну, села) витрат на фінансування проектів чи заходів ОГС»; – на додаток респонденти зазначають, що «відсутня традиція фінансування ОГС держа- вою».
Висновок: Респонденти доповнили перелік проблем державного фінансування ОГС такими, як: низька активність самих ГО у спробах отримання державного фінан- сування; відсутність традиції фінансування ОГС державою; складності оформлен- ня звітності по використанню бюджетних коштів; низький авторитет ОГС в органах державної влади; відсутність системи інформування щодо державного фінансуван- ня; недоліки процедур державного фінансування, насамперед нерівномірне надхо- дження коштів протягом року; відсутність законодавчої норми обов’язкового плану- вання у бюджетах (області, району, села) витрат на фінансування проектів чи захо- дів ОГС.
3.2.2. Уявлення респондентів щодо моделі державного фінансування
Респондентам запропонували як формалізовані, так і неформалізовані (відкриті) запи- тання щодо елементів моделі державного фінансування ОГС. Формалізовані запитання пропонували визначитися з оцінкою таких елементів моделі: створення державного Національного фонду розвитку громадянського суспільства, переважно конкурсне фінансування діяльності ОГС; можливість участі всіх типів ОГС у конкурсах проектів; можливість отримання фінансування на адміністративні витрати; спрощені процедури державних закупівель послуг і робіт для ОГС. Дослідження існуючого досвіду та законодавства України... 59
На рис. 3.6 представлено розподіл відповідей респондентів на групу запитань щодо мо- делі державного фінансування ОГС. Більшість підтримали основні елементи запропонова- ної моделі державного фінансування ОГС. Близько 11% респондентів не дали відповіді на поставлені запитання, від 7 до 16% дали відповідь «важко відповісти». Найбільшу підтримку отримали елементи моделі «можливість участі всіх типів ОГС у конкурсах проектів» (78,7% респондентів) та «спрощені процедури державних закупівель послуг і робіт для ОГС (74% респондентів). Надання можливості отримання фінансування на адміністративні витрати підтримали 69% респондентів; введення переважно конкурсного фінансування ОГС – 62,7%, в той час як проти висловилися 15,7% опитаних.
Створення державного Національного фонду розвитку громадянського 53,3 19,3 16,3 11,0 суспільства
Переважно конкурсне фінансування 62,7 15,7 10,7 11,0 діяльності ОГС
Можливість участі всіх типів ОГС у 78,7 3,3 7,0 11,0 конкурсах проектів
Можливість отримання фінансування на 69,0 8,0 12,0 11,0 адміністративні витрати
Спрощені процедури державних 74,0 3,0 12,3 10,7 закупівель послуг і робіт для ОГС
0% 20% 40% 60% 80% 100%
так ні важко відповісти немає відповіді
Рис. 3.6. Розподіл відповідей респондентів на запитаня щодо моделі державного фінансування ОГС,% респондентів (N=300)
Висновок. Найбільш неоднозначним виявилося ставлення до створення державного Національного фонду розвитку громадянського суспільства, яке підтримали лише 53,3% респондентів, в той час як проти висловилися 15,7% опитаних. Оскільки багатьма експертами Національний фонд розвитку громадянського су- спільства розглядається як центральний елемент в моделі фінансування ОГС, проана- лізуємо детально підтримку цієї ідеї основними референтними групами, представлени- ми у вибірці. 60 Дослідження існуючого досвіду та законодавства України ...
Місто 59,6% 14,8% 18,4% 7,2%
Cільська 35,1% 32,5% 10,4% 22,1% місцевість
0% 20% 40% 60% 80% 100% так ні важко відповісти % респ он ден тівнемає відповіді
Рис. 3.6. Ставлення респондентів із міст (N=223) та з сільської місцевості (N=77) до створення державного Національного фонду розвитку громадянського суспільства,% респондентів
На рис. 3.6 представлено результати опитування респондентів із міської та сільської місцевості щодо створення Національного фонду розвитку громадянського суспільства. Висновок. Результати демонструють розбіжності у ставленні респондентів із міст та сіл до створення Фонду. Якщо більше половини (59,6%) респондентів із міст підтримують мо- дель фінансування ОГС на основі Національного фонду розвитку громадянського суспіль- ства, то у селах створення його вважають доцільним лише 35,1% респондентів, в той час як 32,5% висловилися негативно. Майже чверть (22,1%) опитаних із сільської місцевості вза- галі не відповіли на запитання щодо доцільності створення Фонду. Таке ставлення цілком вірогідно пояснюється думкою респондентів про недоступність фінансування із централі- зованих джерел для ОГС із сільської місцевості.
Представники органів 60,6% 26,8% 12,7% державної влади
Керівники або 53,6% 14,3% 13,1% 19,0% члени ГО
0% 20% 40% 60% 80% 100% так ні важко відповісти % респ ондентівнемає відповіді
Рис. 3.7. Ставлення респондентів – представників органів державної влади (N=71) та керівників і членів ОГС (N=84) до створення державного Національного фонду розвитку громадянського суспільства,% респондентів
Логічним є припущення щодо існування різниці у поглядах на створення Фонду у ре- ферентних груп державних службовців та членів ОГС. На рис. 3.7 представлено результа- ти опитування респондентів – представників органів державної влади (N=71) та керівни- ків і членів ОГС (N=84) щодо створення Національного фонду розвитку громадянського су- спільства. Дослідження існуючого досвіду та законодавства України... 61
Висновок. Серед представників органів державної влади 60,6% підтримують створення Фонду, що більше, ніж у цілому по вибірці (53,3%). Проте 26,8% респондентів цієї групи не- гативно ставляться до його створення, що відчутно більше, ніж в цілому по вибірці (19,3%). Таким чином, має місце більша поляризація поглядів на створення державного Національ- ного фонду розвитку громадянського суспільства серед представників органів державної влади, ніж в цілому по вибірці. До того ж, серед держслужбовців немає респондентів, які б не відповіли на це запитання. Поділ думок респондентів – керівників та членів ОГС близький до поділу думок усіх рес- пондентів вибірки: 53,6% підтримують модель на основі Національного фонду підтримки громадянського суспільства, 14,3% – проти, 13,1% дали відповідь «важко відповісти», 19% взагалі не відповіли. Респондентам ставили також «відкриті» запитання щодо моделі фінансування ОГС. У своїх відповідях багато опитуваних наголошують на необхідності «створення регіональних відділень Національного фонду». Респонденти висловили думку, що «фінансування діяльності ОГС має визначатися законом і закладатися у бюджет». Наголошується також на необхідності «створення інформаційної системи повідомлення про можливості участі ОГС у конкурсах» як складової системи моделі дер- жавного фінансування ОГС. Зокрема, пропонується «створити інформаційний бюле- тень», у якому б надавалася інформація щодо державних закупівель для ОГС, переможців конкурсів та результатів реалізації проектів або послуг. Заслуговує на увагу пропозиція кількох респондентів передбачити у моделі «можливість дофінансування проектів, які фінансуються міжнародними фондами» та «передбачити можливість здійснення капітальних інвестицій за рахунок бюджетних коштів». Один із респондентів поєднує ці дві ініціативи і пропонує «забезпечення бюджетного співфінансування проектів будівництва у разі затвердженого дофінансування проекту ОГС міжнародними фінансовими організаціями». Респонденти підкреслюють, що модель державного фінансування повинна спирати- ся на «чітко визначені напрями фінансування (пріоритети) на тривалий термін», «програ- ми розвитку громадянського суспільства та пріоритетів розвитку». А один респондент про- понує «відпрацювання пілотної моделі реалізації програми розвитку ОГС в одному регіоні і лише після цього – розробка загальнодержавної програми».
3.2.3. Основні проблеми існуючої системи фінансування органами місцевого самоврядування
Респонденти оцінювали запропоновані в анкеті основні проблеми існуючої системи фі- нансування ОГС органами місцевого самоврядування та визначали їх важливість для роз- витку ОГС за шкалою «надзвичайно важлива», «важлива», «не має значення» та «важко від- повісти». Крім проблем, окреслених в анкеті, респондентів просили назвати інші проблеми фінансування ОГС органами місцевого самоврядування та оцінити їх важливість. Таким чи- ном, досягалася мета якнайширшого охоплення об'єкта дослідження. Загальні результати розподілу респондентів за варіантами відповідей на поставлені за- питання представлені на рис. 3.8. Як бачимо, найбільшою проблемою фінансування гро- мадських організацій органами місцевого самоврядування респонденти вважають неста- більність та обмеженість місцевих бюджетів. 72% усіх регіонів, що брали участь у польово- му дослідженні, відзначили, що нестабільність та обмеженість місцевих бюджетів є надзви- чайно важливою проблемою, 16,7% – важливою в існуючій системі фінансування ОГС і тіль- ки 1,7% вважають, що ця проблема не має значення. Наступним кроком в аналізі результатів дослідження було визначення ставлення до проблем фінансування ОГС органами місцевого самоврядування найбільш обізнаних у цих 62 Дослідження існуючого досвіду та законодавства України ...
проблемах груп респондентів – представників органів місцевого самоврядування та керів- ників або членів ОГС. Порівняння їхніх відповідей на запитання щодо важливості проблем фінансування ОГС органами місцевого самоврядування дає можливість з'ясувати, чи існу- ють розбіжності у баченні цього питання між суб'єктом і об'єктом фінансування. Характер- ним є те, що абсолютна більшість респондентів – 99% серед представників органів місце- вого самоврядування та 77% серед керівників або членів ОГС – визначили проблему фі- нансування громадських організацій органами місцевого самоврядування як «надзвичай- но важливу» та «важливу» для існуючої системи фінансування ОГС.
3,3 Непрозорість, суб'єктивність та 48,3 31,3 10,0 7,0 складність процедур відбору проектів
2,7 Нестабільність та обмеженість 72,0 16,7 7,0 місцевих бюджетів 1,7
0% 20% 40% 60% 80% 100% % респ онденті в
надзвичайно важлива важлива не має значення важко відповісти немає відповіді
Рис. 3.8. Розподіл респондентів за відповідями на запитання: «ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ФІНАНСУВАННЯ ОГС ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАННЯ»,% РЕСПОНДЕНТІВ, N=300
Слід відзначити, що практично однакова кількість – 90% респондентів у містах та 87% опитаних із сільської місцевості – вважають цю проблему «важливою» та «надзвичайно важ- ливою». Проблема фінансування, пов’язана з непрозорістю, суб'єктивністю та складністю про- цедури відбору проектів, є надзвичайно важливою для 48,3% респондентів, 31,3% опита- них вважають її важливою для фінансування ОГС. Якщо подивитися на відповіді респонден- тів у регіональному зрізі, то найбільш важливою її відзначили у Донецькому регіоні – 88%. Для інших регіонів кількість опитаних, які вважають проблему щодо існування непрозорості, суб'єктивності та складності процедур відбору проектів «надзвичайно важливою» та «важ- ливою» розподілилися у середньому навпіл. Слід зауважити, що всі формалізовані нами в анкеті варіанти відповідей на запитання щодо проблем фінансування ОГС органами місцевого самоврядування були підтримані біль- шою часткою респондентів (визначені як «надзвичайно важливі» або важливі»). Подібне став- лення до цієї проблеми поширене також серед представників органів місцевого самовряду- вання – 88% респондентів та серед керівників або членів ОГС – 74%, які відзначили цю про- блему як «надзвичайно важливу» та «важливу», для існуючої системи фінансування ОГС. Також слід підкреслити одностайну підтримку важливості цього питання як серед місь- ких респондентів, так і серед сільських – 80%. Експертним опитуванням було передбачено надання відповідей на відкриті запитання стосовно проблем існуючої системи фінансування ОГС органами місцевого самоврядуван- Дослідження існуючого досвіду та законодавства України... 63
ня. Надані відкриті відповіді респондентів було проаналізовані, узагальнені та згруповані. Нижче наведено висновки, які респонденти вважають найбільш актуальними по відкритому питанню «Основні проблеми існуючої системи фінансування ОГС органами місцевого са- моврядування»: 1. Відсутність зацікавленості місцевих органів самоврядування у підтримці розвитку громадянського суспільства. Особливо це стосується тих керівників, які насамперед через своє політичне «забарвлення» та відповідну непрофесійність мають доволі нетривалий час роботи в органах місцевого самоврядування. 2. Чинна система формування бюджету. Місцеві органи влади (сільські та селищні у тому числі) через малі місцеві бюджети та нестачу в них коштів мають дуже обмежені ресурси для фінансування ОГС та підтримки соціальних проектів. 3. Розвиток громадянського суспільства не завжди є пріоритетом при формуванні про- грам, які фінансуються із місцевого бюджету. Органи місцевого самоврядування мають своє, доволі невизначене ставлення до конкретних проблем розвитку громадянського су- спільства, вирішення яких більшою мірою може бути делеговане організаціям громадян- ського суспільства. 4. Складність процедури отримання фінансування згідно з чинним бюджетним законо- давством. Існуюча практика «соціального замовлення» обтяжена деякими об’єктивними факторами – необхідністю виконання складних формальних процедур щодо відкриття каз- начейських рахунків, отримання бюджетних коштів та звітування, а також суб’єктивними – в деяких випадках ключове значення має наявність особистих відносин з керівником, який приймає рішення. 5. Непрозорість та відповідна низька поінформованість організацій громадянського суспільства щодо можливостей залучення певних фінансових ресурсів із міського бюджету. 6. Корупція при отриманні грантів за участю у конкурсах, «відкати» тощо. 7. Відсутність належної регламентації проведення конкурсного відбору громадських ор- ганізацій на законодавчому рівні та невизначеність пріоритетних напрямів фінансування, що зумовлює їх несистемність та недиверсифікованість. 8. Відсутність стратегій розвитку міських та сільських громад, на виконання яких вплива- ють програми соціально-економічного розвитку. 9. Низька компетентність працівників та керівництва ОГС. Невміння фахово розробляти проекти та їхні бюджети для участі в конкурсах. 10. Низька громадянська свідомість. Нерозвиненість фондів громад.
3.2.4. Уявлення респондентів щодо моделі фінансування органами місцевого самоврядування
За допомогою «відкритих» та «закритих» запитань респондентам було запропоновано визначити своє ставлення щодо моделі фінансування ОГС органами місцевого самовряду- вання. Узагальнені результати розподілу опитаних за варіантами відповідей на поставлені запитання представлені на рис. 3.9. Абсолютна більшість опитаних (87,3%) підтримали як модель фінансування ОГС «За- провадження відкритих публічних конкурсів проектів для неурядових організацій». Ця мо- дель сприятиме, з одного боку, прозорості дій органів місцевого самоврядування, а з ін- шого – однаковому доступу організацій громадянського суспільства до ресурсів місцево- го бюджету. Підтримку цій моделі висловили 89,2% респондентів із міст та 81,8% – із сіль- ської місцевості. Слід відзначити той факт, що серед представників органів місцевого самоврядування 97,3% респондентів заявили про своє позитивне ставлення до цієї моделі фінансування ОГС. Це є ознакою їх готовності до відкритого діалогу з громадськістю. Для керівників та членів 64 Дослідження існуючого досвіду та законодавства України ...
ОГС також характерне позитивне, але більш стримане ставлення до цієї моделі. Так, дово- лі високий відсоток (79,8%) респондентів – керівників або членів ОГС висловили своє пози- тивне ставлення до цієї моделі. Розбіжність у 17,5% може демонструвати існування певного ступеня недовіри серед ОГС до представників владних структур. «Круглі столи», які були про- ведені в п’яти регіонах України та м. Києві, продемонстрували, що таке ставлення до влади з боку громадськості є, умовно кажучи, вже традиційним, проте наполегливі та ініціативні кро- ки влади до формування відносин на засадах відкритості й зацікавленості у громадському розвитку можуть дати певні результати.
Можливість отримання фінансування на 72,3 8,7 12,0 7,0 адміністративні витрати
1,3 Можливість участі всіх типів ОГС у конкурсах 83,7 8,0 7,0 проектів
1,0 4,7 Запровадити відкриті публічні конкурси проектів для неурядових 87,3 7,0 організацій
Розробка 2,7 середньострокових (2-3 річних) програм 79,0 11,3 7,0 фінансування ОГС
0% 20% 40% 60% 80% 100% % респ ондентів
так ні важко відповісти немає відповіді
Рис. 3.9. Розподіл респондентів за відповідями на запитання: «ЯКОЮ, НА ВАШУ ДУМКУ, МАЄ БУТИ МОДЕЛЬ ФІНАНСУВАННЯ ОГС ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАННЯ?»,% РЕСПОНДЕНТІВ, N=300
Можливість участі всіх типів ОГС у конкурсах проектів підтримали як дієву модель фі- нансування 83,7% респондентів. При цьому 84,3% опитаних, які проживають у містах, та 81,8% – із сільської місцевості погодились з цією моделлю. Серед представників органів місцевого самоврядування 90,5% респондентів відзначи- ли своє позитивне ставлення до цієї моделі фінансування ОГС, 77,4% опитаних – керівни- ків або членів ОГС також її підтримали. Третьою за рангом моделлю, яку відзначили респонденти, є розробка середньостроко- вих (2–3 роки) програм фінансування ОГС. Більшість опитаних (79%) вважають, що розроб- ка середньострокових програм фінансування є дієвою моделлю фінансування ОГС, 78% респондентів, які проживають у містах, та 81,3% – із сільської місцевості визначили своє позитивне ставлення до неї. Дослідження існуючого досвіду та законодавства України... 65
Серед представників органів місцевого самоврядування 89,2% респондентів, а серед керівників або членів ОГС – 71,4% також підтримують розробку середньострокових про- грам фінансування організацій громадянського суспільства. Можливість отримання фінансування на адміністративні витрати як модель фінансуван- ня підтримали 72,3% респондентів. При цьому 73,5% опитаних із міст та 68,8% – із сільської місцевості погодились з цією моделлю. Серед представників органів місцевого самоврядування 77% респондентів та 71,4% із керівників або членів ОГС відзначили своє позитивне ставлення до можливості отримання фінансування на адміністративні витрати. Експертним опитуванням було передбачено надання відповідей на відкриті запитання стосовно моделі фінансування ОГС органами місцевого самоврядування. Надані відкриті відповіді було проаналізовано, узагальнено та згруповано. Підсумовуючи наведені відпові- ді на відкрите запитання «Уявлення щодо моделі фінансування ОГС органами місцевого са- моврядування», слід зауважити: респонденти вважають, що модель фінансування ОГС ор- ганами місцевого самоврядування повинна враховувати: 1. Розробку короткострокових, середньострокових та довгострокових програм фінан- сування ОГС на виконання ними певних соціальних проектів. 2. Створення спрощеної процедури отримання і використання коштів місцевого бюджету. 3. Обов’язкове навчання для ОГС щодо порядку заповнення заявок та розробки бюдже- тів проектів. 4. Адміністративні витрати ОГС мають бути доповненням до програмної діяльності, а не основною статтею витрат. 5. Фінансування ОГС органами місцевого самоврядування має займати конкретно ви- значене місце в загальній системі фінансування ОГС та взаємодіяти з іншими суб’єктами, які фінансують ОГС. 6. Фінансування з місцевих бюджетів у межах до 30% загальних витрат ОГС. 7. Створення регіональних громадських фондів, які об’єднують певне коло громадських організацій за територіальною ознакою зі змішаною системою фінансування. Керівництво регіональних фондів повинно обиратися на визначений термін, а їхній фаховий апарат має бути постійним. 8. Низький рівень довіри влади до ОГС та низька поінформованість влади про пробле- ми громади.
3.3. Проблеми фінансування з боку приватного сектора та окремих громадян
Блок ІV опитувальної анкети містив запитання щодо недержавного фінансування ОГС, які стосувалися можливостей отримання фінансування з боку бізнесу, приватних осіб та можливостей організацій самостійно заробляти кошти. Респонденти оцінювали запропоновані в анкеті основні проблеми існуючої системи не- державного фінансування ОГС та визначали їх важливість для розвитку ОГС за шкалою «надзвичайно важлива», «важлива», «не має значення» та «важко відповісти». Крім про- блем, окреслених в анкеті, респондентів просили назвати інші проблеми недержавного фінансування ОГС та оцінити їх важливість. Таким чином, досягалася мета якнайширшого охоплення об’єкта дослідження. Загальні результати розподілу респондентів за варіантами відповідей на поставлені запитання представлені на рис. 3.10, який складається з двох частин через велику кіль- кість запитань, що характеризують проблеми в існуючій системі недержавного фінансу- вання ОГС. Наведені дані демонструють, що найбільшою проблемою у недержавному фінансуван- ні є його недостатні обсяги: 60% респондентів визнають цю проблему надзвичайно важли- 66 Дослідження існуючого досвіду та законодавства України ...
вою, 33,3% – важливою і тільки 1% вибірки вважає, що ця проблема не має значення. Та- ким чином, кількість респондентів, які визнали цю проблему як «надзвичайно важливу» та «важливу», сягає 93,3%. Аналізуючи розподіл відповідей опитаних у містах та сільській міс- цевості, ми отримали такі результати: 94% та 93% респондентів, відповідно, відзначили, що недостатні обсяги недержавного фінансування є «надзвичайно важливою» та «важливою» проблемою фінансування ОГС.
4,0 Недоліки в умовах пільгового оподаткування суб'єктів 46,3 42,0 2,3 фінансування ОГС та ОГС 5,3
Недієвість норм щодо отримання доходу від основної 40,0 41,0 11,7 2,0 діяльності ГО, соціального підприємництва 5,3
Намагання благодійників отримати вигоду, що не 19,7 38,3 15,3 24,7 відповідає інтересам ГО, громади, суспільства 2,0
Відсутність мотивації у благодійників 28,3 46,7 14,3 8,3 2,3
3,0 Відсутність фандрейзингової діяльності у багатьох ГО 32,3 38,0 24,7 2,0
3,7
Недостатні обсяги 60,0 33,3 2,0
1,0
0% 20% 40% 60% 80% 100% % респондентів
надзвичайно важлива важлива не має значення важко відповісти немає відповіді
Рис. 3.10 (перша частина). Розподіл респондентів за відповідями на запитання: «ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ НЕДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ ОГС», % РЕСПОНДЕНТІВ, N=300
Для дослідження було цікаво виявити ставлення до цього питання представників бізне- су/приватного сектора. Так, за результатами опитування 95% представників бізнесу/ при- ватного сектора вважають недостатні обсяги фінансування надзвичайно важливим та важ- ливим питанням. Таке саме ставлення до цього запитання у 93% респондентів – керівни- ків або членів ОГС. Якщо проранжувати проблеми недержавного фінансування за кількістю респондентів, які визначили їх як «надзвичайно важливі», то друге місце серед них посіла проблема, яка була сформульована нами таким чином: «Позбавлення працюючого на єди- ному податку малого та середнього бізнесу можливості зниження податків через допомогу неприбутковому сектору». Так, 49,3% опитаних визнали цю проблему як «надзвичайно важ- ливу», а 37,7% – як «важливу», що у сукупності становило 87%. Проаналізувавши розподіл відповідей респондентів у містах та сільській місцевос- ті, маємо такі результати: 85% та 94% опитаних, відповідно, відзначили, що позбавлен- ня працюючого на єдиному податку малого та середнього бізнесу можливості знижен- Дослідження існуючого досвіду та законодавства України... 67
ня податків через допомогу неприбутковому сектору є надзвичайно важливою та важ- ливою проблемою фінансування ОГС. Одностайність щодо цього запитання демонструють представники бізнесу/приватно- го сектора та керівники або члени ОГС. Так, серед опитаних представників бізнесу/при- ватного сектора 94% респондентів та 90% – серед керівників або членів ОГС вважають надзвичайно важливим та важливим позбавлення працюючого на єдиному податку ма- лого та середнього бізнесу можливості зниження податків через допомогу неприбутко- вому сектору.
Відсутність координації дій у зарубіжних донорів 17,0 33,3 19,0 28,7 2,0
Створення «нереальних» організацій третього 32,7 34,7 27,0 сектора 2,0 3,7
Відсутність традицій спонсорства і меценатства 29,0 47,7 11,0 10,0 2,3
Позбавлення працюючого на єдиному податку 5,3 малого та середнього бізнесу можливості 49,3 37,7 зниження податків через допомогу 2,0 неприбутковому сектору 5,7
Непрофесійність персоналу неурядових 2,0 21,7 46,0 25,7 організацій 4,7
0% 20% 40% 60% 80% 100% % респондентів
надзвичайно важлива важлива не має значення важко відповісти немає відповіді
Рис. 3.10 (друга частина). Розподіл респондентів за відповідями на запитання: «ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ НЕДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС», % РЕСПОНДЕНТІВ, N=300
Наступною проблемою серед проблем недержавного фінансування є «недоліки в умо- вах пільгового оподаткування суб’єктів фінансування ОГС та самих ОГС». Так, 46,3% рес- пондентів визначили цю проблему як «надзвичайно важливу», а 42% – як «важливу», що у сукупності становило 86,3%. Щодо розподілу відповідей респондентів у містах та сільській місцевості: відповідно 88% та 91% респондентів відзначили, що недоліки в умовах пільгового оподаткування суб’єктів фінансування ОГС та самих ОГС є надзвичайно важливою та важливою проблемою їх фі- нансування. Одностайним виявилося ставлення до цього запитання представників бізнесу/приват- ного сектора та керівників або членів ОГС – по 94% респондентів вважають надзвичайно важливими та важливими недоліки в умовах пільгового оподаткування суб’єктів фінансу- вання ОГС та самих ОГС. 68 Дослідження існуючого досвіду та законодавства України ...
Наступною серед проблем недержавного фінансування нами вивчалася «відсутність фандрейзингової діяльності у багатьох ГО». Так, 32,3% опитаних визначили цю проблему як «надзвичайно важливу», а 38% – як «важливу» , що в сукупності склало 70,3%. Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості, варто зазначити: відповідно 69% та 77% респондентів заявили, що відсутність фандрейзинго- вої діяльності у багатьох ГО є надзвичайно важливою та важливою проблемою фінансу- вання ОГС. Схоже ставлення до цього питання демонструють представники бізнесу/приватно- го сектора та керівники або члени ОГС. Так, 73% респондентів серед опитаних пред- ставників бізнесу/приватного сектора та 79% – серед керівників або членів ОГС вважа- ють надзвичайно важливою та важливою відсутність фандрейзингової діяльності у ба- гатьох ГО. Важливою проблемою серед проблем недержавного фінансування є «відсутність мо- тивації у благодійників». Так, 28,3% респондентів визначили цю проблему як «надзвичайно важливу», а 46,7% – як «важливу» , що в сукупності становило 75%. Відповідно 77% та 72% респондентів у містах та сільській місцевості відзначили, що від- сутність мотивації у благодійників є надзвичайно важливою та важливою проблемою фі- нансування ОГС. Майже так само до цього запитання поставилися представники бізнесу/приватного сектора та керівники або члени ОГС. Так, 74% опитаних представників бізнесу/приватно- го сектора та 83% керівників або членів ОГС вважають надзвичайно важливим та важливим відсутність мотивації у благодійників. Також важливою проблемою недержавного фінансування є «відсутність традицій спонсорства і меценатства». Так, 29% респондентів визначили цю проблему як «надзви- чайно важливу», а 47,7% – як «важливу», що в сукупності склало 76,7%. Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості, слід за- значити: 76% та 81% респондентів відповідно відзначили, що відсутність традицій спон- сорства і меценатства є надзвичайно важливою та важливою проблемою фінансуван- ня ОГС. Схоже ставлення до цього питання також демонструють представники бізнесу/ приватного сектора та керівники або члени ОГС. Так, 70% респондентів серед опитаних представників бізнесу/приватного сектора та 79% – серед керівників або членів ОГС вва- жають надзвичайно важливою та важливою відсутність традицій спонсорства і меценат- ства в Україні. Не менш важливою проблемою недержавного фінансування є «створення «нереальних» організацій третього сектора», тобто таких, що фактично не виконують функцій організації громадянського суспільства, а існують від гранту до гранту і займаються промоцією своєї організації як такої. Так, 32,7% респондентів визначили цю проблему як «надзвичайно важ- ливу», а 34,7% – як «важливу», що в сукупності становило 67,4%. Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості, слід зазначити: відповідно 66% та 72% респондентів відзначили, що створення «нереаль- них» організацій третього сектора є надзвичайно важливою та важливою проблемою фінансування ОГС. Схоже ставлення до цього питання демонструють представники біз- несу/приватного сектора та керівники або члени ОГС. Так, серед опитаних представни- ків бізнесу/приватного сектора 64% респондентів та 66% – серед керівників або членів ОГС вважають надзвичайно важливим та важливим створення «нереальних» організацій третього сектора. Також важливою проблемою недержавного фінансування є «непрофесійність персона- лу неурядових організацій». Так, 21,7% респондентів визначили цю проблему як «надзви- чайно важливу», а 46% – як «важливу», що в сукупності становило 67,7%. Дослідження існуючого досвіду та законодавства України... 69
Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості, слід зазна- чити: відповідно 66% та 73% респондентів заявили, що непрофесійність персоналу неурядо- вих організацій є надзвичайно важливою та важливою проблемою фінансування ОГС. Відзначимо, що серед опитаних представників бізнесу/приватного сектора лише 52% вважають надзвичайно важливим та важливим непрофесійність персоналу неуря- дових організацій. Окрім того, значна частка респондентів – 44% – не визначили сво- го ставлення до цього запитання. Це може бути пов’язано з тим, що певні представни- ки бізнесу/приватного сектора ще не бачать у громадянському суспільстві професійної сили, яка може впливати на владу, бізнес, населення та реалізовувати значущі соціаль- ні проекти. Серед опитаних керівників або членів ОГС 70% вважають надзвичайно важливою та важ- ливою проблему непрофесійності персоналу неурядових організацій. Важливою проблемою недержавного фінансування є «намагання благодійників отрима- ти вигоду, що не відповідає інтересам ГО, громади, суспільства». Так, 19,7% респондентів визначили цю проблему як «надзвичайно важливу», а 38,3% – як «важливу», що у сукупнос- ті склало 58%. У містах та сільській місцевості 57% та 63% респондентів відповідно відзначили: нама- гання благодійників отримати вигоду, що не відповідає інтересам ГО, громади, суспільства, є надзвичайно важливою та важливою проблемою фінансування ОГС. Майже так само від- повідали представники бізнесу/приватного сектора та керівники або члени ОГС. Так, серед опитаних представників бізнесу/приватного сектора 45% респондентів та 58% респонден- тів серед керівників або членів ОГС вважають надзвичайно важливою та важливою пробле- му намагання благодійників отримати вигоду, що не відповідає інтересам ГО, громади, су- спільства. Останньою серед проблем недержавного фінансування, які були перераховані в опиту- ванні, є «відсутність координації дій у зарубіжних донорів». Так, 17% респондентів визначи- ли цю проблему як «надзвичайно важливу», а 33,3% – як «важливу», що в сукупності стано- вило 50,3%. Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості показав, що 48% та 59% респондентів відповідно відзначили: відсутність координації дій у зарубіж- них донорів є надзвичайно важливою та важливою проблемою фінансування ОГС. Майже таке саме ставлення до цього питання демонструють представники бізнесу/при- ватного сектора та керівники або члени ОГС. Так, серед опитаних представників бізнесу/ приватного сектора 41% респондентів та 55% респондентів серед керівників або членів ОГС вважають надзвичайно важливим та важливим питання відсутності координації дій у зарубіжних донорів. На завершення огляду проблем недержавного фінансування ОГС слід наголосити, що всі формалізовані варіанти відповідей на всі запитання були підтримані більшою часткою (не менше 50%) респондентів та визначені як «надзвичайно важливі» або «важ- ливі». Характерним є те, що на запитання для представників бізнесу/приватного сектора «Чи надавали Ви або Ваша організація фінансування ОГС?» менше половини респондентів (45,8%) відповіли, що надавали фінансування ОГС. При цьому позитивні приклади фінан- сування ОГС відомі лише 34,7% респондентів – представників бізнесу/приватного сектора. Це свідчить про необхідність створення відповідного інформаційного поля для висвітлення діяльності ОГС та їхньої ролі у громадському житті і всебічних умов для стимулювання біз- несу/приватного сектора надавати фінансування ОГС. У цілому за більшістю запитань було визначено майже однакове ставлення респонден- тів до існування проблем недержавного фінансування ОГС. Більшість відповідей, таких як «важко відповісти», пов’язана з відсутністю відкритості в діяльності деяких ОГС; необхідних 70 Дослідження існуючого досвіду та законодавства України ...
компетенцій у персоналу ОГС та традицій меценатства з боку біснесу в новітній історії Укра- їни. Найбільшу кількість невизначених відповідей респондентів «важко відповісти» отрима- но на запитання щодо важливості таких проблем: – «відсутність фандрейзингової діяльності в багатьох ОГС»; – «відсутність мотивації у благодійників»; – «недієвість норм законодавства щодо отримання доходу від основної діяльності гро- мадських організацій»; – «намагання благодійників отримати вигоду, яка не відповідає інтересам ГО, місцевої громади або суспільства загалом»; – «непрофесійність персоналу неурядових організацій»; – «відсутність традицій спонсорства і меценатства»; – «створення «нереальних» організацій «третього сектора»; – «відсутність координації дій у зарубіжних донорів».
Експертним опитуванням було передбачено надання відповідей на відкриті запитання стосовно інших проблем недержавного фінансування ОГС. Вони були проаналізовані, уза- гальнені та згруповані. Нижче наведено висновки стосовно відкритого запитання «пробле- ми існуючої системи недержавного фінансування ОГС»: 1. Відсутність пільг з боку держави для бізнесу. За наявності пільг ОГС в деяких напря- мах зможуть ефективніше використовувати кошти бізнесу. 2. Систему податків зробити більш спрямованою на розвиток громадянського суспіль- ства. 3. Покращити координацію та ефективність використання коштів донорів з боку ОГС. 4. Відсутність компетенцій, певної інформації та досвіду ОГС у залученні недержавного фінансування. З іншого боку, відсутність компетенції є стримуючим фактором для бізнес- менів у фінансуванні ОГС. 5. Низький рівень громадянської активності та активності населення. 6. Недостатня популяризація в українському суспільстві ідеї спонсорства і меценатства. 7. Недостатня поінформованість суспільства про діяльність ОГС. 8. Відсутність систематичного та доступного видання, за допомогою якого можна отри- мати інформацію про можливості недержавного фінансування ОГС та їхні потреби. 9. Інколи пріоритети донорів не відповідають інтересам громад.
3.4. Проблеми фінансування за рахунок надання платних послуг
Як бачимо з рис. 3.10 (перша частина), значимою проблемою серед проблем недер- жавного фінансування ОГС є «недієвість норм щодо отримання доходу від основної діяль- ності ГО, соціального підприємництва». Так, 40% респондентів визначили цю проблему як «надзвичайно важливу», а 41% – як «важливу», що у сукупності склало 81%. Аналізуючи розподіл відповідей респондентів у містах та сільській місцевості, варто за- значити: відповідно 81% та 84% респондентів відзначили, що недієвість норм щодо отри- мання доходу від основної діяльності ГО, соціального підприємництва є надзвичайно важ- ливою та важливою проблемою фінансування ОГС. Майже так само поставилися до цієї проблеми представники бізнесу/приватного секто- ра та керівники або члени ОГС. Так, 78% респондентів серед опитаних представників бізне- су/приватного сектора та 87% респондентів серед керівників або членів ОГС вважають над- звичайно важливою та важливою проблему недієвості норм законодавства щодо отриман- ня доходу від основної діяльності ГО, соціального підприємництва. Дослідження існуючого досвіду та законодавства України... 71
Слід зауважити, що на запитання, яке стосується «недієвості норм законодавства щодо отримання доходу від основної діяльності громадських організацій», важко було відпові- сти майже 12% опитуваних. На нашу думку, це пояснюється відповіддю на інше запитан- ня, а саме «Відсутність компетенцій, певної інформації та досвіду ОГС у залученні недер- жавного фінансування», та існуванням «споживацьких» настроїв у деяких організацій. Висновок: Члени організації громадянського суспільства у переважній більшості (81%) прагнуть самостійно заробляти гроші задля виконання статутних цілей та завдань своїх ор- ганізацій та їх розвитку. Але їм заважає існуюча система чинного законодавства – «неді- євість норм щодо отримання доходу від основної діяльності ГО, соціального підприємни- цтва». Серед пропозицій, висловлених респондентами у відкритих запитаннях, які стосували- ся можливостей надання платних послуг, найчастіша така: «Надати можливість ОГС займа- тися господарською діяльністю».
3.5. Проблеми фінансування з інших джерел
До інших джерел фінансування відносяться членські внески, які сплачують члени ОГС, та пасивні доходи. На жаль, наші опитувані не мають депозитних рахунків і не отримують жод- них дивідендів. Проте, як видно з рис. 3.11, 19% респондентів – представників ОГС вказа- ли, що мають інші джерела фінансування. По відповідях на відкриті запитання можна зробити висновок, що такі надходження до організації, в основному, формуються за рахунок здачі приміщення в оренду або навпа- ки – організація має безкоштовно надані в користування приміщення за рахунок отрима- них безкоштовно юридичних та інших консультаційних послуг, третейських зборів.
Частка ОГС, що мають "інші" джерела фінансування 19%
81%
Рис. 3.11. Частка ОГС у вибірці, що мають «інші» джерела фінансування (кількість ОГС у вибірці N=84)
Членські внески є досить суттєвим джерелом надходження коштів для ОГС, які брали участь в опитуванні. Як видно із рис. 3.12, членські внески є єдиним джерелом фінансу- вання для 13% організацій, а майже третина опитуваних, а саме 29%, заявили, що вони є одним із джерел фінансування; 58% опитуваних, членів або керівників ОГС, не відзначили членські внески як джерело фінансування організації. 72 Дослідження існуючого досвіду та законодавства України ...
членські внески - єдине джерело фінансування 13%
не відзначили членські членські внески - одне внески серед з джерел фінансування джерел 29% фінансування 58%
Рис. 3.12. Роль членських внесків як джерела фінансування ОГС: частка відповідних ОГС у вибірці (кількість ОГС у вибірці N=84)
м.Київ 36%
Волинсь к а 57%
Донець к а 7%
Одесь к а 29%
Полтав сь к а 69%
К иїв сь к а 71%
0% 10% 20% 30% 40% 50% 60% 70% 80%
Рис. 3.13. Частка ОГС, які фінансуються за рахунок членських внесків, в областях, що увійшли у вибірку
Аналіз рис. 3.13 показує, що переважна більшість організацій фінансуються за рахунок членських внесків: Київська – 71% організацій, Полтавська – 69%, Волинська – 57%. Але слід зауважити, що в Донецькій області тільки 7% ОГС фінансуються своїми членами, або опитувані особи не надають значення членським внескам як джерелу фінансування через недостатні їх обсяги. У нашому опитуванні ми також вивчали питання будь-якого контролю за діяльністю ор- ганізацій громадянського суспільства. Відповіді респондентів на запитання «Чи відомі Вам випадки контролю за ОГС?» наведені на рис. 3.14. Відповідь «ні» на зазначене запитання надали 82,7% респондентів, «так» –17,3%. Се- ред представників бізнесу/приватного сектора відповідь «ні» надали 91,7% опитаних. Серед представників органів місцевого самоврядування відповідь «ні» надали 77%. Від- значимо, що респонденти, які відповідали «так», таку свою відповідь не пояснювали. Дослідження існуючого досвіду та законодавства України... 73
так; 17,30%
ні; 82,67%
Рис. 3.14. Розподіл респондентів за відповідями на запитання: «ЧИ ВІДОМІ ВАМ ВИПАДКИ КОНТРОЛЮ ЗА ОГС?»,% РЕСПОНДЕНТІВ, N=300
3.6. Позитивні приклади фінансування організацій громадянського суспільства Тільки 36,3% респондентів відповіли, що їм відомі позитивні приклади фінансування. Серед 74% опитаних – представників органів місцевого самоврядування, які взяли участь у дослідженні, лише 39,2% відповіли «так» (рис. 3.15.). Проте анкетою передбачалося від- крите запитання до респондентів стосовно позитивних прикладів фінансування ОГС.
так; 36,30%
ні; 63,67%
Рис. 3.15. Розподіл респондентів за відповідями на запитання: «ЧИ ВІДОМІ ВАМ ПОЗИТИВНІ ПРИКЛАДИ ФІНАНСУВАННЯ ОГС? »,% РЕСПОНДЕНТІВ, N=300
Проте за підсумками відповідей на відкрите запитання з’ясувалося, що існують різнома- нітні напрями фінансової та іншої допомоги ОГС та громадянському суспільству, наприклад: – внески у різні святкування; – допомога молодіжним, дитячим та спортивним організаціям, школам, дитячим – са- дочкам, інвалідам та ветеранам; – екологічні та творчі конкурси, конференції, семінари; – розвиток зеленого туризму та інформаційно-туристичних центрів; – відновлення культурно-історичної та духовної спадщини; – шефська допомога дитячим будинкам; – допомога та благоустрій території; – надання різноманітних послуг; – налагодження інфраструктури у сільській місцевості тощо.
Надані респондентами відповіді можна згрупувати за джерелом та механізмами фінан- сування:
1. Позитивні приклади фінансування з боку державного та місцевого бюджетів: 1.1. Конкурсні програми підтримки молоді (управлінням у справах сім’ї та молоді Одесь- кої облдержадміністрації); 74 Дослідження існуючого досвіду та законодавства України ...
1.2. Із місцевого бюджету (м. Одеса) підтримуються деякі заходи громадських організа- цій, проводиться конкурс соціальних проектів для місцевих громадських організацій; 1.2. Деякі органи місцевого самоврядування (сільські, районні та міські ради) протягом декількох років отримували фінансування від фонду місцевого розвитку в рамках конкурсу КМУ для органів місцевого самоврядування (Фонду сприяння місцевому самоврядуванню України); 1.4. Декілька проектів отримали підтримку від Фонду сприяння місцевому самовряду- ванню в Одеській області. Управління агропромислового розвитку проводить конкурс із ви- користання бюджетних коштів, спрямованих на надання соціальних дорадчих послуг; 1.5. Отримання сільським населенням безкоштовних консультацій із різних галузей еко- номіки та навчання на семінарах та демонстраційних показах; 1.6. Проекти розвитку сільського туризму, які підтримуються, в тому числі, органами місцевого самоврядування; 1.7. Надання допомоги сільською радою у газифікації усім мешканцям села, проведен- ня робіт з благоустрою території тощо; 1.8. Об’єднання ветеранів міста користується фінансовою допомогою з місцевого бю- джету, а не з державного; 1.9. Фінансування ОГС за потребою з місцевого бюджету.
Поряд із наявністю позитивної практики фінансування та плідної співпраці з органами місцевого самоврядування в багатьох відповідях респонденти вказували на те, що їм, на жаль, не відомі факти підтримки ОГС з боку державного бюджету.
2. Позитивні приклади фінансування з боку бізнесу/приватного сектора: 2.1. Безповоротна фінансова допомога на придбання інвалідних колясок; 2.2. Благодійна допомога ветеранам; 2.3. Закріплення ветеранів за підприємствами району, спонсорство на користь ветеранів; 2.4. Фінансування спортивних заходів для молоді; 2.5. Надання підприємством коштів на проведення різноманітних благодійних заходів: підтримку дитячого будинку, спонсорство різноманітних заходів тощо; 2.6. Надання техніки школам та державним установам, ремонт обладнання тощо; 2.7. Підприємство у 2010 році започаткувало соціальний проект «Маєток»: сільським ро- динам роздають поросят, постачають корми і надають технологічне забезпечення. У мо- мент передачі поросят агропромислова група «Пан Курчак» підписує договір-зобов’язання про закупівлю вирощеної свинини за встановленою ціною. Таким чином, багато сільських сімей отримали додаткові доходи; 2.8. «Я як приватний підприємець беру участь у більшості марафонів, які проводить Во- линська обласна організація з вадами зору. Останній із них – «Незрячій дитині – тактиль- ну книгу». На зібрані кошти було надруковано дві книги із серії про Гаррі Поттера (шрифтом Брайля). Мої кошти стали частиною грошей, зібраних на цю добру справу»; 2.9. «Тісно співпрацюємо і надаємо допомогу будинку престарілих, школі глухонімих, церкві, школі-інтернату для дітей-сиріт, центру реабілітації наркоманів».
Ці позитивні приклади свідчать про те, що задля активної участі бізнесових підприємств та підприємців у розвитку громадянського суспільства державі потрібно створити умови для їх зацікавленості та прямої вигоди – передбачити в законодавстві більше пільг для біз- несу, який підтримує організації громадянського суспільства. Бізнес намагається напря- му підтримувати заходи соціальної спрямованості (без посередництва держави – бо вона неефективно використовує кошти), а держава повинна тільки визначати перелік заходів та види організацій, на які поширюватимуться пільги. Дослідження існуючого досвіду та законодавства України... 75
3. Позитивні приклади фінансування з боку міжнародних донаторів: 3.1. Спілка сільських жінок, кредитна спілка «Зіньківська», спілка фермерів та приватних землевласників Зіньківщини неодноразово отримували гранти на розвиток спілки; 3.2. Гранти на фінансування проекту «Місцевий розвиток, орієнтований на громаду» (проект Європейського Союзу та ПРООН), метою є створення сприятливого середовища для сталого соціально-економічного розвитку на місцевому рівні; 3.3. «У нашому районі (Великомихайлівському) в 2002–2006 роках працювала «Програ- ма підвищення рівня життя сільського населення», яка дала великий поштовх для розвитку в районі громадських організацій, в першу чергу молодіжних та жіночих»; 3.4. Дуже корисною була програма «Школа майбутнього», яку фінансувало посольство Нідерландів в Україні; 3.5. Надання поворотної допомоги дрібним товаровиробникам (особливо в сільській місцевості) на розвиток власної справи сприяло розвитку самозайнятості, створенню но- вих робочих місць, поповненню місцевого та державного бюджетів; 3.6. Проведення конкурсу міні-грантів для неформальних ініціативних груп для вирішен- ня соціальних проблем сільських громад. Невеликі кошти на міні-проекти дозволили мобі- лізувати ініціативних мешканців села на вирішення власних проблем. З часом деякі з цих ініціативних груп виросли до офіційно працюючих громадських організацій; 3.7. Проект міжнародного благодійного фонду «Хайфер проджект інтернешенел». Суть проекту – надати допомогу сільським мешканцям на умовах, що потім вони допоможуть іншим. Це дає змогу навіть простим селянам виступити в ролі благодійників. Окрім того, за відносно невеликі кошти можна надати допомогу багатьом людям, бо програма може швидко охопити всіх мешканців села; 3.8. Найбільш поширені в нашому районі приклади фінансування громадських організа- цій з боку міжнародних донорів, наприклад Європейського Союзу. В якості реалізованих в нашому районі успішних прикладів можу навести два: проект зі збереження первозданнос- ті тарутинського степу та проект із розвитку сільського туризму; 3.9. В нашому районі є декілька громадських організацій, які активно працюють з молод- дю. Основне фінансування вони отримують від реалізації проектів, які фінансують зарубіжні фонди. На жаль, фінансування цих організацій через місцеві бюджети чи через державний бюджет мінімальне, його майже зовсім немає; 3.10. «Спілка сільських жінок України та жіноча організація «Надія» отримали фінансу- вання в рамках міжнародних проектів, фінансування ж з боку влади не було; 3.11. Фінансування проекту союзом фермерів Швеції. В рамках проекту розроблена і при- йнята програма розвитку ОГС, організовані обласні та районні офіси асоціації фермерів; 3.12. Програми добросусідства Польща–Україна–Білорусь; 3.13. Основним донором ВБО «Всеукраїнська мережа ЛЖВ» є Глобальний фонд бороть- би з ВІЛ/СНІДом, туберкульозом та малярією. Завдяки коштам цього Фонду в Україні реалі- зується більшість програм з метою подолання епідемії ВІЛ/СНІДу, оскільки донор ретельно контролює її використання, вони витрачаються саме на боротьбу з епідемією. Дуже важли- во, щоб відповідальність за роботу громадського сектора брала на себе держава, а не між- народні донори, як відбувається зараз. Дані приклади демонструють дуже вагомий вплив міжнародних донорів на розвиток ОГС в Україні у різноманітних сферах. Не менш цікавим для розвитку організацій громадян- ського суспільства є поєднання можливостей різних джерел фінансування.
4. Позитивні приклади змішаного фінансування ОГС: 4.1. За фінансової підтримки місцевої влади та бізнесу при ГО інвалідів створена спеці- алізована бібліотека. За заявками сільських інвалідів книги передають з місцевим пошта- рем. За такою ж схемою надається допомога ліками; 76 Дослідження існуючого досвіду та законодавства України ...
4.2. Позитивного досвіду було набуто під час реалізації спільного проекту ЄС/ПРООН «Місцевий розвиток, орієнтований на громаду» та органів місцевого самоврядування Бол- градського району Одеської області та участь в інших грантових конкурсах; 4.3. Допомога органів влади та бізнесу дозволяє проводити національні культурні захо- ди, фестивалі, культурний обмін (поїздки до Молдови, Румунії, і навпаки) тощо. Особливо це важливо для виховання молоді, навчання їхнім традиціям та звичаям предків; 4.4. У наших селах створені комітети самоорганізації населення, написані проекти й отримані гранти на заміну вікон у школах, дитячих садках, на впровадження гарячо- го водопостачання в медичних установах деяких сіл району. Окультурено ряд джерел, які мають вагоме значення у питанні водопостачання сільських населених пунктів райо- ну, природоохоронними організаціями отримано грантові кошти для наведення поряд- ку в міському парку відпочинку, проект соціального значення, який переміг у районно- му конкурсі, був профінансований районним бюджетом через програму підтримки під- приємництва; 4.5. Об’єднання громадян «Надія» виграло проект у 100 тис. грн на місцевий розвиток, орієнтований на громаду. Було закуплено медичне обладнання для амбулаторії. Адміні- страція безкоштовно надала будинок на 5 тис. грн (5 тис. грн – кошти громади). Подарова- но музичний центр для школи. Виграли також невеликий грант для школи: три комп’ютери, 15 стільців, три столи; 4.6. У селі Миколаївка Білгород-Дністровського району досить успішно працює громад- ська організація «Перлина». Вона реалізувала близько десятки соціальних проектів. Фінан- сувалася Східноєвропейським демократичним центром Польщі, Фондом сприяння розви- тку місцевого самоврядування в Україні, міжнародною благодійною фундацією «Хайфер проджект інтернешенел» та іншим організаціями, в тому числі місцевими; 4.7. «В городе и районе работают несколько общественных организаций, которые по- лучают финансирование от международных доноров, а также частично из местных бюдже- тов. Успешно действует общественная организация «Фонд поддержки предприниматель- ства», а также некоторые организации работают в области развития сельского туризма; 4.8. Основне фінансування громадські організації можуть одержати від різних міжнарод- них фондів. Крім того, в 2007–2008 роках із районного бюджету відбувалося невелике фі- нансування громадських організацій, але зараз через кризу всі подібні програми згорнуті; 4.9. Співфінансування проектів, запроваджене ПРООН, проект «Місцевий розвиток, орі- єнтований на громаду», в якому скоординовані фінансові зусилля громади, обласної, ра- йонної, сільської влади та самого проекту; 4.10. Німецький фонд «Пам'ять, відповідальність, майбутнє» фінансував проект «Міс- це зустрічі – діалог». Мета проекту – активізувати життя людей похилого віку – колишніх в’язнів концтаборів, остарбайтерів. Учасники проекту створили клуб. Розпочато фандрей- зингову компанію по залученню коштів для проведення зустрічей (щосереди) старших лю- дей – колишніх в’язнів, організовано дві туристичні поїздки. Реалізовується проект «Адво- каційна кампанія в протидії торгівлі людьми». В рамках проекту привертається увага насе- лення Волині до проблем торгівлі людьми, проводиться кампанія із налагодження партнер- ських відносин з владою з метою розробки та прийняття регіональної програми з поперед- ження торгівлі людьми, що дасть можливість фінансувати заходи з протидії торгівлі людьми в рамках місцевого бюджету. Завдяки активній участі журналістів по залученню додаткових людських ресурсів загальну вартість проекту було значно збільшено; 4.11. Об’єднання зусиль Забродівської сільської ради, сільської громади, меценатів з метою вирішення соціальних проблем села; 4.12. Позитивний досвід співпраці з міською радою, Скандинавською місією; 4.13. Спільне фінансування зарубіжною благодійною організацією та коштами сільської громади проведення водопроводу в селі Чесний Хрест Володимир-Волинського району; Дослідження існуючого досвіду та законодавства України... 77
4.14. Разова та постійна підтримка депутатів органів місцевого самоврядування та ін- ших посадовців діяльності професійних спілок та благодійних організацій шляхом фінансу- вання їхніх витрат чи закупівлі необхідних речей.
Наведені позитивні приклади співфінансування свідчать про те, що об’єднання різно- манітних джерел фінансування як з боку органів місцевого самоврядування, бізнесу, так і міжнародних фондів є не тільки прикладом корисної співпраці влади, бізнесу, міжнародної спільноти та громадянського суспільства, а й дієвим інструментом прискорення соціально- економічного розвитку України. Об’єднання зусиль усіх, хто зацікавлений у створенні роз- виненого громадянського суспільства, є яскравим прикладом для розробки та впрова- дження цілісної моделі фінансування ОГС, яка здатна об’єднати усіх, хто не байдужий до майбутнього України.
3.7. Пропозиції щодо вдосконалення фінансування ОГС, отримані в ході опитування та регіональних «круглих столів» Респондентам пропонували висловитися щодо стратегічних заходів, у тому числі в сфе- рі законодавства, необхідних для створення ефективної моделі фінансування ОГС. Формалізовані варіанти відповідей включали такі заходи: – розробити і прийняти Державну цільову програму розвитку громадянського суспіль- ства; – щорічно передбачати у законах про державний бюджет видатки на фінансування ді- яльності ОГС; – затвердити цілі та критерії державного фінансування ОГС; – створити державний Національний фонд розвитку громадянського суспільства.
Розробити і прийняти 3,7 Державну цільову програму розвитку 90,0 4,3 2,0 громадянського суспільства
Щорічно передбачати у 3,0 законах про державний бюджет видатки на 87,7 7,3 2,0 фінансування діяльності ОГС
2,3 Затвердити цілі та критерії державного 91,7 4,0 2,0 фінансування ОГС
Створити державний 2,0 Національний фонд розвитку 61,0 16,3 20,7 громадянського суспільства
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% % р е с по нде нтів
так ні важко відповісти немає відповіді
Рис. 3.16. Розподіл відповідей респондентів на запитання: «Які стратегічні заходи, у тому числі у сфері законодавства, на Вашу думку, необхідні для створення ефективної моделі фінансування ОГС?» (N=300) 78 Дослідження існуючого досвіду та законодавства України ...
На рис. 3.16 представлено розподіл відповідей респондентів на запитання щодо стра- тегічних заходів, у тому числі в сфері законодавства, необхідних для створення ефективної моделі фінансування ОГС. Висновок. Привертає увагу одностайність думок респондентів щодо більшості стра- тегічних заходів створення моделі ефективного фінансування ОГС. 90% респонден- тів вважають, що доцільно розробити і прийняти Державну цільову програму розви- тку громадянського суспільства, лише 3,7% опитаних висловилися проти. 91,7% рес- пондентів вважають, що необхідно затвердити цілі та критерії державного фінансуван- ня ОГС, і лише 2,3% – проти. 87,7% опитаних вважають, що треба щорічно передба- чати у законах про державний бюджет видатки на фінансування діяльності ОГС і тіль- ки 3% – проти. На запитання щодо включення до стратегічних заходів зі створення державного Націо- нального фонду розвитку громадянського суспільства респонденти відреагували також не- однозначно, як і до цього запитання у блоці 2: 61% – за; 16,3% – проти.
Враховуючи одностайність думок респондентів з цього питання, немає необхідності аналізувати поділ думок різних референтних груп. Зупинимося на відповідях на «відкриті» запитання анкети з приводу стратегічних заходів по створенню ефективної моделі держав- ного фінансування ОГС. Відповіді на відкрите запитання частково пояснює обережне ставлення респондентів до створення Національного фонду сприяння розвитку підприємництва. Один із опитаних мо- тивував своє негативне ставлення до створення фонду таким чином: «Оцінка необхідності створення Національного фонду чи інших подібних утворень потребує детального аналізу програми їх діяльності та статуту». Прихильники ідеї створення фонду мотивують свою дум- ку таким чином: «Безперечним є те, що існування такого фонду позитивно вплине на згур- тованість та узгодженість їх діяльності, а також дозволить всебічно та вчасно відслідкову- вати потреби та запити ОГС».
Серед пропозицій, висловлених респондентами, такі: «Надати можливість ОГС займа- тись господарською діяльністю», «підвищити зацікавленість України в транскордонному співробітництві», «встановити податкові пільги для благодійників». Найбільше пропозицій стосуються фонду розвитку ОГС і узагальнено мають такий ви- гляд: «Прийняти державну програму підтримки розвитку ОГС та створити фонд її фінансу- вання із залученням до цього фонду коштів донорів», «створити регіональні відділення На- ціонального фонду розвитку громадянського суспільства», «розробити програму викорис- тання коштів». Поряд із стратегічними заходами щодо ефективного фінансування ОГС респондентів просили оцінити першочергові кроки, необхідні для створення ефективної моделі фінансу- вання ОГС. Результати відповідей респондентів представлені на рис. 3.17.
Висновок. Наведені на рис. 3.17 дані демонструють майже одностайне схвален- ня респондентами таких першочергових заходів: «запровадити загальні правила про- ведення конкурсів проектів для всіх органів виконавчої влади (ухвалити відповідну методику Постановою Кабінету Міністрів)» (92% – «за» та 1,3% – «проти»); «забез- печити належні механізми доступу всіх зацікавлених суб’єктів до інформації у сфері закупівель, посилити прозорість та забезпечити підконтрольність діяльності держав- них замовників послуг (шляхом внесення змін до Положення про закупівлю товарів, робіт і послуг за державні кошти)» (89% – «за» при 2% «проти»), «розробити Методичні рекомендації для органів виконавчої влади щодо кращих практик державної підтримки діяльності ОГС» (91,3% – «за» при 2% «проти»). Проте запропонований в анкеті (вже Дослідження існуючого досвіду та законодавства України... 79
як терміновий, а не стратегічний) захід «створити державний Національний фонд роз- витку громадянського суспільства» знову отримав «обережну» підтримку (60,7% – «за» при 18,7% – «проти»).
4,7 Запровадити загальні правила проведення конкурсів проектів для всіх органів виконавчої влади (ухвалити відповідну методику 92,0 2,0 Постановою Кабінету Міністрів) 1,3
7,0 Забезпечити належні механізми доступу всіх зацікавлених суб’єктів до інформації у сфері закупівель, посилити прозорість та забезпечити підконтрольність діяльності державних замовників 89,0 2,0 послуг (шляхом внесення змін до Положення про закупівлю товарів, робіт 2,0
4,7
Розробити Методичні рекомендації для органів виконавчої влади 2,0 91,3 2,0 щодо кращих практик державної підтримки діяльності ОГС
Створити державний Національний фонд розвитку 60,7 18,7 18,7 2,0 громадянського суспільства
0% 25% 50% 75% 100% так ні важко відповісти немає відповіді % респондентів
Рис. 3.17. Розподіл респондентів за відповідями на запитання: «ЯКІ ПЕРШОЧЕРГОВІ КРОКИ, У ТОМУ ЧИСЛІ І ЩОДО ФОРМУВАННЯ ЗАКОНОДАВЧОЇ БАЗИ, НЕОБХІДНІ ДЛЯ СТВОРЕННЯ ЕФЕКТИВНОЇ МОДЕЛІ ФІНАНСУВАННЯ ОГС?»,% РЕСПОНДЕНТІВ (N=300)
Враховуючи майже повну одностайність відповідей на запитання щодо першочергових заходів державного фінансування ОГС та схожий з попередніми запитаннями розподіл ду- мок респондентів щодо фонду, недоцільно детально досліджувати думки основних рефе- рентних груп. Натомість проаналізуємо відповіді на неформалізовані (відкриті) запитання. Єдині дві пропозиції, надані респондентами, відповідають загальному контексту сформульованих у анкеті запитань і стосуються розвитку сільських територій та створення регіональих підрозділів Національного фонду: «розробити довгострокову Програму розвитку громадянського суспільства (сільських територій), визначити пріоритети» та «створити регіональні відділення». У листопаді офісом ОБСЄ в Україні в рамках реалізації двох проектів, а саме «Гро- мадянське суспільство – дослідження найкращих міжнародних практик» та «Сприяння розробці інституціональної бази фінансування громадянського суспільства в Україні» про- ведено п’ять регіональних «круглих столів»: у Сімферополі, Одесі, Львові, Києві та Донець- ку. Мета зазначених заходів полягала в: представленні попередніх результатів трьох досліджень, що реалізуються в рамках вищезазначених проектів ОБСЄ з таких тем: дослідження та аналіз існуючого українського законодавства, що регулює питан- ня фінансування громадських організацій органами державної влади, органами місцевого самоврядування, приватним сектором; 80 Дослідження існуючого досвіду та законодавства України ...
найуспішніші міжнародні практики та досвід у сфері фінансування громадських організацій органами державної влади, органами місцевого самоврядування та приватним сектором; зарубіжний досвід заходів щодо покращення довіри між органами влади та громадськістю в рамках їхньої співпраці (діалогу); обговорення існуючих форм фінансування громадських організацій у регіонах, а також питань їх реалізації на практиці. До участі в «круглих столах» були запрошені представники місцевих органів виконавчої влади, відповідальні за питання розвитку громадянського суспільства, представники гро- мадських організацій та бізнес-кіл. На кожен «круглий стіл» були запрошені представни- ки трьох зазначених секторів із самої області, де проводився захід, та сусідніх областей, а саме: на захід в м. Сімферополі – представники з Криму; до Одеси – з Одеської, Миколаїв- ської, Херсонської та Кіровоградської областей; до Львова – зі Львівської, Закарпатської, Во- линської, Чернівецької, Івано-Франківської, Тернопільської, Рівненської та Хмельницької об- ластей; до Києва – з Київської, Чернігівської, Сумської, Полтавської, Черкаської, Житомир- ської та Вінницької областей; до Донецька – Донецької, Луганської, Запорізької, Харківської та Дніпропетровської областей. У процесі обговорення учасники «круглих столів» висловили багато слушних пропозицій щодо покращення механізмів фінансування громадських організацій та зауважень щодо іс- нуючої ситуації, серед яких можна відзначити такі: – розширити перелік ОГС, що можуть отримувати фінансування з держбюджету, в Бю- джетному кодексі; – забезпечити доступ до фінансування місцевих організацій, особливо з дотаційних ре- гіонів; – фінансування ОГС після доведення ними на попередніх прикладах спроможності ви- конувати проекти; – проведення ОГС навчань у сільських громадах щодо можливостей ОГС на місцевому рівні; – міжнародні донори, фандрайзинг, регуляторний акт щодо соцзамовлення має бути на місцевому рівні; – більш докладно проаналізувати оподаткування пасивних доходів (зокрема, вклади в банках) та прояснити ситуацію; – запровадити кримінальну або адміністративну відповідальність за ігнорування гро- мадських організацій; – максимальні преференції для можливості ОГС самостійно заробляти кошти, макси- мальне сприяння з боку податкового законодавства щодо залучення коштів; – спростити процедуру припинення діяльності громадських організацій – юридичних осіб; – розвивати традиції спонсорства і меценатства. Розробити новий проект Закону «Про волонтерську діяльність», адже той, що є, по суті, неправильний: для волонтерів є від- повідальність, але немає заохочень. Через управління освіти ввести перелік громад- ських робіт для школярів, як раніше, дати можливість дитині обирати – допомагати старим, пропагувати спорт, прибирати територію тощо. Діти, котрі чимось займалися в дитинстві за рахунок коштів спонсорів, самі спонсоруватимуть, коли виростуть, бо з дитинства знають, як такі кошти використовуються; – збільшити фінансування молодіжних організацій, адже на місцях вони фінансуються за залишковим принципом; – розробити програму екологічного захисту на місцевому рівні (окремих рекреаційних зон); – зміни до Закону «Про благодійництво і благодійні організації» щодо стимулювання благодійників; Дослідження існуючого досвіду та законодавства України... 81
– соціальне підприємництво: потрібно удосконалити нормативно-правову базу; – організації, які можуть отримати фінансування з боку держави (соціальне замовлен- ня), повинні бути максимально лояльні до влади, опозиційні ж не можуть отримати фі- нансування апріорі. Держава нав’язує свої застарілі підходи до фінансування ОГС, з її боку потрібні інші підходи до цього; – щойно організація перестає бути зручною для влади, припиняється її фінансування; – соціальне підприємництво повинно вийти на перший план (необхідно прийняти Закон «Про соціальне підприємництво») – воно могло б допомогти залучати і використову- вати кошти ОГС і виступати партнером держави; – централізація фінансування ОГС під контролем саме держави не потрібна, це призве- де до погіршення фінансування і корупції, до маніпулювання громадськими організа- ціями та їх використання у власних цілях.
3.8. Проміжні висновки аналізу опитування та обговорень в ході «круглих столів» 1. Існують три найважливіші проблеми державного фінансування ОГС (у порядку значи- мості): недостатні обсяги державного фінансування; відсутність достатньої кількості конкурсних програм фінансування проектів; невизначеність у законодавстві цілей та критеріїв державного фінансування ОГС, від- сутність відповідної державної методики відбору конкурсних програм. 2. Низьку активність ОГС у спробах отримати державне фінансування «провокують» де- кілька проблем: відсутність традиції фінансування ОГС державою; труднощі з оформлен- ням звітності щодо використання бюджетних коштів; низький авторитет ОГС в органах дер- жавної влади; відсутність системи інформування щодо державного фінансування; недоліки процедур державного фінансування, насамперед нерівномірне надходження коштів протя- гом року; відсутність законодавчої норми обов’язкового планування у бюджетах (області, району, села) витрат на фінансування проектів чи заходів ОГС. 3. Одностайність думок суб’єктів та об’єктів процесу державного фінансування ОГС сто- совно його проблем дає підстави очікувати конструктивного діалогу між владою та грома- дянським суспільством щодо вирішення цих проблем. 4. Члени ОГС, які мешкають у сільських регіонах, із застереженням сприймають про- позиції щодо концентрації державних фінансів на підтримку ОГС, наприклад, у державно- му Національному фонді розвитку громадянського суспільства. Таке ставлення пояснюєть- ся тим, що сільські респонденти не думають, що фінансування із централізованих джерел буде доступним для ОГС з сільської місцевості, і тому наполягають на створенні регіональ- них відділень такого фонду. Проте всіляко підтримується дворівнева (всеукраїнська та регі- ональна) модель фінансування ОГС з використанням механізмів фінансування з державно- го, місцевого бюджетів, бізнесу/приватного сектора, членських внесків та грантів. 5. Існують непоодинокі випадки, коли органи місцевого самоврядування з різних при- чин, у тому числі через політичне «забарвлення», не підтримують розвиток громадянсько- го суспільства «на місцях» та мають своє доволі невизначене ставлення до конкретних про- блем розвитку місцевої громади, вирішення яких у більшій частині може бути делеговане організаціям громадянського суспільства. 6. Місцеві органи влади (сільські та селищні у тому числі) через доволі малі місцеві бю- джети та нестачу в них коштів мають дуже обмежені ресурси для фінансування ОГС та під- тримки соціальних проектів. 7. Складність процедури отримання фінансування згідно з чинним бюджетним законо- давством. Існуюча практика «соціального замовлення» обтяжена деякими об’єктивними 82 Дослідження існуючого досвіду та законодавства України ...
факторами – необхідністю виконання складних формальних процедур щодо відкриття каз- начейських рахунків для отримання бюджетних коштів і звітування та суб’єктивними – у де- яких випадках вирішальну роль в отриманні замовлення відіграють особисті відносини з ке- рівником, який приймає рішення. 8. Непрозорість та, відповідно, низька поінформованість організацій громадянського суспільства щодо можливостей залучення певних фінансових ресурсів із міського бюдже- ту. Інформація про переможців закупівель за кошти Державного та місцевих бюджетів, а та- кож результати впровадження проектів або надання послуг у рамках цих закупівель не відо- ма широкому колу зацікавлених осіб. 9. Відсутня типова нормативна регламентація щодо проведення конкурсів органами влади та місцевого самоврядування на виконання проектів/замовлень за бюджетні кошти для ОГС та вимог до звітності. 10. Переважно відсутні стратегії розвитку міських та сільських громад, на виконання яких діють програми соціально-економічного розвитку, де визначені пріоритетні напрями фінансування. Нерозвинені фонди громад, які поєднують різні джерела надходжень. 11. Недостатня компетентність працівників та керівництва ОГС. Невміння фахово розро- бляти проекти та їхні бюджети для участі в конкурсах на всі види фінансування. 12. Фактично відсутні пільги з боку держави для бізнесу, який фінансує ОГС. Система податків для бізнесу не спрямована на розвиток громадянського суспільства. Вона не є дружньою для розвитку спонсорства та меценатства в українському суспільстві. 13. Недостатня скоординованість дій донорів. Інколи пріоритети донорів не відповіда- ють інтересам громад. 14. Одностайність думок респондентів опитування (всіх референтних груп) та учасників «круглих столів» щодо необхідності змін у процедурах та можливостях фінансування ОГС і необхідності розробки стратегічних заходів для створення моделі ефективного фінансу- вання ОГС. Майже одностайне схвалення учасниками польового етапу дослідження таких першо- чергових заходів: «запровадити загальні правила проведення конкурсів проектів для всіх органів виконавчої влади (ухвалити відповідну методику Постановою Кабінету Міністрів)»; «забезпечити належні механізми доступу всіх зацікавлених суб’єктів до інформації у сфе- рі закупівель, посилити прозорість та забезпечити підконтрольність діяльності державних замовників послуг (шляхом внесення змін до Положення про закупівлю товарів, робіт і по- слуг за державні кошти)»; «розробити Методичні рекомендації для органів виконавчої вла- ди щодо кращих практик державної підтримки діяльності ОГС». Проте запропонований за- хід «створити державний Національний фонд розвитку громадянського суспільства» отри- мав «обережну» підтримку через побоювання з приводу надмірного контролю та перене- сення існуючих проблем державного фінансування у нову структуру. Замість нього представники громадянського суспільства запропонували іншу, на їхню думку, більш прозору та демократичну модель – Громадський монетарний фонд, на чому ми зупинимося нижче.
4. Вплив Податкового кодексу України від 02.12.2010 р. №2755 на фінансовий стан ОГС Дослідження існуючої законодавчої бази України, що регулює питання фінансування організацій громадянського суспільства (ОГС) органами державної влади, органами міс- цевого самоврядування, бізнес-сектором та іншими джерелами, а також досвіду в сфері державного та недержавного фінансування ОГС було виконане упродовж вересня – грудня 2010 року. Але 1 січня 2011 року вступив у дію Податковий кодекс України (за виключенням окремих його положень), ухвалений Верховною Радою України згідно із Законом України Дослідження існуючого досвіду та законодавства України... 83
№2755 від 02.12.2010 р.)88, який став основним законодавчим актом, який регулює поря- док справляння податків і зборів від фізичних та юридичних осіб до державного та місцевих бюджетів України. Хоча наше дослідження відбулося до набуття чинності зазначеного документу, зважаю- чи на його важливість, ми розглянемо, чи змінилася ситуація щодо фінансування ОГС у світ- лі Податкового кодексу України (ПК). З набуттям чинності ПК втратили чинність такі базові закони України, як «Про оподатку- вання прибутку підприємств», «Про податок з доходів фізичних осіб», «Про податок на до- дану вартість» та багато інших законодавчих та підзаконних актів. Даний документ в цілому має позитивно вплинути на систему оподаткування в Україні, а також стосовно ОГС. Оскільки податкове законодавство України до прийняття цього доку- менту можна було оцінити як безсистемне й навіть хаотичне, регулювання правовідносин з питань оподаткування здійснювалося нормативно-правовими актами різних рівнів – за- конодавчими актами, постановами Кабінету Міністрів України, актами Президента Украї- ни, наказами міністерств та відомств тощо, що викликало значні утруднення в діяльності як господарюючих суб’єктів, так і громадських організацій. Податковий кодекс України вніс низку позитивних зрушень для ОГС, найсуттєвішими з яких є: – податкові знижки для благодійних внесків юридичних осіб-благодійників на користь НДО (п.138.5.3 ПК); – скасування раніше діючого обмеження щодо мінімального розміру для благо- дійних внесків юридичних осіб у розмірі 2% прибутку в попередньому році (абзац «а» п. 138.10.6 ПК); – скасування раніше діючого обмеження щодо мінімального розміру для благодійних внесків фізичних осіб у розмірі 2% сукупного оподаткованого доходу в попередньому році (п. 166.3.2 ПК); – звільнено від оподаткування доходи від благодійних гастрольних заходів (п. 170.10.5 ПК); – закріплено положення про благодійну допомогу в формі ендавментів (п. 170.7.5 ПК); – звільнено від податку на додану вартість діяльність з безоплатної передачі цінних па- перів на користь ендавментів (п. 197.1.15 ПК). Сьогодні організації громадянського суспільства, зареєстровані як юридичні особи, те- пер можуть бути платниками шести загальнодержавних податків та зборів та ще двох – в окремих випадках, що передбачені ст. 9 ПК, а саме: – податок на прибуток підприємств; – податок на доходи фізичних осіб; – податок на додану вартість; – збір за першу реєстрацію транспортного засобу; – плата за землю; – мито; – акцизний збір (в окремих випадках – при ввезенні на митну територію України легко- вих автомобілів); – збір за спеціальне використання лісових ресурсів (при їх використанні для прове- дення культурно-оздоровчих, туристичних, спортивних, виховних заходів та здійснення науково-дослідної діяльності). З 1 січня 2011 року ОГС можуть бути платниками податку на нерухомість, відмінну від зе- мельної ділянки, при цьому вони не будуть сплачувати такі податки, як податок на рекламу та комунальний податок, які завдавали багато клопоту цим організаціям. 88 Податковий кодекс України №2755 від 02.12.2010 р., http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi? nreg=2755-17. 84 Дослідження існуючого досвіду та законодавства України ...
На сьогодні статус неприбуткової організації в Україні дає право на звільнення органі- зації тільки від податку на прибуток підприємств у цілому або ж щодо окремих видів дохо- дів таких організацій. Проте сам цей статус не надає пільг у сплаті інших податків і зборів. Більшість громадських організацій в Україні, що мають статус неприбуткових, не отри- мують пільг щодо сплати податків на землю або інше нерухоме майно, вони не звільняють- ся від податку на додану вартість у разі отримання ними допомоги у вигляді товарів. У статті 157 ПК зазначено вимоги, при виконанні яких громадські організації можуть отримати статус неприбуткових: – організація має статус резидента для цілей оподаткування; – статутна мета організації не передбачає одержання прибутку; – активи організації не використовуються для вигоди окремих її учасників; – активи організації у разі її ліквідації передаються одній чи декільком іншим громад- ським організаціям, або ж направляються до бюджету; – статут громадської організації містить вичерпний перелік здійснюваних нею видів ді- яльності; – доходи, звільнені від оподаткування, не повинні використовуватися для здійснення господарської діяльності89. Статус неприбуткової надається організації згідно з рішенням органів державної подат- кової служби про внесення громадської організації до Реєстру неприбуткових установ та організацій. Слід зауважити, що порядок прийняття рішення про присвоєння статусу неприбуткової організації, як і порядок ведення реєстру неприбуткових організацій чинним ПК, не врегу- льований, тому регулювання цих правовідносин і надалі здійснюватиметься органами Дер- жавної податкової інспекції (ДПІ) на підставі виданих нею актів. Тому і в подальшому ми мо- жемо мати проблему однобокого трактування органами ДПІ норм чинного законодавства, відмов у наданні та необґрунтованих позбавлень статусу неприбутковості, а також судові спори з цього приводу. Як відомо, чинний Закон України «Про об’єднання громадян» №2460 від 16.06.1992 р. дозволяє утворювати відокремлені підрозділи громадських організацій як платників подат- ків, у тому числі зі статусом юридичних осіб, тільки громадським організаціям з міжнарод- ним або всеукраїнським статусом. При цьому ПК передбачає окрему реєстрацію відокрем- лених підрозділів громадських організацій як платників податків. Тому постає питання: чи можливе сьогодні отримання такими підрозділами статусу неприбуткових? Статус відокремлених підрозділів іноземних громадських (неурядових) організацій та- кож залишається невизначеним. Так, вони мають статус нерезидентів (п. 14.1.22 ПК), що виключає можливість їх внесення до Реєстру неприбуткових установ та організацій. Про- те такі підрозділи підлягають реєстрації (акредитації або ж легалізації) в Україні, а отже, залишається відкритим питання можливості застосування до них положень ст. 157 ПК, згідно з якою організація повинна мати статус резидента для цілей оподаткування. Цивільний кодекс України (ст. 85) містить загальну вимогу, яка передбачає, що непідприємницькі товариства не можуть мати на меті одержання прибутку для його подаль- шого розподілу між учасниками. Положення Цивільного кодексу перекликаються зі ст. 157 ПК, крім того, п. 165.1.4 ПК передбачає, що будь-які виплати членам керівних органів гро- мадських організацій, а також їх прямим родичам (пов’язаним особам), крім оплати робіт і послуг за трудовими чи цивільно-правовими договорами, підлягають оподаткуванню. Слід звернути увагу на те, що Законом України «Про об’єднання громадян» передбаче- но виключне право розпоряджатися майном громадської організації її вищому керівному 89 «Круглий стіл»: Досягнення і перспективи реформи благодійного законодавства, http://blagozakon.org. ua/?p=907. Дослідження існуючого досвіду та законодавства України... 85
органу – загальними зборами членів організації або їх представниками (делегатами). Якщо такий орган не встановив посадові оклади членам інших органів управління організації або не делегував це право відповідним органам (президії, дирекції та ін.), то призначення їм заробітної плати видається сумнівним. Внески учасників громадських організацій, як і раніше, не підлягають оподаткуванню за умови, що носять безповоротний характер, тобто якщо не передбачають права на одер- жання компенсації у формі товарів чи послуг. Також, як і раніше, будь-яка діяльність громадських організацій з метою одержання при- бутку визначається як господарська й підлягає оподаткуванню на загальних засадах. По- датковим кодексом дещо розширено перелік суспільно корисних організацій: громадські організації, створені з метою надання реабілітаційних, фізкультурно- спортивних для інвалідів (дітей-інвалідів) та соціальних послуг, правової допомоги, прова- дження екологічної, оздоровчої, аматорської спортивної, культурної, просвітньої, освітньої та наукової діяльності; громадські організації інвалідів, спілки громадських організацій інвалідів та їх місцеві осередки, створені згідно з відповідним законом (абзац «б» п. 157.1 ПК). Такі організації сьогодні отримують код ознаки неприбутковості 0006, що дозволяє звільняти від податку на прибуток ширший перелік видів доходів. Вони не сплачують пода- ток на нерозподілений прибуток. Натомість громадські організації з кодом ознаки неприбутковості 0011 мають витратити не менше 75% сукупного річного доходу до 1 квітня наступного року. Якщо організація з ко- дом 0011 витрачає меншу частку свого річного доходу, ця різниця становитиме її нерозпо- ділений прибуток, який оподатковується за загальною ставкою. Статтею 157.14 ПК встановлено, що використання звільнених від податку на прибуток доходів для здійснення господарської діяльності є підставою для позбавлення громадської організації статусу неприбутковості. Підставою для позбавлення статусу неприбутковості є й нецільове використання активів. Отже, витрати на цілі, не передбачені законодавством про громадські організації або стату- тами таких організацій, можуть вважатися нецільовим використанням коштів згідно п. 157.14 ПК. Також нецільовим використанням активів можна вважати й використання громадською організацією коштів або іншого майна, яке благодійник передав з конкретним цільовим при- значенням, а отже, призвести до позбавлення організації статусу неприбутковості. У цілому ці положення ПК відповідають п. 54 Рекомендації CM/Rec(2007)14, який об- межує право неурядових організацій використовувати майно, придбане за умов звільнен- ня від оподаткування, на цілі, що не звільняються від оподаткування. Розглянемо, як ПК вплине на оподаткування ОГС:
Податок на прибуток підприємств Статтею 157 ПК встановлено перелік доходів для кожного із видів неприбуткових ор- ганізацій. Інші доходи, відмінні від встановлених ст. 157 для кожного із видів неприбутко- вих організацій, підлягають оподаткуванню податком на прибуток підприємств на загаль- них засадах. Основна ставка податку на прибуток підприємств встановлена в розмірі 16% (ст. 151 ПК, п. 151.1). До даного рівня вона буде зменшуватись поступово, з урахуванням п. 10 Розділу 20 Податкового кодексу «Перехідні положення» наступним чином: – 25% – з 1 січня по 1 квітня 2011 року; – 23% – з 1 квітня по 31 грудня 2011 року; – 21% – у 2012 році; – 19% – у 2013 році; – 16% – з 1 січня 2014 року. 86 Дослідження існуючого досвіду та законодавства України ...
Значних змін щодо даного податку для громадських організацій Податковий кодекс не приніс.
Благодійні внески та інші подарунки. Дані внески звільняються від податку на прибу- ток для громадських організацій з кодом ознаки неприбутковості 0011, якщо їх надали засно- вники, члени або інші учасники таких організацій (п. 157.5 ПК). Громадські організації з кодом ознаки неприбутковості 0006 можуть отримувати такі внески від будь-яких осіб (п. 157.3 ПК).
Пасивні (інвестиційні) доходи. Як і раніше, звільняються від податку на прибуток «пасивні доходи», тобто ті, що отримані ОГС від використання їх коштів та іншого майна іншими юридич- ними чи фізичними особами. До цих доходів включаються проценти, дивіденди, страхові ви- плати, відшкодування та роялті. Визначення пасивних доходів міститься в п. 14.1.268 ПК. Наявність корпоративних прав (володіння статутним капіталом підприємств або їх част- ками) у громадських організацій не вважається господарською діяльністю незалежно від частки акцій чи інших майнових або немайнових прав на статутний капітал підприємств. Доходи, отримані від здачі в оренду майна, й надалі не включаються до пасивних дохо- дів. Податковим кодексом до процентів включені доходи, отримані від фінансової оренди (лізингу). Отже, у випадку, коли ОГС надає своє майно в оренду згідно з умовами п. 14.1.97 ПК, частина доходу (крім сплаченого як компенсація вартості предмету лізингу) звільняєть- ся від оподаткування.
Доходи від основної діяльності. Норми ПК викликають багато запитань саме в сфері оподаткування доходів від основної діяльності громадських організацій. Як відзначалося раніше, існує нездоланна перешкода для громадських організа- цій на шляху до здійснення самостійної господарської діяльності у вигляді ст. 24 Зако- ну України «Про об’єднання громадян», яка передбачає можливість здійснювати таку ді- яльність тільки через утворення окремих господарюючих суб’єктів. Податковий кодекс також не вирішує дану проблему і встановлює ряд перешкод для вільного здійснення такої діяльності. Так, згідно з п. 157.15 ПК, термін «основна діяльність» включає діяль- ність громадських організацій, яка визначена для них як основна відповідним законо- давством, в тому числі з надання реабілітаційних та фізкультурно-спортивних послуг для інвалідів (дітей-інвалідів), благодійної допомоги, просвітніх, культурних, наукових, освітніх, соціальних та інших подібних послуг для суспільного споживання, зі створення систем соціального самозабезпечення громадян. Статутні документи громадських організацій повинні містити вичерпний перелік ви- дів їхньої діяльності, які не передбачають одержання прибутку згідно з нормами зако- нів, що регулюють їхню діяльність. Таким чином, ця вимога не розширює перелік видів основної діяльності, відсилаючи до прямих дозволів у законах про окремі види громад- ських організацій. Згідно з вимогами чинного законодавства, до основної діяльності включається також продаж неприбутковою організацією товарів, виконання робіт, надання послуг, які пропагу- ють принципи та ідеї, для захисту та сприяння в реалізації яких було створено таку непри- буткову організацію, та які є тісно пов’язаними з її основною діяльністю, якщо ціна таких то- варів, виконаних робіт, наданих послуг є нижчою від звичайної або якщо вона регулюється державою. Таким чином, це позбавляє можливості отримати дохід, оскільки звичайною ці- ною є або договірна ціна, або собівартість виготовлення зазначених товарів. Громадські організації з кодом неприбутковості 0011 мають додаткові обмеження, ма- ючи можливість включати до основної діяльності лише доходи від продажу товарів і послуг своїм учасникам (засновникам або членам). Крім того, Кабінет Міністрів України може вво- дити тимчасові обмеження щодо поширення норм цього пункту на продаж громадськими Дослідження існуючого досвіду та законодавства України... 87
організаціями окремих товарів чи послуг у разі, якщо такий продаж загрожує або супере- чить правилам конкуренції на ринку визначеного товару, при існуванні достатніх доказів, наданих особами, які оподатковуються цим податком та надають аналогічні товари, вико- нують роботи, надають послуги, про таке порушення. Втім, ці повноваження щодо решти юридичних осіб закони України надають Антимонопольному комітету, а не КМУ.
Державне фінансування. Окрім субсидій та дотацій з державного й місцевих бюджетів, а також спеціальних фондів, не підлягають оподаткуванню податком на прибуток доходи громадських організацій, які отримані в межах технічної чи благодійної, у тому числі гуманітарної, допомоги, що надаються таким неприбутковим організаціям відповідно до умов міжнародних договорів, згода на обов'язковість яких надана Верховною Радою України.
Доходи від неосновної діяльності. Законодавство не зазнало істотних змін порівняно з раніше діючим, доходи від неосновної діяльності підлягають оподаткуванню податком на прибуток як дохід громадських організацій: п. 157.10 ПК передбачає, що у випадку, коли неприбуткова організація отримує дохід із джерел, відмінних від визначених п.п. 157.2–157.9 ПК, вона зобов’язана сплатити податок на прибуток, який визначається як сума доходів, отриманих із таких інших джерел, що зменшена на суму витрат, пов’язаних з отриманням таких доходів, але не вище суми таких доходів (що перекликається з нормами раніше чинного Закону України «Про оподаткування прибутку підприємств»). При підрахунку суми перевищення доходів над витратами, згідно з абзацом першим п. 157.10 ПК, а також при визначенні сум оподатковуваного прибутку, згідно з абзацом дру- гим цього пункту, сума амортизаційних відрахувань не враховується.
Податок на додану вартість Вплив цього податку на фінансовий стан громадських організацій важко переоціни- ти, адже неможливо отримати відшкодування сум податку на додану вартість, сплачених у складі товарів і послуг, які придбають ці організації. Дана норма ПК прийняла естафету від норм раніше чинного Закону «Про податок на додану вартість». Податковим кодексом передбачено, що особи, зазначені в ст. 180 ПК, згідно з вимога- ми раніше чинного законодавства, надалі не зобов’язані реєструватися як платники подат- ку на додану вартість (ПДВ), у випадку, коли їх дохід від продажу товарів і послуг, не звіль- нених від ПДВ, не перевищує 300 000 грн протягом останніх 12 календарних місяців (пункт 181.1 Податкового кодексу). Як бачимо, не відбулося змін ні в розмірі суми, ні в трактуван- ні законодавством терміну здійснення продажу товарів і послуг. Згідно зі статтею 193 Податкового кодексу, ставку ПДВ буде знижено з 20% (нині діюча) до 17% з 2014 року (п. 10 підпункту 2 Розділу 10 «Перехідних положень» ПК). Дані зміни є деякою мірою позитивними для громадських організацій, але надалі не впроваджено жодної зниженої ставки ПДВ, а звільнення від цього податку вартості освіт- ніх та соціальних послуг передбачене лише для окремих видів закладів (зокрема, при по- стачанні позашкільними навчальними закладами вихованцям, учням і слухачам платних по- слуг у сфері позашкільної освіти (п. 196.1.8 ПК), що порушує принцип нейтральності опо- даткування.
Інші податки, платниками яких можуть бути громадські організації
Плата за землю. Згідно з п.п. 282.1.6 та 282.1.7 ПК, звільняються від плати за землю громадські організації інвалідів і належні їм санаторно-курортні, оздоровчі та реабілітаційні заклади, а також фізкультурно-спортивні громадські організації, що використовують спортивні споруди для визначених законом цілей (п. 282.1.9 ПК). 88 Дослідження існуючого досвіду та законодавства України ...
Інші громадські організації є платниками податку на землю, який визначається з урахуван- ням регіональних/місцевих коефіцієнтів, а також цільового призначення земельних ділянок.
Податок на нерухоме майно, відмінне від земельної ділянки. Відповідно до п. 265.5 статті 265 ПК, приміщення, які громадські організації використовують для розміщення фізичних осіб, оподатковуються за такими ставками: 1) 1% мінімальної заробітної плати станом на 1 січня – за кожен квадратний метр жит- лової площі квартири у багатоквартирних будинках у межах до 240 кв. м. 2) 1% мінімальної заробітної плати станом на 1 січня – за кожен квадратний метр жит- лової площі у будинках до 500 кв. м. 3) 2,7% мінімальної заробітної плати станом на 1 січня – за кожен квадратний метр жит- лової площі квартири у багатоквартирних будинках площею понад 240 кв. м. 4) 2,7% мінімальної заробітної плати станом на 1 січня – за кожен квадратний метр жит- лової площі будинку площею понад 500 кв. м. Згідно з п. 265.2 ПК, громадські організації не сплачують даний податок тільки на примі- щення гуртожитків або дитячих будинків сімейного типу, що перебувають у їхній власності.
Збір за першу реєстрацію транспортного засобу. Усі громадські організації мають сплачувати збір за першу реєстрацію транспортних засобів в Україні (колісних автомобілів, суден, гелікоптерів тощо). Жодних пільг для громадських організацій зі сплати даного податку чинне законодавство не передбачає.
Мито. Громадські організації стають платниками мита у разі імпорту гуманітарної чи іншої благодійної допомоги. Діючі нині Митні правила не передбачають жодних пільг щодо сплати мита (крім автомобілів швидкої допомоги). Чинний Закон України «Про гуманітарну допомогу» дозволяє громадським організаці- ям отримувати гуманітарну допомогу без сплати мита тільки на підставі окремого рішен- ня Комісії з питань гуманітарної допомоги при Кабінеті Міністрів України. При цьому пільги можуть надаватися й на імпорт транспортних засобів, які й на сьогодні становлять значну частку товарів, отримуваних як гуманітарна допомога.
Оподаткування фізичних осіб – донорів громадських організацій Відповідно до п. 166.3.2 ПК, платники податків – фізичні особи мають право на отриман- ня податкової знижки на суму благодійних та інших безповоротних внесків до неприбутко- вих, у тому числі громадських організацій. Розмір податкової знижки не повинен перевищувати 4% сукупного оподаткованого до- ходу фізичної особи за попередній рік (п. 166.3.2 ПК). Це змінює попередні законодавчі норми щодо включення до податкової знижки внесків у розмірі не менше двох і не більше п’яти процентів сукупного оподаткованого доходу за попередній рік, що не раз піддавали- ся критиці з боку українських та міжнародних експертів. Внески можуть бути як у вигляді коштів, так й іншого майна. Разом з тим, вартість послуг, робіт, здійснених фізичною особою на користь громадської організації, чи надання громад- ській організації прав на безоплатне користування майном фізичної особи до податкової знижки не включаються. Розмір податкової знижки встановлюється за наявності підтверджуючих документів під час подання фізичною особою річної податкової декларації, тобто до 1 квітня року, наступно- го за звітним. Право на податкову знижку не сумується та на наступні роки не переноситься. Водночас слід зауважити, що вкрай несприятливим для донорів – фізичних осіб, а опо- середковано й громадських організацій, є обмеження суми податкової знижки розміром доходу, одержаного фізичною особою як заробітна плата. Як і раніше, діюча в Україні нор- Дослідження існуючого досвіду та законодавства України... 89
ма позбавляє права на податкові знижки громадян, які не одержують заробітної плати (при- ватні підприємці, пенсіонери, студенти тощо), що передбачалося й раніше діючим законо- давством та не змінено в Податковому кодексі.
Оподаткування юридичних осіб – донорів громадських організацій Юридичні особи, зареєстровані в Україні як платники податку на прибуток підприємств, мають право включати до своїх валових витрат суми благодійних та інших внесків на ко- ристь громадських організацій у розмірі до 4% оподаткованого прибутку попереднього року (п. 138.10.6 ПК). На відміну від фізичних осіб-донорів, зазначені внески можуть надаватися як у формі коштів або іншого майна, так і робіт чи послуг на користь громадських організацій. В цілому, скасування «мінімального порогу» для донорів – юридичних осіб у розмірі 2% прибутку попереднього року, який діяв до 1 квітня 2011 року, є позитивною зміною в Подат- ковому кодексі, особливо для великих підприємств. З іншого боку, зменшення з 5 до 4% максимальної суми пожертв не можна вважати стимулом для корпоративних донорів. Осо- бливо це помітно з огляду на те, що чинними пільгами в 2009 році скористалося менше 500 з-поміж 700 тисяч зареєстрованих в Україні юридичних осіб90.
Благодійні внески, спонсорство й меценатство. Проблема спонсорства й надалі не врегульована в Податковому кодексі, хоча серед різновидів основної діяльності неприбуткових організацій п. 14.1.121 ПК визначено меценатство. Пунктом 138.10.6 ПК додатково передбачено право підприємств включати до валових витрат цільові внески на охорону культурної спадщини та виробництво національних філь- мів та інших аудіовізуальних творів (до 10% прибутку попереднього року).
Цільові державні витрати на користь громадських організацій. Податковим кодексом не встановлено обов’язку використовувати частину доходів від певних податків чи доходів від приватизації державного майна, грального бізнесу, державних лотерей тощо. Також у ПК відсутні норми щодо «процентної філантропії», які передбачають передання податковою службою частки сплаченого фізичними особами податку на доходи визначеним законом або донором неприбутковим організаціям.
5. Рекомендації щодо вдосконалення існуючої нормативно-правової бази України з питань фінансування організацій громадянського суспільства У попередніх розділах ми зробили проміжні висновки, які базувалися на результатах двох частин нашого дослідження: кабінетної, що містила аналіз законодавчої бази Украї- ни в питаннях фінансування ОГС та багатьох додаткових джерел із відповідної тематики, та польової, яка містила результати опитування, у тому числі відповіді на «відкриті» запитання анкети, щодо існуючого досвіду у сфері фінансування ОГС органами державної влади, ор- ганами місцевого самоврядування та приватним сектором і результати обговорень, які від- булися під час проведення п’яти регіональних «круглих столів». Аналіз чинного законодавства України щодо фінансування ОГС показав, що його нор- ми переважно відповідають критеріям, встановленим у Фундаментальних принципах щодо статусу неурядових організацій в Європі. Проте, як і підтвердив польовий етап досліджен- ня, між теорією і практикою застосування законодавства на національному та місцевому рівнях існує значна розбіжність, яку можуть виправити відповідні зміни в законодавстві, державній політиці, яка забезпечуватиме сталий розвиток ОГС, сприятиме налагодженню
90 О. Вінніков. Реформа оподаткування громадських організацій в Україні. 90 Дослідження існуючого досвіду та законодавства України ...
партнерських стосунків з владою усіх рівнів та підтримуватиме незалежний громадський контроль за процесами фінансування ОГС. Отримані проміжні висновки стали для нас надійним підґрунтям для визначення пробле- матики та вироблення консолідованих рекомендацій щодо вдосконалення існуючих меха- нізмів фінансування ОГС. Беручи до уваги те, що 1 січня 2011 року вступили в дію Податко- вий91 (за виключенням окремих його положень) та Бюджетний 92(№2456-VI від 08.07.2010) кодекси України, нижче ми зробили уточнення наших проміжних висновків щодо вдоскона- лення існуючої нормативно-правової бази України з питань фінансування організацій гро- мадянського суспільства в світлі зазначених кодексів, зважаючи на їх важливість для фінан- сування ОГС.
5.1. Фінансування органами державної влади та місцевого самоврядування Проблеми: • Дискримінаційне положення частини 3 статті 8 Закону України «Про об’єднання громадян» про те, що підтримку статутної діяльності з Державного бюджету громадська організація може отримати тільки у разі, якщо вона має всеукраїнський статус; • Недостатні обсяги фінансування органами державної влади та місцевого самоврядування для ОГС, недостатня кількість конкурсних програм на фінансування проектів, обмеженість довгострокового фінансування; • Державне фінансування проектів ОГС значно відрізняється від передбачених законодавством процедур та має «відомчу» специфіку стосовно таких важливих питань, як графік платежів, вимоги до власних внесків ОГС; • Існує невизначеність у законодавстві цілей та критеріїв державного фінансування ОГС, відсутня відповідна єдина державна методика відбору конкурсних програм; • Суми бюджетних асигнувань мають у цілому доволі умовний характер, тобто передбачені бюджетом суми фактично можуть зменшуватися, авансові платежі, як правило, не практикуються, фінансування здійснюється нерівномірно в часі; • Жодне міністерство не фінансує 100% витрат ОГС, вимагаючи власного внеску ОГС, який часто має бути лише у грошовій формі; • Державна підтримка програм і проектів ОГС не відноситься до захищених статей бюджетних витрат, тому Державне казначейство може затримувати виплати ОГС на доволі тривалий час. Існує чимало безпідставних обмежень щодо напрямів використання коштів; • Упереджене ставлення на конкурсах до новостворених ОГС, що не мають досвіду виконання проектів або отримання державного фінансування; • Відсутнє «єдине» вікно при оформленні документів на бюджетне фінансування. Існують значні розбіжності у відомчих практиках звітності, контролю, моніторингу та оцінки проектів ОГС; • Необгрунтовані вимоги щодо необхідності внесення змін до установчих документів ОГС, прямо не передбачені законом; вимоги спеціальних державних дозволів (ліцензії, включення в спеціальні реєстри, погодження тощо), якщо це прямо не передбачено законом; • Стягнення податку із доходів фізичних осіб з отримувачів цільової допомоги у формі соціальних послуг; 91 Податковий кодекс України №2755 від 02.12.2010 р., http://zakon.rada.gov.ua/cgi-bin/laws/main. cgi?nreg=2755-17 92 Бюджетний кодекс України №2456-VI від 08.07.2010 р. Дослідження існуючого досвіду та законодавства України... 91
• Оподаткування реклами, яка інформує громадськість про соціальні послуги, що надають ОГС; • Нерідко доступ до бюджетного фінансування має обмежена кількість «кишенькових» ОГС або громадські організації, які демонструють прихильність до чинної влади та лояльність до окремих посадовців, і, як правило, коли ОГС стає для влади незручною, вона перестає отримувати державне фінансування.
Пропозиції з вирішення: • Внести зміни до Закону України «Про об’єднання громадян» або ж передбачити у новому Законі «Про громадські організації» розширення переліку ОГС, котрі можуть отримувати допомогу від держави; • У Бюджетному кодексі необхідно розширити перелік ОГС, що можуть отримувати пряме фінансування з Держбюджету; Бюджетний кодекс України зазначає тільки три види ОГС, на які може виділятися дер- жавне фінансування: • державна підтримка громадських організацій інвалідів і ветеранів, які мають статус всеукраїнських; • державна підтримка молодіжних громадських організацій на виконання загальнодержавних програм і заходів стосовно дітей, молоді, жінок, сім'ї; • державна підтримка громадських організацій культури і мистецтва, що мають статус національних. При наданні фінансування органи влади керуються також іншими нормами законодавства. Наприклад, майже кожен закон про Державний бюджет України передбачає кошти, зокрема, по лінії Державного комітету України у справах ветеранів – у 2010 році це було 11 256,4 тис. грн для фінансової підтримки громадських організацій ветеранів та відвідування військових поховань і військових пам’ятників (додаток 3 до Закону України «Про державний бюджет України на 2010 р.) та 11 500, 00 тис. грн – у 2011 році. Для розширення переліку ОГС, що можуть отримувати пряме фінансування з Держбюджету, необхідно внести зміни та доповнення до Бюджетного кодексу України, якими слід передбачити визначення терміну «державна фінансова підтримка громадським організаціям», а також розширити перелік громадських організацій, яким надано право на отримання державної фінансової підтримки: 1. ст. 2, п.1, п.п. 38 – викласти в такій редакції: «одержувач бюджетних коштів – суб'єкт господарювання, громадська (незалежно від статусу) чи інша організація, яка не має статусу бюджетної установи, уповноважена розпорядником бюджетних коштів на здійснення заходів, передбачених бюджетною програмою, та отримує на їх виконання кошти бюджету»; 2. змінити ст. 87, п.9, п.п. «в» на: державну підтримку громадських організацій інвалідів і ветеранів незалежно від статусу; 3. змінити ст. 87, п.9, п.п. «ґ» на: державну підтримку молодіжних та дитячих гро- мадських організацій незалежно від їх статусу, які беруть участь у виконанні загальнодержавних програм і заходів стосовно дітей, молоді, жінок, сім'ї згідно з переліком, затвердженим Кабінетом Міністрів України; 4. змінити ст. 87, п. 10, п.п. «в» на: державну підтримку громадських організацій культури і мистецтва, незалежно від їх статусу. Внесення цих змін тісно пов'язане з необхідністю внесення відповідних змін у рамковий Закон «Про об'єднання громадян» (ч. 3. ст. 8), де визначено що Верховна Рада затверджує перелік всеукраїнських ГО, яким держава надає матеріальну допомогу. 92 Дослідження існуючого досвіду та законодавства України ...
• Переглянути обсяги державного фінансування (як на загальнодержавному, так і місцевому рівнях) шляхом збільшення кількості конкурсних програм із фінансування проектів для ОГС; • Розробити та затвердити для Державного казначейства чітку процедуру фінансування проектів або послуг, які виконуються організаціями громадянського суспільства за бюджетні кошти, спростити процедуру відкриття казначейських рахунків зазначених ОГС; • Внести зміни до Закону України «Про об’єднання громадян» (або передбачити у новому Законі «Про громадські організації») норми щодо ліквідації обмеження можливої підтримки статутної діяльності громадських організацій з Державного бюджету, виходячи з їхнього статусу, передбачити застосування конкурсних засад; скасувати поділ ОГС за територіальним статусом як перешкоду доступу до бюджетного фінансування та одержанню доходів від основної діяльності; • Задля вирішення проблеми обмеженого доступу ОГС до довгострокового фінансування необхідно внести зміни до бюджетного законодавства, які дозволять довгострокове державне фінансування ОГС, наприклад, через спеціально створені фонди; Для виконання зазначеної рекомендації необхідно виконати такі дії: 1. Розробка та затвердження загальних цілей та критеріїв довгострокового державно- го фінансування ОГС актом Кабінету Міністрів України (крім тих, які вже встановлено окремими державними цільовими програмами); 2. Затвердження на рівні КМУ типової (або єдиної) методики фінансування ОГС органа- ми виконавчої влади із зазначенням пріоритетів держфінансування; 3. Розробка та затвердження Державної цільової програми розвитку громадянсько- го суспільства, де передбачити створення органу ефективного фінансування ОГС (ГМФ – Громадський монетарний фонд); 4. Внесення змін до Закону України «Про державні цільові програми», яким прямо пе- редбачити необхідність залучення ОГС до виконання заходів у межах державних ці- льових програм. На сьогодні фінансування, що надається за рахунок держави, зазвичай має бути вико- ристано, і про це прозвітовано до кінця календарного року. Разом із тим, більшість проек- тів або завдань, що фінансуються, могли б принести значно більшу користь, якби їх фінан- сування та виконання було безперервним, наприклад, протягом кількох років. Тому пропо- нується механізм фінансування таких проектів через ГМФ. Питання ж внесення будь-яких змін до Бюджетного кодексу передчасні, оскільки від- сутні первинні підвалини для забезпечення довгострокового фінансування, про які йшло- ся вище. На уточненні, яке стосується фондів, ми зупинимося нижче у відповідному пункті.
• Задля ліквідації певних обмежень щодо фінансування ОГС через несприятливу регуляторну політику поширити заходи дерегулювання господарської діяльності на основні ризики, пов’язані з фінансуванням ОГС, а саме: вимоги змін до установчих документів ОГС, прямо не передбачені законом; вимоги спеціальних державних дозволів (ліцензії, включення в спеціальні реєстри, погодження тощо), якщо це прямо не передбачено законом; Вирішення зазначеного питання має бути відображено у таких законодавчих актах: 1.Закон України «Про об’єднання громадян» – прямо передбачити право ОГС здій- снювати господарську діяльність без мети одержання прибутку та його подальшого розподілу між членами (учасниками), у зв’язку з цим внести відповідні зміни до Подат- кового кодексу про звільнення від оподаткування коштів від такої діяльності (відповідні пункти ст. 157 ПК); Дослідження існуючого досвіду та законодавства України... 93
2. У Законі України «Про закупівлю товарів, робіт і послуг за державні кошти» – визначи- ти вичерпний та остаточний перелік документів, які учасники закупівель або закупівель за спрощеними процедурами можуть подавати на вимогу замовників для підтвердження від- повідності кваліфікаційним вимогам.
• Затвердити єдину для всіх міністерств методику організації та проведення конкурсів для ОГС, яка має ґрунтуватися на єдиних затверджених пріоритетах, проте запобігти дублюванню відомчих функцій; • Цільова допомога у формі соціальних послуг у межах державних стандартів і нормативів має бути звільнена від податку з доходів фізичних осіб для бенефіціарів цієї допомоги як від бюджетних установ, так і від ОГС; Для вирішення зазначеного питання необхідне внесення відповідних змін та доповнень у Податковий кодекс України: Стаття 197.1.7 ПК, передбачає звільнення від оподаткування операцій постачання послуг із: б) утримання осіб у будинках-інтернатах для громадян похилого віку та інвалідів, дитя- чих будинках-інтернатах, пансіонатах для ветеранів війни і праці, геріатричних пансіонатах, реабілітаційних установах, територіальних центрах соціального обслуговування (надання соціальних послуг); в) харчування та облаштування на нічліг і надання інших соціальних послуг бездомним громадянам у центрах обліку, закладах соціального захисту для бездомних громадян, а також особам, звільненим з місць позбавлення волі, у центрах соціальної адаптації осіб, звільнених з місць позбавлення волі. Питання звільнення від оподаткування соціальної допомоги її набувачами – фізичними особами врегульовані ст. 165 ПК «Доходи, які не включаються до розрахунку загального мі- сячного (річного) оподатковуваного доходу». Проте питання цільової допомоги у формі соціальних послуг в межах державних стан- дартів і нормативів у Кодексі не зазначене. Отже, пропонується доповнити ПК п. 165.1.49, де передбачити, що «до загального місячного (річного) оподатковуваного доходу платника податку не включаються доходи, отримані ним у формі соціальних послуг в межах держав- них стандартів як від бюджетних установ та організацій, так і від інших надавачів таких по- слуг». У зв’язку з цим п. 165.1.49 перейменувати на п.165.1.50. Розробити нові механізми впровадження соціального замовлення з боку органів дер- жавної влади та органів місцевого самоврядування, які ґрунтуватимуться на принципах рів- ноправності, прозорості та взаємної відповідальності за результати. Питання, на нашу думку, потребує обговорення та ґрунтовного опрацювання спільно з громадськістю (можливо, у рамках «круглого столу»). Як окремі заходи, можна запропонувати наступні акти. На рівні КМУ: • порядок оцінки потреб одержувачів щодо окремих соціальних послуг, на підставі якої визначаються нормативні засади державного фінансування таких послуг, за обов’язкового залучення до визначення такого порядку громадськості та ОГС; • затвердити перелік соціальних послуг, оплата яких відбувається на нормативних засадах одержувачами цих послуг; • затвердити критерії та порядок державних перевірок та публічної звітності суб’єктів усіх форм власності та підпорядкування, що надають соціальні послуги, які включено до переліку; На законодавчому рівні: • передбачити право органів місцевого самоврядування встановлювати додаткові послуги, що можуть фінансуватися на нормативних засадах з власних надходжень місцевих бюджетів. 94 Дослідження існуючого досвіду та законодавства України ...
• визнати право ОГС, що надають соціальні послуги, на оренду державного та комунального майна без обов’язкової участі в конкурсах (зміни до Закону «Про оренду державного та комунального майна»), або передбачити відшкодування їх витрат на оренду державного та комунального майна в умовах конкурсів проектів чи актах, що регулюють державне фінансування ОГС на нормативних засадах. • розробити механізм, що забезпечить місцевим громадським організаціям, особливо дитячим та молодіжним, однаковий (по відношенню до новостворених ОГС, які не мають досвіду виконання проектів або отримання державного фінансування, проте мають відповідний потенціал і можуть це підтвердити) доступ до державного фінансування; Вирішення зазначеного питання лежить у двох площинах – забезпечення рівного досту- пу ОГС до державного фінансування, ліквідувавши обмеження за статусом або іншими кри- теріями, наприклад досвідом. Протиріччя, яке полягає у визнанні пріоритету одних ОГС перед іншими за статусом, містяться в статті 8 Закону України «Про об’єднання громадян»: «держава затверджує пе- релік всеукраїнських громадських організацій, яким надає матеріальну допомогу». Закон визначає, що підтримку статутної діяльності громадська організація може отри- мати тільки у разі, якщо має всеукраїнський статус. Згадування у ньому про підтримку всіх інших громадських організацій, як основного виду ОГС, відсутні. Більшість правників розу- міють цю форму в такому сенсі, що держава надає матеріальну допомогу тим ОГС, діяль- ність яких необхідна та співпадає з її інтересами, через механізм затвердження. Таким чи- ном, у базовій нормі Закону не закладено необхідних підвалин для широкої співпраці дер- жави та ОГС, а також основи для розвитку конкурсного механізму. Для скасування такого обмеження необхідно внести відповідні зміни до статті 8 зазна- ченого Закону. Також обмеження за статусом ОГС відбувається на рівні нормативних актів. Так, конкурс на розподіл коштів між молодіжними та дитячими громадськими організаціями відбуваєть- ся на підставі та у порядку, встановленими Постановою Кабінету Міністрів України №1062 від 25.07.2002 року «Про затвердження Порядку проведення конкурсу проектів програм, розроблених громадськими організаціями стосовно дітей, молоді, жінок та сім’ї». Постано- ва містить дискримінаційні положення, які не допускають до участі у конкурсі молодіжні ор- ганізації з міжнародним та місцевим статусами, чим порушує норми Закону України «Про молодіжні та дитячі громадські організації». Зазначена Постанова потребує відповідних змін до статті 8, які ліквідують таку ситуацію.
Обмеження доступу ОГС до державного фінансування на рівні специфічних критеріїв, наприклад – за досвідом, полягає у наступному. На державному рівні діють декілька моде- лей проведення конкурсів, які відкривають доступ ОГС до державного фінансування: кон- курси проектів програм, розроблених громадськими організаціями, стосовно дітей, моло- ді, жінок та сім’ї (Постанова КМУ №1062 від 26.07.2002 року); конкурси на залучення бю- джетних коштів для надання соціальних послуг (Постанова КМУ №559 від 29.04.2004 року); конкурси проектів і програм громадських організацій щодо інформування громадськості з питань європейської інтеграції (Постанова КМУ №956 від 30.10.2008 року). Недоліком за- значених нормативних актів є те, що вони визначають конкурсну процедуру досить схе- матично і передбачають прийняття відповідним органом виконавчої влади окремих актів щодо їх реалізації (критерії оцінки, форми заявок тощо). Серед критеріїв оцінки фігурує, на- приклад, досвід виконання проектів за державні кошти, чого може не бути у новостворених, молодіжних або дитячих ОГС. Це питання може вирішити акт Кабінету Міністрів України, який чітко визначить та врегу- лює процедурні питання, однакові для всіх надавачів державного фінансування і який місти- Дослідження існуючого досвіду та законодавства України... 95
тиме для новостворених, молодіжних або дитячих ОГС критерії, які ці організації здатні ви- конати, наприклад, кількість заходів або проектів організації, виконаних на волонтерських засадах або за рахунок коштів благодійників, кваліфікаційні вимоги до персоналу тощо. До речі, навіть у розробленому КМУ проекті «Порядку проведення конкурсу з визначен- ня програм, проектів (заходів), розроблених громадськими організаціями, для виконання яких надаватиметься державна фінансова підтримка» стаття 5 містить заборону: «До кон- курсу не допускається конкурсна пропозиція громадської організації, яка не реалізувала програми, проекти (заходи), для виконання яких надавалася державна фінансова підтрим- ка у попередніх роках».
• Враховуючи низьку поінформованість суспільства та зважаючи на іншу (порівняно з комерційною рекламою) функцію, віднести до соціальної реклами інформування громадськості про ті соціальні послуги, які надають ОГС; • Розробити державну навчальну програму з підвищення кваліфікації керівників та членів ОГС з метою підвищення їхнього професійного рівня щодо спроможності надавати необхідні державі та суспільству послуги.
5.2. Фінансування з боку приватного сектора та окремих громадян Проблеми: • Законодавчі обмеження для підприємств, платників податку на прибуток на загальних підставах щодо можливостей включення до своїх валових витрат вартості коштів або майна, безоплатно переданих ОГС, у розмірі від 2 до 5% оподаткованого прибутку попереднього звітного року, а також до 10% оподаткованого прибутку при наданні допомоги підприємствам всеукраїнських об’єднань осіб, які постраждали внаслідок Чорнобильської катастрофи, на яких за основним місцем роботи працює не менше 75% таких осіб, та цим об’єднанням для проведення благодійної діяльності; • Незначний податковий кредит фізичним особам у розмірі 2–5% річного оподаткованого доходу. Незначні пільги з боку держави для бізнесу, який підтримує громадянське суспільство та ОГС. Прийнятий Податковий кодекс, можливо, дещо поліпшить стан фінансування ОГС з боку приватного сектора на місцях, проте фактично виключає з цієї «гри» малий та середній бізнес, що працює на єдиному податку, адже підприємства не зможуть відносити до валових витрат кошти, сплачені підприємцям-єдинщикам, а це робить недоцільним співпрацю з такими підприємцями, тож звідси – відсутність доходів у таких підприємців. • Дискримінація окремих видів ОГС, виходячи з їхнього статусу чи інших ознак, при отриманні безповоротної фінансової допомоги від приватних донорів; • Дискримінація окремих видів ОГС щодо можливостей фінансування, виходячи з їхнього статусу чи інших ознак; • Конкуренція між бюджетними установами та ОГС за безповоротну фінансову допомогу від приватних донорів; • Нерозвиненість у суспільстві традицій благодійництва, спонсорства й меценатства; • Недостатня координація дій міжнародних організацій-донорів у секторі діяльності, що призводить до дублювання у напрямах підтримки та невідповідності обсягів підтримки реальним потребам суспільства.
Пропозиції з вирішення: • Виділити безповоротну допомогу бюджетним установам та ОГС в окрему квоту в п. 5.2.2 Закону України «Про оподаткування прибутку підприємств» і в п. 5.3 Закону України «Про податок з доходів фізичних осіб». 96 Дослідження існуючого досвіду та законодавства України ...
Зазначені закони втратили чинність. Питання значною мірою врегульоване п. 157.2 ПК – звільнено від оподаткування доходи установ та організацій, отриманих як безповоротна фі- нансова допомога, які є: а) органами державної влади України, органами місцевого самоврядування та створе- ними ними установами або організаціями, що утримуються за рахунок коштів відповідних бюджетів; б) благодійними фондами і благодійними організаціями, створеними у порядку, ви- значеному законом для провадження благодійної діяльності; громадськими організація- ми, створеними з метою надання реабілітаційних, фізкультурно-спортивних для інвалідів (дітей-інвалідів) та соціальних послуг, правової допомоги, провадження екологічної, оздо- ровчої, аматорської спортивної, культурної, просвітньої, освітньої та наукової діяльності, а також творчими спілками та політичними партіями, громадськими організаціями інвалідів, спілками громадських організацій інвалідів та їх місцевими осередками, створеними згідно з відповідним законом; науково-дослідними установами та вищими навчальними заклада- ми III-IV рівнів акредитації, внесеними до Державного реєстру наукових установ, яким на- дається підтримка держави; заповідниками, музеями та музеями-заповідниками; д) релігійними організаціями, зареєстрованими в порядку, передбаченому законом; є) професійними спілками, їх об'єднаннями та організаціями профспілок, а також орга- нізаціями роботодавців та їх об'єднаннями, утвореними в порядку, визначеному законом. Проте не можна погодитись з відсутністю у вищезазначеному переліку п.п. «г» даної статті, оскільки значна кількість громадських організацій підпадають саме під цей пункт – «іншими, ніж визначені в підпункті «б» цього пункту, юридичними особами, діяльність яких не передбачає отримання прибутку згідно з нормами відповідних законів». Тому вважаємо за необхідне доповнити п. 157.5 абзацом «коштів або майна, які надходять безоплатно або у вигляді безповоротної фінансової допомоги чи добровільних пожертвувань», яка регулює порядок оподаткування доходів інших ОГС, що не вказані прямо у п. «б» статті 157.2, хоча за своєю сутністю нічим від них не відрізняються.
• Звільнити від оподаткування податками на прибуток підприємств і на додану вартість разові та періодичні внески засновників і членів ОГС, зазначених в абзацах «б», «в» та «г» п. 7.11.1 Закону України «Про оподаткування прибутку підприємств». Закон втратив чинність. Питання щодо неприбуткових організації, діяльність яких не пе- редбачає отримання прибутку та які були зазначені в абзацах «б», «в» та «г» п. 7.11.1 Закону України «Про оподаткування прибутку підприємств», врегульовано в ПК. Згідно з Податковим кодексом, тепер є пряма норма про те, що від оподаткування звіль- няються разові або періодичні внески та відрахування засновників і членів таких організа- цій (п. 157.5, 157.6). Крім того, від оподаткування звільнили вартість майна і послуг, отриманих первинною профспілковою організацією від роботодавця згідно з положеннями колективного догово- ру (п. 157.9).
• На підставі конституційних гарантій рівності громадських організацій перед законом звільнити від податку на прибуток суми безповоротної допомоги ОГС, зазначених в абзацах «в» та «г» п. 7.11.1 Закону України «Про оподаткування прибутку підприємств». Закон втратив чинність. Питання значною мірою врегульоване Податковим кодексом. Пунктом 157.2 ПК звільнено від оподаткування доходи установ та організацій, отриманих як безповоротна фінансова допомога, які є: а) органами державної влади України, органами місцевого самоврядування та створе- ними ними установами або організаціями, що утримуються за рахунок коштів відповідних бюджетів; Дослідження існуючого досвіду та законодавства України... 97
б) благодійними фондами і благодійними організаціями, створеними у порядку, ви- значеному законом для провадження благодійної діяльності; громадськими організація- ми, створеними з метою надання реабілітаційних, фізкультурно-спортивних для інвалідів (дітей-інвалідів) та соціальних послуг, правової допомоги, провадження екологічної, оздо- ровчої, аматорської спортивної, культурної, просвітньої, освітньої та наукової діяльності, а також творчими спілками та політичними партіями, громадськими організаціями інвалідів, спілками громадських організацій інвалідів та їх місцевими осередками, створеними згідно з відповідним законом; науково-дослідними установами та вищими навчальними заклада- ми III-IV рівнів акредитації, внесеними до Державного реєстру наукових установ, яким на- дається підтримка держави; заповідниками, музеями та музеями-заповідниками; д) релігійними організаціями, зареєстрованими в порядку, передбаченому законом; є) професійними спілками, їх об'єднаннями та організаціями профспілок, а також орга- нізаціями роботодавців та їх об'єднаннями, утвореними в порядку, визначеному законом.
Проте не можна погодитись з відсутністю у вищезазначеному переліку п.п. «г» даної статті, оскільки значна кількість громадських організацій підпадають саме під цей пункт – «іншими, ніж визначені в підпункті «б» цього пункту, юридичними особами, діяльність яких не передбачає отримання прибутку згідно з нормами відповідних законів». Тому вважаємо за потрібне доповнити п. 157.5 абзацом «коштів або майна, які надходять безоплатно або у вигляді безповоротної фінансової допомоги чи добровільних пожертвувань», яка регулює порядок оподаткування доходів інших ОГС, що не вказані прямо у п. «б» статті 157.2, хоча за своєю сутністю нічим від них не відрізняються.
• Розробити нормативно-правову базу щодо запровадження в Україні вже діючої в багатьох європейських країнах, так званої «відсоткової» філантропії, яка передбачає відрахування органами податкової служби – за бажанням фізичної особи – певного відсотка (наприклад, 1%) від суми податку з доходів цієї особи на користь суспільно корисних організацій, визначених законом. Мається на увазі розробка та прийняття Закону України «Про відсоткову філантропію». Таке законодавство діє в багатьох європейських країнах, воно передбачає відрахування органами податкової служби – за бажанням фізичної особи – певного відсотка (наприклад, 1%) від суми податку з доходів цієї особи на користь суспільно корисних організацій, визначених законом. Тому суть пропонованого Закону (це зазначено у звіті) – відрахування органами податкової служби, за бажанням фізичної особи – певного відсотка (наприклад, 1%) від суми податку з доходів цієї особи на користь суспільно корисних організацій, визначених законом. При розробці проекту Закону «Про відсоткову філантропію» паралельно необхідно го- тувати проект Закону «Про внесення змін і доповнень до Податкового кодексу, Розділу 4 «Податок на доходи фізичних осіб», де буде врегульовано відповідну процедуру, та статтю 157 «Оподаткування неприбуткових установ та організацій». Або ж врегульовувати питання змін в системі оподаткування у зв’язку з прийняттям Закону «Про відсоткову філантропію» у Прикінцевих положеннях цього Закону. • Покращити координацію та ефективність використання коштів донорів шляхом внесення змін у нормативно-правову базу, яка регулює надання технічної допомоги Україні, підвищити відповідальність галузевих органів державної влади в питаннях замовлення міжнародної технічної допомоги з метою запобігання її дублюванню та відповідності реальним потребам суспільства. Мова йде про міжнародну технічну допомогу, що надається відповідно до міжурядових угод. Наразі вирішити поставлені питання та врегулювати ці процеси можна шляхом прийняття За- кону України «Про міжнародну технічну допомогу», необхідність якого вже зазначалася у ро- ботах провідних фахівців у сфері ОГС, спроби прийняття якого робилися у 1999 та 2001 роках. 98 Дослідження існуючого досвіду та законодавства України ...
• Розробити проект Закону «Про волонтерську діяльність», спрямувати його дію на максимальне заохочення громадян, що займаються волонтерською діяльністю; • Внести зміни до Закону «Про благодійництво і благодійні організації», до Податково- го кодексу щодо більш дієвого стимулювання благодійників та популяризації благодійництва і меценатства у державі. 1. Внести зміни та доповнення до Закону України «Про благодійництво і благодійні ор- ганізації»: • У даному Законі (ст. 1) недостатньо повно висвітлено термін «меценатство», зокрема не зазначено, на які саме цілі може бути спрямована ця допомога. • Немає визначення таких понять, як «меценат», «грант», не передбачено існування меценатських об’єднань, не визначено, хто є суб’єктом благодійництва (наприклад, «благодійники» та «благодійні організації»); • Благодійна організація при державній реєстрації змушена нести пов’язані з цим витрати – справедливо було б, виходячи з природи такої організації, позбавити її цього тягаря шляхом внесення відповідних доповнень до статті 8 Закону, де передбачити, що кошти за реєстрацію такої організації не стягуються. 2. Законом України «Про державні нагороди України» бажано передбачити додаткові стимули для спонсорів та меценатів – почесні звання, державні нагороди та ін.
Певні зрушення щодо податкового стимулювання благодійників вже зроблено. Зо- крема, у ПК, статті 170.7.4 визначено, що до оподатковуваного доходу не включаєть- ся цільова благодійна допомога, яка надається резидентами – юридичними чи фізични- ми особами у будь-якій сумі (вартості), податкові знижки для благодійних внесків юри- дичних осіб-благодійників на користь недержавних неприбуткових установ та організа- цій (п. 138.5.3).
5.3. Фінансування за рахунок надання платних послуг Проблеми: • Протиріччя щодо можливостей ОГС вести самостійну господарську діяльність, які містяться у чинному законодавстві: Закон України «Про об’єднання громадян» (ст. 24) надає право громадським організаціям займатися господарською та іншою комерційною діяльністю лише шляхом створення госпрозрахункових установ і організацій зі статусом юридичної особи; Разом з тим, Господарський та Цивільний кодекси України дозволяють ОГС робити це напряму, але при цьому ОГС має використати отриманий прибуток на виконання статутних завдань; Крім того, спеціальні закони прямо дозволяють проводити самостійну господарську діяльність не лише громадським організаціям інвалідів або осіб, потерпілих від аварії на ЧАЕС. Це право підтверджують, зокрема, закони «Про кооперацію» (ст. 23), «Про професійних творчих працівників та творчі спілки» (ст. 9), «Про організації роботодавців» (ст. 11), «Про кредитні спілки» (ст. 21), а також «Про благодійництво та благодійні організації» (ст. 20). • Складна процедура реєстрації та припинення діяльності ОГС – юридичних осіб, що є занадто обтяжливою для більшості дрібних організацій; • Адміністративні обмеження прав ОГС на користування та розпорядження їхнім майном і майновими правами в окремих випадках; обмеження доступу ОГС до фінансових послуг та застосування адміністративних фінансових санкцій за незначні чи не доведені у встановленому порядку порушення; Дослідження існуючого досвіду та законодавства України... 99
• Норма Закону України «Про податок на додану вартість» щодо вартості поставки товарів або послуг з боку ОГС у 300 тис. грн, наданих «протягом 12 календарних місяців», обмежує фінансову спроможність та соціальну активність громадської організації протягом календарного року.
Пропозиції з вирішення: • Потребує вирішення суперечність положень статей 8 та 24 чинного Закону України «Про об’єднання громадян» щодо ведення громадськими організаціями господарської діяльності не тільки через дочірні підприємства, а й безпосередньо та узгодження з нормами Господарського і Цивільного кодексів питання щодо можливості ОГС займатися підприємницькою діяльністю самостійно, за умови використання отриманого прибутку на виконання статутних завдань; • Розробити механізм законодавчого стимулювання щодо можливостей ОГС самостійно заробляти кошти. У Законі України «Про об’єднання громадян» – прямо передбачити право ОГС здійсню- вати господарську діяльність без мети одержання прибутку та його подальшого розподі- лу між членами (учасниками), за умови, що ці кошти будуть використані для виконання ста- тутних цілей. У зв’язку зі змінами п.1 внести відповідні зміни до Податкового кодексу щодо звільнення від оподаткування коштів від такої діяльності (відповідні пункти ст. 157 ПК).
• Удосконалити нормативно-правову базу щодо ведення соціального підприємництва. Соціальне підприємництво та соціальне партнерство у співпраці держави з ОГС повинні вийти на перший план. Необхідно розробити та ухвалити Закон «Про соціальне підприємництво», це б допомогло ОГС залучати й використовувати зароблені кошти на соціальні проекти і бути партнером держави; • Зважаючи на складну процедуру реєстрації та припинення діяльності юридичних осіб в Україні, необхідно спростити процедуру реєстрації та припинення діяльності громадських організацій – юридичних осіб шляхом внесення відповідних змін до Закону України «Про державну реєстрацію юридичних осіб та фізичних осіб- підприємців», а також внесенням відповідних змін до Закону України «Про об’єднання громадян» (або ж до проекту Закону України «Про громадські організації») та відповідних підзаконних актів; • Встановити чіткі і всім зрозумілі критерії відповідності видів основної діяльності ОГС статусу неприбутковості (у відповідних законодавчих актах); Податковий кодекс у 14.1.121 визначає, що неприбуткові підприємства, установи та організації – підприємства, установи та організації, основною метою діяльності яких є не одержання прибутку, а провадження благодійної діяльності та меценатства й іншої діяль- ності, передбаченої законодавством. Пропонується доповнити дану статтю вичерпним переліком відповідних критеріїв, за наявності яких організація без будь-яких обмежень зможе отримати статус неприбуткової.
• Внести зміни до Закону України «Про податок на додану вартість» щодо вартості поставки товарів або послуг, змінивши фразу «протягом 12 календарних місяців» на «протягом календарного року»; Податковим кодексом передбачено, що особи, зазначені в статті 180, які, згідно вимог раніше чинного законодавства, надалі не зобов’язані реєструватися як платники податку на додану вартість (ПДВ), у випадку, якщо їхній дохід від продажу товарів і послуг, не звіль- нених від ПДВ, не перевищує 300 тис. грн протягом останніх 12 календарних місяців (п. 181.1 ПК). Як бачимо, також не відбулося змін ні в розмірі суми, ні в трактуванні законодав- ством терміну здійснення продажу товарів і послуг. 100 Дослідження існуючого досвіду та законодавства України ...
Пропонуеться задля забезпечення сталого розвитку організацій громадянського су- спільства внести в статтю 181.1 такі зміни: У разі якщо загальна сума від здійснення операцій з постачання товарів/послуг, що під- лягають оподаткуванню згідно з цим розділом, у тому числі з використанням локальної або глобальної комп’ютерної мережі, нарахована (сплачена) такій особі протягом календарного року, сукупно перевищує 300 000 грн (без урахування податку на додану вартість), така осо- ба зобов’язана зареєструватися як платник податку в органі державної податкової служби за своїм місцезнаходженням (місцем проживання) з дотриманням вимог, передбачених стат- тею 183 цього Кодексу, крім особи, яка є платником єдиного податку.
• Задля вирішення проблеми обмеженого доступу ОГС до довгострокового фінансування встановити окремий юридичний статус ендавментів приватних донорів та ОГС (питання частково врегульовано новоприйнятим Податковим кодексом). Питання частково врегульоване ПК. Підпунктом 170.7.5. ПК передбачено, що набувач ці- льової благодійної допомоги у вигляді коштів має право на її використання протягом стро- ку, встановленого умовами такої допомоги, але не більше 12 календарних місяців, наступ- них за місяцем отримання такої допомоги, за винятком отримання благодійної допомоги у вигляді ендавменту. Якщо цільова благодійна допомога у вигляді коштів не використовується її набувачем протягом такого строку та не повертається благодійнику до його закінчення, то такий набу- вач зобов'язаний включити невикористану суму такої допомоги до складу загального річ- ного оподатковуваного доходу та сплатити відповідний податок. Термін «ендавмент» означає суму коштів або цінних паперів, які вносяться благодійни- ком у банк або небанківську фінансову установу, завдяки чому набувач благодійної допо- моги отримує право на використання процентів або дивідендів, нарахованих на суму тако- го ендавменту. При цьому такий набувач не має права витрачати або відчужувати основну суму ендавменту без згоди благодійника. Подальша «доля» ендавменту ПК не врегульована, не визначено чіткий порядок «робо- ти» з цим різновидом джерела фінансових ресурсів для ОГС. Пропонується «винести» по- няття «ендавмент» у статтю 14 ПК, де зазначені всі поняття, що застосовуються у Кодексі. Питання благодійної допомоги у вигляді ендавменту врегулювати у пп.170.7.5, де окре- мим абзацом зазначити, що «Не оподатковується та не включається до загального місяч- ного або річного оподатковуваного доходу платника податку благодійна допомога, яка над- ходить (надається) на його користь у вигляді ендавменту, на весь період її надання».
• Потребує законодавчого закріплення (для уникнення двозначного трактування податковими органами на місцях) із розшифровкою, які саме доходи, з яких джерел і за яких умов вважаються пасивними. Дане питання частково врегульоване чинним ПК. Податковий кодекс дає поняття пасив- них доходів: п. 14.1.268. «пасивні доходи» – доходи, отримані у вигляді процентів, дивіден- дів, страхових виплат і відшкодувань, а також роялті. Проте все ще існують випадки спорів з податковими органами при наданні неприбутко- вого статусу громадським організаціям саме через відсутність чіткого переліку таких дохо- дів. Отже, пропонується внести наступні доповнення до ПК: Стаття157.2. Від оподаткування звільняються доходи неприбуткових організацій, визначених у підпункті «а» пункту 157.1 цієї статті, отримані у вигляді: ПАСИВНИХ ДО- ХОДІВ, а саме: доходи від володіння цінними паперами (паперовий дохід), нерухомістю (здача в оренду), доходи, отримані такою організацією як засновником або співзаснов- ником господарюючих суб’єктів, акціонером (дивіденди, кооперативні виплати, випла- ти на паї та будь-які інші доходи, отримані від цих господарюючих суб’єктів, що утвори- Дослідження існуючого досвіду та законодавства України... 101
лися без безпосередньої активної участі неприбуткових організацій у господарській ді- яльності цих суб’єктів), доходів від володіння авторськими правами (роялті), включаю- чи літературні твори, твори мистецтва або науки, комп’ютерні програми, інші записи на носіях інформації, відео- або аудіокасети, кінематографічні фільми або плівки для ра- діо чи телевізійного мовлення; плати за придбання будь-якого патенту, зареєстровано- го знака на товари та послуги або торгової марки, дизайну, секретного креслення, мо- делі, формули, процесу, права на інформацію щодо промислового, комерційного або наукового досвіду, а також доходи, отримані від розміщення коштів таких організацій у банківських установах, кредитних спілках, інших фінансових установах, що мають пра- во на надання таких послуг, та доходи, отримані такими організаціями у вигляді страхо- вих виплат і відшкодувань. У зв’язку з цим природно виглядає дати розширене поняття пасивних доходів і у п. 14.1.268 чинного ПК. Це ж формулювання доцільно зазначити і в п. 157.2-157.9, оскільки саме ці пункти податкові органи на місцях часто використовують для відмови у наданні не- прибуткового статусу через неоднозначне розуміння поняття «пасивні доходи».
• Запровадити принцип «єдиного» вікна при реєстрації та закритті ОГС як юридичних осіб; Формат «єдиного вікна» передбачає подання заявником пакета необхідних для одер- жання певних адміністративних послуг відповідальній особі єдиного дозвільного офісу (місця реєстрації, наприклад). І з цього моменту взаємодія між усіма необхідними інстанці- ями здійснюється без участі заявника, і насамкінець заявник одержує з рук того ж уповно- важеного співробітника весь комплект документів, необхідних для провадження діяльності. Мова йде про можливість ОГС зареєструвати свою діяльність (включаючи державну ре- єстрацію (отримання свідоцтва про державну реєстрацію), реєстрацію в податкових орга- нах, пенсійному фонді та ін. в одному місці). Це стосується і припинення діяльності. Ця не- обхідність зумовлена складною, тривалою та зачасту незрозумілою процедурою державної реєстрації для простих громадян. Чи має можливість, наприклад, будь-яка сільська грома- да (в тому числі й фінансова) винайняти відповідного спеціаліста у разі необхідності зареє- струвати громадську організацію? Вочевидь ні. Але ж без такого фахівця розібратися у всіх тонкощах держреєстрації громадських організацій у тому вигляді, як вона існує зараз, не- можливо. А саме громади наразі найбільше потребують створення таких організацій, про- те часто бюрократична тяганина перешкоджає цьому. Це питання дискусійне і потребує комплексного підходу. Сьогодні питання реєстрації громадських організацій регулюються Постановою КМ від 26 лютого 1993 р. №140 «Про затвердження Положення про порядок легалізації об'єднань громадян» та Законом Украї- ни «Про державну реєстрацію юридичних осіб та фізичних осіб-підприємців» деякими під- законними актами. Вочевидь необхідні відповідні комплексні зміни до цих нормативно-правових актів для спрощення реєстраційних процедур для ОГС, наприклад, у вигляді «єдиного» вікна за міс- цем реєстрації, до якого засновники ОГС подають документи. А через визначений термін отримують зареєстровані документи та довідки про постановку на облік у всіх відповідних інстанціях – податкових органах, соціальному, пенсійному фонді та інших.
• Внести зміни до Закону України «Про оподаткування прибутку підприємств», у яких чітко визначити, що членські внески до всіх видів ОГС не оподатковуються. Закон втратив чинність. Питання частково врегульоване статтею 157 ПК. Проте доціль- но було б внести доповнення до даної статті, передбачивши загальне правило: «Не підля- гають оподаткуванню доходи будь-яких неприбуткових організацій, отриманих такими ор- ганізаціями у вигляді вступних, членських та цільових внесків, якщо такі внески передбаче- ні статутними документами таких організацій». 102 Дослідження існуючого досвіду та законодавства України ...
5.4. Громадський монетарний фонд З метою розвитку громадянського суспільства та комплексного і системного вирішен- ня проблем фінансування ОГС необхідно розробити та прийняти стратегію та Державну цільову програму розвитку громадянського суспільства, у яких передбачити створення органу ефективного фінансування ОГС, нормативно-правовий акт, яким передбачити цілі та критерії державного фінансування ОГС. Поряд із розширенням переліку ОГС, що ма- ють право отримувати пряме фінансування із Державного бюджету, збільшити у законах про державний бюджет обсяги фінансування громадського сектора. Для стимулювання розвитку громадянського суспільства та ефективного фінансування ОГС необхідно розробити механізм централізованого їх доступу до коштів із різних джерел: кошти держави та органів місцевого самоврядування, міжнародної технічної допомоги та приватних донорів. При цьому централізація фінансування ОГС під контролем саме держа- ви не є доцільною, так як це, на думку багатьох респондентів опитування та більшості учас- ників «круглих столів», може призвести до погіршення фінансування ОГС, розвитку корупції та маніпулювання громадськими організаціями. Базуючись на проведеному польовому дослідженні та результатах обговорення мо- делі й механізмів фінансування, яке було проведено під час «круглих столів», пропону- ється дворівнева (національний рівень та регіональний) модель фінансування ОГС , яка об’єднуватиме кошти для фінансування ОГС зі всіх можливих джерел: державного та міс- цевих бюджетів, бізнесу/приватного сектора, членських внесків та грантів міжнародної тех- нічної допомоги – Громадський монетарний фонд. Громадський монетарний фонд (ГМФ) має регіональні відділення – за статусом це Спіл- ки об’єднань громадян (громадських організацій) (ст. 10 чинного нині Закону України «Про об’єднання громадян»), юридичні особи. ГМФ спрямований на підтримку програми розвитку громадянського суспільства та інші проекти/програми, які ОГС виконують на національному рівні. Надає ОГС кваліфіковану допомогу в отриманні грантів міжнародних донорських організацій (юридичну допомогу, щодо фандрейзингу, бізнес-планування, бухгалтерії, тренінгових програм тощо). Кошти до ГМФ надходять з різних джерел: державного бюджету, бізнесу/приватного сектора, відрахувань регіональними відділеннями частки від сплачених членських внесків ОГС, міжнародної технічної допомоги. Регіональні відділення підтримують програми розви- тку та інші проекти/програми, які виконують ОГС, на регіональному рівні. Фінансування до них надходить із ГМФ на реалізацію всеукраїнських проектів/програм в регіоні, із місцево- го бюджету, від бізнесу/приватного сектора, членських внесків ОГС.
Управління діяльністю ГМФ: 1. Керівництво: обирається на зборах (конференції, зборах представників) ОГС кожні два – три роки. Складається з правління та виконавчих директорів (Фонду та відділень). Склад правління – на паритетній основі представники держави, ОГС, бізнесу/приватного сектора. 2. Виконавчий апарат – наймані працівники на постійній основі згідно КЗпП. 3. Контролюють діяльність Фонду та відділень відповідні наглядові ради, до яких входять представники держави, ОГС та бізнесу/приватного сектора. 4. Також діють ревізійні комісії (перевірка та контроль фінансово-господарської діяльності Фонду та відділень), які мають право ініціювати позачергові конференції/ загальні збори у разі виявлення зловживань/фінансових порушень. Звітність у ГМФ відбувається щорічно на конференції/загальних зборах. Друкується у загальнодержавних виданнях та подається в Інтернеті. Доступ до інформації щодо надхо- джень/ витрат Фонду та його відділень є вільним, доступним в он-лайн. Таким чином дося- гається повна прозорість діяльності ГМФ. Дослідження існуючого досвіду та законодавства України... 103
Додаток 1 СПИСОК ВИКОРИСТАНИХ ДЖЕРЕЛ
Законодавство України 1. Цивільний кодекс України від 16. 01. 2003 р. №435-IV. 2. Бюджетний Кодекс України від 08.07.2010р. №2456-VI. 3. Господарський Кодекс України від 16.01.2003 р. №436-IV. 4. Податковий кодекс України від 02.12.2010 р. №2756-IV. 5. Указ Президента України «Про гранти для обдарованої молоді» від 02.08.2000 р. №945/99. 6. Указ Президента України «Про забезпечення умов для більш широкої участі громадськості у фор- муванні та реалізації державної політики» від 31.07.2004 р. №854/2004. 7. Закон України «Про об’єднання громадян» від 16. 06. 1992 р. №2460-XII. 8. Закон України «Про Державний бюджет України на 2010 рік» від 27.04.2010 р. 9. Закон України «Про основи соціальної захищеності інвалідів в Україні» від 21.03.1991 №875-12. 10. Закон України «Про молодіжні та дитячі громадські організації» від 01.12.1998 р. №281 – XIV. 11. Закон України «Про професійних творчих працівників та творчі спілки» вiд 07.10.1997 №554/97-ВР. 12. Закон України «Основи законодавства про культуру» від 14.02.1992 р. №2117-XII. 13. Закон України «Про Державні цільові програми» від 18.03.2004 р. №1621- IV. 14. Закон України «Про оподаткування прибутку підприємств» від 28.12.1994 р. №334/94. 15. Закон України «Про оподаткування доходів фізичних осіб» від 22.05.2003 р. №889-IV. 16. Закон України «Про здійснення державних закупівель» від 01.06.2010 р. №2289-IV. 17. Закон України «Про внесення змін до деяких законів України щодо спрощення умов ведення біз- несу в Україні» від 15.12.2009 р.1759-IV. 18. Закон України «Про оренду державного та комунального майна» від 23.12.1997 р. №2269-12. 19. Закон України «Про податок на додану вартість» від 03.04.1997 р. №168/97-ВР. 20. Закон України «Про благодійництво і благодійні організації» від 16.09.1997 р. №531/97-ВР. 21. Закон України «Про соціальні послуги» від 19.06.2003 р. №966-IV. 22. Закон України «Про кооперацію» від 10.07.2003 р. №1087-IV. 23. Закон України «Про професійних творчих працівників та творчі спілки» від 07.10.1997р. №554/97– ВР. 24. Закон України «Про організації роботодавців» від 24.05.2001 р. №2436-ІІІ. 25. Закон України «Про кредитні спілки» від 20.12.2001 р. №2908-ІІІ. 26. Закон України «Про місцеве самоврядування в Україні« від 21.05.1997 р. №280/97-ВР. 27. Закон України «Про органи самоорганізації населення« від 11.07.2001 р. №2625-ІІІ. 28. Постанова Кабінету Міністрів України «Про додаткові заходи щодо забезпечення участі громад- ськості у формуванні та реалізації державної політики» від 26.11.2009 р. №1302. 29. Постанова Кабінету Міністрів України від 26.03.2008 р. №236 «Про затвердження Порядку вико- ристання у 2008 році коштів Державного бюджету для надання фінансової підтримки громадським організаціям інвалідів». 30. Постанова Кабінету Міністрів України від 02.04.2008 р. №285 «Про порядок використання у 2008 році коштів, передбачених у Державному бюджеті для надання фінансової підтримки громадським організаціям ветеранів та відвідування військових поховань і військових пам'ятників». 31. Постанова Кабінету Міністрів України від 14.01.2009 р. №32 «Про порядок використання у 2009 році коштів Державного бюджету, передбачених за деякими програмами». 32. Постанова Кабінету Міністрів України від 09.06.2010 р. №411 «Про порядок використання у 2010 р. коштів, передбачених Міністерству праці і соціальної політики за окремими бюджетними програ- мами». 33. Постанова Кабінету Міністрів України від 25.07.2002 р. №1062 «Про затвердження Порядку прове- дення конкурсу проектів програм, розроблених громадськими організаціями, стосовно дітей, мо- лоді, жінок та сім’ї». 34. Постанова Кабінету Міністрів України від 11.08.1995 р. №636 «Про заходи щодо розв’язання політико-правових, соціально-економічних та етнічних проблем в Автономній Республіці Крим». 35. Постанова Кабінету Міністрів України від 28.12.1996 р. №1570 «Про створення у м.Сімферополі Всеукраїнського інформаційно-культурного центру». 36. Постанова Кабінету Міністрів України від 29.04.2004 р. №559 «Про затвердження Правил організа- ції та проведення конкурсу на залучення бюджетних коштів для надання соціальних послуг». 104 Дослідження існуючого досвіду та законодавства України ...
37. Постанова Кабінету Міністрів України від 30.10.2008 р. №956 «Про затвердження Порядку прове- дення конкурсного відбору проектів і програм інформування громадськості з питань європейської інтеграції, розроблених громадськими організаціями». 38. Постанова Кабінету Міністрів України від 06.01.2010 р. №10 «Порядок залучення громадян до формування та реалізації державної політики». 39. Наказ Державної податкової адміністрації України від 11.07.97 р. №232 «Про затвердження фор- ми Звіту про використання коштів неприбуткових організацій і установ та порядку її заповнення». 40. Наказ Державного казначейства України від 25.05.2004 р. №89 «Про затвердження Порядку об- слуговування державного бюджету за видатками та операціями з надання та повернення креди- тів, наданих за рахунок коштів державного бюджету». 41. Наказ Міністерства економіки України від 04. 12. 2006 р. №367 «Методичні рекомендації щодо по- рядку розроблення регіональних цільових програм, моніторингу та звітності про їх виконання».
Інші джерела 42. Державна політика та стан розвитку громадянського суспільства в Україні, / М. Лациба, Україн- ський незалежний центр політичних досліджень, Україна, Київ, 2006 р. 43. О.Вінніков, Д.Ковриженко, А.Красносільська, М.Лациба, К.Рубановський, О.Солонтай, Л.Чорній. Державне фінансування організацій громадянського суспільства. Як запровадити європейські стандарти?, Український незалежний центр політичних досліджень, Київ, 2010 р. 44. Матеріали Всеукраїнської конференції «Державне фінансування організацій громадянського сус- пільства. Як запровадити європейські стандарти?», м. Київ, 2010 р. 45. Стан та динаміка розвитку неурядових організацій України. 2002–2006 роки: Звіт за даними до- слідження / Підготовлено Творчим центром Каунтерпарт. Л. Паливода, О. Кікоть. – К.: Макрос, 2006. – С. 35. 46. Шевчук Т. Недержавні організації в громадському житті Рівненщини, http://postua.info. 47. Степаненко І. Концептуальна невизначеність громадянського суспільства в Україні: можливості подолання / Розвиток демократії в Україні: матеріали міжнародної наукової конференції (Київ, 29 вересня – 1 жовтня 2000 р.). – К.: «Центр освітніх ініціатив», 2001. – С. 593. 48. Держалюк О. Динаміка та розширення спектру діяльності громадських організацій як складової демократизації українського суспільства, http://www.niss.gov.ua. 49. Рева С. Участь громадськості у процесі формування та реалізації державної політики // Політич- ний менеджмент, 2006. – №3 (18).– С. 7. 50. Аналітичний звіт за результатами дослідження «Оцінка системи державного фінансування діяль- ності громадських організацій в Україні», UNITER/PACT, Київ, 2010 р. 51. Стан та динаміка розвитку неурядових організацій України. 2002-2006 роки: Звіт за даними до- слідження / Підготовлено Творчим центром Каунтерпарт. Л. Паливода, О. Кікоть. – К.: Макрос, 2006. – С. 35. 52. Звіт Міжнародної організації Freedom House за 2009 рік, http://tsn.ua/ukrayina/.html. 53. Кількість суб’єктів ЄДРПОУ за організаційно-правовими формами господарювання станом на 1 січня 2009 року, http://www.ukrstat.gov.ua. 54. «Стан та динаміка розвитку неурядових організацій України. 2002–2009 роки: Звіт за даними до- слідження», ТЦК- 2009 р., http://ccc-tck.org.ua. 55. «Відсоткова філантропія» як запорука розвитку громадянського суспільства. Шлях до участі гро- мадян і підтримки громадянського суспільства, ресурс громадянського суспільства і для грома- дянського суспільства Україні. Аналітична записка за результатами аналізу державної політики в галузі фінансування організацій громадянського суспільства. / С. Куц, Цетр філантропії, http:// philanthropy.org.ua. 56. Глибинне інтерв’ю «Оцінка системи державного фінансування діяльності громадських організа- цій», Український незалежний центр політичних досліджень, 2009 р., http://www.ucipr.kiev.ua. 57. Газета «Приватний підприємець», http://www.chp.com.ua/persp_43.php. 58. Аналітичний звіт «Фінансування організацій громадянського суспільства (ОГС) в Україні», 2006 р., http://www.ucipr.org.ua. 59. Чи можлива відсоткова філантропія в Україні, Центр філантропії, http://philanthropy.org.ua. 60. Лабораторія законодавчих ініціатив. Брошура «Законодавче регулювання діяльності неприбутко- вих організацій: світовий досвід та рекомендації для України», 2001 р., http://www.parlament.org.ua 61. Національний інститут стратегічних досліджень. «Взаємодія органів державної влади і організацій громадянського суспільства», 2007 р., www.niss.gov.ua. Дослідження існуючого досвіду та законодавства України... 105
62. Дослідження «Взаємодія органів влади і організацій громадянського суспільства». Національний інститут стратегічних досліджень, http://www.niss.gov.ua. 63. Аналітичний звіт «Фінансування організацій громадянського суспільства (ОГС) в Україні», 2006 р., http://www.ucipr.org.ua. 64. Громадянське суспільство в Угоді про асоціацію між Україною та ЄС, www.eu.prostir.ua. 65. Журнал «Громадянське суспільство», №2(13), 2010 р., с. 28, http://www.eternityclub.kiev.ua. 66. Comparative charts of foundation laws (2009). European Foundation Centre, 2010. 67. О.Вінніков. Пам’ятка про права НПО самостійно здійснювати господарську діяльність, http://www. ucipr.org.ua. 68. Т.О.Славко. Роль громадських організацій у становленні громадянського суспільства, www.nbuv. gov.ua. 69. Юридично-соціальний портал, http://www.pilga.in.ua/node/763. 70. «Круглий стіл»: Досягнення і перспективи реформи благодійного законодавства, http://blagozakon. org.ua/?p=907. 71. О. Вінніков. Реформа оподаткування громадських організацій в Україні. 106 Дослідження існуючого досвіду та законодавства України ...
Додаток 2 ІНСТИТУТ СІЛЬСЬКОГО РОЗВИТКУ
Номер анкети в ланцюжку
ДОСЛІДЖЕННЯ ІСНУЮЧИХ ПРАКТИК ДЕРЖАВНОГО ТА НЕДЕРЖАВНОГО ФІНАНСУВАННЯ ОРГАНІЗАЦІЙ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА (ОГС) ШАНОВНИЙ ІНТЕРВ’ЮЕРЕ ! ПРИВІТАЙТЕСЯ З РЕСПОНДЕНТОМ, НЕ АКЦЕНТУЮЧИ МОВИ ПРИВІТАННЯ, ЩОБ З’ЯСУВАТИ, ЯКОЮ МОВОЮ РЕСПОНДЕНТУ ЗРУЧНІШЕ З ВАМИ РОЗМОВЛЯТИ: ДОБРИЙ Д[Е]НЬ (В[Е]Ч[І]Р) ЯКЩО НА ПРИВІТАННЯ РЕСПОНДЕНТ ВІДПОВІДАЄ:
...українською, ЗАПИТАЙТЕ: ...російською‚ СПРОСИТЕ: Скажіть‚ будь ласка‚ Вам легше розмовляти україн- Скажите‚ пожалуйста‚ Вам легче разговаривать на ською мовою‚ или, может быть, Вам легче разговари- русском языке, чи‚ можливо‚ Вам легше розмовляти вать на русском языке? українською мовою?
українською....1 ВІЗЬМІТЬ УКРАЇНСЬКИЙ ОПИТУВАЛЬНИК, ПОЗНАЧТЕ ТАМ ЦЮ ВІДПОВІДЬ І ПРОВОДЬТЕ ІНТЕРВ’Ю УКРАЇНСЬКОЮ на русском...... ОТМЕТЬТЕ ПОЛУЧЕННЫЙ ОТВЕТ И ПРОВОДИТЕ ИНТЕРВЬЮ НА РУССКОМ ЯЗЫКЕ
однаково, не має значення все равно‚ не имеет значения
А якою з цих двох мов Ви розмовляєте більше – А на каком из этих двух языков Вы разговариваете українською чи російською? больше – на русском или на украинском? українською ....................………….……3 ВІЗЬМІТЬ УКРАЇНСЬКИЙ ОПИТУВАЛЬНИК, ПО- важко сказати‚ мабуть, однаково ..……4 ЗНАЧТЕ ТАМ ОДЕРЖАНУ ВІДПОВІДЬ І ПРОВОДЬТЕ ІНТЕРВ’Ю УКРАЇНСЬКОЮ
на русском.........................………………… ОТМЕТЬТЕ ПОЛУЧЕННЫЙ ОТВЕТ И ПРО-ВОДИТЕ трудно сказать, наверное, одинаково…….. ИНТЕРВЬЮ НА РУССКОМ ЯЗЫКЕ
Добрий день, мене звуть (НАЗВІТЬ СЕБЕ). Я представляю (назвіть Вашу організа- цію). Громадська організація «Інститут сільського розвитку» проводить досліджен- ня ситуації із фінансуванням організацій громадянського суспільства. Дуже прошу приділити мені трохи часу для бесіди.
(ЯКЩО РЕСПОНДЕНТ ВІДМОВЛЯЄТЬСЯ) Чи можу я поговорити з Вами завтра, піс- лязавтра? Спасибі, що Ви погодилися взяти участь в опитуванні! ЧАС ПОЧАТКУ ІНТЕРВ’Ю ___ГОДИН___ХВИЛИН Дослідження існуючого досвіду та законодавства України... 107
АНКЕТА ІНТЕРВ'Ю
БЛОК I. СПОЧАТКУ КІЛЬКА ЗАПИТАНЬ ПРО ВАС ОСОБИСТО
1. ЧИ Є ВИ: 1.1. ЕКСПЕРТОМ У СФЕРІ РОЗВИТКУ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА? 1 – так 2 – ні
Перейдіть до запитання 2.
1.2. ПРЕДСТАВНИКОМ ДЕРЖАВНОЇ ВЛАДИ? 1 – так 2 – ні
1.2.1. ЯКЩО ТАК, ТО НАЗВІТЬ, БУДЬ ЛАСКА, ВАШУ ПОСАДУ І НАЗВУ УСТАНОВИ ______________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________
Перейдіть до запитання 2.
1.3. ПРЕДСТАВНИКОМ БІЗНЕСУ/ПРИВАТНОГО СЕКТОРА? 1 – так 2 – ні
1.3.1. ЯКЩО ТАК, СКАЖІТЬ, БУДЬ-ЛАСКА, ЧИ НАДАВАЛИ ВИ АБО ВАША ОРГАНІЗАЦІЯ ФІНАНСУВАННЯ ОГС?
1 – так 2 – ні 3 – важко відповісти
1.3.1.1. ЯКЩО ТАК (НАДАВАЛИ), ТО СФОРМУЛЮЙТЕ, БУДЬ-ЛАСКА, ВАШІ МОТИВИ НАДАННЯ ДОПОМОГИ _______________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _________________________________________________________________ 1.3.1.2. 1.3.1.3. ЯКЩО НІ, СФОРМУЛЮЙТЕ, БУДЬ-ЛАСКА, УМОВИ, НА ЯКИХ ВИ ПОГОДИЛИСЯ Б НАДАВАТИ ДОПОМОГУ ОГС __________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ ______________________________________________________________________ 108 Дослідження існуючого досвіду та законодавства України ...
Перейдіть до запитання 2.
1.4. ПРЕДСТАВНИКОМ ОРГАНУ МІСЦЕВОГО САМОВРЯДУВАННЯ 1 – так 2 – ні
1.4.1. ЯКЩО ТАК, ТО НАЗВІТЬ, БУДЬ ЛАСКА, ВАШУ ПОСАДУ І НАЗВУ УСТАНОВИ ______________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________ Перейдіть до запитання 2.
1.5. КЕРІВНИКОМ АБО ЧЛЕНОМ ОГС 1 – так 2 – ні
1.5.1. ЯКЩО ТАК, ТО ЗАЗНАЧТЕ, БУДЬ ЛАСКА:
1.5.1.1. ПОВНУ ЮРИДИЧНУ НАЗВУ ВАШОЇ ОРГАНІЗАЦІЇ _________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ ______________________________
1.5.1.2. ВИД ВАШОЇ ГРОМАДСЬКОЇ ОРГАНІЗАЦІЇ:
1 – благодійна організація 2 – фахове об’єднання 3 – інші громадські організації
1.5.1.3. КІЛЬКІСТЬ ЧЛЕНІВ ВАШОЇ ОРГАНІЗАЦІЇ: 1– 1-10 2– 20-50 3– понад 50
1.5.1.4. СТАТУС ВАШОЇ ОРГАНІЗАЦІЇ: 1– місцева 2– всеукраїнська 3– міжнародна
1.5.1.5. МЕЖІ БЮДЖЕТУ ВАШОЇ ОРГАНІЗАЦІЇ У 2009 РОЦІ: 1– до 10 тис. грн. 2– 10-50 тис. грн. 3– 50-100 тис. грн. 4– 100-200 тис. грн. 5– понад 200 тис. грн. Дослідження існуючого досвіду та законодавства України... 109
1.5.1.6. ДЖЕРЕЛА НАДХОДЖЕНЬ ФІНАНСУВАННЯ У 2009 РОЦІ: 1 – державні кошти 2 – бізнес 3 – кошти громади 4 – міжнародні фонди 5 – вітчизняні благодійні фонди 6 – членські внески 7 – інші (зазначте:) 1.5.1.6.1. ________________________________________________________________ __________________________________
БЛОК ІІ. ПРОБЛЕМИ ФІНАНСУВАННЯ ОГС ОРГАНАМИ ДЕРЖАВНОЇ ВЛАДИ
2. ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС (покажіть респонденту таблицю 2.1-2.8)
Надзвичайно Не має Важко відпові- Важлива важлива значення сти 2.1. Недостатні обсяги державного фі- 1 2 3 4 нансування 2.2. Неефективне використання дер- 1 2 3 4 жавних коштів 2.3.Непрозорість та складність проце- 1 2 3 4 дур державних закупівель 2.4.Невизначеність у законодавстві ці- лей та критеріїв державного фінансу- вання ОГС, відсутність відповідної дер- 1 2 3 4 жавної методики відбору конкурсних програм 2.5.Відсутність достатньої кількос- ті конкурсних програм фінансування 1 2 3 4 проектів 2.6.Недоліки в умовах пільгового опо- даткування суб’єктів фінансування ОГС 1 2 3 4 та самих ОГС
2.7.Інші (зазначте):
2.8.Інші (зазначте): 110 Дослідження існуючого досвіду та законодавства України ...
3. ЯКОЮ, НА ВАШУ ДУМКУ, МАЄ БУТИ МОДЕЛЬ ДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС? (покажіть респонденту таблицю 3.1-3.8)
Важко Так Ні відповісти 3.1.Створення державного Національного фонду розвитку гро- 1 2 3 мадянського суспільства 3.2.Переважно конкурсне фінансування діяльності ОГС 1 2 3 3.3.Можливість участі всіх типів ОГС у конкурсах проектів 1 2 3 3.4.Можливість отримання фінансування на адміністративні ви- 1 2 3 трати 3.5.Спрощені процедури державних закупівель послуг і робіт 1 2 3 для ОГС 3.6.Інше (зазначте):
3.7.Інше (зазначте):
3.8.Інше (зазначте):
БЛОК ІІІ. ПРОБЛЕМИ ФІНАНСУВАННЯ ОГС ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАНН 4. ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ ФІНАНСУВАННЯ ОГС ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАННЯ (покажіть респонденту таблицю 4.1-4.3)
Надзвичайно Не має Важко від- Важлива важлива значення повісти
4.1.Нестабільність та обмеженість фінан- 1 2 3 4 сування місцевих бюджетів
4.2.Непрозорість, суб’єктивність та 1 2 3 4 складність процедур відбору проектів
4.3.Інші (зазначте): Дослідження існуючого досвіду та законодавства України... 111
5. ЯКОЮ, НА ВАШУ ДУМКУ, МАЄ БУТИ МОДЕЛЬ ФІНАНСУВАННЯ ОГС ОРГАНАМИ МІСЦЕВОГО САМОВРЯДУВАННЯ? (покажіть респонденту таблицю 5.1-5.5) Важко Так Ні відпові- сти 5.1.Розробка середньострокових (2-3 річних) програм фінансування ОГС 1 2 3 5.2.Запровадити відкриті публічні конкурси проектів для неурядових орга- 1 2 3 нізацій 5.3.Можливість участі всіх типів ОГС у конкурсах проектів 1 2 3 5.4.Можливість отримання фінансування на адміністративні витрати 1 2 3 5.5.Інше (зазначте):
БЛОК ІV. НЕДЕРЖАВНЕ ФІНАНСУВАННЯ ОГС 6. ОЦІНІТЬ, БУДЬ ЛАСКА, ОСНОВНІ ПРОБЛЕМИ ІСНУЮЧОЇ СИСТЕМИ НЕДЕРЖАВНОГО ФІНАНСУВАННЯ ОГС ТА ЇХ ВАЖЛИВІСТЬ ДЛЯ РОЗВИТКУ OГС (покажіть респонденту таблицю 6.1-6.13 )
Не має Важко Надзвичайно Важлива значен- відпо- важлива ня вісти 6.1.Недостатні обсяги недержавного фінансування 1 2 3 4 6.2.Відсутність фандрейзингової діяльності у багатьох ГО 1 2 3 4 6.3.Відсутність мотивації у благодійників 1 2 3 4 6.4.Намагання благодійників отримати вигоду, яка не відповідає інтересам ГО, місцевої громади або суспіль- 1 2 3 4 ства загалом 6.5.Абстрактність і недієвість норм законодавства щодо отримання доходу від основної діяльності гро- 1 2 3 4 мадських організацій, соціального підприємництва 6.6.Недоліки в умовах пільгового оподаткування 1 2 3 4 суб’єктів фінансування ОГС та самих ОГС 6.7.Позбавлення значної частини представників дріб- ного та середнього бізнесу, що працюють на єдиному 1 2 3 4 податку, можливості отримати податкові зниження че- рез допомогу неприбутковому сектору 6.8.Непрофесійність персоналу неурядових організацій 1 2 3 4 6.9. Відсутність традицій спонсорства і меценатства 1 2 3 4 6.10.Створення «нереальних» організацій «третього сектора» – під «вибивання» грошей, окремі «проекти» й 1 2 3 4 конкретних особистостей тощо 6.11.Відсутність координації дій у зарубіжних донорів 1 2 3 4 6.12.Інші (зазначте):
6.13.Інші (зазначте): 112 Дослідження існуючого досвіду та законодавства України ...
БЛОК V. ПРОПОЗИЦІЇ ЩОДО ВДОСКОНАЛЕННЯ ФІНАНСУВАННЯ ОГС
7. ЯКІ СТРАТЕГІЧНІ ЗАХОДИ, У ТОМУ ЧИСЛІ В СФЕРІ ЗАКОНОДАВСТВА, НА ВАШУ ДУМКУ, НЕОБХІДНІ ДЛЯ СТВОРЕННЯ ЕФЕКТИВНОЇ МОДЕЛІ ФІНАНСУВАННЯ ОГС? (покажіть респонденту таблицю 7.1-7.7)
Важко Так Ні відповісти 7.1.Розробити і прийняти Державну цільову програму розвитку грома- 1 2 3 дянського суспільства 7.2.Щорічно передбачати у законах про Державний бюджет видатки 1 2 3 на фінансування діяльності ОГС 7.3.Затвердити цілі та критерії державного фінансування ОГС 1 2 3 7.4.Створити державний Національний фонд розвитку громадянсько- 1 2 3 го суспільства 7.5.Інше (зазначте):
7.6.Інше (зазначте):
7.7.Інше (зазначте):
8. ЯКІ ПЕРШОЧЕРГОВІ КРОКИ, У ТОМУ ЧИСЛІ ЩОДО ФОРМУВАННЯ ЗАКОНОДАВЧОЇ БАЗИ, НА ВАШУ ДУМКУ, НЕОБХІДНІ ДЛЯ СТВОРЕННЯ ЕФЕКТИВНОЇ МОДЕЛІ ФІНАНСУВАННЯ ОГС? (покажіть респонденту таблицю 8.1-8.7)
Важко Так Ні відповісти 8.1.Запровадити загальні правила проведення конкурсів проектів для всіх органів виконавчої влади (ухвалити відповідну методику постановою Кабінету 1 2 3 Міністрів)
8.2.Забезпечити належні механізми доступу всіх зацікавлених суб’єктів до ін- формації у сфері закупівель, посилити прозорість та забезпечити підконтроль- 1 2 3 ність діяльності державних замовників послуг (шляхом внесення змін до Поло- ження про закупівлю товарів, робіт і послуг за державні кошти)
8.3.Розробити Методичні рекомендації для органів виконавчої влади щодо 1 2 3 кращих практик державної підтримки діяльності ОГС 8.4.Створити державний Національний фонд розвитку громадянського сус- 1 2 3 пільства 8.5.Інше (зазначте та поясніть):
8.6.Інше (зазначте та поясніть):
8.7.Інше (зазначте та поясніть): Дослідження існуючого досвіду та законодавства України... 113
9. ЧИ ВІДОМІ ВАМ ВИПАДКИ КОНТРОЛЮ ЗА ОРГАНІЗАЦІЯМИ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА?
1 – так 2 – ні
9.1. ЯКЩО ТАК, ОПИШІІТЬ, БУДЬ ЛАСКА, ЇХ ДЕТАЛЬНО ___________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ __________________
10. ЧИ ВІДОМІ ВАМ ПОЗИТИВНІ ПРИКЛАДИ (ПРИКЛАДИ, ГІДНІ НАСЛІДУВАННЯ) ФІНАНСУВАННЯ ОСГ? (УВАГА ІНТЕРВ’ЮЕРУ! ЦЕ ПИТАННЯ ДУЖЕ ВАЖЛИВЕ ДЛЯ ДОСЛІДЖЕННЯ. ПРОХАННЯ ЯКОМОГА ДЕТАЛЬНІШЕ РОЗПИТАТИ РЕСПОНДЕНТА ТА ЗАНОТУВАТИ ВІДПОВІДЬ.) 1 – так 2 – ні 10.1. ЯКЩО ТАК, ОПИШІІТЬ, БУДЬ ЛАСКА, ЇХ ДЕТАЛЬНО _______________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ Інтерв'юер: ДЯКУЮ ЗА ВИДІЛЕНИЙ НА ДОСЛІДЖЕННЯ ЧАС.
ЧАС ЗАКІНЧЕННЯ ІНТЕРВ'Ю ______годин_____хвилин
ЗАПИТАННЯ ІНТЕРВ'ЮЕРУ (ЗАПОВНЮЮТЬСЯ ПІСЛЯ ПРОВЕДЕННЯ ІНТЕРВ'Ю)
1. ЯКОГО ЧИСЛА/МІСЯЦЯ ІНТЕРВ’Ю ПРОВЕДЕНО: _______________________ 2010 року.
2. В ЯКОМУ РЕГІОНІ ПРОХОДИЛО ІНТЕРВ’Ю: Київська область...1 Одеська область...2 Донецька область...3 Волинська область 4 Полтавська область......5 м.Київ………..6
3. ІНТЕРВ'Ю ПРОВОДИЛОСЯ У: Місті ….1 Сільській місцевості…..2
6. Прізвище, ім'я, по батькові інтерв’юера ________________________________, підпис МІЖНАРОДНІ ПРАКТИКИ ФІНАНСУВАННЯ ОРГАНІЗАЦІЙ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА
БАЛАЖ ШАТОР, експерт ОБСЄ 116 Міжнародні практики фінансування ОГС...
ПЕРЕЛІК СКОРОЧЕНЬ
CAF – Фонд благодійної допомоги СНД – Співдружність незалежних держав CSDF – Фонд розвитку громадянського суспільства ЄЦНП – Європейський центр некомерційного права ERNOP – Європейська мережа досліджень у галузі філантропії ЄС – Європейський Союз МЦНП – Міжнародний центр некомерційного права JHU – Університет ім. Джона Хопкінса NESsT – Група з питань розвитку самофінансування неприбуткових організацій НУО – неурядова організація USAID – Агентство США з міжнародного розвитку Міжнародні практики фінансування ОГС... 117
КОРОТКИЙ ЗМІСТ
Це дослідження спрямоване на представлення результатів комплексного вивчення успішних міжнародних практик, які були б найбільш застосовними в Україні, зосереджую- чись на конкретних питаннях фінансування громадянського суспільства органами держав- ної влади, органами місцевого самоврядування, бізнесом та іншими джерелами, а також на формах контрактних відносин між органами державної влади та громадськими органі- заціями відповідно до вимог реалізації дослідницького компоненту проекту «Громадянське суспільство – дослідження найкращих міжнародних практик». Дослідження надає основу для розуміння процесу фінансування громадських орга- нізацій і проводить аналіз шести європейських країн1; три з них були піддані комплексній контекстуально-технічній оцінці, що безпосередньо стосується ситуації в Україні, тоді як інші надають корисні моделі та приклади. Протягом останніх десяти років включені в ана- ліз країни впровадили один або декілька успішних механізмів фінансування громадянсько- го суспільства та, як такі, демонструють позитивні практики забезпечення життєздатнос- ті громадських організацій. Дослідження включає порівняльний аналіз цих моделей і меха- нізмів, представляє основні елементи розробки успішної інституційної основи для фінансу- вання громадських організацій і, насамкінець, пропонує рекомендації для розгляду україн- ськими зацікавленими сторонами.
На основі дослідження найкращих міжнародних практик, що застосовуються в цих шес- ти країнах, наступні висновки є надзвичайно важливими з точки зору розробки інституцій- ної основи для фінансування громадських організацій в Україні.
• Iснує потреба у застосуванні підходу «від бачення до механізму», що дозволить прив’язати механізми фінансування, які будуть впроваджені, до бачення та мети процесу розвитку громадських організацій: законодавець повинен визначити функції громадських організацій, а потім розробити відповідні засоби для досягнення результатів. Основним елементом, як правило, є розробка стратегії розвитку громадських організацій, що передбачає їх чітку роль по відношенню до держави. Проте підготовка самої стратегії не має великого значення з точки зору впливу державних заходів. Так само (якщо не більше) важливою є відповідність стратегії бажаним результатам, а також політики фінансування стратегії. • Повинні бути наявними достатні дані й інформація, аби приймати продумані, засновані на фактах стратегічні рішення в цій сфері. Це є важливим, адже громадський сектор як стратегічний напрям часто не береться до уваги, і базові дані відсутні. • На постійній, систематичній основі необхідно слідкувати за практикою і впливом реалізації стратегії. • Громадський сектор не може фінансуватися за використання одного основного механізму. Потоки фінансування повинні відображати різні функції, організації та потреби сектора. Стратегії фінансування великих громадських організацій, що надають послуги, та малих організацій територіальних громад можуть відрізнятися одна від одної. Можуть бути ефективними як прямі, так і непрямі засоби надання підтримки. • Потоки фінансування мають надходити з довгострокових, стабільних ресурсів (державних і приватних), аби громадські організації мали змогу прогнозувати рівні фінансування та складати плани на довгострокову перспективу. До визначення цих 1 Країни, що були включені до аналізу: Болгарія, Хорватія, Чеська Республіка, Німеччина, Угорщина, Поль- ща, Великобританія. Болгарія, врешті-решт, була виключена з аналізу через брак наявної інформації, необхід- ної для складання документу. 118 Міжнародні практики фінансування ОГС...
ресурсів, можливо, треба підійти певною мірою творчо, і в цьому можуть допомогти висновки, зроблені після проведення цього дослідження. • Механізми фінансування повинні доповнювати один одного, а не конкурувати. Наприк- лад, організації, через які надаються гранти, або організації-посередники не повинні конкурувати з громадськими організаціями, яким вони мають надавати підтримку. • Незважаючи на те, що певні джерела доходу є менш важливими з точки зору загальних доходів сектора, їх відсутність чи наявність може суттєво змінити умови життєздатності громадських організацій (принцип «чим менше, тим більше»). • Стратегія має бути розроблена на довгострокову перспективу (8–10 років) і передбачати поступовий розвиток різних механізмів на основі один одного (наприклад, впровадження податкових пільг після перевизначення статусу суспільно корисних організацій). • Поведінка платників податку, громадських організацій та органів державної влади в будь-якій країні визначається в основному культурно-історичними традиціями. Однак продумана податкова політика може ґрунтуватися на можливостях, які відкриваються в середовищі, що постійно змінюється, та створювати стимули, які здатні успішно змінювати поведінку. • Держава повинна здійснювати інвестиції в розширення можливостей громадського сектора. Навіть у найбільш розвинутих країнах громадські організації потребують підтримки, аби робити очікуваний від них збільшений внесок у добробут суспільства. • Держава також повинна забезпечити наявність ресурсів для фінансування поточного розвитку громадського сектора – нових організацій, інновацій, розвитку послуг тощо. Зазвичай вони більш ефективно фінансуються з приватних джерел. Якщо таких джерел бракує, держава може або перебрати цю роль на себе, або надати стимули до виконання цієї ролі приватним гравцям. • Проблемою, що постає перед урядами, які зазнають фінансових труднощів, є те, як змусити приватні кошти працювати на добробут суспільства.
На основі вищенаведених висновків Дослідження рекомендує вжити таких основних кроків в напрямі розробки інституційної основи для фінансування громадських організацій в Україні:
Перевизначення статусу суспільно корисних організацій, що може служити основою для створення декількох податкових стимулів. Створення фонду на підтримку громадянського суспільства з метою розширення можливостей основних громадських організацій і запуску процесів їхнього розвитку на місцях. (Поступове) впровадження системи нормативного регулювання фінансування громадських організацій, що надають соціальні послуги, схвалені державою. Запровадження серйозного податкового стимулу до створення суспільно – корисних організацій, що матимуть ендавмент, який формуватиметься з приватних джерел. Запровадження «збору» з інвестицій типу «ґрінфілд» та інших інвестицій, включаючи приватизацію, який повинен витрачатися на надання підтримки в досягненні суспільно-корисних цілей. Має бути розглянута також можливість спрямування відсотка з обігу на благодійні пожертвування. Збільшення розміру, але насамперед спрощення та прискорення надання податкового кредиту донорам-фізичним особам. Повне звільнення від оподаткування пов’язаної зі статутними цілями економічної діяльності суспільно корисних організацій і часткове звільнення від оподаткування доходів від їх неосновної економічної діяльності. Міжнародні практики фінансування ОГС... 119
Ці рекомендації ґрунтуються виключно на результатах порівняльного дослідження й аналізу, проведених у рамках проекту. Аналіз був зосереджений передусім на визначен- ні доцільності різних моделей. Якщо стосовно будь-якої з рекомендацій будуть ухвалені стратегічні рішення, наступним етапом буде розробка бізнес-планів застосування обра- них методів (наприклад, аби визначити фінансові наслідки запровадження механізмів). Таким чином, необхідно провести додаткове дослідження, щоб порівняти дані та інфор- мацію, що дозволить посадовцям приймати обґрунтовані рішення щодо впровадження цих механізмів. 120 Міжнародні практики фінансування ОГС...
I. ВСТУП
Дане дослідження розроблене в рамках проекту «Громадянське суспільство – дослі- дження найкращих міжнародних практик», аби допомогти розробникам стратегій і поса- довцям, відповідальним за прийняття рішень в Україні, в розробці комплексної основи сто- совно надання фінансової підтримки громадським організаціям. За останні десять років усе більше країн Західної Європи, а також центрально- та східно- європейських країн проводять комплексну оцінку ролей та функцій громадських організа- цій2. Це відбулося передусім внаслідок подвійного тиску, який справляють фінансові обме- ження та зростаючий внесок громадських організацій у соціально-економічний розвиток3. Уряди Великобританії, Німеччини, Угорщини та Хорватії переглянули свої відносини з не- прибутковим сектором, аби забезпечити більш ефективну участь громадських організацій у наданні соціальних послуг і реалізації державної політики в багатьох інших напрямах – від боротьби з безробіттям до покращення системи освіти. Як частина цього перегляду ролі та функцій держави і неприбуткового (а також приватного) сектора були запроваджені різні механізми, спрямовані на сприяння фінансуванню громадських організацій державою, аби допомогти їм у здійсненні їхніх суспільних функцій. Дослідження спрямоване на вивчення деяких робочих прикладів – найкращих практик і винесених уроків – фінансування громадських організацій в Європі з огляду на їх застосов- ність в Україні. Протягом останніх двадцяти років громадські організації відіграють важли- ву роль в розвитку України. Вони здійснюють діяльність у різних напрямах, поліпшуючи до- бробут більшої або меншої частини населення країни – від надання допомоги тим, хто її по- требує, до експертних консультацій державі. Громадські організації – це приватні, само- стійні одиниці, які донині фінансувалися головним чином за рахунок іноземної допомоги. Це фінансування було дуже корисним на перших етапах розвитку українських громадських організацій, але, зрозуміло, це не може тривати довго. Існування громадських організацій і важливих послуг, які вони надають, значною мірою залежатиме від того, чи вважатимуть їх українці та Українська держава такими, що заслуговують на підтримку. Уже існують добрі приклади державної підтримки громадських організацій як на загаль- нодержавному (наприклад, у рамках державних програм), так і місцевому рівнях (напри- клад, практика «соціального замовлення»)4. Крім того, громадські організації займаються залученням коштів і економічною діяльністю задля заробляння додаткових коштів. Багато громадських організацій отримує підтримку з боку волонтерів зі своїх громад. Проте, аби забезпечити життєздатність громадських організацій, потрібен стратегічний, система- тичний підхід до фінансування громадських організацій, що враховує їхні потреби з огляду на забезпечення їх оптимальної роботи, а також можливостей, які відкривають куль- турний контекст і фінансове середовище. Дослідження спрямоване на сприяння розробці такого систематичного підходу шляхом проведення порівняльного аналізу низки успішних міжнародних практик, які можуть бути застосовними в Україні. Воно розглядає конкретні питання фінансування громадянського суспільства державою, органами місцевого самоврядування, бізнесом та іншими джере- лами, а також форми контрактних відносин між органами державної влади та громадськи-
2 У цілях цього дослідження під громадськими організаціями маються на увазі приватні, незалежні, неуря- дові, неприбуткові організації, створені головним чином у формі громадських асоціацій і фондів, а також інші організаційно-правові форми, як-от: неприбуткові організації чи установи, залежно від підпорядкованості. 3 Див., наприклад, Нільда Буллен і Катерина Хадзі-Мічева: Останні тенденції державного регулювання та са- морегулювання рівнів звітності та прозорості діяльності неприбуткових організацій в ЄС, Європейська Комісія, 2009 р. (Nilda Bullain and Katerina Hadzi-Miceva: Recent trends in the public and self-regulation of accountability and transparency of nonprofit organizations in the EU, European Commission, 2009). 4 «Соціальне замовлення» являє собою відносно поширену форму підтримки громадських організацій на місцевому рівні в рамках цільових програм з надання міні-грантів. Міжнародні практики фінансування ОГС... 121
ми організаціями. Воно також надає конкретні рекомендації для розгляду українськими по- садовцями, відповідальними за прийняття рішень.
Структурна основа дослідження Для цього конкретного дослідження була розроблена наступна структурна основа. Ме- тоди та характеристики кожного виду взаємодії, перераховані в першому і другому стовп- чиках, оцінювалися у зв’язку з тематикою верхнього рядка. Для кожної обраної країни про- водиться аналіз за тими самими критеріями, що й ті, які перераховані в таблиці.
Націо- Роль гро- Фінансово- Культурно- Приклади, нальні мадських Заува- правова історичні найкращі особли- організа- ження база умови практики вості цій Механізми фінан- сування
Взаємодія з Соціальне конт- державою рактування
Альтернативне фінансування
Приватні пожерт- вування за вико- ристання інститу- ціоналізованого механізму Взаємодія з Пожертвування приватним приватних юри- сектором дичних осіб Пожертвування фізичних осіб Заробляння до- ходу
Пояснення: • Під механізмами фінансування ми маємо на увазі підтримку, що надається громадським організаціям безпосередньо з бюджету, переважно у формі державних грантів, а також у формі субсидій та внесків у натуральній формі як на загальнодержавному, так і місцевому рівнях. • Під соціальним контрактуванням ми маємо на увазі шляхи залучення урядом громадських організацій до надання послуг в галузі соціальної політики, приміром, послуг у сфері освіти, культури чи соціальних послуг, що надаються на основі регульованої конкурсної процедури. • Під альтернативними механізмами фінансування ми маємо на увазі методи державного фінансування, які не можуть бути віднесені до традиційних схем надання грантів та укладання контрактів, а саме так званий механізм «відсоткової філантропії» чи використання частини доходів від приватизації державного майна або інших державних доходів для формування ендавментів громадських організацій. • Залучення приватних благодійних пожертвувань шляхом використання інституціоналізованих механізмів включає створення організацій різних форм 122 Міжнародні практики фінансування ОГС...
власності, аби спрямовувати ресурси, що надходять від приватних донорів, до громадських організацій та інших набувачів благодійної допомоги. • Благодійні пожертвування юридичних осіб охоплюють широкий діапазон фінансової та нефінансової підтримки, яку компанії надають громадським організаціям, а також стратегічні партнерства та інші форми співпраці між прибутковими і неприбутковими гравцями. • Благодійні пожертвування фізичних осіб стосуються деяких методів пожертвувань, за допомогою яких фізичні особи можуть надавати громадським організаціям фінансову підтримку та підтримку в натуральній формі. Ми не включили волонтерство до цього дослідження, хоча його можна розглядати як складову індивідуальної філантропії. • Заробляння доходу стосується доходів громадських організацій від членських внесків, продажу послуг і товарів, здачі в оренду приміщень, інвестування активів та інших видів економічної чи підприємницької діяльності. Заповнені таблиці служать підґрунтям для синтезу, що забезпечує легкість порівняння основних характеристик кожної країни. На основі цієї інформації здійснюється аналіз пе- реваг та недоліків чи ризиків, пов’язаних з використанням різних механізмів фінансування, при цьому забезпечується урахування особливостей кожної країни. Це дозволяє зробити відповідні висновки та розробити рекомендації щодо можливого використання результатів такого аналізу в Україні.
Методологія дослідження Кабінетне дослідження. У ході дослідження був проведений огляд наявної англійської, угорської, чеської та словацької літератури й інформації, поданої цими мовами, стосовно механізмів фінансування, включаючи порівняльні дослідження та звіти, а також матеріали щодо обраних країн. Це охоплювало: • національне законодавство в сфері фінансування громадських організацій; • порівняльний аналіз законодавства експертними організаціями, як-от: Міжнародний центр некомерційного права і Європейський центр некомерційного права; • показники країн, звіти про них та їх оцінки, надані міжнародними організаціями, як- от, серед інших, USAID, Світовий альянс громадянської участі Civicus, Університет ім. Джона Хопкінса, Європейська мережа досліджень у галузі філантропії (ENROP), Європейський центр фондів (EFC); • звіти за результатами досліджень і дослідження різних механізмів фінансування; • статті на цю тему у відповідних журналах, наприклад, «Міжнародний журнал некомерційного права», журнал «Альянс»; • статистичні дані (за наявності). Огляд літератури додається наприкінці дослідження.
Польове дослідження. Експерт Координатора проектів ОБСЄ в Україні здійснив п’ять поїздок до України та її територією, під час яких на регіональних форумах зустрівся з 225-ма особами, які представляли національні громадські організації, органи місцевого самоврядування та підприємства, а також інші зацікавлені сторони, яким він повідомив висновки, зроблені після проведення дослідження в рамках Проекту «Сприяння розробці інституційної бази фінансування громадянського суспільства в Україні». Форуми, організовані у формі «круглих столів», були проведені в Сімферополі, Одесі, Києві, Львові та Донецьку. Ці форуми були дуже важливими з точки зору розуміння контексту та вибору відповідних прикладів і рекомендацій. Вони продемонстрували існуючу культурну тенденційність (наприклад, певний ступінь недовіри та/чи упередженості серед різних секторів), а також висвітлили важливі принципи, про які необхідно пам’ятати при розробці Міжнародні практики фінансування ОГС... 123
політики, як-от необхідність проведення аналізу впливу конкретних заходів, які здійснює держава, на розвиток громадських організацій. Загалом форуми підкреслили важливість участі у розробці політики, в результаті чого буде підвищена якість і полегшена реалізація стратегічних рекомендацій.
Країни, включені до аналізу. Ми запропонували провести дослідження в групі країн, різні моделі яких є достатньо відмінними одна від одної, але при цьому у відповідних аспектах можуть бути адаптовані до умов, що існують в Україні. Основним критерієм відбору було існування й активне функціонування в них механізмів надання підтримки громадським організаціям з державних бюджетів та/чи механізмів, що стимулюють приватну філантропію й самостійне отримання доходів від оподаткування, а також за використання інших інноваційних методів. Додаткові критерії включали: існування культурно-історичних умов, подібних до тих, що існують в Україні, принаймні в деяких аспектах; представлення як Східної, так і Західної Європи та наявність даних/інформації, достатніх для проведення аналізу. На основі вищенаведених критеріїв були обрані та розглянуті вісім країн, п’ять з яких представлені в дослідженні5. Чотири являють собою континентальну європейську модель розвитку громадського сектора в країнах, орієнтованих на посилення ролі держави, а отже, вони є подібними до українського культурно-історичного контексту. Крім того, в досліджен- ня включена Великобританія як джерело найкращих практик та інноваційних ідей. Незважа- ючи на те, що ці країни знаходяться на різних рівнях економічного розвитку та розвитку гро- мадянського сектора, а також на різних етапах розвитку самої системи фінансування гро- мадських організацій, у них є практики, які можуть розглядатися як придатні для України за існуючих умов. Був проведений поглиблений аналіз трьох країн: Угорщина – має неприбутковий сектор майже такого самого розміру, що й Україна (65000 організацій), має соціалістичне минуле та являє собою «міст» між Сходом і Захо- дом. З-поміж країн Центральної та Східної Європи Угорщина має найбільш розвинуту сис- тему державного фінансування (на всіх рівнях). Як наслідок, вона краще за всіх навчилася використовувати ці механізми фінансування. Хорватія – являє собою маленьку країну на Балканському півострові, культурні осо- бливості якої, проте, є подібними до тих, що мають країни Центральної та Східної Євро- пи. Так само, як Україна (та на відміну від Угорщини), вона отримувала значні кошти з-за кордону, які також спрямовувалися на фінансування її громадських організацій. Тому гро- мадський сектор Хорватії наразі знаходиться більш-менш на такому самому рівні розвит- ку, як і в Україні. Водночас Хорватія має активно функціонуючий механізм фінансування та сприяння розвитку громадських організацій із застосуванням стратегічного підходу. Німеччина – враховуючи історичний розвиток, Німеччина багато в чому є унікальним прикладом, але з точки зору культури, у спробах, які вона наразі робить, аби узгодити ін- тереси прогресивної, проте потужної центральної влади з висхідними ініціативами грома- дян, є подібною до України. Також цікавим прикладом для України є ініціативи, які нещодав- но з’явилися в Німеччині, аби розв’язати фінансові проблеми, що постали перед державою загального добробуту, шляхом активізації приватної філантропії. Великобританія – є країною загального права, яка має більш різноманітні практики і більш глибоке історичне коріння, ніж країни континентальної Європи. Однак вона завжди була лідером у запровадженні позитивних практик регулювання, філантропії та підприєм- ництва, що служили як модель для країн Західної, Центральної та Східної Європи. Доціль- но розглянути та запозичити якщо не всі практики, то принципи, які лежать в основі цих практик. 5 Крім наведених країн також розглядалися Болгарія й Естонія. 124 Міжнародні практики фінансування ОГС...
Чеська Республіка – шлях, який обрала для себе Чеська Республіка в напрямі розвитку громадських організацій, багато в чому відрізняється від шляхів, якими рухаються її сусіди. Це привело до запровадження практик, які можуть виявитися більш ефективними, ніж «типо- ве» рішення країн Центральної та Східної Європи (наприклад, запровадження внутрішнього сектора фондів, що надають гранти, або ваучерів при соціальному контрактуванні). Структура дослідження Дослідження складається із Вступу та наступних п’яти основних Розділів. Розділ II надає основу для розуміння механізмів фінансування громадських організацій. Він: (a) описує різні європейські моделі розвитку громадського сектора та їх взаємозв’язки з державою (b) містить огляд фінансової життєздатності громадського сектора; (c) окрес- лює ресурси, аби провести оцінку джерел доходів громадських організацій; (d) більш де- тально описує особливості трьох основних категорій доходу громадських організацій: фі- нансування з боку держави, фінансування з боку приватного сектора та за рахунок заро- блених коштів. Розділ III включає найбільш важливі загальні висновки стосовно ефективності механіз- мів фінансування громадських організацій, яких його автор дійшов, провівши порівняльне дослідження. В цих висновках викладено те корисне, чому можна повчитися у країн, які ми проаналізували, і вони загалом допомагають зрозуміти розділи, присвячені цим країнам. Розділ IV складається з п’яти підрозділів, в кожному з яких міститься детальний аналіз країни (Угорщини, Хорватії, Німеччини, Великобританії, Чеської Республіки) відповідно до описаної вище основи дослідження. Розділ V узагальнює основні висновки, які ґрунтуються на описах країн, і надає основу для рекомендацій. Розділ VI надає конкретні рекомендації для розгляду українськими розробниками стра- тегій. Міжнародні практики фінансування ОГС... 125
II. РОЗУМІННЯ МЕХАНІЗМІВ ФІНАНСУВАННЯ ГРОМАДСЬКИХ ОРГАНІЗАЦІЙ
II.1. Моделі розвитку громадського сектора в Європі6 Якщо розглядати розвиток громадських організацій та їх зв’язок зі своїми суспільства- ми, європейський простір не є однобічним. Залежно від їхніх культурних7, релігійних тради- цій, правової та податкової бази, ролі у світі та регіоні8 тощо, різні держави застосовують доволі різні підходи до визначення поточної та передбачуваної ролі й функції громадських організацій. З огляду на оцінку, про яку йдеться, питання стосовно того, яким є бачення ролі гро- мадського сектора в розвитку країни, видається важливим і для України. Відповідь на це питання може вплинути на вибір відповідних механізмів фінансування. Також необхід- но буде вирішити, наскільки важливу роль у цьому процесі розвитку бажатиме чи пови- нна буде відігравати держава та відіграватимуть інші сектори й зацікавлені сторони. Ме- тою цього розділу є демонстрація за допомогою певних прикладів того, яким чином єв- ропейські країни підійшли до питання ролі та фінансової життєздатності громадських ор- ганізацій. Незважаючи на те, що в різних європейських країнах застосовується широкий ряд мо- делей забезпечення фінансової життєздатності громадських організацій, ми можемо зна- йти спільні чинники, що потребують оцінки, перш ніж приступати до аналізу самих моде- лей. Правова база справляє доволі великий вплив на поширеність певних механізмів (як-от створення податкових стимулів задля сприяння новій філантропії, наприклад, у Німеччині – див. нижче). Культурно-історичні традиції можуть справляти вплив як у позитивному (за- гальний рівень благодійних пожертвувань і відповідальності фізичних осіб – громадян Ні- дерландів9), так і в негативному напрямі (як-от загальне очікування від держави з боку угор- ського суспільства надання широкого спектра послуг, так само, як це було за часів соціаліз- му10). Політико-економічна ситуація, що склалася у цих країнах, також впливатиме на діяль- ність громадських організацій і їхню взаємодію з різними гравцями (у країнах, що є еконо- мічно більш потужними, спостерігається зменшення тенденції до порушення прав людини у порівнянні з країнами, що знаходяться в гіршій економічній ситуації11). У наступному розділі проводиться аналіз різних європейських моделей у двох основних аспектах – за рівнем незалежності та інституціоналізації. Аби полегшити вибір конкретних заходів, які можуть бути вжиті в Україні, була обрана модель Європейського центру неко- мерційного права (ЄЦНП), що на основі відповідних параметрів дозволяє поділити громад- ські сектори на категорії.
6 В основу цього розділу покладена інформація, надана Європейським центром некомерційного права (ЄЦНП), включаючи проект дослідження «Державне фінансування неурядових організацій в Європі» («Public Financing of Non-governmental Organizations in Europe»), що знаходиться на стадії публікації. Інформація надана Нільдою Буллен (Nilda Bullain) і Катериною Хадзі-Мічевою (Katerina Hadzi-Miceva) з ЄЦНП. Цитати використані з дозволу авторів. 7 У Великобританії, наприклад, благодійні організації з’явилися декілька сотень років тому, а законодавство в сфері благодійництва вперше було ухвалене в 1601 році з метою захисту приватної власності, що спрямову- валася на допомогу громаді. 8 Колишні колоніальні держави, наприклад, є більш схильними до заохочення громадських організацій до участі в процесі міжнародного розвитку. 9 http://www.giving.nl/, за даними GINPS. 10 Угорський тижневик «Figyelő», вип. 50/2010, Габор Ламберт, «Особливості угорців і їхня готовність почати з початку» (Gábor Lambert The characteristics of Hungarians and willingness to re-start). 11 Інглхарт Рональд Ф. і Крістіан Вельцель. Модернізація, культурна зміна і демократія: послідовність люд- ського розвитку (Inglehart, Ronald F. and Christian Welzel, 2005. Modernization, cultural change, and democracy : the human development sequence). 126 Міжнародні практики фінансування ОГС...
Шкала незалежності стосується самостійного управління громадськими організація- ми своєю діяльністю незалежно від держави чи інших учасників (наприклад, церкви, полі- тичних партій), що виявляється у спроможності громадських організацій мобілізуватися та мобілізувати свої громади, отримувати фінансову підтримку, необхідну для досягнення ці- лей їхньої діяльності, надавати послуги, що не субсидуються або субсидуються частково, розвивати навички конкуренції тощо. По суті, це ступінь їх спроможності визначати пріори- тети та працювати відповідно до потреб і цілей своєї діяльності, а не на основі пріоритетів, визначених державою чи іншими владними структурами. Інституціоналізація – це спроможність неприбуткового сектора реалізовувати проек- ти та надавати послуги замість держави, тобто потенціал сектора як надійного та відпові- дального партнера держави в забезпеченні суспільства товарами та послугами. Це вклю- чає, приміром, кількість зареєстрованих організацій, їхні середні бюджети, частку громад- ських організацій, що є суспільно корисними, їх фізичну інфраструктуру, а також їхні люд- ські та фінансові ресурси тощо.
Моделі розвитку громадського сектора в Європі
БІЛЬШ НЕЗАЛЕЖНІ
СОЦІАЛ-ДЕМОКРАТИЧНА / ЛІБЕРАЛЬНА / СКАНДИНАВСЬКА АНГЛОСАКСОНСЬКА
МЕНШ ІНСТИТУ- БІЛЬШ ІНСТИТУ- ЦІОНАЛІЗОВАНІ ЦІОНАЛІЗОВАНІ МОДЕЛЬ, ЯКА ЗАСТОСОВУЄТЬСЯ КОРПОРАТИСТСЬКА / В КРАЇНАХ, ЩО РОЗВИВАЮТЬСЯ КОНТИНЕНТАЛЬНА (СЕРЕДЗЕМНОМОР’Я І ЦЕНТРАЛЬНОЇ ТА СХІДНОЇ ЄВРОПИ)
МЕНШ НЕЗАЛЕЖНІ
Джерело: Європейський центр некомерційного права
Корпоратистська (континентальна) модель. У цій моделі громадські організації бе- руть активну участь у наданні соціальних послуг і можуть бути їх основними постачальни- ками, як у випадку Німеччини, де за принципом субсидіарності перевага віддається послу- гам, що надаються на рівні громади. Водночас держава в цілому бере на себе фінансу- вання надання послуг, як правило, за рахунок оплати послуг третьою стороною або шля- хом надання субсидій основним постачальникам і їх зацікавленим групам. Таким чином, на державне фінансування припадає добра половина (зазвичай, 55–75%) доходів сектора. Отже, громадський сектор є високоінституціоналізованим, а його поточна підтримка зна- чною мірою залежить від держави. Оскільки державі також потрібен громадський сектор, між двома секторами виникає така собі взаємозалежність, яка в Європейському центрі не- комерційного права отримала назву «ієрархічної»12. Різновид цієї моделі існує у Франції, де уряд також лише нещодавно розпочав перегляд своїх стратегій субсидування громадсько- го (асоціативного) сектора з огляду на його «солідаризуючу» функцію, розміщуючи гранти і контракти на основі результатів реалізації проектів і надання послуг.
12 Державне фінансування неурядових організацій в Європі (Public Financing of Non-governmental Organizations in Europe), ЄЦНП (у процесі публікації). Міжнародні практики фінансування ОГС... 127
Ліберальна (англосаксонська) модель. Це модель, типова для англосаксонських країн (в Європі це, передусім, Великобританія; див. також Канаду), хоча деякі її елемен- ти, зокрема принцип контрактування, поширилися і на континент (наприклад, Нідерланди). Відповідно до цієї моделі громадські організації також беруть активну участь в наданні соці- альних послуг, однак вони менше залежать від держави. Навіть незважаючи на те, що отри- мують фінансування за контрактами, вони мають міцні зв’язки з громадами, а їхні власні активи, доходи від філантропічної та основної діяльності дають їм змогу також надійно від- стоювати громадські інтереси. В основі відносин між громадськими організаціями та дер- жавою лежить так звана «Партнерська угода» (Compact), що являє собою загальну політич- ну угоду. При цьому ключову роль у наданні соціальних послуг також відіграють контрак- ти. Застосування в ліберальній моделі принципу найкращої вартості13 робить громадський сектор вельми професійним і конкурентоспроможним. Застосовуються різні моделі адмі- ністрування, підзвітності та забезпечення прозорості діяльності, широко застосовуються складні схеми адміністрування, аби підвищити ступінь довіри серед усіх зацікавлених сто- рін. Хоча в цих країнах здійснюється значне фінансування з боку держави (35–55%), також істотною є частка інших ресурсів, що робить сектори більш придатними для ролі партнерів держави. Соціал-демократична (скандинавська) модель. Це модель, типова для країн Скандинавії. Відповідно до цієї моделі основним постачальником послуг є держава, а громадські організації, як правило, виконують «представницькі» функції (тобто є куль- турними, спортивними організаціями, організаціями за інтересами, які в основному служать інтересам своїх членів і громад), не беручи участі у наданні соціальних послуг. Навіть незважаючи на те, що майже всі соціальні послуги тут фінансуються та поста- чаються державою, на відміну від «статистської» моделі колишнього радянського бло- ку, спостерігається високий рівень соціального капіталу й участі у житті громадянсько- го суспільства (з усіх країн Європи саме в цих країнах спостерігається найвищий рівень волонтерства). Відносини між цими двома секторами можна охарактеризувати гаслом «живи і дай жити іншим», внаслідок чого рівень державного фінансування громадських організацій є низьким (25–35%). Водночас громадяни та громадські організації беруть активну, безпосередню участь у формуванні політики як на місцевому, так і центрально- му рівнях (все частіше за допомогою засобів інформаційних технологій). З точки зору інституціоналізації ці сектори є менш розвинутими, адже їм не потрібно здійснювати складні операції з надання послуг, при цьому завдяки всеохоплюючому характеру демо- кратичних практик необхідність мати таку властивість зменшується навіть при відстою- ванні інтересів. Можна бачити, що між двома більш незалежними європейськими моделями – соціал- демократичною скандинавською та ліберальною англосаксонською – існує велика відмін- ність. У країнах, де застосовується ліберальна модель, громадський сектор не лише гото- вий визначити конкретну потребу, але й певною мірою спроможний задовольнити цю по- требу. Відповідно до скандинавської моделі основна роль у задоволенні реальних потреб належить державі, громадські ж сектори частіше виступають наглядачами та відстоюють ін- тереси своїх учасників, а їх фінансування значною мірою залежить від приватних благодій- них пожертвувань і членських внесків. Модель, яка застосовується в країнах, що розвиваються (Середземномор’я і Центральної та Східної Європи). У країнах Середземномор’я (наприклад, у Греції, на Кіпрі, в Португалії) і в більшості країн Центральної та Східної Європи відносини між дер- 13 Приклад визначення цього терміну у Великобританії: «Найкраща вартість – це обов’язок кожного орга- ну місцевого самоврядування «забезпечити процес постійного вдосконалення методів виконання ним сво- їх функцій на основі сукупності принципів економії, доцільності й ефективності». Забезпечення цього проце- су включає аналіз витрат, досягнення максимальної окупності видатків і відповідності послуг потребам гро- мад і пріоритетам, визначеним такими органами» http://www.idea.gov.uk/idk/core/page.do?pageId=5184420 128 Міжнародні практики фінансування ОГС...
жавою та громадськими організаціями і досі розвиваються. Вони характеризуються низь- кими рівнями державного фінансування; ігноруванням громадських організацій або їх за- лежністю; переважанням традицій, родинних зв’язків або політичних інтересів у фінансу- ванні й участі громадських організацій у наданні послуг. Моделі формування соціальної політики є, як правило, залишковими та недорозвиненими, оскільки соціальні проблеми і досі розв’язуються на рівні сім’ї та соціальних мереж. Проте з розвитком економіки та громадського сектора цих країн вони, ймовірно, почнуть застосовувати одну з трьох ін- ших моделей14.
Відносини з державою та державне фінансування
БІЛЬШ НЕЗАЛЕЖНІ
«Автономність». Частка «Партнерство» (контракти). державного фінансування Частка державного складає 20-30% фінансування складає 35-55%
МЕНШ ІНСТИТУ- БІЛЬШ ІНСТИТУ- ЦІОНАЛІЗОВАНІ ЦІОНАЛІЗОВАНІ Частка державного «Регулювання» (підтримка) фінансування складає до 20% «Субсидіарність» (нормативна підтримка). Частка державного фінансування складає 60-70%
МЕНШ НЕЗАЛЕЖНІ
Джерело: Європейський центр некомерційного права
II.2. Фінансова життєздатність громадських організацій в Європі Незалежно від сфери їхньої діяльності управління ефективними громадськими органі- заціями здійснюється за операційними й організаційними принципами, які, в цілому, є поді- бними до принципів управління комерційною діяльністю. Визначення стратегічних цілей та довгострокове планування підвищує результат і стратегічне використання коштів; систем- не та продумане управління забезпечує ефективність і зменшений ризик для донорів; при здійсненні передбачуваної та фінансово надійної діяльності зменшується нестабільність і підвищується якість роботи. В більшості старих держав – членів ЄС такі системи, як прави- ло, є більш розвинутими, тоді як у випадку нових держав – членів спостерігається нижчий рівень інституційної готовності до забезпечення ефективної роботи громадських організа- цій, навіть якщо досягнуто істотного розвитку. Декілька нових держав-членів усвідомили цей недолік своїх третіх секторів і про- тягом останніх десятиліть систематично здійснюють інвестиції в розвиток своїх гро- мадянських суспільств. Навіщо вони це роблять? Громадські організації в цих країнах зробили свій внесок у розв’язання серйозних соціальних проблем, таких як безпри- тульність, безробіття, соціальний захист інвалідів або дітей. Вони надавали послуги, які держава не спроможна була надати, а також розробили інноваційні моделі, що ви- явилися більш ефективними, ніж існуючі послуги. Громадські організації часто прова- дять соціально-інноваційну діяльність у сфері освіти, соціального захисту дітей, інва- лідів, осіб похилого віку тощо, перебираючи на себе ризики, пов’язані з ініціативами 14 Наприклад, Угорщина і Чеська Республіка вочевидь рухаються до корпоратистської моделі, Естонія та Словаччина схиляються до ліберальної моделі, а Словенія й Латвія – до скандинавської. Міжнародні практики фінансування ОГС... 129
реформ, від органів центральної та місцевої влади. Держава часто сприяє збільшен- ню масштабу та поширенню успішних інновацій: послуги стали основою для реалізації основної державної реформи. Отже, можна говорити про те, що інвестиції в розвиток громадянського суспільства найчастіше здійснюються з метою підвищення ефектив- ності послуг, що надаються державою на національному та місцевому рівнях. Крім того, в деяких випадках, наприклад, у випадку Хорватії, влада також визнала важ- ливість розвитку громадянського суспільства з точки зору забезпечення громадянської ак- тивності, усвідомивши, що свідомість і активність громадян є важливими передумовами сталого демократичного розвитку. Ось бачення хорватського Національного фонду розви- тку громадянського суспільства: «здійснюючи свою діяльність, Національний фонд намага- ється забезпечити громадянську активність у процесі розвитку сучасного, демократичного та неподільного суспільства в Республіці Хорватія»15 Однак уряди мають й інші мотиви розробки державних стратегій розвитку громадських організацій і запровадження різних механізмів розширення можливостей їхньої інфраструк- тури. Країни, вступ яких до ЄС є віддаленою перспективою, вдаються до цього, аби збіль- шити зовнішнє фінансування державних послуг (адже громадські організації можуть залу- чити істотні обсяги фінансування з боку приватного сектора на покриття витрат, пов’язаних з наданням послуг). Країни, які готові до вступу, та країни, що вже є членами ЄС, мають потужну мотивацію до розвитку відповідної інфраструктури та розширення можливостей (включаючи громадські організації), аби успішно вступити до ЄС і отримати його кошти (за- лежно від частки заявників, яким надано підтримку, держави-члени можуть отримати фі- нансування з бюджету ЄС в обсязі, що перевищує їхній внесок або принаймні є пропорцій- ним йому). Деякі країни підтримують розвиток громадянського суспільства із застосуван- ням доволі творчого підходу, багатого на інновації навіть у порівнянні зі старими державами-членами. Ці інновації включають чеську модель ендавментів, угорську схе- му розподілу відсотків або концепції естонського чи хорватського Національного гро- мадського фонду. Всі вони описані в цьому Дослідженні. Мета цього документу – про- аналізувати, якою мірою ці підходи насправді сприяли зміцненню громадянського су- спільства та наскільки ефективними вони виявилися в досягненні відповідних і цільо- вих результатів. Державна підтримка громадських організацій також спрямована на розв’язання осно- вної проблеми, а саме – відсутності фінансування інституційних чи адміністративних ви- трат (фінансування, яке громадські організації можуть використовувати для покриття сво- їх поточних витрат, таких як заробітна й орендна плата, а також витрат, пов’язаних з органі- заційним розвитком і розвитком послуг, наприклад, розвитком інформаційних технологій, тренінгами, залученням коштів (фандрейзингом) тощо). В більшості нових держав-членів, а також в інших європейських країнах найбільш типовим є обмежене фінансування проек- тів, тоді як рівень необмеженого фінансування є доволі низьким16. Таке фінансування може надходити з будь-яких джерел, проте тут існують перешкоди: відсутність прозорих і ефек- тивних механізмів благодійних пожертвувань з боку державних і муніципальних донорів; за- мала поширеність культури філантропії серед фізичних осіб; низький рівень корпоративно- го громадянства у випадку підприємств. Низький рівень такого фінансування є ключовою проблемою для більшості громадських організацій, оскільки непередбачувані зміни серед- овища (наприклад, зміни в оподаткуванні, періодичності запрошень до участі в тендерах, вимогах щодо звітності тощо) можуть призвести до фінансових збитків, що становитимуть
15 http://zaklada.civilnodrustvo.hr/category/180/subcategory/182. 16 Обмежене фінансування означає кошти, які можуть використовуватися лише в цілях проекту, що фінансу- ється, а отже, не можуть залучатися до фінансування адміністративних витрат і витрат на розвиток; необмеже- не фінансування таких обмежень не має. 130 Міжнародні практики фінансування ОГС...
справжню проблему для менш фінансово стійких або неплатоспроможних громадських ор- ганізацій. Іншою проблемою, з точки зору життєздатності громадських організацій в но- вих державах-членах, є очікування з боку суспільства від неурядових17 і громадських організацій18 надання їхніми членами, що працюватимуть на добровільних засадах або за заробітну плату, нижчу за середню, безкоштовних послуг. Зазвичай громадськість не дуже прихильно ставиться до конкурентної заробітної плати (навіть у державному секто- рі), незважаючи на те, що перші громадські організації, які почали взаємодіяти з урядами їхніх країн та корпоративними секторами на основі контрактів, які виходили за межі бла- годійних пожертвувань, володіли вельми особливим ноу-хау та мали висококваліфікова- но спеціалістів. З метою підвищення життєздатності громадських організацій необхідним буде досягти зміни громадської думки та тоншого сприйняття суспільством громадських організацій та їхніх потреб.
II.3. Визначення джерел фінансування громадських організацій У наступній таблиці перераховані основні потенційні джерела фінансування громадських організацій. Тут діє такий загальний принцип: чим більше збалансований дохід, який отримує конкретна громадська організація з різних джерел, тим більш життєздатною вона вважається19.
Кожне з джерел, наведених у таблиці, можна охарактеризувати за різними параметра- ми. Єдина загальна відмінність полягає в тому, є джерело внутрішнім чи зовнішнім. З точки зору громадських організацій, це може означати різні способи дій та стратегії щодо залу- чення коштів і налагодження зв’язків. Іноземні джерела можуть включати іноземні державні та приватні джерела. Ці два види джерел, як правило, називаються «міжнародними донорами»20. Однак, з погляду громад- ської організації залучення коштів двосторонніх та багатосторонніх фінансових організацій, тобто з державних джерел, вимагає застосування дещо іншого підходу, ніж залучення ко- штів іноземних приватних донорів (наприклад, іноземних фондів). Іноземні приватні донори мають тенденцію до вступу в менш розгалужені, але тривалі- ші відносини. Водночас отримання доступу до коштів інших держав (як-от фінансування з боку ЄС) вимагає великих адміністративних можливостей, а також систем управління про- ектами та фінансами, що задовольняють вимогам донорів. У цьому випадку, як правило, за- стосування стратегічного підходу є важливішим, ніж дотримання бюрократичних формаль- ностей. У випадку таких донорів доступ до цих коштів і можливість отримання такого досту- пу має здебільшого «еліта» громадського сектора.
17 Лестер М. Салламон. Світове громадянське суспільство: виміри неприбуткового сектора (спільно з С. Войцехом Соколовскі та ін.). Том ІІ (Lester M. Sallamon: Global Civil Society: Dimensions of the Nonprofit Sector (with S. Wojciech Sokolowski and Associates), Volume II). 18 Визначення Світового банку: «термін «громадянське суспільство» стосується цілої низки неурядових і не- прибуткових організацій, що беруть участь у житті суспільства, представляючи інтереси та цінності своїх членів та інших осіб, виходячи з етичних, культурних, політичних, наукових, релігійних чи філантропічних міркувань. Та- ким чином, до громадських організацій належить ціла низка організацій: ініціативні групи громадян, неурядо- ві організації (НУО), профспілки, органи самоорганізації населення, благодійні організації, релігійні організації, професійні об’єднання та фонди». 19 Виходячи з результатів аналізу кількох тисяч (близько 15 000) громадських організацій, які протягом останніх 15 років брали участь у програмах Фонду розвитку громадянського суспільства Угорщини, можна зро- бити висновок про те, що, в ідеалі, громадська організація повинна отримувати доходи з принаймні шести різ- них джерел, на кожне з яких має припадати, як мінімум, 10% доходів. 20 При реалізації таких програм з розподілу грантів, як Pact, NDI, OSI тощо, може постати питання: відноси- ти їх до зовнішніх чи внутрішніх джерел. Поки рішення приймаються місцевими експертами в межах країни, ми вважаємо їх внутрішніми джерелами. Таблиця ресурсів Фонду розвитку громадянського суспільства (CSDF)
Джерела доходу
Внутрішні International
Обмежені Необмежені Разом Обмежені Необмежені Разом
Підтримка з боку дер- На центральному рівні жави
(На регіональному рівні)
На місцевому рівні
Підтримка з боку при- Інституціоналізована ватного сектора (на благодійні цілі)
Донори-юридичні осо- би Фізичні особи
Заробляння доходу Контракти з державою Міжнародні практики фінансування ОГС...
Контракти з муніципалі- тетами Контракти з юридични- ми особами Контракти з іншими громадськими органі- заціями
Доход від здійснення фінансових операцій
Членські внески
Інші джерела доходу 131
Усі права захищені© Фонд розвитку громадянського суспільства Угорщини, 2008 р. 132 Міжнародні практики фінансування ОГС...
Загалом у разі залучення іноземних коштів перед громадською організацією постає до- волі серйозна проблема – їй доводиться дотримуватися подвійної фінансово-правової сис- теми, включаючи подвійну схему звітування, аби забезпечити відповідність нормативно- правовим актам як своєї країни, так і країни-донора. Фінансування з місцевих джерел зазвичай є привабливим для ширшого спектра гро- мадських організацій, оскільки тут не існує мовних бар’єрів21, легше дотримуватися куль- турних традицій, а на здійснення початкових інвестицій, спрямованих на залучення коштів, як правило, витрачається менше часу. Однак ці джерела можуть бути доволі обмеженими. Нижче ми зосереджуємося лише на внутрішніх джерелах. По вертикалі в таблиці наведені три основні види джерел доходів: фінансування з боку держави, фінансування з боку приватного сектора та зароблені кошти. Ці види джерел є доволі відмінними з точки зору того, як вони впливають на життєздатність громадської ор- ганізації та як вона має поводитися, аби успішно залучити кошти. Державна підтримка включає всі форми фінансування громадських організацій за раху- нок державних коштів як на загальнодержавному, так і місцевому рівнях. Це включає гран- ти, контракти та схеми оплати послуг третьою стороною (див. розділ II.4). Слід зазначити, що, працюючи за державними контрактами, громадські організації фактично заробляють кошти, оскільки ці контракти передбачають оплату послуг, наданих громадськими органі- заціями державі або від її імені. Проте практика державного фінансування у країнах Цен- тральної та Східної Європи свідчить про те, що: a) між грантами та контрактами не існує чіт- кої відмінності, отже, якщо підтримка громадським організаціям надається фактично че- рез фінансування проекту чи інституційне фінансування, вони часто отримують цю підтрим- ку за контрактами, а не через гранти; b) навіть якщо контракт передбачає надання плат- них послуг, майже в кожному випадку громадським організаціям доводиться дотримува- тися умов, визначених державою, тобто вони обмежені в утворенні цін, визначенні термі- нів або інших договірних умов. Отже, незважаючи на те, що, технічно, державні контракти (включаючи муніципальні) можуть вважатися засобом заробляння коштів (за рахунок опла- ти послуг), громадські організації не можуть самостійно визначати умови надання ними по- слуг для отримання державного контракту фактично змушені залучати кошти так само, як і для отримання державного гранту. Фінансування з боку приватного сектора включає три основні види джерел: інституційне фінансування, тобто з боку приватних організацій; фінансування з боку компаній і фінансу- вання з боку фізичних осіб. До джерел фінансування з боку фізичних осіб ми включили так званий механізм «відсоткової філантропії»22, навіть незважаючи на те, що за його викорис- тання громадські організації отримують кошти фактично від держави. Причиною є те, що це джерело «поводиться» подібно до джерел приватних благодійних пожертвувань: саме платник податку, який є фізичною або юридичною особою, вирішує, «жертвувати» відсоток від суми податку з його чи її доходів і якщо жертвувати, то кому саме. Тому громадська ор- ганізація повинна отримувати відсоток від суми податку подібно до того, як вона отримує пожертвування з боку компанії чи фізичної особи. Що стосується зароблених коштів, то їх існує багато форм, але частіше за все вони включають плату за товари та послуги, яку громадська організація отримує від своїх спожи- вачів. Крім того, це може включати, наприклад, орендну плату за користування приміщен- нями, доходи від інвестицій, ліцензійні збори та багато іншого. Слід зауважити, що джере- ло цього виду доходів «поводиться» дещо інакше, аніж джерело, з якого громадська орга- 21 Європейські та інші іноземні фонди часто приймають пропозиції, оформлені лише англійською або фран- цузькою мовою, при цьому обмін інформацією за проектом також повинен відбуватися за використання цих мов. Більшість громадських організацій і досі не мають працівників і волонтерів, котрі б вільно володіли цими мовами. 22 Механізм відсоткової філантропії дозволяє платнику податків – фізичній чи юридичній особі передава- ти 1 або 2% від її податків відповідній НУО. Цей механізм діє в Угорщині, Словаччині, Польщі, Литві та Румунії. Міжнародні практики фінансування ОГС... 133
нізація шукає зовнішньої підтримки (тобто з боку держави, міжнародного донора, компанії чи приватного підприємця). Тут громадська організація, незалежно від виду її основної ді- яльності, навіть якщо послуга або товар, що продається, мають безпосереднє відношення до її основної діяльності, може одразу запропонувати щось конкретне, що має матеріальну цінність. Отже, «поведінка» цього виду джерела є набагато ближчою до звичайних ринкових механізмів, і для забезпечення його прибутковості й стабільності необхідно застосовувати інші методи адміністрування. До цієї категорії також належить окреме джерело фінансування, а саме: членські вне- ски, приналежність яких, за попередньою логікою, може видатися сумнівною, адже вони, як правило, не пов’язані з ринковими операціями, спрямованими на отримання прибут- ку. Проте, з точки зору адміністрування й отримання доходів, членські внески є подібними до інших видів оплати послуг: тут також працює схема «ти мені – я тобі», коли член платить за приєднання до асоціації, що пропонує певні переваги. Звичайно, на практиці у зв’язку з членськими внесками існує багато проблем, але це не змінює основних відносин між гро- мадською організацією та її членами. З точки зору життєздатності громадських організацій, всі три основні джерела ма- ють свої додану вартість і проблеми. Державна підтримка часто розглядається як ста- більне, потужне джерело, особливо якщо модель фінансування визначена законом або підзаконним актом. Тут спостерігаються найбільші бюрократичні тенденції, оскільки в цій сфері для забезпечення прозорості використання державних коштів застосовують- ся різні вимоги. Найбільші труднощі, як правило, виникають тоді, коли при перерозпо- ділі коштів з ЄС діє державний або напівдержавний механізм із застосуванням подвій- них бюрократичних вимог (європейського і національного рівнів). Кошти, як правило, спрямовуються на фінансування основної діяльності, а не інновацій і пілотних проек- тів з високим ступенем ризику, оскільки очікується, що кошти державного фінансуван- ня для цього не призначені. Фінансування з боку приватного сектора зазвичай є більш гнучким. На ринках соціаль- них послуг, що розвиваються, воно, як правило, являє собою джерело коштів, які можуть використовуватися для фінансування термінових, спеціалізованих і фінансово ризикованих проектів, тобто менш розвинуті чи нові громадські організації часто першочергово отри- мують таку допомогу. З іншого боку, залучення коштів, зокрема, фізичних осіб і досі зали- шається складним для більшості громадських організацій, що частково пояснюється недо- статнім досвідом, а частково – відсутністю віри в результативність пошуків коштів у людей. Однак досвід розвинутих країн свідчить про те, що єдиним по-справжньому надійним дже- релом фінансування НУО, що може забезпечити їхнє тривале існування, є підтримка з боку зацікавлених фізичних осіб – людей, які вірять в організацію. Питання зароблених коштів є більш складним. Зароблені кошти можуть допомогти гро- мадській організації профінансувати свої адміністративні потреби або потреби розвитку, які, відіграють дуже важливу роль у забезпеченні життєздатності громадської організації. В більшості країн на зароблені кошти припадає фактично основна частина доходів громад- ського сектора. Проте в країнах, в яких механізми державного контролю не функціонують належним чином та/чи існує високий ступінь ухиляння від сплати податків, підприємства громадських організацій можуть незаконно використовуватися певними гравцями як при- ховані з метою отримання ними статусу юридичних осіб, звільнених від сплати податків, чого зазвичай побоюються законодавці. З іншого боку, в більшості нових держав – членів ЄС і в старих державах-членах здійснюються відповідні заходи для усунунення ризику такої поведінки. Інші форми, як-от членські внески, нараховані відсотки23 тощо, як правило, явля- ють собою найбільш гнучкі джерела фінансування громадських організацій.
23 У Чеській Республіці існує особлива схема здійснення інвестицій в громадські організації – Balancovany Fond Nadací. 134 Міжнародні практики фінансування ОГС...
II.4. Державне фінансування громадських організацій24 В європейських країнах існує три основні механізми фінансування громадських органі- зацій з боку держави. Воно може здійснюватися шляхом надання прямої підтримки з бю- джету, тобто за рахунок субсидій чи грантів, укладання контрактів на надання послуг або так званої оплати послуг третьою стороною (див. табл. I). Цілі кожної з цих форм фінан- сування дещо відрізняються одна від одної. Гранти і субсидії, як правило, використовують- ся задля того, щоб сприяти реалізації державної політики та часто також спрямовані на під- тримку організацій, які отримують кошти. У випадку контрактування держава «замовляє» певну послугу, в ідеалі, здійснюючи її закупівлю або за використання іншого конкурсного механізму. У разі оплати послуг третьою стороною держава, по суті, доручає надати послу- гу зовнішньому постачальнику за визначеною ціною, визначеної якості та на основі інших критеріїв.
Пряма підтримка з бюджету Найбільш поширеною формою фінансування діяльності громадських організацій є на- дання прямої підтримки з бюджету. Двома основними формами фінансової підтримки є субсидії та гранти (також може надаватися в натуральній формі, наприклад, у формі примі- щень для надання послуги)25. Субсидії призначені для певних громадських організацій і часто надаються як ін- ституційна підтримка. У випадку субсидій конкурси, як правило, не проводяться, а гро- мадська організація, котра їх отримує, може розраховувати на підтримку, як це визна- чено в законодавстві. Так склалося історично, що в багатьох країнах Європи і СНД суб- сидії надаються різним товариствам, що представляють соціальні групи, наприклад, То- вариству сліпих, Товариству глухих тощо. (Слід зазначити, що моделі субсидування від- дається менша перевага з точки зору прозорості та контрольованості державного фі- нансування, оскільки їй бракує відкритої та справедливої конкуренції, а також критері- їв ефективності, за якими здійснюється фінансування, які б забезпечили окупність на- даних коштів.) Гранти – це форма підтримки громадських організацій з державного або місцевих бю- джетів. На відміну від субсидій, гранти, як правило, передбачають проведення конкурсів на отримання фінансування. Громадські організації зазвичай фінансуються, аби реалізувати конкретний проект відповідно до чітко визначених сфери діяльності, термінів і статей бю- джету, тобто їх звітування ґрунтується на тому, чи використані кошти відповідно до запро- понованого бюджету. У випадку надання грантів держава виділяє певну суму, що за певних умов надається громадським організаціям як гранти на реалізацію їхніх проектів. Держава визначає цілі, а не засоби. Вона фактично запрошує громадські організації до пропозиції найкращих ідей стосовно того, як досягти цілі. Заявки може подавати велика кількість гро- мадських організацій, та лише декілька з них можуть отримати гранти на реалізацію сво- їх проектів. Громадські організації структурують свої витрати відповідно до форми заявки на отримання гранту, як правило, відокремлюючи прямі витрати за проектом від непрямих. Громадські організації, які отримують гранти, є підзвітними державі (так само, як у випадку будь-якого іншого донора).
24 В основу цього розділу покладена інформація, надана Європейським центром некомерційного права (ЄЦНП), включаючи проект дослідження «Державне фінансування неурядових організацій в Європі» («Public Financing of Non-governmental Organizations in Europe»), що знаходиться на стадії публікації. Інформація нада- на Нільдою Буллен (Nilda Bullain) і Катериною Хадзі-Мічевою (Katerina Hadzi-Miceva) з ЄЦНП. Цитати викорис- тані з дозволу авторів. 25 Див. також: Альтернативне державне фінансування в Угорщині. Міжнародні практики фінансування ОГС... 135
Контрактування/закупівля послуг Іншою формою підтримки є закупівля послуг громадської організації або укладання з нею контракту. Відносини, що виникають у цьому випадку, є відносинами не між донором і набувачем допомоги, а між сторонами контракту. Метою цього є надання конкретної дер- жавної послуги за допомогою громадської організації. Держава, якій відомо, що саме по- трібно робити, та яка, напевно, навіть визначила детальні умови надання послуги (напри- клад, мінімальні), шукає когось, хто надасть послугу найвищої якості та за мінімальною ці- ною, отже, громадським організаціям доводиться змагатися з іншими постачальниками. Таким чином, зважаючи на існування, як правило (що є належною практикою), тендерної процедури, громадські організації повинні подавати пропозиції (а не заявки), а перемо- жець буває лише один. В основі структури вартості пропозиції лежить зазвичай плата за послуги відносно якоїсь умовної одиниці (наприклад, плата за послугу з одержувача або на день), сама ж плата за послуги включає прямі та непрямі витрати.
Оплата послуг третьою стороною Іншим способом надання соціальних послуг недержавними постачальниками є так звана оплата послуг третьою стороною26. За схемою оплати послуг третьою сто- роною держава виступає «третьою стороною», яка оплачує вартість послуги, наданої громадською організацією одержувачу цієї послуги – або безпосередньо громадській організації, як це відбувається при оплаті послуг на душу населення, або через одер- жувача послуги, як це відбувається при оплаті послуг за допомогою ваучерів. Ці суми також виплачуються за надання державної послуги. Проте умови цих контрактів чіт- ко визначені в законодавстві. В цьому випадку держава визначає певний вид послу- ги (наприклад, медична допомога безпритульним у денному стаціонарі), а також умо- ви надання такої послуги та пов’язані з цим витрати. Таким чином, розмір плати за на- дання послуг не визначається за результатами домовленості або в пропозиції, а регу- люється законодавчо. У подальшому кожний постачальник, який задовольняє умовам чи критеріям, визначеним у законодавстві, отримує фіксовану винагороду за надання послуги кожному одержувачу. (Якщо громадська організація задовольняє зазначеним умовам, вона також може отримати ліцензію на надання послуги.) За цією схемою не- прямі витрати, як правило, не включаються до плати за послугу, замість цього нарахо- вується загальний відсоток накладних витрат, який може бути сплачений організації в повному обсязі або частково. Механізм оплати послуг за допомогою ваучерів також є одним із методів оплати послуг третьою стороною. Тут основна увага приділяється вибору одержувачів послуг або споживачів. Відповідно до цієї системи потенційні одержувачі послуг отримують ваучери, що надають їм право користуватися певними послугами безкоштовно. Постачальника по- слуги обирає саме її одержувач. Залучення всіх спеціалістів, що мають ліцензію/дозвіл на надання цих послуг, як правило, підлягає попередньому узгодженню. На основі ваучерів, зі- браних кожним постачальником послуги, держава виплачує йому фіксовану суму в рахунок оплати послуг, наданих кожному споживачу.
26 Стосовно цього терміну існують деякі суперечності. Уряди більшості країн СНД і Центральної та Схід- ної Європи вбачають у ньому субсидування, а не виплату винагороди за надані послуги (тобто оплату цих по- слуг). Це визначення походить із радянських часів, коли підтримка, яку держава надавала нижчим ешелонам влади та неурядовим структурам, мала виключно характер субсидування. В законодавствах багатьох країн цей вид оплати послуг і досі називається субсидуванням. Проте, на нашу думку, використання словосполу- чення «оплата послуг третьою стороною» сприятиме зміні погляду на недержавних постачальників послуг з боку держави. 136 Міжнародні практики фінансування ОГС...
Основні форми фінансування громадських організацій з боку держави
Надання грантів Державні закупівлі й Платежі третіх сторін і підтримки укладання контрактів
Реалізація державної Надання державних Мета Надання послуг державі політики послуг
В основному Відповідно Умови контракту Визначає держава визначає держава до законодавства
Основний принцип Найвища якість Дотримання вимог Найкращі ідеї та проекти відбору за найменшу ціну законодавства
Декілька власників Стан фінансування НУО Декілька заявників Один учасник тендеру ліцензії
Бюджет визначається Бюджет відповідно Структура Бюджет проекту розміром плати до нормативно- за послуги правових актів
Можуть бути в повному Непрямі витрати, Загальний% накладних Відсоток бюджету обсязі покриті пов’язані зі здійсненням витрат відповідно проекту за рахунок плати діяльності до законодавства за послуги
Усі права захищені© ЄЦНП, 2010 р.
II.5. Фінансування громадських організацій з боку приватного сектора Важливість фінансування з боку приватного сектора (зокрема, фізичних осіб) часто не- дооцінюється як державою, так і громадськими організаціями. Загальними напрямами, якими рухаються країни Центральної та Східної Європи, є збільшення обсягів державного фінансування громадських організацій і незначне поліпшення умов їх фінансування з боку приватного сектора, без приділення великої уваги його потенційному впливу. Однією з причин, навіщо державі потрібно перейматися можливостями залучення гро- мадськими організаціями коштів приватного сектора, є соціальні інновації. З точки зору як держави, так і громадських організацій, соціальні інновації потребують необмеженого або меншою мірою обмеженого фінансування. Особливо це стосується країн з перехідною еко- номікою, де система соціальних послуг має бути перетворена на модель, що є більш ефек- тивною, якісною та персоніфікованою. Така соціальна інновація має високий ступінь ризику (що на ранніх етапах можна порівняти з ризиком венчурних інвестицій) та, як правило, фі- нансується з приватних джерел, де легше сприймаються можливі невдачі. У випадку, якщо результати можна продемонструвати, цю модель буде легше втілити в державній системі соціальних послуг. Часто саме це й відбувається, і держава користується плодами фінан- сування громадських організацій з боку приватного сектора. Наразі ризики, пов’язані з фі- нансуванням соціальних інновацій в Україні, та відповідальність за цей процес несуть іно- земні донори, але до того часу, поки вони почнуть залишати країну, необхідно буде мати внутрішній потенціал. Іншим важливим аспектом, де фінансування з приватних джерел відіграє важливу роль, є фінансування ініціативних та експертних груп, що слідкують за процесом формування по- літики та вивчають цей процес і його наслідки. Це є важливою функцією будь-якої сучасної держави (оскільки ці групи часто замінюють собою системи, яких держава не має або які погано працюють) і може частково фінансуватися з державних джерел27. Однак фінансу-
27 Boris Strecansky. Obcianskaadvokácia a mimovládneorganizácie, 2006. Міжнародні практики фінансування ОГС... 137
вання з приватних джерел, поряд із податками, що стягуються та використовуються для фі- нансування виконання державою своїх функцій, може і повинно розглядатися як додатко- ва відповідальність фізичних осіб, компаній і приватних донорів, що матеріалізується в до- даткових добровільних внесках. Це є важливим, аби аналіз політичних рішень і надалі зали- шався незалежним. Говорячи про фінансування з приватних джерел, ми повинні чітко розрізняти фінансу- вання з боку юридичних осіб, фінансування з боку благодійних організацій і благодійні по- жертвування фізичних осіб. Двома основними категоріями фінансування з боку юридичних осіб, які будуть проана- лізовані, є інституціоналізований і неінституціоналізований механізми фінансування; також існує принципова відмінність між спеціальною та стратегічною допомогою. Фінансування з боку благодійних організацій може походити з внутрішніх або зовнішніх джерел, а також поділятися на фінансування за рахунок перерозподілу грантів, фінансу- вання з амортизаційних фондів або фінансування за рахунок ендавментів. Благодійні пожертвування фізичних осіб можуть бути поділені за періодичністю на од- норазові або регулярні/планомірні пожертвування, а також за розміром – на невеликі та великі пожертвування.
Фінансування з боку юридичних осіб Що стосується фінансування з боку юридичних осіб, то у компаній існують різні мотиви для надання коштів. Слід зауважити, що в наявних повідомленнях фінансові мотиви, як-от податкові пільги, як основний фактор, що береться до уваги при прийнятті рішення щодо на- дання коштів, не розглядаються. Найбільш поширеними відповідями є особисті мотиви ке- рівників/власників, при цьому підкреслюється їхня відповідальність перед суспільством. Не- зважаючи на те, що на викладення мотивів у дослідженні можуть впливати ставлення суспіль- ства до компаній і його очікування стосовно них, обсяги та якість такої допомоги зростають по всій Європі.
Надання грантів юридичними особами за використання інституціона- лізованого механізму При наданні певних обсягів допомоги та у випадках, коли компанія вважає надання грантів стратегічним заходом, донори-юридичні особи намагаються інституціоналізувати гранти, які вони надають, шляхом формування внутрішньої політики, організації тендерних процедур або створення окремого підрозділу з надання грантів чи адміністративного органу в складі юридичної особи. Ці методи часто являють собою кроки в напрямі розвитку, що здійснюються упродовж років. Надання грантів за використання інституціоналізованого механізму має цілу низку переваг, які компанії з часом починають усвідомлювати: очікування донора є більш прозо- рими; потоки фінансування є більш передбачуваними; насамкінець, компанії можуть краще прив’язати таку діяльність до своїх зв’язків і торгової марки. Корпоративні фонди являють собою окрему категорію в інституціоналізованій систе- мі надання грантів юридичними особами. З одного боку, висувається звинувачення в тому, що ці фонди служать інтересам компанії і надають певні переваги, наприклад, її працівни- кам, з іншого – існує набагато більш типова схема, коли компанія насправді може підтриму- вати ідеї, що не зовсім відповідають її діловим інтересам або йдуть врозріз з ними. У друго- му випадку компанія діє як соціально відповідальний гравець, що, проте, не завдає шкоди її діловим інтересам (наприклад, участь у розв’язанні «циганського питання» не обов’язково сприятиме просуванню ринкових інтересів компанії в країнах Центральної та Східної Єв- ропи, але вона може протистояти расизму дистанційно, через корпоративний фонд). Такі 138 Міжнародні практики фінансування ОГС...
Фонди часто використовують досвід громадських організацій, які займаються підготовкою для них рішень на основі субпідрядів або залучаються ними як члени експертних комісій, в результаті чого прискорюється «імпорт ноу-хау».
Неінституціоналізовані форми грантів Неінституціоналізована форма є більш типовою у випадку корпоративних гравців, що не мають значних коштів для фінансування або не вважають таке фінансування стратегічним на своїх ринках. Основним мотивом надання допомоги є певний рівень зв’язку з її одержувачем. Таке неформальне надання грантів також може бути тривалим (наприклад, власники місце- вих магазинів можуть роками надавати підтримку місцевим школам у проведенні культурних заходів) і часто вимагає постійної звітності, особливо на місцевому рівні, оскільки допомога надається виходячи з попереднього досвіду. У разі відсутності такого попереднього зв’язку визначальними факторами при прийнятті рішення щодо надання допомоги стають духовні аспекти, психологічні чинники, своєчасність тощо28. Тому якщо малі та середні підприємства опиняються в скрутному фінансовому становищі, наприклад під час кризи, це справляє неа- биякий вплив і на доходи місцевих громадських організацій. Оскільки в більшості країн процедури одержання податкових кредитів є доволі прости- ми29, жодних окремих стимулів або адміністративних систем для здійснення інституціоналі- зованого чи неінституціоналізованого фінансування, як правило, не існує. З точки зору гро- мадських організацій, вони можуть отримати більше гарантій, якщо фінансування здійсню- ється інституціоналізованим каналом, адже це допомагає краще визначати цілі та мислити стратегічно, покладаючись на тривалу підтримку з боку компанії. Існує ще одна істотна відмінність у розумінні методів і важливості надання грантів між за- хідними та вітчизняними організаціями, особливо на ранніх етапах розвитку ринкової еко- номіки. Виходячи з досвіду країн Центральної та Східної Європи, вітчизняні компанії за де- кілька років навчилися поєднувати таку діяльність зі своєю основною діяльністю, в той час як західні донори практично з’явилися на ринку з моделями, за якими благодійні пожертву- вання були частиною їх бізнес-моделі.
Фінансування з боку благодійних організацій Перерозподіл грантів У більшості європейських країн існує модель перерозподілу грантів для громадських організацій, але в країнах Центральної та Східної Європи вона відіграє важливу роль у розвитку громадянського суспільства. В старих державах – членах ЄС перерозпо- діл грантів, як правило, пов’язаний з державним фінансуванням і використовується як спроба зробити його більш незалежним від держави (такі організації часто є напівнеза- лежними). У країнах Східної Європи вони створювалися та фінансувалися здебільшого, аби мати відповідні механізми розподілу при спрямуванні коштів з іноземних джерел до країн – набувачів допомоги для фінансування проектів загальнодержавного та місцево- го значення. Був створений новий «клас» так званих організацій-посередників, що на- магаються отримати гранти на реалізацію своїх стратегій у формі надання субгрантів. Як правило, вони не мають ендавментів. На діловій мові це означає, що вони надають послуги великим міжнародним донорам, визначаючи потреби та розподіляючи гранти, аби їх задовольнити.
28 Куті Ева (ред.) (Kuti, Eva ed.). Vállalatiadományozás Magyarországon Tanulmányok 2005 (Благодійні пожертву- вання юридичних осіб в Угорщині). 29 В Румунії, наприклад, Фонд розвитку громадянського суспільства (FDSC) здійснює управління частиною коштів Соціального фонду, а в Чеській Республіці подібний фонд (NROS) перетворився на контрагента фондів розвитку громадянського суспільства. Міжнародні практики фінансування ОГС... 139
Після скорочення обсягів фінансування з боку західних благодійників більшість цих ор- ганізацій ведуть боротьбу за існування, а деякі згорнули свою діяльність, навіть незважаю- чи на те, що потреби в них продовжують існувати. У нових державах – членах ЄС, перед їх вступом до Європейського Союзу, існувала мережа організацій з розподілу грантів, ство- рена задля розподілу коштів. Після вступу деякі з них почали перерозподіляти європейські кошти на національному рівні (структурні фонди, норвезький та швейцарський механізми фінансування)30. В таких країнах, як Угорщина, з тією самою метою була створена місцева мережа ресурсних центрів, але переконати іноземних донорів у доцільності фінансування ще одного проміжного гравця виявилося складно (оскільки коштів для місцевого перероз- поділу не вистачало, площа країни не вимагала такої децентралізації, а переваги ноу-хау такого гравця у порівнянні з центральними, загальнодержавними системами були незна- чними). Ще одним, сподіваємося, більш переконливим прикладом є мережа фондів громад, в якій пошук коштів здійснюється на міжнародному, національному та місцевому рівнях, за активної участі місцевих підприємств, муніципалітетів, громадських організацій і громадян. На відміну від більшості організацій з перерозподілу грантів, деякі з цих фондів створили ендавмент на задоволення місцевих потреб у віддаленій перспективі.
Ендавменти Класичне надання благодійних грантів з ендавментів має перевагу над іншими видами фінансування, оскільки кошти, що розподіляються в такий спосіб, розраховані на трива- лу перспективу. Приклади як зі «старої», так і з «нової» Європи свідчать про те, що таке фі- нансування робить істотний внесок у забезпечення життєздатності підсектора, на підтрим- ку якого воно спрямоване, адже надійність стратегій такого фінансування та постійна наяв- ність його джерел роблять громадські організації більш витривалими й орієнтованими на результат. Німецька та чеська моделі, проаналізовані нижче, є цікавими прикладами з двох абсолютно різних культур.
Амортизаційні фонди Амортизаційні фонди являють собою цікаву модель благодійної допомоги. Амортиза- ційний фонд – це фонд, створений донором або донорами з метою використання його ко- штів (розподілених у формі грантів) протягом більш тривалого періоду часу, як правило, 10 років. Вважається, що такі кошти є достатніми для фінансування програми протягом ви- значеного періоду часу. У разі виникнення серйозної соціальної проблеми, яка, проте, за всіма ознаками може бути усунена, визначивши суму коштів, необхідну для її розв’язання, та реальний період часу, потрібний для досягнення результату, можна розрахувати обсяг необхідного фінансування. Приклади з регіону включають Фонд розвитку громадянського суспільства в країнах Центральної та Східної Європи (CEE Trust), Балтійсько-американський фонд партнерства, Балканський траст, Чорноморський Фонд Регіонального Співробітництва «Black Sea Trust». Ці трасти створені з об’єднаних коштів декількох західних донорів, які іноді включали та- кож двосторонні (USAID). Як бачимо, це здебільшого регіональні конструкції, що є части- ною «стратегії відходу» донорів: після припинення ними реалізації своєї власної програми вони можуть і надалі надавати підтримку колишнім набувачам їхньої допомоги та в досяг- ненні результатів у сферах, куди спрямоване фінансування. (Ідея з’явилася у відповідь на заяву НУО про існування «незавершених справ» з розбудови демократичних суспільств у регіоні, коли донори вже планували його залишити.)
30 В Румунії, наприклад, Фонд розвитку громадянського суспільства (FDSC) здійснює управління частиною коштів Соціального фонду, а в Чеській Республіці подібний фонд (NROS) перетворився на контрагента фондів розвитку громадянського суспільства. 140 Міжнародні практики фінансування ОГС...
Амортизаційні фонди складають інтерес з точки зору громадських організацій, оскільки необхідний результат фінансування є зазвичай чітко визначеним, а кошти можуть викорис- товуватися протягом відносно тривалого часу, при цьому це мотивує та спонукає всіх грав- ців до досягнення результатів у межах визначеного часу. Незважаючи на те, що існуючі при- клади носять регіональний характер, ця ідея також може бути успішно втілена на загально- державному рівні.
II.6. Фінансування з боку фізичних осіб Залучення коштів потребує інвестицій Аби зрозуміти природу благодійних пожертвувань фізичних осіб з точки зору регулято- ра, ми хотіли б представити так звану «Піраміду донорів». Ця піраміда дає уявлення про те, як громадські організації бачать своїх донорів – фізичних осіб і як будують з ними відноси- ни. Вона складається з п’яти рівнів: 1. Внизу розташовані фізичні особи, які досі не пожертвували громадській організації жодних коштів, але є потенційними донорами з огляду, наприклад, на місце їх проживання, вік, стать, коло інтересів тощо. 2. Другий рівень займають фізичні особи, що вже пожертвували певні кошти. 3. Третій рівень – це фізичні особи, які стали постійними донорами, тобто жертвують кошти майже «автоматично», через регулярні проміжки часу. На Заході це відбувається здебільшого із застосуванням прямих дебетів банківських рахунків фізичних осіб, але в країнах Східної Європи для регулярних пожертвувань частіше використовуються поштові перекази. У будь-якому випадку, тут ми говоримо про осіб, які з готовністю відгукуються на заклики громадської організації про допомогу та ніколи не забувають про неї, коли жертвують кошти. 4. Четвертий рівень займають ті, хто жертвує значні кошти, тобто донори, щиро віддані організації, які беззастережно їй довіряють і вносять значні суми коштів. 5. І нарешті, зверху розташовані фізичні особи, які зробили громадську організацію своєю спадкоємицею. Загальна ідея полягає в тому, аби, просуваючись від основи піраміди та використо- вуючи різні форми зв’язків, робити фізичних осіб все більш прихильними та надійними з точки зору виконання фінансових зобов’язань. Важливо розуміти, що лише постійні до- нори можуть забезпечити справжню життєздатність громадських організацій. Однак аби хтось став постійним донором, до нього/неї спочатку треба звернутися по допомогу й отримати хоча б одне пожертвування. Тому громадська організація повинна здійснювати інвестиції у два нижні рівні та підтримувати зв’язки із трьома верхніми. Звичайно, це ви- магає коштів навіть на найнижчому рівні. З просуванням донора пірамідою догори збіль- шується окупність інвестицій.
Піраміда донорів-фізичних осіб
Спадки Значні пожертвування Регулярні пожертвування
Разові пожертвування Перспективні донори Міжнародні практики фінансування ОГС... 141
З точки зору регулятора важливо розуміти, що таке культивування донорів є аналогіч- ним побудові відносин з клієнтами в корпоративному секторі. Інвестиції є насправді зна- чними, та дуже важливою є передбачуваність їх окупності. Якщо в світі бізнесу такі витра- ти виправдати легко, то від громадських організацій очікують, що вони не витрачатимуть «занадто великих» грошей на налагодження зв’язків і залучення коштів. Однак, зважаючи на те, що «занадто великим» часто вважається навіть дуже незначний відсоток витрат, таке очікування не є виправданим з погляду життєздатності громадської організації. Розуміння того, що залучення коштів фізичних осіб може бути високовитратною інвестицією, якщо вона короткострокова, та високоокупною, якщо вона довгостро- кова, може допомогти створити фінансово-правову базу, що сприятиме такій бла- годійності. У країнах з високим рівнем пожертвувань фізичних осіб якість послуг, які надають гро- мадські організації, є вищою, оскільки кошти, які надходять від фізичних осіб, істотно до- повнюють кошти, що надаються державою, надаючи громадським організаціям – поста- чальникам послуг гнучкість і дозволяючи їм здійснювати інвестиції в послуги вищої якос- ті, залучати кошти за рахунок співфінансування та покривати потенційні збитки (напри- клад, якщо в контракті з державою не передбачені всі накладні витрати НУО, що є дово- лі типовим випадком). Також існує істотна відмінність у дотриманні рівнів звітності та прозорості в країнах з ви- соким і низьким рівнем пожертвувань фізичних осіб. У випадку, якщо громадським органі- заціям доводиться налагоджувати та підтримувати стосунки з великою кількістю громад, вони є більш вмотивованими залишатися прозорими та дотримуватися вимог звітності, на- віть незважаючи на те, що донор-фізична особа часто поступається перед державним спе- ціалізованим донором у своїй обізнаності зі справою. Це пояснюється тим, що залучення донорів-фізичних осіб дозволяє підвищити рівень постійного контролю за діяльністю гро- мадської організації та очікувань стосовно такої діяльності. Отже, широка підтримка громадських організацій з боку фізичних осіб може до- зволити досягти вищого рівня звітності, прозорості та якості послуг, ніж жорстке ре- гулювання з боку держави. Аби громадські організації мали змогу здійснювати інвестиції в залучення коштів, дер- жава не повинна встановлювати жодного конкретного відсотка адміністративних витрат ані законодавчо, ані шляхом встановлення планки при наданні грантів і укладанні контрактів. Адміністративні витрати кожної громадської організації відрізняються між со- бою, а жодного їх «еталону» не існує фактично ніде, навіть у Західній Європі чи США. На- справді було проведено дослідження, яке продемонструвало, що зменшення адміністра- тивних витрат під тиском донорів призводить до погіршення результатів роботи. Найкра- щий спосіб розв’язати питання адміністративних витрат – вимагати від громадських орга- нізацій повідомлення їх розміру (відсотка) та методу їх розрахунку.
Від нульової активності донорів до регулярних пожертвувань У країнах Центральної та Східної Європи культура філантропії досі знаходиться на стадії формування, й основне питання полягає в тому, в який спосіб досягти такого її рівня, який дозволить забезпечити існування потужного громадського сектора. Професійне залучення коштів фізичних осіб є найбільш витратним, коли громадська ор- ганізація намагається сегментувати потенційних донорів (які досі не жертвували жодних коштів) та спрямувати на них свої заходи. Аби досягти певних результатів, будь-яка тех- нологія та метод, що тут застосовуються (як-от прямий маркетинг, реклама, збір коштів на вулицях тощо), повинна бути спрямована на широку аудиторію, оскільки (1) лише части- ні людей справа буде до вподоби (одні віддають перевагу допомозі дітям, інші – тваринам тощо); (2) навіть якщо людина зможе приєднатися до справи, її участі можуть завадити пев- 142 Міжнародні практики фінансування ОГС...
ні технічні перешкоди (наприклад, їй може бути складно надати кошти або діяти саме в мо- мент отримання повідомлення тощо). Вже у випадку успішного залучення коштів існує висока ймовірність того, що донор є відданим справі. У подальшому, за використання складних технологій у сфері налагоджен- ня стосунків такі донори перетворюються на постійних, готових жертвувати кошти на регу- лярній основі. Якщо такі кошти починають надаватися на регулярній основі, їх суму можна легко розра- хувати, а розмір доходу передбачити з більшою точністю, ніж, наприклад, за результатами конкурсу, організованого державою. Суми коштів, що надходять від фізичних осіб звичай- но є значно меншими, і тому необхідно мати велику кількість малих донорів, але так званий «життєвий цикл донора» нараховує багато років31, тоді як «життєвий цикл» державних гран- тів складає, як правило, один рік. Аби сприяти цьому процесу в окремих громадських організаціях держава може двома основними засобами: – податкова політика, наприклад, надання більших додаткових пільг постійним доно- рам; – розширення можливостей, тобто надання підтримки в рамках програм з надання грантів, спрямованих на поширення практики професійного залучення коштів (слід зауважити, що такі програми повинні сприяти запозиченню та перейняттю інозем- ного досвіду: західного досвіду, аби ознайомитися з найбільш сучасними техноло- гіями, і досвіду країн Центральної та Східної Європи, аби зрозуміти процеси пере- йняття).
Значні пожертвування та спадщини У випадку осіб, які жертвують значні кошти, як правило, існує довга історія пожертву- вань, а отже, значні кошти, які зазвичай мають конкретне призначення, жертвуються доно- ром, який має тісні стосунки з організацією. Окремою категорією є спадщина. Якщо в західних державах, зокрема країнах Північ- ної Америки, такі пожертвування пересічних громадян є джерелом доходу, що з кожним роком зростає, то в країнах Центральної та Східної Європи такі пожертвування є випад- ковими, але не рідкими. На Заході громадські організації тактовно, але зі знанням спра- ви повідомляють своїм донорам про таку можливість, тоді як у країнах Центральної та Східної Європи вони зазвичай є нерішучими і вважають недоречним просити значного пожертвування або спадщини. Незважаючи на це, люди жертвують свої кошти, що свід- чить про бажання населення висловити свою підтримку справі й організації, зробив- ши вагомий матеріальний внесок. Нижче, у випадку Німеччини, описується європейська модель, яка включає елементи операцій зі спадщинами, що здійснюються тактовно, але на користь суспільства. Навряд чи варто говорити, що значне пожертвування або спадок значно підвищують життєздатність громадської організації, дозволяючи їй розробляти довгострокові плани, здійснювати інвестиції в розвиток інфраструктури, створювати резервні фонди або збіль- шувати масштаби своїх послуг і охоплювати ними ширше коло одержувачів. Держава може підтримати ідею надання значних пожертвувань і спадщин у своїй подат- ковій політиці шляхом: – звільнення таких пожертвувань від податків на дарування та спадщину; – надання спеціальної податкової пільги, коли вартість пожертвування перевищує пев- ну суму.
31 Життєвий цикл донора – це період, протягом якого один донор надає підтримку одній і тій самій організа- ції. В Угорщині період, упродовж якого донор надає підтримку організації на регулярній основі, становить в се- редньому 6-7 років. Міжнародні практики фінансування ОГС... 143
II.7. Зароблений дохід громадських організацій Зароблений дохід стосується видів доходу, отриманого громадською організацією від «економічної діяльності» (що також має назву підприємницької, господарської або комер- ційної). Це в основному означає продаж товарів і послуг на регулярній або постійній осно- ві. В наступному розділі ми не досліджуватимемо всі можливі способи заробляння доходу громадськими організаціями, замість цього ми зупинимося на тих, що, наскільки нам відо- мо, вже існують в Україні.
Членські внески В оптимальному випадку членські внески є ефективним засобом оцінки формування членства в тій чи іншій організації. Зрозуміло, члени бізнес-асоціації можуть дозволити собі більші членські внески, ніж члени асоціації батьків дітей-інвалідів, яким доводиться відсто- ювати право своїх дітей мати рівні можливості з іншими. Між певними групами членських громадських організацій існують істотні відмінності в підході до членських внесків. Якщо високоспеціалізовані, цільові організації, що пред- ставляють певні групи інтересів, а також більшість профспілок розглядають їх як страте- гічні інвестиції та знак відданості справі їхніх членів, то інші значні групи членських органі- зацій з різних причин (особливо, в країнах Центральної та Східної Європи) не вважають їх важливим джерелом доходу. З одного боку, вони вважають, що «в людей немає грошей, аби платити членські внески» (насправді це відповідає дійсності лише в дуже обмеженій кількості випадків, коли члени належать до найбідніших верств населення). З іншого боку, така думка виникла на тлі поведінки держави, яка разом з муніципалітетами часто вважає за краще мати справу з організаціями з якомога численнішим членством. Тому громад- ські організації, аби продемонструвати легітимність, зацікавлені в повідомленні більшої кількості членів. Саме тому їм часто не вдається зібрати членські внески або отримати від членів номінальні внески, які складали б значну частину їхнього бюджету. Парадоксаль- ним є те, що якщо членські внески не будуть важливим джерелом доходу асоціації, її ке- рівництво буде менше вмотивованим звітувати перед її членами (більше – перед зовніш- німи донорами та державою). Наполягаючи на «представництві» як основному критерії участі громадської організа- ції в процесі прийняття рішень, держава надає стимул до застосування менш демокра- тичних і менш життєздатних практик формування членства в громадських організаціях.
Платні послуги Громадські організації часто діляться досвідом зі своїми колегами. Як правило, ця ка- тегорія включає консультації щодо планування проектів, написання пропозицій або досвід у сфері надання будь-яких прямих бізнес-послуг. Цією можливістю може скористатися ве- лика кількість громадських організацій, адже досвідом є елементарне ноу-хау в сфері про- дажу. Хоча взагалі очікується, що такий досвід використовуватиметься безкоштовно у ви- падку, якщо громадська організація спроможна і надалі розвивати своє ноу-хау, воно часто може знайти своїх покупців. З роками, в міру того, як все більше донорів здійснюють інвестиції в розвиток організа- цій і розробку їхніх програм, професійно розроблене ноу-хау в будь-якій сфері зростає в ціні. Коли таке ноу-хау стає відповідним для розробників стратегій, відкриваються нові рин- ки, покупцями на яких стають юридичні особи та держава.
Продаж товарів Виробництво та продаж товарів у благодійних цілях видається привабливою можливіс- тю для багатьох громадських організацій. Найбільш поширеними джерелами доходу є фут- 144 Міжнародні практики фінансування ОГС...
болки, чашки з логотипами й оригінальним оздобленням тощо. Насправді, принаймні ви- ходячи з досвіду країн Центральної та Східної Європи, від виробництва та продажу таких товарів організація рідко отримує значні доходи. Зрештою, це ринок з високою конкурен- цією, де вона існує навіть у сегменті «культових брендів»32 (які намагається виробити біль- шість громадських організацій). Для досягнення успіху необхідні особливі навички ведення комерційної діяльності, а нерідко й інвестиції. Зазвичай на національному ринку домогтися цього може лише купка громадських організацій. Іншим типовим методом підтримки виробництва товарів є підтримка зайнятості, коли донор надає субсидію на виробництво товарів (наприклад, створення майстерні для лю- дей з проблемами у навчанні). Незважаючи на те, що на цей вид доходу може припада- ти велика частка бюджету громадської організації, слід зауважити, що він субсидується, тобто ризик несе також донор. Таке виробництво є зазвичай набагато кориснішим з точ- ки зору зв’язків з громадськістю, але воно може допомогти в забезпеченні життєздатнос- ті громадської організації лише у випадку, якщо вона зможе втриматися на ринку без на- дання субсидії. При наданні підтримки у виробництві товарів в благодійних цілях, наприклад шляхом підтримки зайнятості, держава та донори повинні пересвідчитися в наявності бізнес-плану на середньо- чи довгострокову перспективу, що дозволить громадській організації продо- вжувати виробництво за умов зниження рівня субсидій.
Оренда приміщень Одним з активів, перевагами якого все частіше користуються громадські організації, є офіси чи приміщення, в яких вони працюють. Як типовий приклад, ті організації, що нада- ють послуги з навчання, також пропонують в оренду приміщення й обладнання. Оскільки всередині організації може бути відносно легко змінити графік роботи (наприклад, включи- ти до нього дні для роботи вдома) та звільнити приміщення, що використовуються для про- ведення тренінгів і семінарів, цією можливістю користуються все більше громадських ор- ганізацій.
Ліцензійні збори Деякі організації з добре відомим брендом можуть «продавати» свої назву та логотип юридичним особам. Компанії, які бажають, аби їх асоціювали з добрими справами, і спро- можні скористатися ринковими перевагами ліцензування, часто платять великі суми, аби отримати від громадської організації дозвіл на використання її бренду. Цей вид доходу є необмеженим і також являє собою визнання досягнень організації, оскільки компанія оби- рає її партнером переважно через те, що діяльність цієї громадської організації отримує високу оцінку значної частини населення.
Оподаткування заробленого доходу Найбільш важливим питанням, коли йдеться про податкову політику в сфері заробле- ного доходу, є визначення «економічної діяльності». Кожна країна визначає цей термін у свій спосіб, що є відображенням національних умов. Поряд з існуванням певних типових, спільних елементів, як-от здійснення діяльності в обмін на плату або на регулярній основі, також існує багато невизначених аспектів, що відкривають країнам простір для тлумачень.
32 Культовий бренд – це бренд, з яким люди себе асоціюють і який не лише створює у споживачів позитив- не враження, а й викликає в них відчуття приналежності їм товару та прихильність до нього. Люди купують товар культового бренду не лише через його високу якість чи надійність, у такий спосіб вони також демонструють, що поділяють цінності, які символізує бренд, і асоціюють себе з ними. Зважаючи на можливість асоціювання себе зі справою, якою переймається організація, ідеальними кандидатами на те, аби мати культові бренди, є непри- буткові організації. Міжнародні практики фінансування ОГС... 145
Наприклад, діяльність так званих «благодійних магазинів», що продають лише речі, отримані як пожертвування, і торгових точок, де використовується волонтерська праця, в одних країнах вважається економічною, а в інших – ні. Подібно до цього, деякі форми залу- чення коштів, наприклад продаж брендових футболок чи благодійних листівок, в одній кра- їні може вважатися економічною діяльністю, а в іншій – ні. Іншим прикладом невизначено- го питання є оподаткування плати за послуги, що є «по суті пов’язаними»33 із суспільно ко- рисними цілями певних громадських організацій, як-от плата за шкільне навчання або вхід до музею. Також залишається відкритим питання оподаткування пасивних інвестиційних доходів (наприклад, банківський відсоток). Жодного чіткого методу визначення того, які з видів діяльності повинні вважатися економічними, а отже, оподатковуватися, не існує, але важливо прояснити це питання з правової точки зору. З появою визначення виникає питання стосовно того, як податкова політика повинна за- стосовуватися. Європейські країни мають п’ять основних підходів:34 – загальне оподаткування всіх прибутків; – звільнення від оподаткування будь-яких доходів від економічної діяльності; – оподаткування доходу залежно від його призначення; – оподаткування доходу від діяльності залежно від її зв’язку зі статутними цілями; – оподаткування доходу, що перевищує певний поріг;
Оподаткування всіх прибутків: основним аргументом на користь оподаткування всіх доходів від економічної діяльності неприбуткових організацій (НПО) є те, що якщо такі до- ходи не оподатковуються, вони можуть отримати несправедливу конкурентну перевагу над прибутковими організаціями. (Наприклад, звільнення прибутків НПО від оподаткування може дозволити їм зберігати нижчі рівні прибутків від своєї економічної діяльності, що може навіть використовуватися для зниження цін на товари та послуги нижче рівнів, з якими можуть кон- курувати або навіть які здатні підтримувати прибуткові організації.) Оподаткування всіх при- бутків запровадити легко і воно мінімізує можливість зловживань з боку організацій, що на- магаються отримати переваги від податкових пільг, наданих НПО. З цих причин такий підхід, здебільшого застосовується в країнах, у яких досі існує високий рівень корупції, як-от Алба- нія, Боснія (і Герцеговина), Болгарія. Проте в більшості європейських країн економічна діяль- ність громадських організацій певною мірою звільнена від оподаткування, а для боротьби з можливими зловживаннями застосовуються інші правові засоби.
Звільнення від оподаткування всіх доходів: цей підхід так само застосовується лише в небагатьох країнах, як-от Кіпр, Боснія (і Герцеговина) чи Хорватія, де з громадських організа- цій як юридичних осіб не стягується жодного податку на доходи, а отже, й жодного податку на прибуток. Слід зазначити, що цей підхід відкриває широкий простір для зловживань. У більшості країн знайдені певні «проміжні» рішення. Це означає, що вони визнають важ- ливість пільгового оподаткування економічної діяльності громадських організацій. Це від- бувається з декількох причин, включаючи такі: – громадські організації часто полегшують тягар держави, якій доводиться надавати подібні послуги. Втрата державою податкових надходжень компенсується її звіль- ненням від цього фінансового тягаря та перевагами в результаті підвищення рівня загального добробуту; – громадські організації часто спроможні надавати необхідні послуги за нижчою ціною та вищої якості, ніж прибуткові організації, яких цікавить чистий прибуток; – оподаткування діяльності НПО гальмує розвиток неприбуткового сектора. «Це є осо- бливо сильним аргументом в умовах податкового режиму, коли НПО повинні спла-
33 Документ МЦНП/ЄЦНП/МЦМС (Македонського центру міжнародного співробітництва). 34 Там само. 146 Міжнародні практики фінансування ОГС...
чувати податок на доход від економічної діяльності, навіть якщо вона спрямована на досягнення суспільно корисних цілей. У другому випадку НПО обмежені у їх спро- можності фінансово підтримувати свої операції. Такий підхід також не стимулює їх до участі в суспільно корисній діяльності, що має економічну складову (наприклад, коли товариство сліпих продає ціпки для сліпих), оскільки всі доходи від такої діяльності підлягатимуть оподаткуванню»35
На зауваження стосовно того, що надання громадським організаціям податкових пільг призводить до несумлінної конкуренції з прибутковим сектором, наводяться контраргу- менти, які полягають у тому, що, виходячи з досвіду, такі побоювання є здебільшого необ- ґрунтованими, та що негативний вплив на прибутковий сектор перебільшено36.
Оподаткування доходу залежно від його призначення: за цією схемою, будь-який доход, що використовується в статутних або суспільно корисних цілях, звільняється від по- датку, а всі інші доходи оподатковуються. Так відбувається в Польщі. В основі цього підхо- ду лежить припущення, що від оподаткування мають бути звільнені лише ті види діяльнос- ті, що є корисними для суспільства, а отже, від податку повинні звільнятися лише доходи, що насправді використовуються для досягнення статутних або суспільно корисних цілей. Основна критика цього підходу полягає в тому, що він дозволяє НПО здійснювати діяль- ність, спрямовану на отримання доходу, без жодного зв’язку з їхніми цілями та навіть зао- хочує їх до цього, створюючи несумлінну конкуренцію. В той час як США через ці проблеми відмовилися від застосування підходу, коли дохід оподатковується залежно від його при- значення, цього немає в Польщі, де громадський сектор все ще слабкий і потребує необ- межених ресурсів.
Оподаткування доходу від діяльності залежно від її зв’язку зі статутними цілями: цей підхід зосереджується на джерелі доходу. Відповідно до цього підходу, доходи НПО звільня- ються від податку, якщо вони отримані від економічної діяльності, яка достатньо пов’язана зі статутними або суспільно корисними цілями організації. Взагалі, діяльність, яка вважатиметь- ся такою, що не ов’язана зі статутними цілями, оподатковуватиметься так само, як і діяльність інших суб’єктів економічної діяльності. Цей підхід застосовується в США та Латвії. Звичайно, це найбільш «справедливий» метод визначення, коли звільнення доходу від податку є обґрун- тованим. Проте цей підхід є також найбільш складним у застосуванні, оскільки податковий ор- ган повинен вирішити, яка діяльність є пов’язаною зі статутними або суспільно корисними ці- лями, а яка – ні. Наприклад, у випадку громадських організацій, що займаються природоохо- ронною діяльністю, продаж популярних посібників з охорони довкілля під час проведення різ- них відповідних заходів можна вважати видом діяльності, яка пов’язана зі статутними цілями. Але що коли громадська організація опублікує яскраві альбоми та почне їх продавати через ко- мерційні книгарні?
Розробити проекти законодавчих чи нормативно-правових актів, у яких достатньою мі- рою закріплювалася б концепція «зв’язку з цілями», складно, а методичні рекомендації час-
35 МЦНП/ЄЦНП/МЦМС. 36 «По-перше, малі підприємства часто можуть уникнути сплати податку на прибуток за допомогою засобів, яких немає в НПО. Малі підприємства, що виплачують високу заробітну плату та багато витрачають на офіси, можуть сплачувати значно менший податок на доходи. Насправді, в декількох країнах податок на прибуток ма- лих підприємств скасовано через неможливість його стягнення. По-друге, малі підприємства можуть отриму- вати кредити від кредитних установ, тоді як НПО взагалі кредити отримувати не можуть. По-третє, економічна діяльність, яку здійснюють НПО, як правило, належить до неприбуткової сфери та не конкурує з діяльністю при- буткових організацій. Зокрема, це стосується країн, в яких доходи від діяльності НПО звільняються від податку залежно від відповідності такої діяльності їхнім статутним цілям» Документ МЦНП/ЄЦНП/МЦМС. Міжнародні практики фінансування ОГС... 147
то доводиться напрацьовувати окремо для кожного окремого випадку. Після появи пакету рішень і норм щодо застосування цього правила це, можливо, стане менш серйозною про- блемою. Але в країнах з перехідною економікою, де методичні рекомендації для неприбут- кового сектора досі напрацьовуються, концепція «зв’язку з цілями» створює певну неви- значеність стосовно оподаткування доходів.
Пороговий підхід: цей підхід встановлює планку звільнення від податку доходів НПО в грошовому та/чи відсотковому вираженні. Він застосовується, як правило, в поєднанні з іншим (і також називається «гібридним підходом»). Наприклад, у Чеській Республіці, Сербії та Чорногорії цей підхід поєднують з підходом, що передбачає опо- даткування доходу залежно від його призначення, а в Угорщині та Словаччині його за- стосовують у поєднанні з підходом на основі зв’язку зі статутними цілями. Це також справедливий підхід, оскільки він обмежує розмір неоподатковуваного прибутку, який може отримувати НПО, і, таким чином, усуває побоювання щодо несумлінної конкурен- ції або стимулювання прибуткових організацій до використання ними форми громад- ських як прикриття. Від нього також виграє держава, оскільки вона може використову- вати його, аби обмежити втрату податкових надходжень. Крім того, цей підхід, як пра- вило, простий у застосуванні (хоча, оскільки цей підхід зазвичай поєднується з іншим, певні труднощі адміністративного характеру можуть існувати). Водночас тут врахова- на важливість заробленого доходу з наданням громадським організаціям виправданих податкових пільг.
Деякі приклади (станом на 2007 рік)
– Наприклад, Угорщина поєднує підхід на основі зв’язку зі статутними цілями з пороговим методом шляхом встановлення певної межі для звільнення від по- датку доходу від комерційної діяльності, яка не є пов’язаною зі статутними ціля- ми. Як зазначалося вище, жодні види економічної діяльності, включені до стату- ту організації як такі, що сприяють досягненню нею статутних цілей, не підляга- ють оподаткуванню. Дохід від комерційної / підприємницької діяльності (яка не є пов’язаною зі статутними цілями) оподатковується лише у випадку, якщо такий дохід перевищує передбачений поріг. Наприклад, від податку можуть бути звіль- нені доходи від комерційної діяльності всіх НПО, незалежно від того, чи отрима- ли вони статус суспільно корисних, які не перевищують 10% загального дохо- ду, або 10 млн угорських форинтів (38 892 євро). Крім того, угорське законодав- ство також створює дві категорії суспільно корисних організацій, що мають пра- во на звільнення від оподаткування більшого відсотка доходів. Так, якщо органі- зація отримала статус суспільно корисної, від податку звільняється її дохід від ко- мерційної діяльності, що не перевищує 10% загального доходу, або 20 млн угор- ських форинтів (77 785 євро), а якщо вона має статус «провідної» суспільно ко- рисної, від оподаткування звільняється її дохід від комерційної діяльності в розмі- рі до 15% загального доходу.
– У Чеській Республіці дохід від економічної діяльності, пов’язаної зі статутними ціля- ми НПО, підлягає оподаткуванню за зниженою ставкою. Від податку звільняються всі доходи від діяльності, пов’язаної зі статутними цілями, в розмірі до 300 000 чеських крон (11 203 євро). Крім того, якщо дохід використовується в суспільно корисних ці- лях, чиста виручка (тобто доходи мінус пов’язані витрати), яка на кінець фінансово- го року перевищує цю суму, перед оподаткуванням зменшується на 30%, або 1 млн чеських крон (залежно від того, що буде меншим). 148 Міжнародні практики фінансування ОГС...
– У Франції доходи від економічної діяльності звільняються від оподаткування за умо- ви, що вони не розподілені і що існують інші ознаки, які дозволяють відрізнити орга- нізацію від суб’єкта економічної діяльності. Зокрема, НПО з доходом, що перевищує 60 000 євро на рік, можуть отримати статус звільнених від податку, якщо (1) керів- ництво не має в НПО фінансового інтересу та якщо (2) НПО не конкурують з комер- ційним сектором. Двадцять НПО з доходом до 60 000 євро на рік можуть отримати статус звільнених від податку лише у випадку, якщо (1) неприбуткова діяльність є їх основною діяльністю та (2) вони не передають жодних доходів чи активів особам, що мають будь-які приватні інтереси.
– У Німеччині суспільно корисні організації можуть здійснювати господарську діяль- ність. Прибутки звільняються від корпоративного та прибуткового податків, якщо господарська діяльність є необхідною для досягнення статутних суспільно корисних цілей суспільно корисної організації (освіта, охорона здоров’я тощо). Те саме стосу- ється благодійної та релігійної діяльності. Види діяльності, що підлягають пільгово- му оподаткуванню, перераховані в законодавстві. Аби отримати податкові пільги, су- спільно корисні організації мають здійснювати таку діяльність з дотриманням прин- ципу незацікавленості, як визначено у законодавстві: вони не повинні ставити собі за основну мету отримання доходу, можуть використовувати свої ресурси лише в ста- тутних цілях, не повинні розподіляти прибуток і виплачувати непропорційно високу заробітну плату. Вони повинні використовувати свої ресурси протягом року, наступ- ного після їх отримання, але в межах, згаданих у законодавстві, можуть створювати резерви. Крім того, організація має бути створена виключно в цілях, що дозволять їй отримати статус звільненої від оподаткування, та може конкурувати з прибутковими організаціями.
– У Словаччині НПО, як правило, звільняються від податку на доходи від статутної ді- яльності. Доходи від нестатутної економічної діяльності НПО оподатковуються за за- гальною ставкою, за винятком продажу їх майна, коли від податку звільняється дохід, що становить менше 300 000 словацьких крон (8 935 євро). Міжнародні практики фінансування ОГС... 149
III. ЗАГАЛЬНІ ВИСНОВКИ
Важливість стратегічного підходу У багатьох розглянутих європейських країнах розроблено щось на кшталт довгостро- кових планів дій, аби відобразити відносини громадського сектора з державою та іншими суспільними гравцями. В деяких випадках це зроблено у формі стратегії (Угорщина, Хорва- тія), в інших – «договору» між державою та громадськими організаціями (Великобританія) або Парламентом і громадськими організаціями (Естонія)37. Проте підготовка самої страте- гії не має великого значення з огляду на вплив державних заходів. Не менш (якщо не більш) важливою є відповідність стратегії бажаним впливам, а також відповідність політи- ки фінансування стратегії. Цьому можна повчитися в Угорщини. Вітчизняні законодавці розробили сучасні закони на підтримку стратегії, в деяких випадках насправді унікальні, але стратегії з’явилися лише багато років потому (відповідно, в 1998 і 2003 рр.). Вони були зосереджені переважно на розвитку централізованої системи підтримки громадських організацій з боку держави, та їм бракувало ширшого погляду на їхню роль у суспільстві та місцевих громадах. Хоча істо- рично склалося так, що рівень підтримки громадських організацій з боку Угорської держави був одним з найвищих у Східній Європі, її вплив, за оцінками, значною мірою поступається результатам, досягнутим у громадських секторах, що отримували менше коштів (див. звіт про Угорщину). Об’єктивні та чіткі дані щодо причин цього отримати важко, оскільки жодної оцінки впливу фактично не проводилося. Однак цілком імовірно, що послаблення колись перспективної угорської моделі пов’язане з відсутністю єдиної загальної довгострокової концепції щодо ролі громадських організацій у розвитку країни. На відміну від цього, у Великобританії існувало переконливе бачення ролі громадського сектора по відношенню до держави та постійно, систематично здійснювалися заходи з від- стеження практики та впливу виконання Партнерської угоди38. Завдяки останній з’явилися нові політика та практики на підтримку реалізації стратегії, що виявилася ефективною як для держави, так і для громадських організацій. Як приклад можна навести ефективність фінансування громадських організацій. Парт- нерська угода стимулювала органи місцевої влади до все активнішого укладання конт- рактів з громадськими організаціями на надання державних послуг. Було проведене дослі- дження, аби оцінити масштаби і вплив цієї практики39. Міністерству фінансів рекомендуєть-
37 Буллен Н. і Тофтісова Р. Порівняльний аналіз європейських політики і практик у сфері співпраці між НУО та державою. В: «Міжнародному журналі некомерційного права» (IJNL), Т. 7, вип. 4, вересень 2005 р. (Bullain, N. And Toftisova, R.:A Comparative Analysis of European Policies and Practices of NGO-Government Cooperation. In: The International Journal of Not-for-Profit Law (IJNL), Volume 7, Issue 4, September 2005). 38 Див., наприклад: Серце й розум: постачання послуг громадським сектором, Аудиторська комісія Велико- британії (Hearts and minds: Commissioning from the voluntary sector, National Audit Commission), липень 2007 р. (Доступне з: http://www.audit-commission.gov.uk/nationalstudies/localgov/Pages/heartsandminds.aspx); Дослі- дження положень Партнерської угоди та незалежності, Комісія з питань Партнерської угоди (Research Study into the Compact and Independence, Commission for the Compact), вересень 2008 р.; Вони її відстоюють: роль і вплив місцевих прихильників Партнерської угоди, Комісія з питань Партнерської угоди (They are Champions: The role and impact of Local Compact Champions, Commission for the Compact), липень 2009 р.; Дослідження вихідних по- ложень Партнерської угоди 2009-2010 рр. (Compact Baseline Survey 2009/10). – Аналіз рівня обізнаності Уряду та позавідомчих органів з умовами Партнерської угоди, їхніх знань про неї, їхнього розуміння положень угоди та її використання, Комісія з питань Партнерської угоди (A study of the levels of awareness, knowledge, understanding and use of the Compact among Government and Non Departmental Public Bodies, Commission for the Compact), ли- пень 2010 р. (все доступне з: http://www.thecompact.org.uk/information/100023/140293/research/). 39 Аналіз ролі громадського сектора в постачанні послуг, Міністерство фінансів Великобританії, 2002 р. (The cross cutting review of the Role of the Voluntary and Community Sector in Service Delivery, HM Treasury, 2002). 150 Міжнародні практики фінансування ОГС...
ся видати посібник для державних надавачів фінансування, аби роз’яснити, що дозволя- ється, а що забороняється Правилами ведення державного обліку в частині, що стосується громадського сектора. Аналіз показав, що тлумаченням Правил ведення державного облі- ку часто бракує узгодженості, та що при цьому є поширеною думка про суворість так зва- них «правил Казначейства». Уряд усвідомлює, що налагодження відносин у сфері фінансування стає все більш важ- ливим, аби забезпечити фінансову стабільність організацій, що надають послуги, та підви- щити ступінь довіри з боку держави до громадського сектора як постачальника послуг40. У зв’язку з цим він видав посібник «Поліпшення фінансових відносин з третім сектором: по- сібник для надавачів і одержувачів фінансування» (Improving Financial Relationships with the Third Sector: Guidance to Funders and Purchasers) (2005 р.). У ньому містяться чотири клю- чові аспекти: • Стабільність відносин у сфері фінансування: коли це є доцільним, перехід від одно- річних до довгострокових схем фінансування • Визначення графіка платежів та балансування ризиків: врахування того, що внаслі- док затримки платежу третьому сектору часто доводиться нести витрати кредитора авансом плюс пов’язані з цим ризики • Відшкодування витрат у повному обсязі: забезпечення визнання фінансуючими ор- ганами легітимним відшкодування організаціям третього сектора відповідних на- кладних витрат, пов’язаних з наданням конкретної послуги • Зменшення бюрократичного тягаря: спрощення вимог щодо доступу до багатьох і часто дуже малих потоків фінансування й управління ефективністю41. Виконання державними надавачами фінансування цих та інших рекомендацій у подаль- шому відстежувалося в ході цілої низки досліджень. В останньому Звіті за результатами до- слідження вихідних положень Партнерської угоди (2010 р.) також проведено аналіз прак- тик фінансування, що застосовуються державними надавачами фінансування. Прикладом успіху є питання відшкодування витрат у повному обсязі, яке довго відстоював британський громадський сектор і яке було підтримане цілою низкою програм, спрямованих на підви- щення рівня обізнаності та розширення можливостей. У результаті в звіті за 2010 рік 58% ві- домчих і позавідомчих органів (як перші, так і другі є важливими учасниками процесу укла- дання контрактів з громадськими організаціями) повідомили, що вони «інколи» (23%) або «завжди» (35%) застосовують у своїх програмах фінансування принцип відшкодування ви- трат у повному обсязі, перетворивши його на один із принципів, найбільш широко застосо- вуваних у Партнерській угоді.
Чим менше, тим більше? З важливістю стратегічного підходу пов’язаний принцип «чим менше, тим більше». Не- зважаючи на те, що деякі джерела доходу мають менше значення з точку зору за- гальних надходжень секторів, їх відсутність або присутність може значною мірою змінити умови загальної життєздатності громадського сектора. Цільовий підхід, що застосовується у випадку хорватської та естонської держав при фі- нансуванні розвитку громадських організацій, демонструє, що стратегічний підхід робить корисною навіть малу інвестицію. Це не означає, що види, якість чи кількість джерел пови- нні обов’язково задовольняти потребам, це лише свідчить про важливість вибору стратегії.
40 http://webarchive.nationalarchives.gov.uk/+/http://www.hm-treasury.gov.uk/spending_review/spend_ccr/spend_ ccr_guidance.cfm 41 «Поліпшення фінансових відносин з третім сектором: посібник для надавачів і одержувачів фінансування», Міністерство фінансів Великобританії (Improving Financial Relationships with the Third Sector: Guidance to Funders and Purchasers, HM Treasury), травень 2006 р., стор. 5-6. Міжнародні практики фінансування ОГС... 151
Приватні благодійні пожертвування фізичних осіб є менш розвинутим джерелом у краї- нах Центральної та Східної Європи. Проте можна легко бачити, наскільки більш професій- ними є громадські організації, що будують свої зв’язки, розвивають ноу-хау чи займають- ся адвокаційною діяльністю за використання великих баз донорів – фізичних осіб. Ці орга- нізації цікавляться думкою зацікавлених осіб і краще налаштовуються на результат, вдо- сконалюючи методи залучення приватних ресурсів. Навіть незважаючи на те, що дохід від благодійних пожертвувань фізичних осіб набагато поступається доходам з інших джерел, ці кошти істотно впливають на імідж («бренди») громадських організацій та їхню професій- ну спроможність. Механізм 1%-вої філантропії має подібний, хоча, мабуть, і не завжди запланований вплив: в Угорщині, незважаючи на те, що на дохід від 1%-вої філантропії припадає лише 2-3% загального доходу громадських організацій, він відіграє безпрецедентну роль у під- вищенні рівня обізнаності широкого загалу з існуванням і роботою громадських організа- цій. (Водночас планувалося, що він істотно збільшить роль приватних благодійних пожерт- вувань, але цього, вочевидь, досягнуто не було.) (див. звіт про Угорщину). З угорського прикладу можна також навчитися визначати пріоритети. Незважаючи на те, що угорська модель фінансування є дуже багатогранною та враховує багато аспектів суспільного життя, фрагментованість цілей і стратегій робить складну та добре продуману в деталях систему менш функціональною.
Стабільні джерела фінансування Важливою складовою успішного підходу до підтримки громадянського суспільства є за- безпечення стабільності джерел фінансування секторів. За часів, коли з економічних причин скорочення бюджету є необхідним, відмовитися від фінансування на підтримку громадських організацій особливо складно. Досвід свідчить про те, що, якщо підійти до справи творчо, можна знайти джерела фінансування, які не обтяжуватимуть річні бюджети прямими видат- ками, а навпаки, мобілізуватимуть додаткові ресурси держави або приватного сектора. Існують два важливі аспекти «стабільності» джерела доходу: • Його гарантована наявність протягом тривалого періоду часу • Його здатність приймати незалежні рішення щодо надання грантів, виходячи з по- треб громадських організацій і одержувачів їхніх послуг (а не згідно з пріоритетами, визначеними державою) Експерти з фандрейзингу сходяться на тому, що найбільш стабільним джерелом до- ходу громадських організацій є кошти донорів – фізичних осіб. Вони є відданими орга- нізації, стосунки з ними є надійними та тривають багато років. Іншим довгостроковим і надійним джерелом доходів, чутливим до потреб громадських організацій, є приват- ні організації, що надають гранти. Таке фінансування з боку громади та благодійні по- жертвування фізичних і юридичних осіб до кінця ХХ століття були найбільш характер- ними для США та країн, де застосовувалася англосаксонська / ліберальна модель. Але протягом останніх 20–30 років практики за цією схемою також почали застосовувати країни континентальної Європи (зрозуміло, на різному рівні в старих і нових державах- членах). За використання різних методів уряди намагаються підвищити рівень приватної філан- тропії та стимулювати до неї. У двох із досліджуваних країн пропонуються цікаві моделі, аби забезпечити спрямування незалежними приватними організаціями, що надають гран- ти, свого капіталу на довгостроковий розвиток суспільства. • У Німеччині фізичним особам були надані значні податкові кредити, аби стимулюва- ти їх до здійснення внесків до ендавментів існуючих або нових організацій. Це є по- дібним до схеми американських родинних організацій з єдиною відмінністю, яка по- 152 Міжнародні практики фінансування ОГС...
лягає в тому, що у Німеччині ця схема створила стимули не лише для традиційно за- можних, а й для нового покоління верхівки середнього класу. • У Чеській Республіці творчий підхід полягав у використанні 1% доходу від привати- зації, аби фінансувати ендавменти сотень громадських організацій по всій країні, що дозволило ефективно скористатися можливістю, що відкрилася при переході від державної до приватної економіки. Ці кошти і досі працюють в інтересах країни та, з точки зору громадських організацій і громадян, перетворилися на незалежні ресур- си, оскільки держава не має права визначати цілі та методи використання цих ко- штів, за винятком здійснення та контролю заходів у сфері відповідального інвесту- вання.
У двох інших країнах, а саме Великобританії та Хорватії, довгострокова підтримка нада- ється громадським організаціям шляхом проведення лотерей. Незважаючи на те, що з фі- нансуванням за рахунок доходів від проведення лотерей пов’язано багато спірних питань – від моральних міркувань до питань ефективності – ця форма, беззаперечно, є поширеною формою державної підтримки громадських організацій42. Легше спрямувати певну частину зазвичай високого доходу від проведення лотерей на підтримку громадських організацій, ніж виділяти на це кошти з річного бюджету. Водночас це буде стабільним джерелом, адмі- ністрування якого може здійснюватися незалежно.
Незалежно від того, яка схема застосовується – приватна чи державна, важливо, щоб фінансування громадських організацій було довгостроковим і незалежним. Такий вид фі- нансування завжди залишається гнучким і дозволяє реагувати на потреби суспільства. Та- кож важливо, що кошти при цьому спрямовуються на фінансування соціальних інновацій і ризикованих з фінансової точки зору соціальних інвестицій. Держава намагається уникати ризиків, здійснюючи фінансування. За відсутності надійного, гнучкого та довгострокового джерела доходу основна додана вартість громадського сектора – його спроможність роз- робляти інноваційні рішення складних соціальних проблем і задовольняти потреби найбід- ніших верств населення швидко зникне.
Балансування меж сегмента, що охоплюється фінансуванням Типовою дилемою державного фінансування громадських організацій є їх охоплення: чи повинна державна підтримка охоплювати якомога більшу кількість громадських органі- зацій або чи повинна вона бути спрямованою на обмежений сегмент, що вважається важ- ливим для держави? Як правило, широке охоплення забезпечується за підтримки розви- тку громадського сектора як такого (аби сприяти демократичному розвитку або розширен- ню можливостей громадських організацій допомагати в розв’язанні соціальних проблем). Звуження охоплення має на меті підвищення ефективності використання наявних обмеже- них ресурсів. Практика показує, що рішення, яке відповідало б інтересам кожної громадської органі- зації, не існує, як це відбувається у випадку Національного фонду розвитку громадянського суспільства Угорщини. Він намагався побудувати «консенсус» між надто багатьма зацікав- леними сторонами з громадського сектора, в результаті чого усім їм залишилося лише по- 42 До інших країн, що використовують лотереї для підтримки та сприяння діяльності громадських організа- цій, належать Фінляндія, Ірландія, Чеська Республіка, Македонія, Нідерланди тощо. Для отримання додатко- вої інформації див.: Катерина Хадзі-Мічева-Еванс. Доходи від лотерей як засіб підтримки добрих справ і гро- мадських організацій: доля чи концепція? В Міжнародному журналі некомерційного права, Т. 12, вип. 4, листо- пад 2010 р. (Katerina Hadzi-Miceva-Evans: Lottery Proceeds as a Tool for Support of Good Causes and Civil Society Organizations: A Fate or a Planned Concept? In: IJNL Volume 12, issue 4, November 2010.) http://www.icnl.org/ knowledge/ijnl/vol12iss4/art_5.htm Міжнародні практики фінансування ОГС... 153
троху. Поширення підтримки неминуче призведе до отримання кожною громадською орга- нізацією менших обсягів допомоги, які в якийсь момент можуть втратити сенс. Проблемою хорватської моделі, яка має тенденцію до зосередження на більш відомих громадських організаціях, є те, що вона може викликати у громадських організацій від- чуття «надмірної зручності» та прив’язати їх до їхнього основного джерела фінансуван- ня, позбавивши потреби шукати підтримки громади та фізичних осіб. Зокрема, це є про- блемою в країнах Центральної та Східної Європи, де такі джерела є недорозвиненими та де розвиток громадських організацій значною мірою залежатиме від потенціалу приват- них донорів.
Хоча жодного чіткого методу розв’язання цієї дилеми не існує, можна рекомендувати наступне: – доцільно здійснювати інвестиції в пряме фінансування та розширення можливос- тей громадських організацій, що мають «стратегічне» значення для держави, а та- кож у розвиток громадських організацій (наприклад, постачальників державних по- слуг, центрів підтримки громадських організацій, спеціальних громадських організа- цій тощо); – водночас держава може охопити фінансуванням більший сегмент, створивши непря- мі стимули, такі як пільгове оподаткування благодійних пожертвувань, податкові сти- мули до здійснення економічної діяльності, підтримка в створенні незалежних нада- вачів грантів тощо. 154 Міжнародні практики фінансування ОГС...
IV. КОНКРЕТНІ ВИСНОВКИ ПО КРАЇНАХ
IV.1. Угорщина
Основна інформація про неприбутковий сектор Угорщини (2009 р.) У 2009 році в Угорщині існувало 66145 неприбуткових організацій. З них 57 865 (87,5%) можна віднести до «класичних» НУО, тобто незалежних приватних неприбут- кових організацій. Решта – організації, створені з метою представлення інтересів сво- їх членів (наприклад, профспілки), та квазіурядові організації (наприклад, неприбутко- ві організації та громадські фонди, створені державою). З-поміж класичних НУО 22 122 є фондами, а 35 743 – асоціаціями. Статус суспільно корисних мають 48% НУО, тобто вони можуть вважатися більш прозорими та подавати річні звіти. У 2009 році майже 90% НУО повідомили про певну фінансову активність, таким чином, відсоток неактивних ор- ганізацій є низьким.
Інформація про фінансовий стан громадського сектора Угорщини У 2009 році «класичні» угорські громадські організації (асоціації та фонди) мали в своєму розпорядженні понад 418,4 млрд угорських форинтів (1 , 494 млрд євро), що становило 37,5% від загального доходу неприбуткового сектора (таким чином, доход усього неприбуткового сектора, включаючи профспілки, професійні об’єднання, не- прибуткові та квазіурядові організації, досяг понад 1,1 трлн угорських форинтів, або 3,9 млрд євро). Більша частина, майже 1,5 млрд євро доходу «класичних» НУО, надій- шла від держави (35%), близько 24% – від приватних джерел, а близько 26% припа- ли на їхній власний дохід від основної діяльності. Насамкінець, 15% цього доходу були отримані в результаті господарської діяльності (економічної діяльності, не пов’язаної з основною). Стосовно фінансування з приватних джерел, від компаній надійшло 52,5 млрд угор- ських форинтів (понад 187 млн євро), які були розподілені між 12 447 НУО (або 18,8% НУО). Фізичні особи пожертвували понад 20,2 млрд угорських форинтів (72,4 млн євро), які отримали 8727 НУО (або 13,2%). На вітчизняні неприбуткові організації (наприклад, фонди) припало 2,1% доходу всього сектора, що загалом становить 23,5 млрд угор- ських форинтів (понад 84 млн євро), розподілені між 17397 організаціями, або 26,3% усіх НУО. У період з 2007 по 2009 рік обсяги іноземної підтримки збільшилися. Статис- тикою була задокументована іноземна підтримка в розмірі приблизно 44,2 млрд угор- ських форинтів (близько 158 млн євро), які, проте, потрапили лише до 2 329 НУО, або 3,5% сектора43. Цікаво зазначити, що єдиним джерелом фінансування, яке досягає більшості НУО, є 1%-ва філантропія: у 2009 році цей відсоток податку отримали 25 389 НУО, що ста- новить 38,4% сектора. Друге місце за охопленням посідає підтримка з боку централь- ної влади, що досягає близько 28% НУО. Водночас загальна частка 1%-вої філантропії (10,4 млрд угорських форинтів, або 37,3 млн євро) не складає навіть одного відсотка (0,9%) загального доходу всіх неприбуткових організацій в Угорщині. Якщо взяти всі державні джерела фінансування разом (включаючи податкові пільги), майже 64% НУО мають певний дохід із державних джерел (тоді як 45% отримують фінансування з боку приватного сектора, 55% отримують дохід від основної діяльності та 48% – від госпо- дарської).
43 Однак незрозуміло, чи можна вважати таку підтримку підтримкою з приватних джерел, оскільки вона може включати, наприклад, норвезький механізм, що передбачає фінансування з боку держави. Міжнародні практики фінансування ОГС... 155
Механізми державного фінансування Культурно-історичні умови Як одну із головних особливостей угорського громадянського суспільства слід ви- значити його потужну орієнтацію на державу. Вона включає як фінансовий, так і культур- ний аспекти. З фінансової точки зору, починаючи з середини дев’яностих років минулого століття основна частка доходу громадського сектора в Угорщині припадала на держав- не фінансування. Вона зросла з 13% у 1993 році до 44% у 2007 році (до 2009 року зни- зившись до 42%). З культурної точки зору, незалежно від того, чи отримують наразі НУО фінансування з боку держави, серед них існує загальне очікування того, що вони повинні його отримува- ти, та, поряд із фінансуванням, загальне очікування того, що уряд (держава) повинен вжи- ти кроків, аби змінити ситуацію. Таке ставлення також часто знаходить своє відображен- ня в їхніх методах досягнення статутних цілей, наприклад, лобіюванні змін у законодавстві замість проведення кампаній із залученням широкої громадськості або привернення на свій бік місцевої влади, а не місцевих підприємців. Потужна орієнтація на державу звичай- но притаманна не лише громадським організаціям, вона є загальною властивістю всього угорського суспільства. До 2011 року існувало загальне сприйняття громадських організацій, зокрема фон- дів, як тих, хто робить «добрі справи» в суспільстві. Цьому значною мірою сприяли закон про 1%-ву філантропію й увага засобів масової інформації до просування соціальних пи- тань, що зросла за останні роки. Водночас громадські організації часто розглядаються як засоби політичних партій або «доброчинники», які не є важливими в розв’язанні проблем країни. Форми державного фінансування мають велике поширення, ймовірно, більшість з них застосовуються в нових держава – членах ЄС. Це включає гранти, контракти та нормативну підтримку на загальнодержавному та місцевому рівнях, для чого існують різні канали: відомчі фонди, автономні та державні фонди, фонди органів місцевої влади тощо. Після вступу до ЄС для громадських організацій через національні кана- ли також стала доступною частина фінансування з європейського бюджету (структур- них фондів). Однак при розподілі державного фінансування спостерігаються певна непрозо- рість і недостатній рівень звітності. Наприклад, Національний фонд розвитку гро- мадянського суспільства неодноразово звинувачувався Державним аудиторським управлінням, відповідним міністерством і засобами масової інформації у фаворитиз- мі (наданні переваг громадським організаціям, пов’язаним з членами регіональних керівних органів). Також існували серйозні проблеми через затримку при укладанні контрактів і переказі коштів з боку структурних фондів, що ставило під загрозу спро- можність навіть великих громадських організацій надати послуги, на постачання яких з ними були укладені контракти. Протягом тривалого часу громадські організації були не спроможні лобіювати та від- стоювати своє право на прозоре державне фінансування з більш чітким визначенням стратегічних цілей. Останнім часом рівень співпраці між експертними громадськими ор- ганізаціями та державно-муніципальними партнерами у покращенні фінансової бази по- кращується. Метою діючого уряду є реформування системи фінансування громадських організа- цій: з одного боку, він оголосив про свої наміри підвищити рівні прозорості та звітнос- ті, з іншого – на громадські організації чекає значне скорочення державного фінансу- вання. 156 Міжнародні практики фінансування ОГС...
Фінансово- Культурно-історичні умови Національні особливості правова база Механізми фінан- Сприятлива або Потужна орієнтація на держа- Існування в новій державі-члені сування нейтральна ву, питання прозорості фінан- ЄС цілої низки форм держав- сування. Відносне сприйняття ного фінансування. Отриман- громадських організацій гро- ня громадськими організаціями мадськістю підтримки з боку Національного фонду розвитку громадянсько- го суспільства та інших держав- них фондів Соціальне Сприятлива Застосування інноваційних під- Нормативна підтримка громад- контрактування ходів, зокрема, в сфері зайня- ських і релігійних організацій- тості. Підвищення ролі громад- постачальників послуг залежно ських організацій у наданні по- від обсягу послуг. Застосування слуг, що тривало аж донині. Від- на муніципальному рівні різних дається перевага релігійним інших ефективних моделей організаціям-постачальникам послуг Взаємодія з державою
Альтернативне Нейтральна Передача громадським орга- Передача майна профспілкам фінансування нізаціям порожніх будівель, що і НУО наприкінці 90-х років ми- залишилися із часів соціалізму. нулого століття. Першою з кра- Високий рівень політизованості їн Центральної та Східної Євро- фінансування громадських ор- пи було запроваджено схему пе- ганізацій в Угорщині – механізм редачі громадським організаціям 1%-вої філантропії як спосіб де- відсотка від податку політизації процесу прийняття рішень Приватні Нейтральна Іноземні донори діяли через ор- Малий сектор фондів – західні пожертвування ганізації з перерозподілу гран- донори запізно зосередилися на за використання тів. Здійснення довгострокових створенні національного сектора інституціоналізо- інвестицій у підвищення профе- надавачів грантів ваного механізму сійності громадських організа- цій, соціальні інновації
Пожертвування Позитивна Збільшення обсягів пожерт- Надання в минулому значних по- приватних або нейтральна вувань юридичних осіб узага- даткових пільг компаніям, що під- юридичних осіб лі. Низький рівень обізнаності тримують суспільно корисні ор- Взаємодія з приватним сектором
споживачів, що змушує компа- ганізації, та з метою сприяння нії застосовувати більш відпові- довгостроковій допомозі. Звіль- дальні практики нення допомоги в натуральній формі від ПДВ
Пожертвування Нейтральна, Після 1989 року суспільство так Традиційні методи залучення ко- фізичних осіб несприятлива само сподівалося отримувати штів не є занадто регульовани- послуги безкоштовно. Це впли- ми, але існують жорсткі прави- нуло на культуру пожертвувань: ла захисту інформації. Існуван- у соціальній сфері будь-що має ня технічних перешкод. Останнім надаватися безкоштовно та часом рівень пожертвувань зни- безумовно зився Заробляння Сприятлива На зароблений доход завжди Громадські організації здійсню- доходу або нейтральна припадає велика частка доходу ють багато видів економічної ді- Зароблений доход
громадських організацій. Не- яльності. Членські внески біль- прибуткові організації – гнучка шістю з них вважаються неваж- форма організацій, спромож- ливими на надавати послуги, подібні до ринкових Міжнародні практики фінансування ОГС... 157
Роль громадських організацій Приклади / найкращі практики Зауваження
Одержувачі фінансування; інко- Обсяги та розмаїття форм державно- Відсутність стратегічного підходу; ви- ли приймають рішення (Націо- го фінансування. Спрямування політики сокі обсяги фінансування квазіурядо- нальний фонд розвитку грома- фондів на обмеження очікуваних обсягів вих організацій з боку держави. Не дянського суспільства) фінансування при ухваленні скорочень запроваджений статус суспільно ко- бюджету. Статус суспільно корисної ор- рисної організації. Бюрократичні тя- ганізації вимагає прозорості гарі та технічні умови перешкоджа- ють застосуванню принципу найкра- щої вартості У принципі, постачальники по- Нормативна підтримка за використан- Зростаючі очікування щодо якості не слуг і контрагенти, а насправ- ня чіткого правового механізму. Оцін- відповідають рівню фінансування. ді,– одержувачі фінансування ка окупності соціальних інвестицій до- Дискримінація між громадськими та зволяє отримати вартість, створену гро- релігійними організаціями мадськими організаціями
Одержувачі фінансування, та- Обмеження обсягів прямих субсидій з Такі методи часто пов’язані з полі- кож активні відстоювачі прин- бюджету. Відсоткова схема: незважаю- тичним впливом і, в деяких випад- ципу 1%-вої філантропії чи на певні проблеми, це є ефективним ках, корупцією. Новий єдиний пода- способом налагодження зв’язків між ток зменшить доход від 1%-вої філан- громадськими організаціями та грома- тропії дами
О д е р ж у в а ч і ф і н а н с у в а н н я , Здійснення стратегічних інвестицій у На приватні організації припадало стратегічні партнери справи, фінансування яких є проблема- менше 7% доходу громадських орга- тичним, як-от розв’язання «цигансько- нізацій, але їх потенціал був набага- го питання», захист прав людини. Гнуч- то вищим. Через брак такого фінан- кі, орієнтовані на громадські організації сування тепер складно залучити ко- умови фінансування шти для розвитку нових організацій і послуг
Відіграють численні ролі: одер- Надання грантів загального призна- Сфери підтримки є більш обмежени- жувачі фінансування, стратегіч- чення, оперативна підтримка, гнучке ми, але це є одним з найбільш гнуч- ні партнери, постачальники по- та швидке фінансування громадських ких джерел доходу. Вітчизняні компа- слуг організацій-партнерів. Позитивні прак- нії надаватимуть допомогу подібно до тики: децентралізований процес при- багатонаціональних, але на нижчому йняття рішень; прийняття клієнтами бан- стратегічному рівні ків рішень щодо підтримки громадських організацій за рахунок прибутку.
Ініціатори й одержувачі фінан- Незважаючи на відносно низький рівень Система 1%-вої філантропії виявила- сування (відсутність патерна- пожертвувань фізичних осіб, їх загальна ся успішною в навчанні людей думати лістських відносин з донорами) частка в доході громадських організацій про тих, кого вони підтримують, але за останні роки в 6-7 разів перевищува- може послабити їхню прихильність, ла доход від 1%-вої філантропії без якої неможлива справжня філан- тропія
Ініціатори та постачальники по- Законодавство в сфері економічної ді- Дохід заробляється в сферах, де на- слуг яльності є позитивним прикладом – дання послуг державою є економічно воно дозволяє громадським організаці- недоцільним, наприклад, при надан- ям здійснювати інвестиції в стратегічний ні спеціалізованих послуг у сфері за- розвиток йнятості 158 Міжнародні практики фінансування ОГС...
Національні особливості Однією із особливостей Угорщини є Національний фонд розвитку громадянського су- спільства, що надає НУО інституційну та програмну підтримку. Це автономний фонд, ство- рений відповідно до закону, до складу 11-ти національних і регіональних керівних органів якого входять обрані представники громадських організацій. Кожного року він отримує суми, що дорівнюють загальній сумі 1%-вих податкових внесків платників податку, призна- чених для громадських організацій. Іншим важливим фондом є Національний фонд сприяння зайнятості, що фінансує ді- яльність громадських організацій, які створили робочі місця протягом останніх двадця- ти років. Відтоді як були запроваджені структурні фонди, механізми перерозподілу грантів скон- центровані в одній квазіурядовій компанії, що контролюється державою та є неприбутко- вим постачальником соціальних послуг за використання ресурсів Європейського соціаль- ного фонду. Проте кошти норвезького та швейцарського фондів розвитку громадянсько- го суспільства розподіляються через незалежний консорціум з перерозподілу грантів, який складається з приватних фондів, що становить один з небагатьох винятків.
Роль громадських організацій Громадські організації в основному розглядаються як одержувачі фінансування з боку держави. Водночас вони у складі національних і регіональних керівних органів Національ- ного фонду розвитку громадянського суспільства складають більшість, а отже, також бе- руть участь у прийнятті рішень.
Приклади, найкращі практики Загалом високий рівень державного фінансування дозволив забезпечити громадські організації ресурсами після відходу іноземних донорів, а отже, зробити їх спроможними і надалі задовольняти поточні потреби суспільства. Незважаючи на проблеми, участь дер- жави у фінансуванні громадських організацій на всіх рівнях і за використання різних його форм має вважатися позитивним прикладом. Важлива політика Національного фонду розвитку громадянського суспільства та Національ- ного культурного фонду включає застосування механізмів, які при значних скороченнях ухва- лених бюджетів проектів дозволяють зорієнтувати донорів на очікування нижчих результатів. Статус суспільно корисної організації є відносно чітко визначеним, і на практиці фінан- сування з боку держави часто прив’язується до статусу, який у процесі державного фінан- сування використовується як вимога до прозорості та якості.
Зауваження Здається, стратегічний підхід до досягнення бажаних результатів і впливу відсутній, а про- блема полягає не стільки в обсягах фінансування, скільки в тому, як витрачаються кошти. На думку деяких спеціалістів у сфері розвитку, угорський неурядовий сектор розбещений тим, що певні обсяги державного фінансування завжди можна отримати для здійснення діяль- ності, яка повинна фінансуватися з коштів громади. Наприклад, Національний фонд розви- тку громадянського суспільства допомагає організаціям малих міст і навіть сільським органі- заціям, надаючи їм гранти в розмірі 1000-2000 євро, спрямовані на їх інституційну підтримку (тобто підтримку існування НУО). Водночас держава скорочує обсяги нормативної підтримки НУО, що надають життєво необхідні державні послуги малозабезпеченим верствам населен- ня. Як наслідок, малі НУО орієнтуються на державні кошти і втрачають стимули до залучення коштів громади, а великі опиняються у фінансовій кризі та неспроможні надавати якісні по- слуги своїм споживачам. Таким чином, спостерігається суцільно хибне використання ресур- сів, навіть незважаючи на те, що сектор отримує вдосталь фінансування. Міжнародні практики фінансування ОГС... 159
Також існує непропорційно високий рівень коштів, що розподіляються серед неве- ликої групи організацій, які в більшості випадків створені центральною/місцевою вла- дою 44. Статус суспільно корисної організації не завжди надає достатньо гарантій прозорості діяльності громадських організацій, оскільки відсутні чіткі положення щодо контролю та на- гляду, але він донині залишається однією з найкращих спроб знайти баланс між пільгами, що надаються громадським організаціям, та їхніми зобов’язаннями. Бюрократичні тягарі та технічні умови, особливо при проведенні тендерів на отри- мання коштів структурних фондів, часто перешкоджають застосуванню кращих практик і принципу найкращої вартості (наприклад, завеликі власні внески учасників45, умови, що визначаються розміром бюджету, відсутність механізму багаторічного фінансування про- ектів тощо).
Соціальне контрактування Культурно-історичні умови Соціальне контрактування існує в Угорщині з початку 90-х років минулого століття. З од- ного боку, були відсутні муніципальні кошти та послуги, конче необхідні в умовах переходу від соціалізму до капіталізму. З іншого боку, багато НУО відігравали важливу роль у наданні послуг малозабезпеченим верствам населення й очолювали процес соціальних інновацій. У результаті центральна влада і поступово органи місцевої влади визнали важливість НУО в постачанні послуг. Законодавство допомогло цьому процесу, створивши спеціальні меха- нізми укладання контрактів з НУО на надання підтримки з боку центральної влади на міс- цевому рівні (нормативна підтримка)46. У період з 1998 по 2008 рік на місцях також актив- но розроблялися стратегії розвитку громадянського суспільства й укладалися договори на кшталт «партнерської угоди». Останнім часом, однак, спостерігається зворотна тенденція. Внаслідок бюджетних ско- рочень в умовах економічної кризи вже попередній уряд почав згортати нормативну під- тримку НУО, діючий же, з ідеологічних міркувань, віддає перевагу підтримці релігійних ор- ганізацій – постачальників послуг, а не НУО, а отже, продовжує створювати для НУО сер- йозні перешкоди в наданні соціальних послуг на місцях. Експерти повідомляють, що надан- ня деяких послуг, яке здійснювалося НУО, було передане релігійним конфесіям, аби уник- нути припинення їх надання47. Протягом останніх двадцяти років угорськими НУО винайдені інноваційні й ефективні рі- шення, спрямовані на розв’язання важливих соціальних питань. Приклади включають бага- то сфер – від розвитку дитини в ранньому віці та допомоги безпритульним до надання ре- абілітаційних послуг; найбільш яскраві приклади, мабуть, можна знайти в сфері зайнятос- ті. Багато із цих рішень були реалізовані лише на місцевому рівні або залишилися на стадії пілотної розробки, але деякі поступово знаходять все ширше застосування, наприклад, за-
44 На ці квазі-НУО, які колись називалися суспільно корисними організаціями, а тепер – просто неприбут- ковими, припадає левова частка фінансування, яке отримує з боку держави поширений неприбутковий сектор (який включає не лише класичні асоціації та фонди, але й, наприклад, профспілки, інші зацікавлені групи і ква- зіурядові організації). 45 У більшості випадків такі внески становили 10–20%. 46 Це означає, що коли НУО бере на себе відповідальність за надання послуги, що належить до зобов’язань держави за законом, і задовольняє певним нормам, держава надає організації підтримку, розраховану на душу населення. 47 В Угорщині між Ватиканом і угорським урядом укладена спеціальна угода, якою передбачене надання державою тієї самої підтримки при постачанні послуг церквою, яку вона надає при постачанні державних послуг (включаючи початкове шкільне навчання та соціальні послуги, а також, наприклад, послуги в сфері культури чи охорони здоров’я). Непрямо це також стосується інших та «історичних» церков, але не НУО. 160 Міжнародні практики фінансування ОГС...
вдяки участі професійних об’єднань, та інколи цими моделями зацікавлювалася держава, що фінансувала їх застосування на національному рівні (наприклад, модель організації бу- динків для престарілих або спеціальна методика інтеграції людей з психічними розладами до ринку основних професій). Це надало істотні переваги суспільству, державі та самим по- стачальникам послуг.
Національні особливості Особливістю Угорщини є нормативна підтримка на центральному рівні, яка надається громадським організаціям, що отримують ліцензію на надання державних послуг. Поряд з громадськими організаціями та власними постачальниками державних послуг держави, на цьому «ринку» також присутні релігійні організації та установи, що підтримуються ре- гіональним об’єднанням органів місцевого самоврядування (однак громадські організації знаходяться в найгіршій ситуації з-поміж постачальників послуг з точки зору їх фінансуван- ня та життєздатності). Вимоги до забезпечення якості при наданні послуг у різних сферах є типовими. На муніципальному рівні існують різні ефективні моделі – від надання громадським ор- ганізаціям щорічних грантів до укладання довгострокових контрактів на постачання послуг. При наданні послуг громадські організації частіше користуються цими формами, ніж об- межувальною нормативною підтримкою. Великі муніципалітети також створили фонд на підтримку громадських організацій, що надають послуги.
Роль громадських організацій Фактично громадські організації є постачальниками послуг і контрагентами держави. Проте через в цілому патерналістський характер відносин між державою та громадськи- ми організаціями вони більше розглядаються як набувачі підтримки, навіть якщо якість їхніх послуг є загальновизнаною.
Приклади, найкращі практики Нормативна підтримка, в основі якої лежить законодавчо закріплений і «автоматично розраховуваний» механізм фінансування організацій, що задовольняють ліцензійним умо- вам, є позитивною практикою фінансування соціальних послуг, адже вона реагує на вибір споживачів. (Одержувачі послуг можуть обирати між державними, релігійними або громад- ськими постачальниками послуг, і послуга гарантуватиметься також тим одержувачам, ко- трі обрали неприбуткового постачальника.) Найкращою практикою в сфері укладання соціальних контрактів з громадськими ор- ганізаціями є створення фонду, що почав вимірювати окупність соціальних інвестицій48. За результатами, моніторинг яких здійснювався протягом декількох років, виявилося, що клієнти, які отримують допомогу від фонду, працевлаштовуються у середньому про- тягом півроку, працюють на одному й тому самому місці довше та знаходять нову ро- боту швидше, ніж ті, хто отримує допомогу в рамках подібних програм, що реалізують- ся державними агенціями. Взагалі кожний угорський форинт, інвестований у діяльність фонду «Salva Vita», через п’ять років перетворюється на (заощаджує чи заробляє) 4,77 угорські форинти49. Цей розрахунок демонструє державі створену вартість і служить ва- гомим доказом доцільності здійснення подальших інвестицій в організацію навіть при зміні уряду.
48 Коефіцієнт окупності соціальних інвестицій – це метод, розроблений американськими та британськими вченими й експертами з неприбуткових організацій з метою отримання грошового еквівалента вартості, ство- реної неприбутковими організаціями. Вперше проводити таку оцінку в Угорщині і, наскільки нам відомо, взага- лі в країнах Центральної та Східної Європи почав фонд під назвою «Salva Vita». 49 http://salvavita.hu/index.php?menu_id=1210&topmenu=1200&oldal_id=1210&oldal_tipus=text Міжнародні практики фінансування ОГС... 161
Зауваження Теоретично нормативна підтримка може бути ефективним засобом створення рівних умов для постачальників послуг з різних секторів. Однак в Угорщині, де рівень підтрим- ки громадських організацій є низьким (складаючи, в середньому, 60–70% підтримки, яку отримують державні постачальники та церква), цього не відбувається. Водночас постійно зростають вимоги до якості, а громадським організаціям доводиться дотримуватися тих самих стандартів, що й постачальникам послуг, які фінансуються повною мірою. Таким чи- ном, існує прихована дискримінація незалежних постачальників послуг, яка свідчить про незручність ринку соціальних послуг, що «відкривається», для державного сектора. Водночас громадські організації створили високоякісні, цінні ноу-хау в сфері надання послуг, які були інтегровані в послуги, що надаються державою. Розроблені ними спеціа- лізовані послуги стали поширеними та були високо оцінені більшою частиною населення. Вочевидь, держава не розуміє, що вона потребує громадських постачальників послуг, аби продовжувати напрацювання цього ноу-хау та підвищення ефективності послуг. Пев- но, відсутнє й розуміння сталості надання послуг, а також вимірювання рівня задоволен- ня одержувачів послуг/клієнтів, які отримують їх від громадських організацій, держави або церкви. Водночас численність форм залучення державою громадських організацій до надання послуг, що не є нормативними, зокрема на місцевому рівні, робить їх спроможними допо- могти громадам у задоволенні їхніх основних потреб. Незважаючи на труднощі, пов’язані з цією системою, з якими наразі стикаються гро- мадські організації, вона залишається однією з найбільш перспективних моделей соціаль- ного контрактування в нових державах-членах.
Альтернативне фінансування Культурно-історичні умови Після руйнації комунізму національні спілки та інші громадські організації, які були на- ступниками партійних організацій (наприклад, організації інвалідів, осіб похилого віку, спіл- ки жінок, письменників і журналістів тощо) продовжували використовувати ті самі будівлі, які були надані їм раніше. В період з 1998 по 2000 рік ці та інші будівлі були передані у влас- ність громадських організацій, що ними користувалися, або пропонували користуватися ними в майбутньому50. Це була разова програма, яка реалізувалася за використання тен- дерних процедур протягом двох років без проведення жодних оцінок доцільності чи впливу. Тут слід відзначити ще один фактор – політичний характер фінансування громадських організацій з боку держави. Відтоді як змінилася система кожна владна структура відда- вала перевагу одним групам громадських організацій перед іншими, що також позначало- ся на обсягах державної підтримки, яку вони отримували (наприклад, за фінансування кон- курували піонерські та скаутські організації, християнські та ліберальні спілки жінок тощо). В середині 90-х років минулого століття Парламентський комітет, що вирішував питан- ня підтримки громадських організацій, потрапив у глухий кут через неспроможність дійти компромісу щодо того, кому віддати перевагу. Тоді група членів Парламенту у складі тодіш- нього міністра культури та громадських експертів запропонувала ідею відсоткового меха- нізму, який повинен був деполітизувати державну підтримку шляхом перекладення відпо- відальності за прийняття рішень на платників податку. При запровадженні цієї ідеї (що спо- чатку стосувалася лише організацій у сфері культури) розглядалися й інші чинники, як-от: низький рівень пожертвувань приватного сектора і необхідність збільшення ресурсів гро- мадських організацій.
50 Закон «Про передачу певного державного майна». 162 Міжнародні практики фінансування ОГС...
Національні особливості Однією із особливостей угорської політики у сфері розвитку громадянського суспільства була передача майна громадським організаціям. Поряд з релігійними організаціями та проф- спілками, що мали право вимагати повернення колишнього майна, громадським організаці- ям також була надана можливість повернути свою «частку». Проте це не привело до створен- ня значних ендавментів громадських організацій. Лише декілька сотень організацій отрима- ли майно, але багато з них не спроможні були підтримувати його в належному стані. Угорщина також надає пряму підтримку з бюджету деяким національним асоціаціям і «парасольковим» організаціям. Однак можливості цього наразі є дуже обмеженими. Мініс- терство не може витрачати більше 20 000 євро на підтримку будь-якої організації без про- ведення тендерної процедури. Крім того, надання будь-якій асоціації прямих субсидій з бюджету міністерства має бути схвалене Кабінетом Міністрів. Відсоткова схема для фізичних осіб є «винаходом» Угорщини, оскільки вона запропо- нувала її першою з країн Центральної та Східної Європи. Ця схема дозволяє платникам по- датку передавати 1% сплачуваного ними податку відповідній громадській організації і ще 1% – релігійній або на досягнення цілі, яка щороку визначається державою. Ця схема від- соткової філантропії заслуговує на ретельний аналіз, але ми наведемо тут лише два осно- вні моменти: • Позитивним є те, що вона допомогла розбудувати зв’язки між громадськими орга- нізаціями та суспільством. Саме тому громадські організації звернулися до людей і розповіли про свою діяльність • Досі невизначеним є її вплив на розвиток «традиційної» або «справжньої» філантропії. Проведені дослідження не дали можливості встановити тут причинний зв’язок, у той час як нові емпіричні дані свідчать про те, що в далекій перспективі (тобто через 10 ро- ків) вона може скоріше перешкодити, ніж сприяти розвитку культури філантропії.
Роль громадських організацій У разі альтернативного фінансування громадські організації є, по суті, одержувачами державних коштів. Однак у випадку системи відсоткової філантропії вони активно спілку- ються з громадськістю, а отже, є не лише «пасивними» одержувачами майна або грантів.
Найкращі практики Незважаючи на існування численних запитань щодо відсоткової схеми та всю критику на її адресу, якщо ця схема буде запроваджена у відповідному контексті та своєчасно, вона допоможе населенню зрозуміти важливість громадських організацій, а також налагодити зв’язки між громадськими організаціями та їхніми громадами. Обмеження сум, що можуть спрямовуватися на підтримку громадських організацій без проведення тендеру, також має вважатися позитивною практикою країн Центральної та Східної Європи.
Зауваження Передача права власності на майно, навіть якщо процес і умови такої передачі регулю- валися законодавством, була пов’язана з політичним впливом і, в деяких випадках, хабар- ництвом. У разі надання допомоги вирішальною є своєчасність. В Угорщині майно, в більшості ви- падків, надавалося на умовах довгострокової оренди в періоди, коли громадським органі- заціям було складно підтримувати його в належному стані (при цьому їм було заборонено продавати майно протягом декількох років). Нова урядова ініціатива із запровадження єдиного податку різко змінить ситуацію, що склалася з 1%-вою філантропією. Обсяг податку, що сплачується фізичними особами, Міжнародні практики фінансування ОГС... 163
зменшиться, але кількість фізичних осіб, від яких надходитиме відсоток з податку, збіль- шиться. Очікується, що податкові надходження скоротяться загалом на 30%, що може справити значний негативний вплив на громадські організації, які більше залежать від до- ходу від відсоткової філантропії. Це свідчить про те, що найбільш надійним джерелом доходу в довгостроковій перспекти- ві залишається «справжня» або «традиційна» філантропія, та що державне джерело, яким би інноваційним воно не було, ніколи не замінить підтримку з боку відданих справі фізичних осіб.
Приватні пожертвування за використання інституціоналізованого механізму Культурно-історичні умови В Угорщині, на відміну від багатьох інших країн регіону, іноземні донори діяли не на- пряму. Задля перерозподілу своїх коштів вони використовували або допомагали створити угорські фонди. В середині 90-х років минулого століття існувало не більше 10 таких фон- дів, що здійснювали перерозподіл грантів, і після того, як донори пішли з регіону, приблиз- но половина з них згорнула свої програми або звела їх до мінімуму. (Включаючи угорський Фонд Сороса, що був першим у мережі фондів відкритого суспільства в країнах Централь- ної та Східної Європи, закриття якого в 2007 році ознаменувало кінець ери фінансування з іноземних приватних джерел.) За часів свого «розквіту» таке фінансування насамперед використовувалося в цілях со- ціальних інновацій, розробки та запровадження інноваційних послуг і проектів, спрямова- них на окремі групи одержувачів послуг. Воно було основним джерелом фінансування, аби інвестувати в розширення можливостей та підвищення рівня професійності громадських організацій і допомагало їх зміцненню часто протягом декількох років (для порівняння, на- явні зараз кошти Національного фонду розвитку громадянського суспільства, спрямова- ні на надання інституційної підтримки, мали витрачатися протягом декількох місяців кож- ного року). Ще однією перевагою західних приватних донорів було те, що вони, в більшості випадків, були політично нейтральними та вважалися такими (за винятком Фонду Сороса, який звинувачували у втручанні в політику)51. «Народжені» в Угорщині приватні фонди, що надають гранти, все ще знаходяться на по- чатковому етапі розвитку. Незважаючи на те, що їх кількість поступово зростає, фонди за- снувала лише купка фізичних осіб, які займаються філантропічною діяльністю. Вони допо- магають, як правило, сучасним митцям або талановитим дітям з бідних родин, тобто лю- дям, а не (громадським) організаціям. Новим багачам ще бракує культури та розуміння під- тримки громадських організацій. Водночас зростає кількість корпоративних фондів, що підтримують громадські органі- зації та розвиток громадянського суспільства в цілому (див. нижче). Слід зазначити, що угорські фонди, які надають і розподіляють гранти, не мають окремої організаційно-правової форми, а донор – жодних стимулів для створення ендавменту. Тому існує практично не більше двох-трьох вітчизняних фондів, які мають ендавменти, за раху- нок яких надаються гранти та на отримання підтримки з яких можуть розраховувати гро- мадські організації в довгостроковій перспективі.
Національні особливості Перший етап реалізації цільових програм західних донорів, спрямованих на створення вітчизняного сектора надавачів грантів, розпочався в Угорщині запізно. Донори фактично
51 Однією з умов отримання найбільш сприятливого статусу 501C3 американською організацією є невтру- чання в політику. 164 Міжнародні практики фінансування ОГС...
почали формувати фонди-ендавменти з організацій, що перерозподіляють/надають гран- ти, лише тоді, коли вони вже залишали країну. Внаслідок цього було досягнуто обмежено- го успіху в наповненні цих ендавментів, що, в свою чергу, призвело до обмеження сфер на- дання підтримки за рахунок таких ендавментів.
Роль громадських організацій На відміну від державних агенцій, приватні донори розглядали громадські організації не лише як одержувачів фінансування, ай як стратегічних партнерів у досягненні їхніх власних довгострокових цілей. Саме тому вони намагалися перебрати на себе відповідальність за надання допомоги громадським організаціям і якомога довше надавати їм інституційну під- тримку та гранти за гнучкими схемами.
Найкращі практики, приклади Прикладом позитивної практики угорських інституційних донорів є обсяги стратегічних інвестицій у справи, які проблематично фінансувати з «філантропічного ринку». Це включа- ло надання підтримки в таких цілях, як розв’язання «циганського питання», захист грома- дянських свобод, прав людини та соціально вразливих верств населення тощо. Незважаю- чи на обмежені дані щодо впливу цих програм, вони, без сумніву, усунули прогалину в за- доволенні потреб, що не вдалося іншим донорам. Громадські організації також високо оцінили орієнтовані на одержувача гранту, гнучкі, бюрократично необтяжені механізми фінансування, які пропонують ці фонди. Наприклад, власні внески, як правило, були або непотрібні, або мінімальні, а в біль- шості випадків, якщо вони були потрібні, приймалися у формі волонтерської праці. Гнучке фінансування у важливих сферах залишало простір для розв’язання питань методом спроб і помилок, а також поступового висхідного накопичення результатів, що є більш природним шляхом досягнення соціальних змін, ніж стратегії, замовлені державою.
Зауваження Недостатня розмаїтість донорських моделей і стратегій призвела до того, що угор- ський громадський сектор став дещо «одноманітним» (тобто більшість громадських орга- нізацій мають подібне джерело доходу, покладаючись переважно на різні форми держав- ного фінансування та власні доходи). Протягом останніх десяти років ХХ століття Угор- щина та її громадські організації належали до лідерів у сфері інновацій в Центральній та Східній Європі, але за перші десять років ХХІ століття це лідерство зменшилося. Сьогодні громадські організації є скоріше виконавцями державних програм, ніж новаторами у сво- їх галузях. Незважаючи на те, що обсяги пожертвувань приватних благодійних фондів ніколи не пе- ревищували 7% загального доходу неурядового сектора, їхній потенціал був набагато біль- шим. Багато громадських організацій, а в деяких випадках організації малих громад, що отримували таку підтримку, спромоглися досягти такого рівня ноу-хау та можливостей, що перетворилися на постачальників і партнерів як компаній, так і влади. Більшість громад- ських організацій, що спромоглися здобути та реалізувати європейські програми, походи- ли з організацій, «побудованих» за участю іноземних донорів. Через брак такого фінансування створювати нові громадські організації, здійснюва- ти інвестиції в розвиток послуг і визначати стратегічні напрями діяльності організацій на- разі є складним. Незважаючи на те, що корпоративні фонди поступово навчаються «мис- тецтву надання грантів», вони, ймовірно, так само фінансуватимуть розв’язання більш ві- домих питань, тому брак грантів від незалежних вітчизняних інституцій буде так само від- чутним. Міжнародні практики фінансування ОГС... 165
Фінансування з боку приватних юридичних осіб Культурно-історичні умови Обсяги допомоги та інституційного фінансування з боку юридичних осіб в цілому збіль- шуються. Взагалі, подібно до інших країн Центральної та Східної Європи, більший акцент робиться на налагодженні зв’язків з громадськістю та створенні бренду, але при цьому та- кож зростають обсяги класичних благодійних пожертвувань і рівень корпоративної соціаль- ної відповідальності. Дані Управління статистики, отримані в 2009 році, свідчать про те, що дохід, який громадські організації отримують в результаті фінансування з боку юридичних осіб, у порівнянні з 2007 роком збільшився на 20%. Цікаво, що ця форма підтримки не за- знала такого істотного впливу кризи, якого очікували громадські організації. Нижче наведені результати останнього дослідження, проведеного Угорським форумом донорів:52 – на запитання відповідали 70 із 200 провідних компаній; – 10% жертвують до 1 млн. угорських форинтів (3500 євро), а 14% – понад 100 млн угорських форинтів (прибл. 357 000 євро) на рік; – 45% у 2001 році не планують збільшувати свої благодійні бюджети, а 20% – планують. Рівень обізнаності споживачів завжди був і залишається низьким, що змушує компа- нії застосовувати більш відповідальні практики. Угорці неодноразово демонстрували, що вони є непропорційно у порівнянні з іншими європейськими країнами чутливими до ціни (якості, доступності та іншим чинникам надається набагато менше значення, не говорячи вже про екологічну та соціальну відповідальність)53. Першими, хто запровадив більш розвинені схеми надання грантів і корпоративні фон- ди на загальнодержавному рівні, були західні компанії. Однак результати дослідження, проведеного в 2005 році, показали, що 67% вітчизняних компаній, хоча й неструктуро- вано та непрофесійно, все ж таки роблять пожертвування54, а малі та середні підприєм- ства відіграють важливу роль у наданні підтримки на рівні громади. Таким чином, разо- ві пожертвування залишаються більш типовими, ніж стратегічні, але, здається, ситуація ось-ось має змінитися.
Національні особливості В Угорщині компанії, що надають підтримку суспільно корисним організаціям, отриму- ють істотні податкові пільги, а законодавство також надає стимули до довгострокової під- тримки. До доходу можуть не включатися 150% сум коштів, переданих до суспільно корис- них організацій як разова допомога, в розмірі не більше 20% оподатковуваного прибутку, а при перерахуванні тих самих або більших сум протягом чотирьох років, в дохід щороку мо- жуть не включатися 150% таких коштів у розмірі не більше 25% оподатковуваного прибутку. При наданні підтримки громадській організації, що не має статусу суспільно корисної, до доходу на тих самих умовах може не включатися до 100% переданих коштів. Ця схема опо- даткування є дуже перспективною, вона сприяла поширенню культури пожертвувань серед угорських компаній55. Однак за останні п’ять років (починаючи з 2008 року) кількість цих пільг значно скоро- тилася, та наразі лише небагато громадських організацій (ті, що мають статус «провід-
52 Дослідження, проведене в жовтні–листопаді 2010 р. 53 Куті Ева (ред.) (Kuti, Eva ed.) Vállalatiadományozás Magyarországon Tanulmányok 2005 («Пожертвування юридичних осіб в Угорщині»). 54 Там само. 55 Жодного поглибленого дослідження впливу такої схеми не проводилося, проте коли надання пільг було припинено, громадські організації повідомили про помітне зниження активності компаній у наданні їм підтрим- ки. Однак незрозуміло, чи це було зумовлено лише зміною в системі оподаткування, чи цьому також сприяв по- чаток фінансової кризи. 166 Міжнародні практики фінансування ОГС...
них» суспільно корисних і уклали контракт з державною агенцією) можуть розраховувати на отримання пожертвувань, звільнених від податку. Пожертвування в натуральній формі звільняються від оподаткування ПДВ, що також є спірним питанням.
Роль громадських організацій Роль громадських організацій, імовірно, краще за всіх розуміють донори – юридичні особи: зокрема, маючи стратегію філантропічної діяльності або реалізації соціальної від- повідальності, вони можуть виконувати роль не лише одержувача фінансування, ай поста- чальника послуг або стратегічного партнера.
Найкращі практики Донори – юридичні особи часто надають своїм партнерам гранти загального призна- чення або необмежену оперативну підтримку (наприклад, при змінах законодавства, які істотно ускладнюють рух готівкових коштів). Загалом підтримка є гнучкою та враховує потреби набувача гранту й одержувачів послуг. Жодних власних внесків, як правило, не потрібно. Існують позитивні практики в сфері прийняття рішень: у деяких випадках прийняття рі- шень щодо надання грантів є децентралізованим (наприклад, працівники місцевого під- розділу можуть мати власний бюджет і самі вирішувати, кого підтримувати). Іншою цікавою ініціативою є ініціатива першого Банку духовної угорської громади (MagNet Bank), з якої стартувала Програма пожертвувань громади, в рамках якої клієнти банку спільно можуть вирішувати, які НУО (з-поміж зазначених у переліку) отримають 10% річного прибутку Бан- ку. Банк також пропонує фондам і асоціаціям спеціальний пакет послуг, щось на кшталт яко- го вже давно чекали НУО на угорському ринку фінансових послуг.
Зауваження Незважаючи на те, що обсяги підтримки з боку юридичних осіб є обмеженими (нада- ється лише в певних сферах і певним громадським організаціям), вона залишається од- ним з найбільш гнучких джерел доходу громадських організацій. На прикладі Угорщини та- кож можна бачити, що вітчизняні компанії вважають підтримку громадських організацій так само важливою, як і багатонаціональні. Однак вони запізнюються із запровадженням про- грам регулярних пожертвувань, що спростять для громадських організацій доступ до під- тримки та підвищать її надійність. Як тимчасові, так й інституціоналізовані компанії є зазви- чай найбільш жвавими донорами громадських організацій.
Пожертвування фізичних осіб Культурно-історичні умови Історично склалося так, що до 1989 року в Угорщині працювала потужна, добре фінан- сована система соціальних послуг. Оскільки якість послуг була відносно високою, насе- лення продовжувало розраховувати на безкоштовне отримання високоякісних послуг на- віть після зміни системи. Це істотно позначилося на культурі пожертвувань: у соціальній сфері будь-що має надаватися безкоштовно та безумовно. Як наслідок, люди були не го- тові надавати громадським організаціям підтримку в довгостроковому постачанні соці- альних послуг. Піднесення благодійної активності фізичних осіб в Угорщині припало на 90-ті роки ми- нулого століття, але й тоді їхні пожертвування були дуже помірними, а за часткою в дохо- дах громадського сектора цей механізм поступався допомозі з боку держави та юридичних осіб. Останнім часом обсяги благодійних пожертвувань фізичних осіб скорочуються: в пе- Міжнародні практики фінансування ОГС... 167
ріод з 2007 по 2009 рік суми коштів, які НУО отримують від приватних донорів, зменшили- ся на 20%. Це можна пояснити дією декількох чинників: (1) економічна криза та зменшення у людей коштів, які вони готові жертвувати; (2) така тенденція до зменшення пожертвувань спостерігалася вже в середині 2000-х років, хоча й не була такою вираженою, (3) до 2009 року дія всіх пільг щодо оподаткування пожертвувань приватних фізичних осіб була зупи- нена. За останні чотири роки уряд поступово скасував податковий кредит з податку на по- жертвування суспільно корисним організаціям, що існував раніше. Хоча сам кредит і не був значним (у дохід могли не включатися 100% перерахованої суми коштів у розмірі не більше 30% оподатковуваного доходу, але максимум 200 євро), він міг мати значення для тих, хто ним користувався. Незважаючи на це, деякі НУО намагаються достукатися до громадськості, проводячи кампанії із залучення коштів, але досягти успіху вдається лише тим, хто займається від- носно витратним професійним фандрейзингом. Одним із негативних наслідків закону про одновідсоткову філантропію може бути перешкоджання розвитку «традиційного» методу залучення коштів, тобто налагодженню особистих та регулярних (циклічних) контактів з донорами.
Національні особливості За сподіваннями, механізм відсоткової філантропії повинен був підвищити низький рі- вень пожертвувань і збільшити обсяги фінансування великої кількості громадських і релігій- них організацій, а також заходів, що становлять суспільний інтерес. Певною мірою він до- сяг своєї мети, адже люди стали більше обізнаними з громадськими організаціями та по- чали розмірковувати над тим, котра з них «заслуговує» на їхню підтримку шляхом перера- хування відсотка від податку. Більш традиційні форми залучення коштів, як-от збір коштів на вулицях, проведення благодійних заходів і безпосередній діалог, надто не регулюються. Тут існують просто тех- нічні перешкоди, що ускладнюють залучення коштів фізичних осіб (наприклад, чеки при- ватних клієнтів банків, необхідні для фандрейзингу в рамках найбільш поширених на Захо- ді методів, не використовуються, або понад 50% пожертвувань, отриманих за допомогою СМС, використовуються для сплати податків і зборів).
Роль громадських організацій Громадська організація виступає як ініціатором відносин, так і набувачем допомоги. Тому вона вважається такою, що заслуговує на підтримку (на відміну від патерналістських відносин з державним донором).
Найкращі практики, приклади Навіть незважаючи на те, що на пожертвування фізичних осіб припадає лише незначна частка доходу сектора, протягом останніх років розмір доходів від таких пожертвувань у 6-7 разів перевищує дохід від 1%-вої філантропії. Важливо зазначити, що розмір 1%-вої філан- тропії є фіксованим, а розмір пожертвувань фізичних осіб – ні, він може бути збільшений шляхом започаткування нової справи, визначення нової цільової групи або застосування нових методів звернення по допомогу.
Зауваження Через доволі жорсткі правила захисту даних, отримання даних про потенційних доно- рів є складним (досі проблематично знайти дані про донорів у великому обсязі), а тому ви- тратним. Бракує досвіду застосування різних форм професійного фандрейзингу та відсутні чіткі критерії оцінки успіху. 168 Міжнародні практики фінансування ОГС...
Схема відсоткової філантропії оперує державними коштами, що, врешті-решт, посла- блює участь і прихильність фізичної особи (навіть якщо фізична особа вирішує зробити внесок, вона залишається анонімною та не відчуває фінансових наслідків цього рішення). Залишається з’ясувати, чи призведе збільшення чистого доходу в результаті запрова- дження єдиного податку до підвищення рівня пожертвувань фізичних осіб.
Заробляння доходу Культурно-історичні умови Заробляння доходу завжди відігравало важливу роль у розвитку громадського сек- тора Угорщини. Понад 40% доходу угорських громадських організацій припадає на їх власний дохід, що має дві основні складові: дохід від їх основної діяльності (напри- клад, проведення тренінгів з адвокаційної діяльності) – 26% і дохід від господарської діяльності, що не є пов’язаною з основною (наприклад, здача в оренду офісних примі- щень) – 15%. Громадські організації можуть займатися економічною діяльністю напряму або через створені ними компанії. Однак фонди й асоціації не можуть створюватися з основною ме- тою здійснення економічної діяльності. Існувала спеціальна організаційно-правова фор- ма – суспільно корисна компанія, яка повинна була служити цілям орієнтованих на надання послуг неприбуткових організацій та могла більш вільно здійснювати економічну діяльність. Проте місцеві муніципалітети почали використовувати її як засіб розміщення контрактів на надання комунальних послуг поза конкурсом (шляхом створення таких компаній). В резуль- таті цього в 2009 році модель була змінена, і тепер жодної привілейованої організаційно- правової форми, яка «автоматично» отримувала статус суспільно корисної, не існує, а юри- дична особа, яка має будь-яку організаційно-правову форму, може отримати статус су- спільно корисної, якщо вона задовольняє вимогам, встановленим для звичайних громад- ських організацій. Такі компанії являють собою просту й гнучку форму надання послуг, так само, як на будь- якому ринку, швидко реагуючи на зміни в потребах їх одержувачів. Однак вони, як прави- ло, не беруть участі в конкурсах на отримання грантів, навіть незважаючи на те, що вимоги щодо отримання ними статусу суспільно корисних є аналогічними вимогам до інших гро- мадських організацій. Взагалі, оскільки така форма неприбуткової компанії є новою, досві- ду здійснення діяльності за такою схемою ще небагато.
Національні особливості Угорські громадські організації займаються багатьма видами економічної та господар- ської діяльності, але існують моделі заробляння доходу, які вони не використовують. До та- ких моделей належать членські внески. Більшість громадських організацій, за винятком профспілок, не надають членським вне- скам великого значення, а часто навіть їх не збирають. Більшість асоціацій досі вважають членські внески символічними. Громадські організації, які отримують гранти у формі майна (насамперед, від органів місцевої влади і муніципалітетів, а також усе частіше від компаній), знаходяться в більш ви- гідному становищі, оскільки вони можуть отримувати необмежений дохід від оренди.
Роль громадських організацій У цій функції громадські організації є проактивними і виступають ініціаторами відносин зі споживачами й одержувачами послуг, а також постачальниками послуг на конкурентному ринку. Важливим є те, що це єдина форма доходу, коли користувач послугою відповідає на послугу, надану громадською організацією, зокрема й у грошовій формі. Міжнародні практики фінансування ОГС... 169
Приклади, найкращі практики Якщо з державним фінансуванням і 1%-вою філантропією були пов’язані численні зло- вживання, які фіксувалися протягом багатьох років, то економічна діяльність не дала жод- ного приводу для серйозного скандалу. Це свідчить про те, що Угорщина знайшла спосіб балансування стимулів і засобів контролю при регулюванні цього виду діяльності. На дохід від основної діяльності припадає 26% загального доходу цього сектора в Угор- щині. Цей необмежений дохід дозволяє громадським організаціям інвестувати свої власні ресурси в досягнення цілей, які вони вважають стратегічними, а також у саморозвиток або неосновну діяльність.
Зауваження Угорщина має низку механізмів, що можуть зробити громадський сектор більш самоо- купним. Істотно підвищити ефективність його діяльності можуть стратегічний підхід, спря- мований на вдосконалення цих методів, збільшені пільги та чіткі правила. Діяльність із заробляння доходу більше пов’язана зі сферами, де надання послуг держа- вою є економічно недоцільним, наприклад сферою зайнятості та реінтеграції осіб з обме- женими можливостями у виробництво та сферу послуг. 170 Міжнародні практики фінансування ОГС...
IV.2. ХОРВАТІЯ
Основна інформація про неприбутковий сектор Хорватії У 2009 році існувало понад 37 тисяч зареєстрованих громадських організацій, включаю- чи асоціації, фонди, спортивні та релігійні організації56. Того самого року державне фінансування склало майже 530 млн кун (більш ніж 71 млн євро), що було на 15,5% менше, ніж у 2008 році. Доходи від лотерей склали 46,2% від цієї суми. Більшість цих коштів надходили через Міністерство науки, освіти і спорту (31% за- гального фінансування). Перше місце за обсягами фінансування посідають спортивні захо- ди (31%), наступними є проекти в сфері культури, захисту осіб з обмеженими можливостя- ми та соціально вразливих верств населення. У період з 1999 по 2009 рік держава фінансувала 27 543 проекти громадських організа- цій, на які припало понад 320 млн євро з коштів, спрямованих у сектор. За результатами до- слідження, проведеного серед громадських організацій, які в 2008 році отримували гранти з державного бюджету, основним джерелом фінансування майже 70% цих організацій були кошти центрального та регіональних/місцевих бюджетів. За даними дослідження індексу громадянського суспільства, 33,2% досліджених гро- мадських організацій отримують кошти від юридичних осіб, при цьому частка останніх у до- ходах громадських організацій становить у середньому 18,2%.
Державне фінансування Культурно-історичні умови Після закінчення громадянської війни громадські організації зайняли міцні позиції в су- спільстві. Вони відігравали провідну роль у наданні допомоги та допомогли в розв’язанні післявоєнних конфліктів у громадах. Уся державна система певною мірою перебудовува- лася і, в порівнянні з іншими країнами Центральної та Східної Європи, громадський сектор яких знаходиться на ранніх етапах розвитку, часто взаємодіяла з новостворюваним гро- мадським сектором. У країні реалізовувалися широкомасштабні міжнародні донорські програми. Хорватія належала до країн Західних Балкан, де інші східноєвропейські країни вже перейняли імпор- товані ноу-хау. В рамках програм розвитку, як-от програм USAID, працювали експерти з ре- гіону та йшла реалізація спільних проектів з громадськими організаціями країн Централь- ної Європи. Водночас історично склалося так, що Хорватія є більш наближеною до Західної Європи, ніж більшість інших країн Західних Балкан, завдяки чому їй легше було запровадити в себе демократичні інститути та європейські норми навіть тоді, коли законодавство було до того ще не готовим (див. закон про фонди). Вона також першою з-поміж країн Балканського пів- острова вжила стратегічних заходів для підтримки розвитку громадянського суспільства та створила моделі для наслідування.
Національні особливості Хорватія першою з-поміж країн Західних Балкан почала реалізацію ініціатив з розроб- ки спеціальних механізмів співпраці між державою і громадськими організаціями та меха-
56 USAID. Показник життєздатності НУО в Центральній та Східній Європі й Євразії: Хорватія (The NGO Sustainability Index for Central and Eastern Europe and Eurasia: Croatia), www.usaid.gov/locations/europe_eurasia/ dem_gov/ngoindex 2009 р. Міжнародні практики фінансування ОГС... 171
нізму підтримки прозорого фінансування громадських організацій57. Як наслідок, з’явилися масштабні інновації, найбільш вагомою з яких, поза сумнівом, було створення Національ- ного фонду розвитку громадянського суспільства, що став першим з-поміж подібних фон- дів у Центральній та Східній Європі та посів особливе місце навіть серед них. Наприклад, на відміну від Угорщини, фонд надає підтримку відносно малій кількості організацій, але саме тому його допомога дозволяє досягти бажаних результатів. Іншою особливістю є багато- річне фінансування (див. найкращі практики). Національний фонд наразі децентралізується й уклав з чотирма регіональними органі- заціями договори на реалізацію програм із надання грантів з боку громади. Крім того, гро- мадські організації отримують гранти на підтримку діяльності у відповідних сферах від про- фільних міністерств. Хорватія також отримує допомогу з Інструменту передвступної допо- моги (ІПД), що фінансується ЄС, однією зі складових якого є підтримка розвитку громадян- ського суспільства. Виходячи з досвіду, здобутого за декілька років застосування механізму державного фі- нансування, в лютому 2007 року Парламент ухвалив Кодекс належних практик фінансуван- ня громадських організацій58 (див: найкращі практики). Метою цього, серед іншого, було уникнути критики з приводу конфліктів інтересів, у яких Національний фонд звинувачували протягом перших років його існування. Національний фонд є «засобом фінансування» ширшої інституційної системи, що об’єднує громадянське суспільство та хорватський уряд. Він пристосований до потрійної системи хорватської «нової моделі»59, що також включає Державне управління у справах асоціацій (створене в 1998 році) та нещодавно створену Раду з питань розвитку грома- дянського суспільства, спеціалізований дорадчий орган уряду Хорватії. На Раду покладені здійснення контролю, аналізу й оцінки коштів, що надходять з державного бюджету, та за- безпечення відповідності вимогам Кодексу.
Роль громадських організацій Громадські організації розглядаються як набувачі допомоги та партнери в процесі фі- нансування з боку держави.
Приклади, найкращі практики Хорватія провела успішну децентралізацію колись централізованої моделі підтрим- ки розвитку громадянського суспільства. (Всі кошти, які громадські організації отри- мували від держави, раніше розподілялися через Державне управління у справах асо- ціацій.) Прикладом ефективної підтримки розвитку громадянського суспільства з боку дер- жавного фонду є Національний фонд розвитку громадянського суспільства. В основу його концепції покладений метод «переважної моделі», коли на основі стратегічних прі- оритетів визначаються напрями розвитку, які мають найбільший потенціал справлян- ня позитивного впливу навіть на ту частину сектора, що фінансується фондом менше
57 Хадзі-Мічева-Еванс (Hadzi-Miceva-Evans) (2010 р.). 58 Кодекс належної практики, норм і критеріїв фінансування програм і проектів НУО (Code of Good Practice, Standards and Benchmarks for the Allocation of Funding for the Programmes and Projects of NGOs). Офіційний ві- сник №16/2007, лютий 2007 р. 59 Для отримання більш детальної інформації про модель див.: Відачак Ігор. Розробка норм і механізмів дер- жавного фінансування НУО в Хорватії (Vidacak, Igor. Developing Standards and Mechanisms for Public Financing of NGOs in Croatia), Міжнародний журнал некомерційного права (IJNL), жовтень 2010 р., і Хадзі-Мічева Катерина, Інституційно-правові механізми співпраці між державою та НУО в Угорщині, Естонії та Хорватії (Hadzi-Miceva Katerina, Legal and Institutional Mechanisms for Government-NGO Cooperation in Hungary, Estonia and Croatia), в Organizacje pozarządowe. Dialog obywatelski. Polityka państwa, за ред. Марека Римжи (Marek Rymsza), (Інститут громадських справ, Польща), 2007 р. 172 Міжнародні практики фінансування ОГС...
Фінансово-правова база Культурно-історичні умови
Механізми фінансування Сприятлива Післявоєнний період: громадські організа- ції надають гуманітарну допомогу; присут- ність багатьох іноземних держав, слабкий уряд
Соціальне контрактування Нейтральна, несприятлива Надання послуг громадськими організаці- ями субсидується іноземними донорами, відсутність історії участі громадських орга- Взаємодія з державою
нізацій у наданні державних послуг
Альтернативне фінансування Чіткої моделі не визначено
Приватні пожертвування за Нейтральна, несприятлива Іноземні організації, що перерозподіля- використання інституціоналі- ють гранти, не створили в країні жодних зованого механізму фондів-надавачів грантів, незважаючи на велику кількість програм у сфері розши- рення можливостей
Пожертвування приватних Нейтральна Через несприятливе бізнес-середовище юридичних осіб корпоративна соціальна відповідальність Взаємодія з приватним сектором
досі знаходиться на ранніх етапах форму- вання
Пожертвування фізичних Нейтральна Пожертвування церкві та благодійництво є осіб традицією; післявоєнна солідарність спри- яла більш активним пожертвуванням гро- мади
Заробляння доходу Сприятлива Економічна діяльність здійснюється рід- ко. Раніше громадські організації надава- ли послуги безкоштовно, а тепер змінюва- Зароблений дохід
ти цей звичай запізно Міжнародні практики фінансування ОГС... 173
Національні особливості Роль громад- Приклади / найкращі прак- Зауваження ських організа- тики цій
Потрійна система реалізації Набувачі допо- Національний фонд: доход Перевага: чітка стратегія й громадських стратегій: Уряд, моги та партне- від лотерей, децентралізова- автономність. Недолік: малі Національний фонд розвитку ри на структура, багаторічне фі- громадські організації мо- громадянського суспільства та нансування, інституційна під- жуть залишитися без під- Рада з питань розвитку грома- тримка; Кодекс кращих прак- тримки дянського суспільства тик фінансування громад- ських організацій
Відсутність систематичної Лобісти змін на Крос-секторальний процес Громадські організації ма- участі, стратегія знаходиться краще участі, спрямований на роз- ють можливості, напри- на стадії розробки. Існують по- робку стратегії залучення клад, виконувати функції зитивні приклади, зокрема, на громадських організацій системи управління якістю. місцях Рівень участі громадських організацій відповідатиме очікуванням ЄС
Слабкий сектор фондів; Наці- Набувачі допо- Програмою для хорватських Роль приватних донорів пе- ональний фонд «перебрав на моги НУО CroNGO запровадже- ребрала на себе держава себе» підтримку громадських на належна практика надан- організацій від організацій, що ня грантів, яку здійснює Наці- перерозподіляють гранти; за- ональний фонд (багаторічне конодавство в сфері діяльнос- інституційне фінансування) ті фондів застаріле
Зростання обсягів підтримки Лише набувачі Деякі компанії запровадили Процес розвитку корпора- громадських організацій з боку допомоги відповідальні практики, при- тивної філантропії істотно компаній, але, це є, здебільшо- кладом чого може служити не відрізняється від проце- го, разовою допомогою. По- кампанія із залучення коштів су, що відбувається в інших даткові пільги незначні по телефону, проведена ком- країнах панією «Hrvatski Telekom»
Від більшості хорватів надхо- В цілому залуча- Існує декілька прикладів Незважаючи на, в цілому, дять лише невеликі кошти. По- ють кошти неак- успішного залучення коштів, позитивне ставлення до по- ширюється використання но- тивно наприклад, Асоціацією з під- жертвувань, громадські ор- вих технологій готовки собак-поводирів ганізації не залучають жод- них коштів; вони не знайо- мі з професійним фандрей- зингом
Правова база є сприятливою Ініціатори, по- Існує декілька прикладів Перехідному процесу й еко- для здійснення громадськими стачальники по- успішного соціального під- номічному розвитку може організаціями економічної ді- слуг приємництва, зокрема, в сприяти підвищення ролі яльності, дохід від основної ді- сфері охорони довкілля громадських організацій у яльності не оподатковується, соціальному підприємни- однак, існують певні питання цтві та наданні соціальних щодо тлумачень. Статус сус- послуг пільно корисної організації від- сутній 174 Міжнародні практики фінансування ОГС...
(ефект множення). Він визначив стратегічну мету, якої має намір досягти, та розглядає громадські організації як основних партнерів в її досягненні (а не лише засобами досяг- нення цієї мети). Основною метою є заохочення громадян Хорватії до активної участі в суспільному житті – не лише до участі у виборах, а й до турботливого ставлення один до одного та розв’язання соціальних проблем повсякдення. Фонд використовує відповідні, ефективні механізми фінансування, що відповідають принципам розвитку (як-от міцність місцевих зв’язків та довгостроковість процесів). Наприклад, замість надання дуже малих прямих грантів на фінансування програм громадських організацій, орієнтованих на громаду (по- дібно до угорського фонду) він уклав угоди з регіональними посередниками, спроможни- ми реалізувати ці програми більш ефективно. Від решти регіону фонд також відрізняє на- дання ним підтримки громадським організаціям у їх інституційному розвитку протягом аж трьох років. Це не є притаманним державним донорам, що надають підтримку, як прави- ло, на річній основі. Крім того, Фонд фінансується за рахунок доходів від лотерей, що з року в рік забезпечує відносно надійне та передбачуване фінансування (на відміну від інших країн, де Фонд попо- внюється за рахунок відрахувань з річного бюджету). Також позитивним прикладом є Кодекс належних практик державного фінансування громадських організацій, в якому визначені основні правила та процедури, які повинні за- стосовувати органи державної влади всіх рівнів при розподілі державних грантів. Це дося- гається завдяки тому, що він є дуже простим і зрозумілим документом, який містить вісім основних принципів і конкретні рекомендації щодо їх застосування.
Зауваження Перевага моделі полягає в її зосередженості на великих і середніх громадських ор- ганізаціях, що є провідними на ринку та спроможні розробити ефективні програми. Водночас вона також має один недолік – сільським і новим громадським організаціям складно отримати до неї доступ60. Іншою перевагою є те, що, незважаючи на напрацю- вання загальних стратегій урядом, Фонд може приймати рішення самостійно та спро- можний розробляти ефективні практики фінансування з урахуванням потреб громад- ських організацій, що робить його надійним партнером у довгостроковій перспективі.
Соціальне контрактування Культурно-історичні умови На відміну від Угорщини, надання послуг громадськими організаціями в Хорватії зна- чною мірою субсидувалося іноземними донорами, а послуги надавалися безкоштовно, тому за останні десятиліття традиція соціального контрактування не набула такого розви- тку, як в Угорщині. Очікування безкоштовних соціальних послуг від держави поєдналося з очікуванням безкоштовних соціальних послуг від громадських організацій. Таким чином, як громадяни, так і держава очікують, що вони не повинні платити громадським організаці- ям за надані послуги. Громадські організації також мали таку думку, але намагаються бути спроможними і надалі надавати послуги і тому почали лобіювати зміни в ситуації, що скла- лася. В результаті вже існує декілька прикладів ефективного надання громадськими орга- нізаціями послуг на муніципальному рівні.
60 За результатами дослідження індексу громадянського суспільства, проведеного в 2005 році, з географіч- ного розподілу громадських організацій стає помітним їх міський характер. Більшість громадських організацій не мають міцних зв’язків з місцевими громадами, де активність громадян обмежується переважно неформаль- ною допомогою сусідам та рідним. Міжнародні практики фінансування ОГС... 175
Національні особливості У Хорватії громадські організації беруть участь у наданні соціальних послуг несистема- тично, а місцева влада часто не зацікавлена в укладанні з ними контрактів. Водночас між державою та громадським сектором розпочинається діалог стосовно можливостей. Була створена робоча група з розробки Пропозиції щодо покращення системи укладання з гро- мадськими організаціями контрактів на надання соціальних послуг, що становлять держав- ний інтерес61.
Роль громадських організацій За відсутності механізму фінансування громадські організації в основному лобіюють зміни на краще.
Приклади, найкращі практики Однією з кращих практик є очолення Управлінням з питань співпраці з НУО крос- секторального, спільного консультативного процесу за участю компетентних міністерств, органів місцевої влади та громадських організацій, аби розробити стратегію, спрямовану на покращення ситуації із соціальним контрактуванням.
Зауваження Завдяки інвестиціям, спрямованим на розширення інституційних можливостей, з боку як іноземних донорів, так і держави, хорватські громадські організації спроможні ефектив- но надавати високоякісні послуги. Відповідно до європейських практик, у результаті спів- праці між секторами невдовзі може з’явитися система соціального контрактування. Іс- нують свідчення готовності до такої співпраці, наприклад, група громадських організацій робила спроби застосування загальноприйнятих систем управління якістю до послуг, що ними надаються62.
Приватні пожертвування за використання інституціоналізованого механізму Культурно-історичні умови Незважаючи на існування широкомасштабних програм іноземної допомоги, за деяки- ми винятками, кошти, що надходили з приватних джерел, були незначними. Протягом три- валого часу USAID фінансувало Програму створення CroNGO (організації з перерозподілу грантів), що відігравала роль напівприватного донора. По суті, лише декілька великих дер- жавних фондів, як-от USAID, а останнім часом Національний фонд відігравали роль класич- них приватних інституціоналізованих джерел фінансування, спрямованих на розширення можливостей громадських організацій, покриття їх накладних витрат, фінансування інно- ваційних проектів тощо. USAID уже мало досвід роботи в країнах Центральної Європи, де таке розширення можливостей сприяло зміцненню сектора в цілому. Потім відкрився Наці- ональний фонд, аби перейняти від таких донорів кращі практики, наприклад, у сфері надан- ня інституційної підтримки та багаторічного фінансування.
Національні особливості Хорватія отримувала набагато більші обсяги іноземної допомоги, ніж Угорщина, та ре- алізувала широкомасштабні програми розвитку. Проте, на відміну від Угорщини, у країні
61 Показник життєздатності НУО, USAID, 2009 р. (USAID NGO Sustainability Index 2009). 62 Практична система забезпечення якості для малих організацій британського Агентства з оцінки діяльнос- ті благодійних організацій (PQASSO by Charities Evaluation Services (CES) UK). 176 Міжнародні практики фінансування ОГС...
практично не існувало місцевих організацій з перерозподілу грантів і вітчизняних фондів, які надавали б гранти. Основних причин дві. По-перше, коли в 2003 році був створений Національний фонд розвитку громадянського суспільства, іноземним донорам могло здатися, що держава «пе- ребрала на себе» фінансування основних одержувачів їхніх грантів, а тому вони менше пе- реймалися «стратегіями відходу». По-друге, Хорватія була балканською країною, де через внутрішньополітичну боротьбу все ще діяв застарілий закон про фонди. Він містить, напри- клад, положення про те, що фонди не можуть створюватися в незаконних або аморальних цілях і «за відсутності серйозних підстав для створення фонду, особливо, якщо мета, з якою створюється фонд, є явно несерйозною»63. Звичайно, такі положення залишають багато простору для тлумачень, проте жодних проблем з реєстрацією фондів у Хорватії не виника- ло. Водночас не існувало жодних правових чи фінансових стимулів до розвитку вітчизняних фондів, що надають гранти.
Роль громадських організацій У своїх відносинах з іноземними приватними фондами громадські організації відіграва- ли здебільшого роль набувача допомоги.
Приклади, найкращі практики Однією з найбільш успішних програм фінансування з точки зору розширення можли- востей громадських організацій була програма створення CroNGO. Вона включала інститу- ційне фінансування протягом трьох років у поєднанні з наданням технічної допомоги в роз- робці стратегії розвитку та забезпечення життєздатності організації; крім того, проводили- ся тренінги та здійснювалося пілотне фінансування проектів у сфері залучення коштів і за- робляння доходу. В рамках програми були реалізовані декілька широкомасштабних проек- тів у сфері залучення коштів, в результаті чого була досягнута конкретна мета, що є не при- таманним регіону64.
Зауваження Роль приватних донорів у фінансуванні основних громадських організацій національно- го рівня та у реагуванні на потреби розвитку громадянського суспільства (інституційна під- тримка, пілотні проекти) перебрала на себе держава. Водночас внаслідок існування цен- тральних джерел заможні громадяни та потужні компанії отримували замало стимулів до створення приватних благодійних фондів.
Пожертвування юридичних осіб Культурно-історичні умови У ході дослідження, проведеного Європейською мережею досліджень в галузі філан- тропії (NROP), було виявлено, що «за своїм типом держава загального добробуту, яка постає в Хорватії, не сприяє розвитку соціально відповідального корпоративного секто- ра, оскільки корпоративний сектор повинен сплачувати високі податки та збори на до- сягнення соціальних і публічних цілей, проте в суспільстві в цілому він не вважається важ- ливим гравцем»65.
63 Закон «Про організації та фонди». Офіційний вісник №36/1995, 64/2001. 64 Наприклад, Хорватська асоціація з підготовки собак-поводирів і забезпечення мобільності сліпих залучи- ла 500 000 євро на будівництво центру підготовки собак, що було великим успіхом, який перевищив усі споді- вання. 65 Європейська мережа досліджень у галузі філантропії, Хорватія http://www.ernop.eu/country/24/croatia. html#Data Міжнародні практики фінансування ОГС... 177
За результатами останнього дослідження ступеня соціальної відповідальності великих компаній, понад 50% респондентів вважають, що їхня соціальна відповідальність є неістот- ною (20,8%) або обмеженою (33,6%). Загалом фірми вбачають у таких видатках ще один спосіб витрачання коштів на маркетинг або спонсорство, а не свою соціальну відповідаль- ність66. Водночас засоби масової інформації приділяють благодійництву велику увагу та, за повідомленнями, історії, що публікуються в них, спонукають фізичних осіб і донорів жерт- вувати більше. Відповідно до звіту ENROP, малі та середні підприємства стають активними у своїх гро- мадах, незважаючи на те, що продовжують допомагати, в основному в проведенні спор- тивних і культурних заходів. Отже, наразі в цілому корпоративна філантропія вважається доволі обмеженою.
Національні особливості Загалом корпоративна філантропія являє собою нову та зростаючу тенденцію у фор- муванні загального доходу сектора. За результатами дослідження, проведеного альян- сом Civicus у 2005 році в рамках проекту «Індекс громадянського суспільства», 33,2% до- сліджених громадських організацій отримують кошти від корпоративного сектора, а част- ка коштів юридичних осіб у їхньому доході становить у середньому 18,2%67. Це можна вва- жати помірним рівнем благодійної допомоги, проте, за повідомленнями громадських ор- ганізацій, ці кошти й досі не вважаються надійним, передбачуваним джерелом доходу, ймовірно, через переважання разових пожертвувань (відсутність стратегічних програм підтримки громадських організацій). Наприклад, лише декілька компаній створили фон- ди, що надають гранти. У результаті значних іноземних інвестицій в різні галузі, що послужило розробці страте- гій регулювання благодійної діяльності іноземних компаній, обсяги фінансування зроста- ють, але воно має менш інституціоналізований характер. Вітчизняні компанії також все ак- тивніше беруть участь у фінансуванні програм у сфері благодійництва, а молоді підприєм- ці виявляють зацікавленість в підтримці громадських організацій у своїх громадах68. Піль- ги щодо оподаткування пожертвувань підприємств є незначними (до 2% податкової бази).
Роль громадських організацій Взагалі корпоративний сектор розглядає громадські організації лише як набувачів їхньої підтримки, тоді як асоціації бачать у ньому донора. Таке вузьке бачення відносин між грома- дянським суспільством і бізнесом призводить до обмеження кількості партнерств між гро- мадськими організаціями та корпоративним сектором69.
Приклади, найкращі практики Окрилена успіхом, якого досягла ціла низка організацій, що надають гуманітарну допо- могу, в залученні коштів по телефону, компанія «Hrvatski Telekom» відмовилася від свого права на отримання прибутків від таких організацій, аби вони змогли використовувати всі залучені кошти лише в гуманітарних цілях. У співпраці з Урядом компанія «Hrvatski Telekom» створила комітет з присвоєння телефонних номерів організаціям, що надають гуманітарну допомогу70. Важливу роль у формуванні культури пожертвувань також відіграють будівельні компанії та банки, які часто мають клієнтів по всьому світу. Також, здебільшого на місцево- му рівні, активізуються малі та середні підприємства. 66 Там само. 67 Звіт за результатами дослідження, проведеного Civicus в рамках проекту «Індекс громадянського суспіль- ства» в Хорватії, 2005 р. http://www.civicus.org/new/media/Croatia_country_report_English.pdf 68 ERNOP. 69 ERNOP. 70 Звіт за результатами дослідження індексу громадянського суспільства. 178 Міжнародні практики фінансування ОГС...
Зауваження За рівнем розвитку корпоративної філантропії Хорватія істотно не відрізняється від ін- ших країн Центральної та Східної Європи.
Пожертвування фізичних осіб Культурно-історичні умови Незважаючи на те, що регулярні пожертвування фізичних осіб громадським організаці- ям не є традицією в країні, культура пожертвувань на благодійні та інші публічні цілі являє собою важливу складову культури громадянського суспільства. Крім того, післявоєнна со- лідарність спонукала до пожертвувань на рівні громад – люди ділилися своїми харчами та речами, навіть незважаючи на гуманітарну допомогу (хоча етнічні бар’єри долалися не за- вжди). Більшість громадян Хорватії жертвують на благодійність лише невеликі кошти. За ре- зультатами дослідження індексу громадянського суспільства, розмір пожертвувань 76,6% респондентів у 2004 році не перевищував 500 кун (83 дол. США). Враховуючи середньоріч- ний чистий дохід, що в 2004 році становив 4143 кун (690 дол. США), це становить 1,2% річ- ного доходу респондента. За результатами іншого дослідження (проведеного в 2006 році), 77,8% громадян жертвували до 500 кун і лише 4,7% – більше71.
Національні особливості За результатами дослідження індексу громадянського суспільства, в 2004 році гумані- тарну допомогу грошима або товарами, як-от одягом та продуктами харчування, надали 66,8% громадян. Відтоді обсяги благодійних пожертвувань збільшилися, почасти завдя- ки впровадженню нових технологій пожертвувань по телефону або періодичних платежів (див.: Приклади, також у частині, присвяченій корпоративній філантропії). На благодійні цілі жертвують кошти більше жінки, ніж чоловіки. До таких пожертвувань більше схильні грома- дяни з вищою освітою.
Роль громадських організацій Громадські організації залучають кошти громадян, як правило, не дуже активно. Коли вони цим займаються, то виступають ініціаторами та набувачами допомоги.
Приклади, найкращі практики Незважаючи на незначну поширеність благодійних пожертвувань, існують позитивні приклади організацій, що займаються фандрейзингом за використання професійного під- ходу та сучасних технологій. Як приклад, у звіті Civicus згадується Асоціація «PUŽ», що част- ково фінансується за рахунок постійних переказів коштів через банки, які громадяни мо- жуть здійснювати, не сплачуючи за це жодних додаткових зборів, у результаті чого на ра- хунок асоціації регулярно переказується, хоч і невелика частка місячних доходів громадян.
Зауваження Результати дослідження свідчать про те, що громадськість ставиться до культури по- жертвувань в цілому позитивно. Однак частка пожертвувань фізичних осіб у фінансуван- ні громадських організацій не є значною. Причин цього може бути декілька, але основною, на нашу думку, є те, що громадські організації можуть залучати ресурси держави (на за- гальнодержавному або місцевому рівнях) та юридичних осіб, а тому небагато з них відчува- ють потребу в залученні коштів громадян. Громадські організації не обізнані з технологія-
71 Дослідження, проведене Франком Сакічем (Frank Sakic) (2006 р.), у звіті ENROP. Міжнародні практики фінансування ОГС... 179
ми професійного фандрейзингу та невмотивовані їх «шукати», вони просто не звертаються до людей. На підтримку цієї теорії свідчить той факт, що кожного разу, коли громадська ор- ганізація вирішує розпочати діяльність із фандрейзингу, така діяльність в більшості випад- ків виявляється успішною.
Заробляння доходу Культурно-історичні умови Самофінансування громадських організацій у Хорватії залишається малопоширеною практикою. Економічна діяльність громадських організацій належним чином не розви- нулася з декількох причин, включаючи той факт, що донорські програми часто не дозво- ляли їм отримувати плату за товари та послуги, які вони надавали за підтримки доно- ра. Тому для них виявилося майже неможливим надавати ті самі, але вже платні послу- ги після того, як донори припинили надавати їм підтримку, а вони не скористалися на- годою підвищити свою життєздатність. З іншого боку, громадські організації також час- то вважають надання ними платних послуг таким, що суперечить ідеї солідарності та до- помоги тим, хто її потребує. Крім того, аби реалізувати комерційні проекти, їм бракує можливостей та підприємницького духу. Насамкінець, відсутнє чітке тлумачення зако- нодавчої бази, що, в принципі, дозволяє громадським організаціям здійснювати комер- ційну діяльність72.
Національні особливості Хорватська законодавча база сприяє здійсненню громадськими організаціями еконо- мічної діяльності. Така діяльність дозволена законодавством і не оподатковується, якщо пов’язана зі статутною діяльністю громадської організації. Громадські організації звіль- няються від податку на прибуток від комерційної діяльності, якщо таке звільнення не при- зводить до отримання «невиправданої переваги на ринку». Якщо компетентний податко- вий орган дійде висновку щодо отримання такої переваги (чого раніше на практиці ніколи не траплялося), то дохід громадської організації підлягає оподаткуванню, що тягне за со- бою ті самі зобов’язання, які мають прибуткові організації (20%). Громадські організації та- кож сплачуватимуть ті самі податки, що й прибуткові, при створенні ними компаній, через які вони здійснюватимуть економічну діяльність. Не визначено, чи допускається здійснення лише економічної діяльності, визначеної в статуті громадської організації. Також не зрозу- міло, виходячи з чого можна судити про існування «невиправданої переваги на ринку», про- те вважається, що таке положення має допомогти уникнути можливих незаконних звіль- нень від податку. Громадські організації лобіюють запровадження статусу суспільно корисної організації, що підвищить рівні прозорості діяльності та звітності громадських організацій, які отрима- ють такий статус, а отже, зменшить можливість здійснення економічної діяльності за умов незаконного звільнення від податку. Це дозволить законодавцям скасувати неоднозначне положення щодо «невиправданих ринкових переваг», оскільки від оподаткування звільня- тиметься лише економічна діяльність суспільно корисних організацій, пов’язана з їх осно- вною діяльністю.
Роль громадських організацій Ініціатори, постачальники послуг. Однією з причин низької активності громадських ор- ганізацій у цій сфері може бути те, що вони незручно почуваються в ролі «продавців».
72 Посібник із самофінансування неприбуткових організацій в Хорватії (NESsT). http://www.nesst.org/docum ents/2006CroatiaLegalGuideEN.pdf 180 Міжнародні практики фінансування ОГС...
Приклади, найкращі практики Незважаючи на те, що здійснення економічної діяльності в секторі соціальних послуг перетворюється на тенденцію, а деякі тренувально-консультаційні організації включи- ли таку діяльність до своїх бізнес-моделей, на загальнодержавному рівні вона досі не є поширеною. Однак існують деякі позитивні приклади, наприклад діяльність організа- цій відповідно до рекомендацій NESsT (Групи з питань розвитку самофінансування не- прибуткових організацій), включаючи оренду їхніх прибережних будівель і продаж пам- персів73.
Зауваження Країні довелося за дуже короткий час подолати складний відрізок своєї історії – з країни, де щойно закінчилась громадянська війна, вона перетворилася на країну, що го- тується до вступу в ЄС і повинна привести більшість новостворених систем і механізмів у відповідність з його очікуваннями. Це також може надати можливість для забезпечен- ня активнішої участі громадських організацій у процесі економічного розвитку шляхом стимулювання соціального підприємництва та постачання послуг громадськими орга- нізаціями. Запровадження статусу суспільно корисної організації може допомогти в усуненні зако- нодавчих невизначеностей щодо оподаткування економічної діяльності громадських орга- нізацій.
73 http://www.nesst.org/NVFCentralEurope.asp#LSCroatia Міжнародні практики фінансування ОГС... 181
IV.3. НІМЕЧЧИНА
Основна інформація про неприбутковий сектор Німеччини У третьому секторі Німеччини існують два основні види неприбуткових організацій: – понад 550 000 зареєстрованих асоціацій74; – понад 160 00 фондів75. Крім того, існує понад 5 000 кооперативів, що також відіграють важливу роль76.
Інформація про фінансовий стан громадського сектора Німеччини Неприбутковий сектор у Німеччині є важливою економічною силою з точки зору як ви- датків, так і зайнятості. У ньому зайнято 3,6% населення працездатного віку, а включаю- чи волонтерів – це еквівалентно 6,6%. Видатки на його фінансування складають 4% ВВП. Насправді, якби німецьке громадянське суспільство було країною, її ВВП для Німеччини становив би 2,2 трлн доларів США (приблизно 1,7 трлн євро), що набагато перевищує середній показник по всіх 35 країнах, проаналізованих у Звіті за результатами аналізу світового громадянського суспільства77, який становить 1,3 трлн доларів США (близько 1 трлн євро). У Звіті за результатами аналізу світового громадянського суспільства також визначе- но, що джерела доходу громадських організацій без урахування волонтерської праці є та- кими: державне фінансування (64,3%), філантропія (3,4%) і доход від економічної діяльності (32,3%). Відповідно до цього Звіту, якщо врахувати волонтерську працю (як благодійництво), ці цифри зміняться таким чином: 42,5% припаде на підтримку з боку держави, 36,2% – на фі- лантропію та 21,3% – на економічну діяльність.
Механізми державного фінансування Культурно-історичні умови Німеччина має розвинутий третій сектор, що характеризується потужною підтримкою з боку держави. Неприбутковий сектор відіграє важливу роль у повсякденному житті німець- ких громадян, постачаючи більшість основних соціальних послуг за так званим «принципом субсидіарності» (див.: Соціальне контрактування). Завдяки їхній важливій ролі в постачанні послуг і повсякденному житті суспільства громадські організації отримують високу оцінку з боку як суспільства, так і держави. З часів Другої світової війни Німеччина не мала права вести військові операції за кордо- ном, але водночас, з огляду на її орієнтовану на експорт економіку, вона не могла бути ізо- льованою та мала розвивати свої експортні ринки. Відтак вона почала відігравати важли- 74 У 2008 році існувала 554 401 зареєстрована асоціація. Джерело: Vereinsstatistik 2008 (Статистика асо- ціацій за 2008 рік), дослідження, проведене в 2008 році компанією V&M Service GmbH спільно з Науково- дослідним інститутом соціології Кельнського університету, доступне з: http://www.vita.it/guide/view/50/91455. 75 У 2008 році існувало 16 406 фондів. Джерело: Stiftungen in Zahlen – Errichtungen und Bestand rechtsfaehiger Stiftungen des beurgerlichen Rechts in Deutschland im Jahr 2008 (Фонди в цифрах – структура та ресурси громад- ських фондів, створених у Німеччині згідно із законом, станом на 2008 рік), Асоціація фондів Німеччини, опублі- коване в 2009 році, доступне з: http://www.vita.it/guide/view/50/91455 76 За даними Німецького Союзу Кооперативів і Райффайзен-Банків (DGRV), в 2007 році в Німеччині існував 5291 кооператив, що мав приблизно 17,6 млн членів. 77 Лестер М. Саламон, С. Войцех Соколовскі, Регіна Ліст. Аналіз світового громадянського суспільства; проведений в рамках проекту Університету ім. Джона Хопкінса «Порівняльний аналіз неприбуткових секто- рів» (Lester M. Salamon, S. Wojciech Sokolowski, Regina List, Global Civil Society – An Overview, The Johns Hopkins Comparative Nonprofit Sector Project), 2003 р. 182 Міжнародні практики фінансування ОГС...
Фінансово-правова Культурно-історичні умови база Механізми фінансування Сприятлива Розвинутий третій сектор, що отримує потужну підтримку з боку держави. Визнання ролі гро- мадських організацій з боку суспільства. До- дана вартість громадських організацій визна- на державою. Возз’єднання сприяло швидкому розвитку громадського сектора на сході
Соціальне контрактування Зразкова Субсидіарність як основний принцип означає надання переваги неприбутковим постачаль- Взаємодія з державою
никам перед державними. Громадський сектор має дві основні складові, включаючи квазідер- жавних постачальників послуг і більш наближені до населення громадські асоціації
Альтернативне фінансування Чіткої моделі не визначено
Приватні пожертвування Зразкова Дев’яності роки минулого століття позначили- за використання інституці- ся рухом на підтримку реформи фондів. Відто- оналізованого механізму ді спостерігається стрімке збільшення кількос- ті приватних фондів, адже з’явилося нове поко- ління донорів
Пожертвування приватних Сприятлива Корпоративна соціальна відповідальність у Ні- юридичних осіб меччині стала предметом тривалих обговорень. Групи споживачів спонукають до застосування кращих практик Взаємодія з приватним сектором
Пожертвування фізичних осіб Сприятлива Німеччина знаходиться посередині в рейтин- гу європейських країн за рівнем пожертвувань відносно ВВП (0,22%). Церковний податок свід- чить про готовність брати участь у добрих спра- вах, при цьому очікується, що держава фінансу- ватиме витрати на соціальні потреби за рахунок податкових надходжень
Заробляння доходу Сприятлива Здійснення економічної діяльності в німецькому третьому секторі є традицією. Нею займаються кооперативи, житлово-будівельні та банківські Зароблений доход
асоціації. Також важливим джерелом доходу є членські внески Міжнародні практики фінансування ОГС... 183
Національні особливості Роль громадських Приклади / найкращі Зауваження організацій практики Активна підтримка з боку держави, на Одержувачі фінансу- Можливість збережен- Держава здійснює ін- яку припадає понад 60% доходу сек- вання та партнери ня організаційної авто- вестиції, спрямовані тора, при цьому зберігається політич- номності, незважаю- на розширення можли- на та професійна незалежність гро- чи на підтримку з боку востей громадських ор- мадських організацій держави ганізацій. Незалежність громадських організа- цій не означає відсут- ність контролю за вико- ристанням державних коштів Громадські організації об’єднані в 6 Постачальники по- Нормативна підтримка Деякі елементи моде- федерацій, що представляють інтер- слуг, партнери й фінансується за раху- лі притаманні лише Ні- еси своїх членів у відносинах з дер- одержувачі субсидій нок внесків у фонди со- меччині, але важливи- жавою. Послуги фінансуються за ра- ціального забезпечення ми є принципи. Така хунок внесків у фонди соціального за- та субсидій, що дозво- модель потребує добре безпечення та субсидій ляють покрити всі ви- підготовлених, профе- трати громадських ор- сійних громадських ор- ганізацій ганізацій
У 2007 році була запроваджена дуже Одержувачі грантів Схема податкових пільг Легітимність набуття сприятлива схема податкових пільг, в створює реальні стиму- статку та чітко визначе- результаті чого щороку створюється ли. Політичні фонди до- ні суспільно корисні цілі понад 1000 нових фондів. Існує бага- зволяють відокреми- є важливими для за- то різновидів цих фондів, включаючи ти політично орієнтова- безпечення прозорості політичні ні громадські організа- системи ції від інших Існує багато форм корпоративної фі- Набувачі допомоги Потужні корпоративні Створені сприятливі лантропії, але стратегічні програми фонди відіграють важ- умови для великих і ма- почали з’являтися лише останнім ча- ливу роль у фінансуван- лих підприємств, малі сом. На компанії також позитивно ні досліджень та іннова- та середні підприєм- вплинула податкова реформа 2007 цій ства сприяють розвитку року, але цей вплив є непомітним че- на місцях рез кризу
Спостерігається тенденція до зни- Набувачі допомоги У 2007 році ухвалені У країнах з високим по- ження рівня пожертвувань. Благодійні та посередники в на- спрощені та гармонізо- датком на доходи фі- перекази коштів за кордон також під- данні допомоги вані правила оподатку- зичних осіб спостері- лягають пільговому оподаткуванню, вання пожертвувань за гається нижчий рівень якщо вони надають «потенційну пе- пільговою шкалою пожертвувань віднос- ревагу» німецькому народу. Декілька но ВВП великих громадських організацій, що займаються фандрейзингом, залу- чають кошти, що становлять основну частку доходу сектора Громадські організації можуть здій- Ініціатори, поста- Економічна діяльність Ця модель дозволяє снювати неоподатковувану економіч- чальники послуг оподатковується на громадським організа- ну діяльність, пов’язану з їх основною основі чітко визначено- ціям отримувати зна- діяльністю, за умови отримання ними го статусу суспільно ко- чний доход від еконо- статусу суспільно корисних, що є чіт- рисної організації мічної діяльності, уни- ко визначеним і так само чітко регулю- каючи зловживань ється 184 Міжнародні практики фінансування ОГС...
ву роль у міжнародному розвитку – ще одній сфері, в якій беруть активну участь громадські організації. Думка про громадські організації Міністерства закордонних справ Німеччини, яке визнає їх додану вартість, відображає ставлення до них з боку держави взагалі: «Неурядові організації є проявом участі громадянського суспільства (…). Сила НУО по- лягає, серед іншого, у високому ступені мотивації їхніх працівників і партнерів та їх воло- дінні спеціальними ноу-хау, а також у тому, що вони знаходяться в тісному контакті з враз- ливими верствами населення, без чого люди не зможуть подолати свої проблеми та вия- вити ініціативу. Спільною ознакою всіх НУО є те, що вони не мають функцій державної влади, і навпаки, що держава не справляє на них жодного безпосереднього впливу. Незважаючи на це або, можливо, саме з цієї причини робота НУО дуже високо оцінюється населенням і засоба- ми масової інформації в усьому світі. Внаслідок цього багато НУО легше знаходять спіль- ну мову з громадянами, ніж з органами влади. Багато де їм вдається встановити особли- ві відносини, побудовані на довірі. Це служить надійною основою для подальшої взаємодії та діалогу в критичних, зокрема, політично хитких ситуаціях, навіть у країнах, де співпраця з державою є проблематичною або неможливою з політичних причин».78 На розвиток німецького неприбуткового сектора також вплинули возз’єднання Захід- ної і Східної Німеччини, що відбулося в 1990 році, та подальший розвиток неприбуткового сектора Східної Німеччини. У цьому зв’язку в Звіті за результатами аналізу світового гро- мадянського суспільства говориться: «На відміну від досвіду інших країн Центральної Євро- пи з перехідною економікою, східнонімецький неприбутковий сектор, що розвивається, за- позичив багато схем, що існують у Західній Німеччині, а за розміром, структурою і складом його наразі практично неможливо відрізнити від його західнонімецького аналога».79
Національні особливості Дивним у відносинах між державою та громадськими організаціями в Німеччині є по- двійна наявність фінансової підтримки та відносно високий рівень політичної незалежності (автономності). Взагалі, держава вважає своїм обов’язком підтримувати неприбуткові ор- ганізації, що виконують важливу соціальну роль і допомагають реалізувати державну полі- тику (наприклад, у сферах надання соціальних послуг, охорони довкілля чи міжнародного розвитку). Проте водночас існує думка, що громадські організації є автономними і що дер- жава не повинна диктувати, в якому напрямі їм розвиватися.
Це прогресивне ставлення ґрунтується на здавна існуючих принципах, що впливають на законодавство та керують повсякденним життям німецьких громадян. Поряд із принци- пом субсидіарності, який має найбільше значення для неприбуткового сектора й описа- ний нижче, до них також належать принципи самоуправління й економічної самоорга- нізації громадян (Gemeinwirtschaft)80. Перший походить із ХІХ століття й абсолютної мо- нархії, яка зрозуміла: аби зберегти федеральну владу, доведеться дозволити своїм гро- мадянам самоорганізуватися. Відтоді існує дуалізм – потужна централізована федераль- на держава, за якою завжди залишається останнє слово у «великій політиці», та громадяни, які організуються знизу – вверх, аби впорядкувати своє повсякденне життя. З громадської економіки постали кооперативний рух і асоціації взаємодопомоги в банківській та житлово- будівельній сферах – ще одна підвалина, на якій базується розмаїтий третій сектор Німеч- чини, утворена автономними органами самоорганізації населення. 78 Веб-сайт Міністерства закордонних справ: http://www.bmz.de/en/what_we_do/approaches/bilateral_ development_cooperation/players/ngos/index.html 79 Німеччина: Возз’єднання та зміна. У Звіті за результатами аналізу світового громадянського суспільства (Germany: Unification and Change. In: Global Civil Society) стор. 99 http://www.ccss.jhu.edu/pdfs/CNP/CNP_GCS1_ Germany.PDF. 80 Там само, стор. 105. Міжнародні практики фінансування ОГС... 185
У світлі зазначеного вище держава фінансує з бюджету діяльність різних громадських організацій на всіх рівнях, зокрема на загальнодержавному та місцевому. Федеральна під- тримка також надається за декількома стратегічними напрямами, як-от виховання моло- ді, охорона довкілля чи міжнародний розвиток. У цих випадках, як правило, або надають- ся гранти на реалізацію проектів, або між компетентним міністерством (або федеральним органом) і громадською організацією укладається угода про довгострокове стратегічне партнерство. На місцевому рівні типовими способами підтримки громадських організацій є гранти та пряма підтримка з бюджету81. Слід зазначити, що за умов зростання економічних обмежень, що походить не лише з останньої економічної кризи, а й більш глибокої кризи держави загального добробуту з високим рівнем видатків, кількість охоплюваних громадських організацій та обсяги їх під- тримки зменшуються. Ця тенденція є неминучою, однак німецький уряд винайшов аль- тернативні шляхи надання підтримки громадським організаціям, які він також вважає не- обхідними з точки зору подолання наслідків економічної кризи, а саме – стимулювання приватної філантропії (див.: Приватні пожертвування за використання інституціоналізо- ваного механізму).
Роль громадських організацій Громадські організації є переважно одержувачами фінансування, але й розглядаються як партнери в процесі соціально-економічного розвитку громад.
Приклади, найкращі практики Поєднання державного фінансування та визнання автономності організації є важливою позитивною практикою, яку важко зустріти в країнах Центральної та Східної Європи. Незва- жаючи на те, що навіть у Німеччині ситуація не є ідеальною, у неї можна запозичити розу- міння того, що держава фінансує такі приватні організації з огляду на те, що роблять вони, а не що має намір зробити держава. Це може бути зроблено, оскільки доти, доки цілі є спільними (наприклад, допомога соціально вразливим верствам населення, розвиток не- заможних громад), можна припустити, що місцева громадська організація краще розуміти- меться на потребах і можливостях та зможе знайти кращі рішення. Саме це доводиться Ні- мецькою практикою протягом останніх 60 років (з часів Другої світової війни).
Зауваження Німеччина демонструє громадський сектор, що переважно фінансується державою та є чітко вимірюваним за параметрами успіху та доданої вартості. З огляду на здавна існую- чі, продиктовані самою історією принципи, що регулюють відносини між державою та гро- мадськими організаціями, «скопіювати» цю модель у країнах Центральної та Східної Євро- пи буде складно. Однак, оскільки ці принципи є ключовими для розвитку здорового грома- дянського суспільства, уряд України може закласти ці принципи в свої механізми фінансу- вання. Слід зазначити, що відсутність політичного та професійного впливу з боку держави не означає відсутність контролю за використанням державних коштів або якістю послуг у разі їх надання. Існують фінансові правила, яких повинні дотримуватися громадські організації, при цьому фінансування має бути прозорим і з боку держави.
81 У Звіті Університету ім. Джона Хопкінса за результатами аналізу світового громадянського суспільства (JHU Global Civil Society Report) також зазначається, що лише близько третини громадських організацій повідомили про те, що на державне фінансування припадає така велика частка їхнього доходу, що вони стають залежними від держави. Це свідчить про те, що, хоча державне фінансування і переважає в структурі загальних доходів сектора (його частка становить понад 60%), його можуть отримувати переважно великі організації, які надають послуги, а джерелом доходу більшості громадських організацій є членські внески та продаж товарів і послуг. 186 Міжнародні практики фінансування ОГС...
Аби користуватися перевагами цієї системи, громадським організаціям необхід- но досягти певного рівня інституційних можливостей. Хоча більшість з понад півміль- йона асоціацій не фінансуються державою (принаймні центральною владою), важливо мати достатній резерв громадських організацій, спроможних отримувати фінансуван- ня. Уряд Німеччини та подібно до нього угорський і хорватський уряди усвідомлюють, що вони мають здійснювати інвестиції також у розширення можливостей громадських організацій.
Соціальне контрактування Культурно-історичні умови Історично найбільш важливим принципом соціального контрактування в Німеччині є принцип «субсидіарності». В основі цього принципу, якому виповнилося вже більше ста ро- ків, лежить угода між католицькою церквою та державою. Він віддає перевагу наданню орі- єнтованих на громаду основних соціальних послуг приватними організаціями перед надан- ням послуг державою. По суті, постачальник послуги повинен знаходитися якомога ближче до потреби. Тому муніципалітет надаватиме послугу лише за відсутності місцевої громад- ської організації, яка була б спроможна її надати, а держава й органи федеральної влади втрутяться так само лише тоді, коли нижчий рівень буде неспроможний надати послугу (це може трапитися, наприклад, у разі рідкісної хвороби, коли на території самоврядної одини- ці мешкає замало клієнтів, аби розпочати поставку послуги). Як наслідок, в таких сферах, як охорона здоров’я та соціальні послуги, між неприбутко- вим сектором і державою почали укладатися комплексні угоди про партнерство. Проте це також призвело до «дуалізму» німецького неприбуткового сектора. Одна його частина, орі- єнтована на культурний розвиток, життя громади, охорону довкілля, роботу з молоддю, яка значною мірою є «громадською», отримує дохід, в основному із членських внесків і плати за послуги, та покладається на підтримку громади. Інша ж його частина надає соціальні по- слуги та послуги в сфері охорони здоров’я, що фінансуються державою, та є невід’ємною складовою держави загального добробуту. Ці громадські організації є високопрофесійни- ми, інституціоналізованими й отримують прямі субсидії з бюджету і постійне фінансуван- ня із системи соціального забезпечення (платежі третіх сторін). Насправді, певною мірою вони вважаються частиною державного сектора та менш «громадськими». Якщо не весь неприбутковий сектор Німеччини, то ця його частина точно існує завдяки фінансуванню з боку держави.
Національні особливості Німеччина включила принцип субсидіарності до своєї конституції. Принцип субсидіар- ності визначається так: «Субсидіарність означає, що більша суспільна одиниця (держава) повинна допомагати меншій (сім’ї), лише якщо ця менша одиниця більше не може поклада- тися на власні ресурси. В контексті соціальної політики це, по суті, є системою, в якій більш пріоритетним є надання послуг приватними організаціями, ніж державою, та місцевими по- стачальниками, ніж немісцевими». У цьому зв’язку в статті 93 Федерального Закону «Про соціальну допомогу» визначено, що державним органам забороняється створювати своїх власних постачальників послуг, коли існують або можуть надалі існувати чи створюватися відповідні асоціації. Відповідно до Соціального кодексу Німеччини, державні органи повинні робити свій ефективний внесок шляхом співпраці з недержавними органами. Місцева влада також має поважати незалежність цих органів у визначенні цілей, виконанні завдань і формуванні ор- ганізаційної структури. Однак органи місцевої влади мають право здійснювати контроль за використанням державних коштів останніми. Міжнародні практики фінансування ОГС... 187
Таким чином, більшість громадських організацій займаються наданням послуг, до яких в основному належать соціальні послуги (38,8%), послуги в сфері охорони здоров’я (30,6%) й освіти (11,7%)82. Громадські організації, що надають послуги, організовані в Німеччині в дуже своєрід- ний спосіб: вони об’єдналися в шість великих федерацій, що діють як «спілки громад- ських організацій», які представляють інтереси своїх членів. (П’ять з них належать до най- більших релігійних конфесій, а шоста об’єднує всі нерелігійні організації.) Ці федерації на річній основі обговорюють з урядом асигнування громадським організаціям, що надають послуги. Частина цього фінансування виділяється на основі критеріїв, чітко визначених у законодавстві (наприклад, розміру плати за послугу на душу населення або мінімальних стандартів якості послуг), але частина його може виділятися за результатами домовле- ностей на основі різних факторів, як-от річний рівень інфляції або необхідність інвестицій в інфраструктуру (реконструкція, добудова будівель тощо). На основі досягнутої домов- леності держава передає суми прямих субсидій федераціям, від яких ці кошти надходять до їх членів.
Роль громадських організацій Відповідно до цієї схеми громадські організації виступають, насамперед, постачальни- ками послуг, що є партнерами держави, а також одержувачами субсидій.
Приклади, найкращі практики Те, що перевага віддається постачанню соціальних послуг неприбутковими організаці- ями перед їх постачанням державою, є однією з позитивних практик. Проте для цього не- обхідно мати добре підготовлений громадський сектор, спроможний взяти на себе відпо- відальність за надання таких послуг. Елементом позитивної практики також є те, що, на відміну від Угорщини, платежі третіх сторін на душу населення доповнюються субсидіями, які допомагають забезпечити жит- тєздатність і розвиток громадських організацій. Інакше страждала б якість послуг, які вони надають. Таким чином, демонструється модель «нормативної» системи, де громадські ор- ганізації не зазнають дискримінації, а навпаки, отримують переваги.
Зауваження Зрозуміло, ця модель притаманна лише Німеччині. Громадські організації в цій моде- лі є невід’ємною складовою державної системи соціальних послуг. Це також створює пев- ні проблеми. Наприклад, громадські організації практично перетворюються на державних постачальників послуг і з плином часу втрачають конкурентоспроможність (на відміну від британської моделі, де законом не вимагається надання переваг громадським постачаль- никам). Об’єднання громадських організацій у «спілки» також є унікальною моделлю для Європи, яка з’явилася, скоріше за все, внаслідок потреби в потужній силі, що на держав- ному рівні просуватиме інтереси третього сектора, який більшу частину свого доходу отри- мує від держави. Німеччина має усталену традицію самоорганізації громадян і відстоюван- ня прав приватних організацій на державному рівні, тому ця модель може бути там успіш- ною. Такої традиції може бракувати деяким країнам Центральної та Східної Європи, де спіл- ки, як правило, належать діючим урядам.
82 Дані за 1995 рік. Джерело: Аннетта Ціммер (ред.). Третій сектор у Німеччині, Матеріали обговорень пи- тань розвитку неприбуткового сектора, Спец. вип. 3.– Сектор активного громадянства Інституту політології Вестфальського університету імені Вільгельма II, 2000 р. (Annette Zimmer Ed., The Third Sector in Germany, Münsteraner Diskussionspapiere zum Nonprofit-Sektor, Sonderband 3 – Arbeitsstelle Aktive Bürgerschaft at the Institute for Political Science, Westphalian Wilhelms-University of Münster, 2000), доступне з: http://www.vita. it/guide/view/50/91 455. 188 Міжнародні практики фінансування ОГС...
Приватні пожертвування за використання інституціоналізованого механізму Культурно-історичні умови Фонди в Німеччині з’явилися ще в ХІХ сторіччі83. Проте до 90-х років минулого сторіч- чя фінансово-правові умови діяльності фондів не привертали уваги держави. Лише тоді, в 90-х, за ініціативи декількох провідних німецьких приватних фондів, як-от Фонд Бертель- сманна (Bertelsmann Stiftung), почав розгортатися рух в напрямі реформ, і сектор фондів по- чав стрімко зростати. Це також було пов’язано зі зміною поколінь: за двадцять років ті, хто пе- режив Другу світову війну, пішли з життя, залишивши значні статки своїм нащадкам, котрі й самі накопичили достатньо, аби не потребувати спадку своїх батьків. Отже, це нове поколін- ня заможних громадян почало шукати шляхів, аби вкласти хоча б частину своїх коштів у добру справу. Вони менше від своїх батьків турбуються про те, що їхнім дітям знадобляться всі стат- ки, накопичені ними протягом життя, й охочіше роблять пожертвування. Тенденція до збіль- шення приватних статків триває й досі. За даними Фонду Бертельсманна, до наступного по- коління німців щороку переходить близько 200 млрд євро84. У Німеччині існує декілька видів фондів, типовими серед яких є як приватно корисні, так і суспільно корисні. Крім того, з’явився новий рух в напрямі фондів громад (сьогодні в Ні- меччині існує приблизно 230 фондів громад, про які до 1996 року нічого не було відомо)85. Німеччина також має так звані політичні фонди86, кожен з яких має чітко простежуваний іде- ологічний зв’язок з тією чи іншою політичною партією. Вони щороку отримують підтримку з бюджетів своїх політичних партій, що мають на меті повідомлення виборцям своїх політич- них програм. Ці фонди також працюють за кордоном зі спорідненими партіями, профспіл- ками та громадськими організаціями.
Національні особливості Як зазначалося вище, за останні десять років кількість фондів у Німеччині почала стрім- ко зростати. Якщо в 1996 році був створений 441 фонд, то сьогодні щороку реєструється 1000–1100 і більше нових приватних фондів87. Так, у 2008 році в країні існувало 16 406 фон- дів (більшість із них були засновані в містах колишньої Західної Німеччини)88. Існує декілька причин такого піднесення, одна з яких – збільшення приватних статків і поява нового покоління з великим чистим капіталом. Другою причиною є роль провідних ні- мецьких фондів у просуванні нової моделі фондів, третьою – сприятлива схема надання по- даткових пільг, запроваджена наприкінці 90-х років минулого століття. Якщо говорити конкретно, донор-фізична особа може відраховувати до ендавменту фонду, створеного у відповідних цілях, до 1 000 000 євро (зазначені цілі в основному означа- ють суспільно корисні цілі, як вони визначені в податковому законодавстві Німеччини). Та- кий внесок може бути переданий того самого року та/чи розподілений на наступні дев’ять років. Це виявилося серйозним стимулом для багатьох заможних громадян, які шукають найбільш економічно ефективної «інвестиції» для свого капіталу. Причиною внесення урядом таких змін до податкового законодавства є усвідомлення фі- нансових труднощів, що неминуче постають перед державою загального добробуту, а також того, що тенденція зростання бюджетних обмежень зберігатиметься протягом тривалого часу. Це означає утворення прогалини між попитом на соціальні послуги з боку суспільства, включа-
83 CIVICUS, http://www.civicus.org/media/CSI_Germany_Country_Report_English.pdf 84 http://www.bertelsmann-stiftung.de/bst/de/media/xcms_bst_dms_27508_27509_2.pdf 85 Там само. 86 Цікаво, що за їх організаційно-правовою формою вони насправді є асоціаціями. 87 http://www.bertelsmann-stiftung.de/bst/de/media/xcms_bst_dms_27508_27509_2.pdf 88 http://www.vita.it/guide/view/50/91455 Міжнародні практики фінансування ОГС... 189
ючи, серед іншого, прогалину між фінансуванням громадських організацій та можливостями задоволення цього попиту з боку держави. З огляду на статки, накопичені фізичними особами (та, певною мірою, юридичними), держава поставила за мету стимулювати приватну філантро- пію, аби задовольнити потреби, які залишилися б незадоволеними. Тому фонди та їх активна взаємодія з суспільством у сфері благодійництва набули політичного значення.
Роль громадських організацій Громадські організації розглядаються не лише як набувачі допомоги з боку фондів, а й як ефективні канали постачання послуг тим, хто їх потребує, за рахунок коштів цих фондів, тобто як партнери фондів і постачальники послуг від їхнього імені.
Приклади, найкращі практики Позитивним прикладом є мотивування фізичних осіб до перетворення приватних стат- ків на механізм фінансування в державних цілях. Важливо зазначити, що громадськість у Ні- меччині очікує від надання соціальних послуг майже того самого, що і в країнах Центральної та Східної Європи, та що, фінансуючи ці послуги, держава зрештою бере на себе відпові- дальність за надання доступних соціальних послуг, послуг у сфері охорони здоров’я й осві- ти кожному, навіть якщо ці послуги фактично надаються приватними постачальниками. Ні- мецька модель приватних фондів має стратегічне значення в забезпеченні надання послуг, навіть якщо в держави немає ресурсів надавати їх так само широко, як раніше. Також позитивною практикою є те, що доти, доки кошти спрямовуються на пожертвуван- ня до ендавментів, тобто забезпечують довгострокове фінансування, спрямоване на досяг- нення певної мети, в рамках законодавства не має значення, чи засновує особа свій власний новий фонд, чи вона робить внесок до вже існуючого. Можливість такої особи розподілити пожертвування на десять років також сприяє мисленню в довгостроковій перспективі, а та- кож свідчить про те, що законодавець мислив з урахуванням точки зору донора. Насамкінець, цікавою є також ідея окремих політичних фондів (яка вже також реалізова- на в Угорщині), що являє собою один зі способів спрямувати політичні інтереси в законо- давчо контрольований механізм. Якщо існуватиме така категорія фондів, від інших фондів і громадських організацій може вимагатися відмова від провадження політичної діяльності, спрямованої на досягнення цілей певної партії, особливо якщо вони отримують податкові пільги (наприклад, мають статус суспільно корисних).
Зауваження Це є безпрограшною моделлю стимулювання приватної філантропії. Проте два її ком- поненти притаманні лише Німеччині (чи, точніше, Західній Європі): по-перше, походжен- ня приватного капіталу є законним і відстежуваним, тоді як у випадку країн Центральної та Східної Європи, включаючи Україну, воно може бути сумнівним; по-друге, в німецькому за- конодавстві (податковому та прецедентному праві) чітко визначені суспільно корисні цілі, що є підставою для звільнення від податку. У разі такого серйозного податкового стимулу держава повинна пересвідчитися в законності походження та призначення цих коштів, а та- кож їх відповідності вимогам щодо звільнення від оподаткування.
Пожертвування приватних юридичних осіб Культурно-історичні умови Питання корпоративної соціальної відповідальності і корпоративного громадянства в Німеччині було предметом тривалих обговорень, які поновилися з новою силою наприкін- ці 90-х років минулого століття у зв’язку з новою «хвилею» руху на підтримку концепції кор- поративної соціальної відповідальності у всьому світі. Тиск з боку споживачів, що спонукає 190 Міжнародні практики фінансування ОГС...
компанії поводитися відповідально, є безперечно більшим, ніж у досліджених країнах Цен- тральної та Східної Європи, а це відіграє важливу роль у розвитку корпоративної відпові- дальності і пожертвувань юридичних осіб. Компанії в Німеччині ставляться до громадських організацій по-різному, залежно від сфери їхньої діяльності. Наприклад, якщо громадські організації, які провадять діяльність у сфері культури та спорту, завжди користуються спонсорською та іншою підтримкою юри- дичних осіб, то організації споживачів і природоохоронні організації створюють для остан- ніх більше проблем, а відтак отримують менше підтримки (вони часто навіть відмовляють- ся від фінансування з боку юридичних осіб). Місцеві компанії та компанії регіону часто віді- грають важливу роль у житті громад, виступаючи роботодавцями та каталізаторами розви- тку громади. Взагалі, можна говорити про те, що відносини між корпоративним і громад- ським секторами є збалансованими, якщо різні гравці мають різні інтереси, але спроможні конструктивно їх обговорювати89. Останнім часом компанії все більше переймаються своїм позитивним іміджем у засобах масової інформації й об’єднуються у всілякі організації з метою формування у своїх колег соціальної відповідальності. Крім того, вони почали активізувати підтримку неприбуткового сектора як такого. Наприклад, протягом останніх років аудиторська компанія KPMG відзна- чає спеціальною нагородою громадські організації, чия діяльність є прозорою, а інші ком- панії надають громадським організаціям підтримку, аби підвищити рівень своєї професій- ності в сфері адміністрування90.
Національні особливості Компанії займаються благодійною діяльністю в різні способи – від надання грантів гро- мадам чи пожертвувань у натуральній формі до реалізації волонтерських програм і відря- джень своїх працівників для роботи в громадських організаціях, включаючи також створен- ня корпоративних фондів. Великі корпоративні фонди (компаній «Bosch», «Siemens», «Bertelsmann» та ін.) ві- діграють важливу роль у житті суспільства, здійснюючи фінансування в сфері науково- дослідних і дослідно-конструкторських робіт, соціальних інновацій та надаючи підтрим- ку в розв’язанні складних питань. Пожертвування компаній у Німеччині носить здебільшо- го класичний благодійний характер, тобто вони не є напряму пов’язаними з економічни- ми інтересами. Водночас група експертів з різних галузей, яка проводила оцінку ролі компаній у ре- алізації проекту Civicus, дійшла висновку, що «компанії беруть участь у розвитку корпо- ративного громадянства, але їх внесок є недостатньо вагомим чи надійним, аби сприяти розв’язанню соціальних проблем у довгостроковій перспективі»91. Цей висновок, імовірно, пояснюється відносно низькою загальною часткою фінансу- вання з боку корпоративного сектора в доходах громадських організацій. За даними JHU, лише 3% доходу сектора припадає на благодійну підтримку з боку фізичних і юридичних осіб92. За даними 2007 року, 29,1% фірм надали до 5000 євро, тоді як від 30,5% фірм було отримано від 10 000 до 50 000 євро. Малі та середні підприємства надають здебільшого до
89 За даними Звіту за результатами дослідження, проведеного Civicus в рамках проекту «Індекс грома- дянського суспільства» в Німеччині, Стор. 37-38 http://www.civicus.org/media/CSI_Germany_Country_Report_ English.pdf 90 Звіт агентства «Guidestar Europe» за результатами дослідження неприбуткового сектора Німеччини, 2008 р. 91 За даними Звіту Civicus за результатами дослідження, проведеного в Німеччині в рамках проекту «Індекс громадянського суспільства», стор. 38 http://www.civicus.org/media/CSI_Germany_Country_Report_English.pdf 92 «Німеччина: Об’єднання та зміна». У Звіті за результатами аналізу світового громадянського суспільства (Germany: Unification and Change. In: Global Civil Society), стор. 109) http://www.ccss.jhu.edu/pdfs/CNP/CNP_ GCS1_Germany.PDF Міжнародні практики фінансування ОГС... 191
50 000 євро (за розмірами своїх пожертвувань 86,3% малих і 65,7% середніх фірм належать до перших трьох категорій), тоді як 42,1% великих фірм відраховують від 50 000 до понад 100 000 євро (дані 2005 року)93. Однак у 2007 році відбулася масштабна податкова реформа, спрямована на заохочен- ня приватного сектора до участі в розв’язанні соціальних проблем. У цьому зв’язку нада- ються пільги щодо оподаткування готівкових коштів, активів і будь-яких інших економіч- них благ, за винятком випадків існування прав користування об’єктом оподаткування та застосування до нього спеціальних договірних умов, при цьому розмір податкової пільги може досягати 20% річного оподатковуваного доходу (або 0,4% обігу та заробітної пла- ти). Пожертвування, розмір яких перевищує цю межу, можуть бути перенесені на наступ- ні фінансові роки. Оскільки ми не знайшли жодних даних про розміри пожертвувань юридичних осіб за останні два роки, неможливо чітко визначити, як ці зміни вплинули на корпоративну філан- тропію. Проте, також зважаючи на те, що то був період економічної кризи, вплив законодав- ства складно оцінювати у відриві від загального економічного спаду.
Роль громадських організацій Частіше за все, громадські організації є набувачами допомоги.
Найкращі практики Прозора, зразкова діяльність у випадку великих, найбільш помітних корпоративних фон- дів, що відіграють важливу роль у сприянні благодійництву та соціально-економічному роз- витку взагалі. Модель, відповідно до якої можуть не оподатковуватися 0,4% обігу та заробітних плат, є важливою як альтернатива зменшення податкової бази, оскільки вона дозволяє компані- ям користуватися пільгою щодо оподаткування їхніх пожертвувань, незважаючи на те, що в будь-якому році вони не задекларували свої прибутки (оскільки ці пожертвування можуть бути перенесені на наступні роки).
Зауваження У країнах Центральної та Східної Європи німецькі компанії не мають іміджу соціаль- но відповідальних, особливо у порівнянні з британськими й американськими компанія- ми. Це може свідчити про велике значення національного контексту, в якому існує потуж- ний тиск з боку споживачів, що спонукає до соціальної відповідальності. Слід зазначи- ти, що пожертвування компаній за кордоном взагалі не підпадатимуть під дію тих самих податкових пільг, що їхні пожертвування вдома, за винятком випадків, коли донор зможе довести, що їх отримала організація, діяльність якої спрямована на досягнення суспіль- но корисних цілей, і що надання підтримки в досягненні таких цілей за кордоном може мати позитивні наслідки для Німеччини. Таким чином, німецькі компанії позбавлені сти- мулів до реалізації масштабних благодійних програм, корисних для місцевого середо- вища (якщо вони не доведуть, що така програма сприятиме поліпшенню загального імі- джу Німеччини в цій країні). Також слід зауважити, що загальне податкове поле та податкові стимули до по- жертвувань однаково сприятливі як для великих, так і малих компаній. Це важливо, оскільки малі компанії є основними гравцями, що надають підтримку в сфері місцево- го розвитку.
93 Звіт 2007 року «Громадянство в Німеччині та порівняльний аналіз із США» – результати дослідження, про- веденого Центром корпоративного громадянства Німеччини (Centrum für Corporate Citizenship Deutschland, CCCD), http://www.vita.it/guide/view/50/91460 192 Міжнародні практики фінансування ОГС...
Пожертвування фізичних осіб Культурно-історичні умови У Німеччині, яка є європейською державою загального добробуту, благодійні пожертву- вання фізичних осіб не так поширені, як в англосаксонських країнах, як-от Великобританія чи США. Однак відсоток, що припадає на пожертвування у ВВП Німеччини, є вищим, ніж в інших країнах європейського континенту, наприклад у Франції. За даними Фонду благодійної до- помоги (CAF), отриманими в 2006 році, на пожертвування на загальнодержавному рівні при- падає 0,22% німецького ВВП, у порівнянні, з одного боку, з 0,14% у Франції та, з іншого – з 0,45% у Нідерландах, 0,73% – Великобританії та 1,67% – в США (що складає найбільший від- соток серед усіх країн світу). Також цікаво відзначити істотну відмінність між двома частина- ми Німеччини: на пожертвування в колишній Східній Німеччині припало лише 0,12% ВВП, тоді як у колишній Західній Німеччині їх частка у ВВП становила 0,26%94. Інше дослідження виявило, що в період між 2001 і 2003 роками пожертвування до своїх податкових декларацій включили близько 35% фізичних осіб – платників податку на доходи. Це свідчить про відносно високий рівень участі населення, зважаючи на те, що на його по- жертвування припадає лише незначний відсоток доходу неприбуткового сектора95. У Німеччині також існує церковний податок, що являє собою добровільний внесок (інши- ми словами, платники податку сплачують його, якщо не відмовляться це робити). Відповід- но до дослідження, проведеного CAF, якщо включити цей податок, Німеччина посяде одне з перших місць за рівнем пожертвувань відносно ВВП. Це свідчить про традиційну схильність німецьких громадян робити внесок на «вище благо». Проте взагалі очікується, що держа- ва оплачуватиме соціальні послуги зі сплачених податків. Дослідження CAF робить висно- вок щодо існування в країнах ЄС взаємозв’язку між рівнем оподаткування доходів фізичних осіб, зокрема розміром соціального страхування, та рівнем пожертвувань: у країнах з ви- щим податком на доходи фізичних осіб спостерігається нижчий рівень пожертвувань від- носно ВВП, і навпаки (Німеччина, зрозуміло, належить до першої категорії).
Національні особливості Виходячи із даних досліджень, можна спостерігати тенденцію до зменшення загаль- ного розміру пожертвувань неприбутковим організаціям, що бере свій початок у 2005 році. Якщо за оцінками одного звіту в 2005 році неприбуткові організації отримали по- жертвування в розмірі 4,4 млрд євро96, то за даними 2008 року організаціям третього сектора в Німеччині приблизно 27 млн людей у віці старше 14 років пожертвували лише 2,8 млрд євро. Розмір пожертвувань становить у середньому 102 євро, при цьому жін- ки є дещо активнішими, ніж чоловіки (у структурі пожертвувань 44% припадає на жінок і 40% – на чоловіків). Крім того, існують відмінності між Західною та Східною Німеччиною: в Західній Німеччині кошти жертвують 43% населення, а в Східній – 37%. За віковою гру- пою охочіше жертвують люди похилого віку та люди у віці 50–64 років, на яких припадає 61 і 45% донорів відповідно97.
94 Міжнародні порівняння рівнів благодійних пожертвувань, Інструкції CAF (International comparisons of charitable giving, CAF Briefing Paper), листопад 2006 р. http://www.cafonline.org/pdf/International%20%20 Giving%20highlights.pdf 95 Боргло Сара, Що спонукає до пожертвувань у державах загального добробуту?, Дискусійний документ №08-123 Центру європейських економічних досліджень (Borgloh, Sarah: What drives giving in welfare states? ZEW Discussion Paper #08-123) http://econstor.eu/bitstream/10419/27606/1/dp08123.pdf 96 Аналіз бюджетів домогосподарств (Household budget survey), 2005 р. http://www.ernop.eu/country/3/ germany.html#Data 97 Звіт компанії TNS Infratest Holding GmbH & Co. KG «Чотирнадцята річниця німецького монітора пожертву- вань – факти та тенденції» (14 Jahre Deutscher Spendenmonitor – Fakten und Trends im Zeitverlauf) (2008 р.; дані за період з жовтня 2007 р. по жовтень 2008 р.) http://www.vita.it/guide/view/50/91460 Міжнародні практики фінансування ОГС... 193
На жаль, ми не маємо достовірних даних, аби мати можливість порівняти рівень і струк- туру пожертвувань до та після ухвалення в 2007 році нового податкового законодавства, що гармонізувало та збільшило податкові пільги, що надаються фізичним особам, які жерт- вують кошти на суспільно корисні цілі. Відповідно до цього законодавства, як описано в розділі, присвяченому фінансуванню з боку юридичних осіб, до доходу можуть не включа- тися пожертвування у відповідних цілях в розмірі до 20% річного оподатковуваного прибут- ку, а суми, що перевищують цю межу, можуть без обмежень переноситися на наступні фі- нансові роки. Крім того, у відповідь на останні рекомендації Європейської Комісії привести німецьке законодавство у відповідність з принципами Договору про створення Європейського спів- товариства в частині податкових пільг, починаючи з 1 січня 2009 року, пожертвування не- прибутковим організаціям, що знаходяться в інших країнах, також можуть оподатковувати- ся на пільгових засадах, якщо вони здійснюють діяльність у суспільно корисних цілях і якщо донор зможе довести, що таке пожертвування може бути корисним для німецького народу. (Насправді це останнє положення видалося ЄК сумнівним, і наразі розглядається можли- вість внесення до нього змін.) Також слід зазначити, що в Німеччині існує лише декілька сотень великих громадських організацій, що професійно займаються фандрейзингом, збираючи основну частину до- ходів сектора від фандрейзингу (пожертвувань)98. Більшість громадських організацій кра- ще обізнані з технологіями отримання фінансування з боку держави та стикаються з тими самими проблемами щодо можливості залучати кошти населення, що і їх колеги в країнах Центральної та Східної Європи. Це є ще однією причиною, чому ефективним кроком може бути збільшення обсягів наявного фінансування з боку благодійних фондів (оскільки ці фон- ди проводять конкурси грантів на реалізацію проектів, що є подібним до залучення держав- них коштів).
Роль громадських організацій Громадські організації виступають набувачами допомоги та посередниками в наданні допомоги тим, хто її потребує.
Приклади, найкращі практики Навіть незважаючи на те, що про його вплив у довгостроковій перспективі говорити ще зарано, податкове законодавство 2007 року являє собою позитивну практику з огляду на те, що в ньому міститься єдине визначення організацій, які можуть отримувати податко- ві пільги (раніше для громадських організацій, діяльність яких переслідувала різні суспіль- но корисні цілі, були передбачені пільги різних рівнів), а також визначене загальне правило надання цих пільг (раніше існували різні межі залежно від цілі та того, чи є платник податку фізичною чи юридичною особою). Іншими словами, ці положення спрощують і посилюють стимули, що спонукають фізичних осіб до благодійництва.
Зауваження Німеччина являє собою приклад країни, в якій існує історично усталена традиція по- жертвувань у релігійних і суспільних цілях, але в якій платники податку очікують від держави оплати соціальних послуг з податків. Однак наявність податкових стимулів може дещо змі- нити цю схему (хоча до сьогодні результатів вдалося досягти передусім у сфері благодійної діяльності фондів, ситуація ж з прямими пожертвуваннями досі не змінилася).
98 Німецький центральний інститут із соціальних питань (DZI) – основний орган сертифікації у сфері фан- дрейзингу, в 2008 році зареєстрував 236 організацій, які разом залучили 1,4 млрд євро з 2,45 млрд євро, що, за оцінками, були залучені того року (за іншими оцінками, ця цифра становила 2,8 млрд). http://www.ernop.eu/ country/3/germany.html#Data 194 Міжнародні практики фінансування ОГС...
Заробляння доходу Культурно-історичні умови Німецький третій сектор ніколи не цурався заробляння доходів та економічної діяльності. Насправді, кооперативи, житлово-будівельні та інші асоціації взаємодопомоги утворюють важ- ливу складову третього сектора як на місцевому рівні, так і на рівні національних федерацій. (див. посилання на принцип Gemeinwirtschaft (економічної самоорганізації громадян) у роз- ділі «Механізми державного фінансування».) Більш узагальнено на доходи від економічної ді- яльності, включаючи членські внески, припадає більше третини доходу громадського сектора. На відміну від країн Центральної та Східної Європи, членські внески в Німеччині є важ- ливим джерелом доходу громадських організацій. За даними дослідження бюджетів домо- господарств, на членські внески в 2005 році було витрачено 6,7 млрд євро99, що в півтора рази перевищує суму пожертвувань (і вдвічі – аналогічний показник наступних років). Також існує думка про те, що громадські організації існують за рахунок заробленого ними доходу, а відтак споживачі готові платити за їхні послуги (що, як правило, пропонуються на додаток до основних послуг, надання яких спонсорує держава). Незважаючи на те, що економічна діяльність є дозволеною, і громадські організації за- галом займаються нею, вона також підлягає оподаткуванню, якщо не відповідає жорсткій системі правил отримання організацією статусу звільненої від податків. Критерії, за якими надається такий статус, і критерії звільнення організації від податку на прибуток, що супро- воджує надання такого статусу, напрацьовувалися протягом років і, хоча й були дещо спро- щені завдяки реформі 2007 року, зберегли основні елементи системи. В Німеччині надава- ти чи не надавати організації статус суспільно корисної вирішує компетентний податковий орган. Якщо такий статус наданий, організація може вільно займатися економічною діяль- ністю в суспільно корисних цілях без сплати податку на прибуток.
Національні особливості Тут ми включаємо положення стосовно статусу суспільно корисної організації та пов’язаних звільнень від оподаткування як приклад, що, на нашу думку, є позитивною прак- тикою в сфері регулювання пільг щодо оподаткування доходів від економічної діяльності100. Податкове законодавство (Abgabenordnung/AO) визначає три види діяльності, що опо- датковуються на пільгових засадах: Організація здійснює суспільно корисну діяльність (gemeinnützige Zwecke), якщо «її ді- яльність спрямована на матеріальну, інтелектуальну чи духовну підтримку широкої гро- мадськості». Набувачі такої підтримки не повинні належати до обмеженого кола людей, як-от члени однієї сім’ї чи працівники однієї компанії. У законодавстві також перерахова- ні види діяльності, які, за умови задоволення вищезазначених вимог, розглядаються як корисні для широкої громадськості. Перелік, який з 2007 року є вичерпним, включає такі категорії: наукові дослідження, освіта, мистецтво та культура, релігія, сприяння взаємо- розумінню між країнами, допомога розвитку, збереження довкілля та культурної спад- щини, допомога молоді чи особам похилого віку, охорона здоров’я, спортивне аматор- ство (включаючи шахи), сприяння демократії, допомога військовослужбовцям і офіце- рам, звільненим у запас, а також підвищення громадянської активності. В положеннях також містяться додаткові пояснення, аби допомогти в тлумаченні цих категорій. Організація здійснює благодійну діяльність (mildtätige Zwecke), якщо вона спрямо- вана на надання підтримки та допомоги тим людям, які їх потребують у зв’язку зі сво- їм економічним становищем або фізичним, психологічним чи психічним станом.
99 http://www.ernop.eu/country/3/germany.html#Data 100 Цей розділ з неістотними змінами запозичений зі звіту про Німеччину, наданого в рамках проекту «Між- народні гранти США» (USIG). http://www.usig.org/countryinfo/germany.asp#exemptions Міжнародні практики фінансування ОГС... 195
Релігійна діяльність (kirchliche Zwecke) включає підтримку релігійних конфесій, що існують відповідно до норм публічного права, будівництво храмів, духовний розвиток і релігійну освіту. Крім того, відповідно до Податкового законодавства, організації, що отримують подат- кові пільги, повинні здійснювати свою діяльність, що оподатковується на пільгових заса- дах (суспільно корисну, благодійну чи релігійну), не поєднуючи її з іншими видами ді- яльності, безпосередньо та безкорисливо. Організація повинна здійснювати свою ді- яльність самостійно (безпосередньо) та може залучати до неї «Hilfspersonen» (допоміжних осіб), через яких вона діє (штатних і позаштатних працівників, інших юридичних осіб), на- приклад, на основі договору або доручення. Лише передача організації, що користується податковими пільгами, в оренду приміщень або відрядження до неї персоналу не розгля- дається як безпосереднє здійснення діяльності, яке оподатковується за пільговою шкалою. Організації, яким надаються податкові пільги, повинні використати свій дохід до кінця року, наступного за роком, коли цей дохід був отриманий. Громадська організація, яка задовольняє вищезазначеним вимогам, може отримати пільги щодо оподаткування її економічної діяльності. Якщо така діяльність є необхідною для досягнення статутної мети організації та не призводить до створення надмірної конкурен- ції між нею та прибутковими організаціями, її прибутки не оподатковуються, а ставка ПДВ зменшується до 7% (так званий «Zweckbetrieb» у значенні статті 65 Податкового законо- давства). Комерційна діяльність, яка не є необхідною для досягнення статутних цілей НПО, оподатковується за звичайними ставками, якщо річний валовий дохід від нестатутної ко- мерційної діяльності перевищує 35 000 євро (стаття 64 Податкового законодавства).
Роль громадських організацій Громадські організації є виробниками та продавцями товарів і послуг, а також поста- чальниками послуг своїм членам.
Приклади, найкращі практики Податкове регулювання, пов’язане з наданням організаціям статусу суспільно корис- них, є позитивною практикою, оскільки забезпечує прозорість і звітність, дозволяючи при цьому громадським організаціям вільно займатися економічною діяльністю, що допомагає їм бути життєздатними. 196 Міжнародні практики фінансування ОГС...
IV.4. ВЕЛИКОБРИТАНІЯ
Основна інформація про неприбутковий сектор Великобританії В Англії та Уельсі існує 180 918 благодійних організацій101. У 2007–2008 роках фінансу- вання громадських організацій з боку держави склало приблизно 12,8 млрд фунтів стерлін- гів, що становить понад третину загального доходу сектора. Близько 40 000 організацій ма- ють фінансові відносини з державним сектором , але понад 75% громадських організацій не мають прямих фінансових відносин з державою102. Більша частина фінансування з дер- жавних джерел розподіляється між організаціями, що працюють у сфері постачання соці- альних послуг. Як частина державного фінансування важливим джерелом доходу є лотереї: 28% до- ходу від лотерей спрямовуються на доброчинство в таких категоріях, як благодійництво, охорона здоров’я, освіта й охорона довкілля (50%), спорт (16,67%), мистецтво (16,67%) та збереження історично-культурної спадщини (16,67%). На сьогодні на реалізацію понад 350 000 проектів спрямовано 25 млрд фунтів стерлінгів103. Найбільшим розподілювачем до- ходів від лотерей є Фонд Великої лотереї.
Механізми фінансування Культурно-історичні умови Великобританія – це країна загального права з набагато різноманітнішими традиціями та законодавчими механізмами, ніж у країнах європейського континенту. Водночас у ній іс- нує багато конкретних рішень, прикладів, що також можуть бути з успіхом запозичені євро- пейськими країнами, зокрема країнами Центральної та Східної Європи. Проте тут нам хо- тілося б навести як основний приклад не якийсь конкретний засіб чи механізм, а загальний підхід, продемонстрований Великобританією у своїх спробах залучити громадянське су- спільство (громадський сектор) до процесу надання соціальних послуг. Великобританія має потужний громадський сектор, благодійництво в якому регулюєть- ся з 1601 року. Благодійні організації розглядаються як надійні доброчинники, що фінансу- ються державою, а всі громадські організації вважаються основою суспільства. На відмі- ну від Німеччини, приватні неприбуткові організації у Великобританії не перетворилися на невід’ємну складову державної системи надання послуг. Проте за рахунок благодійних ре- сурсів вони постачають свої власні послуги, досягаючи помітних результатів у межах гро- мад, яким вони надають такі послуги. У середні 90-х років минулого століття, за часів фінан- сових обмежень і відповідно до загальної політики модернізації держави загального добро- буту, лейбористський уряд розпочав розробку нової всеохоплюючої політики, аби капіталі- зувати потенціал громадського сектора.
101 http://www.charity-commission.gov.uk/showcharity/registerofcharities/registerhomepage.aspx (станом на 01 грудня 2010 року). Однак благодійні організації є не єдиною формою громадських організацій. Вони станов- лять майже половину з близько 865 000 громадських організацій Великобританії. Європейська Комісія, Остан- ні ініціативи в сфері державного регулювання і саморегулювання, спрямовані на підвищення рівнів звітності та прозорості діяльності неприбуткових організацій в Європейському Союзі (Recent Public and Self-Regulatory Initiatives Enhancing NPO Transparency and Accountability of Non-profit Organizations in the European Union), роз- роблені ЄЦНП, 2009 р., www.ecnl.org 102 Національна рада у справах громадських організацій, Комісія з фінансування, Документ 4 – Фінан- сування з боку державного сектора – висновки та рекомендації, що напрацьовуються (NCVO, Funding Commission, Public Sector Funding – Findings and Emerging Recommendations), 2010 р., www.ncvo-vol. org.uk 103 www.lotterygoodcauses.org.uk/lottery-grants/lottery-grant-faq/ Міжнародні практики фінансування ОГС... 197
Результатом стала так звана Партнерська угода – основний документ, в якому визна- чаються завдання, права та зобов’язання обох його сторін (держави і громадського сек- тора) та який послужив основою для розробки довгострокової стратегії, спрямованої на здобуття максимальних переваг не лише для держави і громадських організацій, а переду- сім для населення. Партнерська угода означала підвищення ролі як благодійних організа- цій, так і громадського сектора в наданні державних послуг. Вона також означала посилен- ня підтримки та збільшення обсягів інвестицій у сфері розширення можливостей громад- ських організацій. Після укладення Партнерської угоди з’явилося декілька пов’язаних з нею програмних документів, а також низка рекомендацій і нормативних заходів, які всі без винятку ґрунту- валися на поглибленому аналізі даних і впливу. Сьогодні ідеї нової влади стосовно ролі гро- мадських організацій і відносин з ними є дещо відмінними, проте вона враховує результа- ти, досягнуті в процесі формування нової політики, та можливі наслідки такої політики (як негативні, так і позитивні).
Національні особливості Партнерська угода створює стратегічну базу для надання підтримки громадським орга- нізаціям. Процес співпраці інституціоналізовано в результаті нещодавньої реорганізації Ко- мітету з питань розвитку громадянського суспільства при секретаріаті Кабінету Міністрів, що надає підтримку сектору шляхом співпраці з ним і його фінансування, займається пи- таннями соціального підприємництва, законодавства в сфері благодійництва, регулюван- ня в сфері волонтерства та пожертвувань, а також ролі сектора в наданні державних послуг. Фінансування з боку центральної влади часто спрямовується через інші органи, такі як ре- гіональні органи влади та агентства з регіонального розвитку, позавідомчі державні органи та місцеві трасти Державної служби охорони здоров’я104. Доходи від лотерей являють со- бою важливе джерело фінансування громадських організацій, які займаються певними ви- дами діяльності. За останні десять років з’явилися незчисленні ініціативи з боку уряду, на- давачів фінансування та громадських організацій, спрямовані на покращення практик фі- нансування. Створюються веб-портали, метою яких є прискорення процесу запроваджен- ня схем надання грантів і спрощення доступу до інформації про можливості фінансування (наприклад, governmentfunding.org.uk, Decision Support Tool (Інструмент надання підтрим- ки у прийнятті рішень)105 і fundingcentral.org.uk)106.
Роль громадських організацій Громадські організації є одержувачами фінансування, але державні його надавачі роз- глядають їх також як довгострокових партнерів.
Приклади, найкращі практики Партнерська угода – це унікальний механізм партнерства між державою та громадськи- ми організаціями. Незважаючи на те, що від інших країн неможливо очікувати її відтворен- ня як такої, на нашу думку, важливо викласти деякі з її основних елементів (включаючи до- сягнуті результати), що можуть виявитися корисними при напрацюванні стратегії співпра- ці з громадським сектором:
104 Національна рада у справах громадських організацій. Держава і громадський сектор: останні тенденції в сфері державного фінансування та постачання державних послуг (NCVO, The State and the Voluntary Sector; Recent Trends in Government Funding and Public Service Delivery), 2009 р., www.ncvo-vol.org.uk 105 Національне контрольно-ревізійне управління. Інструмент надання підтримки у прийнятті рішень для державних органів в Англії (A Decision Support Tool for Public Bodies in England), www.nao.org.uk/guidance_and_ good_practice/toolkits/better_funding.aspx 106 Хадзі-Мічева і Голубович (Hadzi-Miceva and Golubovic), 2011 р. 198 Міжнародні практики фінансування ОГС...
Фінансово-правова Культурно-історичні умови база
Механізми фінансування Сприятлива Потужний громадський сектор, благодійництво в якому регулюється з 1601 року. Громадські організації розглядаються як надійні доброчин- ники, що фінансуються державою та є основою суспільства. Партнерська угода (Compact) Бле- ра означала підвищення їх ролі в наданні дер- жавних послуг, а також посилення підтримки та збільшення обсягів інвестицій у сфері розши- рення можливостей громадських організацій
Соціальне контрактування Зразкова Існують давні традиції справедливого та відкри- того укладання контрактів на надання держав- них послуг. Громадські організації, приватний сектор та органи місцевої влади розглядають- Взаємодія з державою
ся як гравці, що мають однакові шанси отрима- ти державні контракти
Альтернативне фінансування
Приватні пожертвування Сприятлива Відповідно до загального права, трасти відігра- за використання інституці- ють роль фондів. Діяльність благодійних трас- оналізованого механізму тів чітко регулюється, а їх розпорядники несуть особисту відповідальність за активи
Пожертвування приватних Сприятлива Британські компанії найактивніше в світі запро- юридичних осіб ваджують кращі практики на основі принципу Взаємодія з приватним сектором
корпоративної соціальної відповідальності. По- зитивний імідж є справжнім стимулом на бри- танському ринку. Звітність є ключовою умовою здійснення діяльності в приватному секторі, так само, як і в державному
Пожертвування фізичних осіб Сприятлива Високорозвинена культура благодійництва – пожертвування донорів є звичайним, повсяк- денним явищем. Благодійні пожертвування є так само поширеними, незважаючи на кризу
Заробляння доходу Зразкова Економічна діяльність, пов’язана з «основни- ми цілями», звільняється від податку на доходи; Зароблений доход
обмеження розміру доходу від фандрейзингу та іншої не пов’язаної з основними цілями еко- номічної діяльності Міжнародні практики фінансування ОГС... 199
Національні особливості Роль громадських орга- Приклади / найкращі Зауваження нізацій практики
Партнерською угодою ство- Набувачі допомоги та Надавачам фінансування П а р т н е р с ь к у у г о д у рюється стратегічна база. партнери надаються рекомендації складно відтворити, але Громадські організації отри- щодо найкращих практик. її принципи можуть бути мують підтримку з Фонду Ве- Регулярний моніторинг запозичені. Діючий уряд ликої лотереї та інших фондів. результатів фінансування намагається скоротити Децентралізовані держав- фінансування громад- ні управління, органи та муні- ських організацій, але ципалітети надають гранти на політика так само фор- реалізацію місцевих проектів мується із застосуван- ням стратегічного під- ходу
Принцип найкращої вартості, Постачальники послуг, Принцип найкращої вар- Муніципалітети заохо- що застосовується при оцінці партнери. тості є керівним при чуються до укладання тендерних пропозицій у сфе- контрактуванні. Відшко- контрактів, а відтак не рі послуг, поєднує в собі ви- дування витрат у повно- бачать у громадських соку якість із помірною ціною. му обсязі (надавач фінан- організаціях конкурен- Надання громадськими орга- сування покриває непря- тів та є зацікавленими в нізаціями високоякісних по- мі витрати, пов’язані з на- їхній результативній ро- слуг, потужна орієнтація на данням послуги) боті користувачів
Видатки британського трас- Одержувачі пожертву- Високий рівень звітності у Потужний, великий та тового сектора / сектора вань трастів. сфері зберігання активів у розмаїтий трастовий фондів на підтримку благо- суспільно корисних цілях сектор / сектор фондів дійництва не поступаються відігравав ключову роль державним і в 10 разів пере- у розвитку потужного та вищують видатки корпора- незалежного громад- тивного сектора ського сектора Кращі практики на основі Стратегічні партнери, Пожертвування із заро- Перехід від корпоратив- принципів корпоративної со- постачальники послуг і бітної плати; пільгове ної філантропії до ціліс- ціальної відповідальності та набувачі допомоги. оподаткування інвестицій ного підходу щодо ве- корпоративної філантропії у громаду дення соціально й еко- запроваджуються як малими логічно відповідального підприємствами, так і багато- бізнесу національними компаніями
Діє схема допомоги пожерт- Набувачі допомоги та В обмін на свої пожерт- Новий уряд віддає пе- вуванням (Gift aid): держава втілювачі сподівань до- вування донори можуть ревагу податковим сти- збільшує розмір пожертву- норів. отримувати певні обме- мулам, а не прямому вання, переспрямовуючи по- жені пільги фінансуванню громад- даток на його суму до благо- ських організацій дійної організації
Соціальне підприємництво Громадські організації є Податкові знижки при Створення сприятливо- відіграє важливу роль у соці- підприємствами, прибу- здійсненні економічної го середовища для ді- альному розвитку ток яких реінвестується. діяльності, пов’язаної з яльності малих і серед- основними цілями ніх підприємств є ключо- вою передумовою успі- ху соціального підпри- ємництва 200 Міжнародні практики фінансування ОГС...
Має існувати бачення відносин, що чітко описує роль громадських організацій у їхніх стосунках з центральною та місцевою владою та надає очевидні переваги обом сто- ронам Держава повинна здійснювати інвестиції, спрямовані на розширення можливостей громадських організацій, аби підвищити їхню роль у соціальному розвитку. Навіть незважаючи на те, що громадський сектор у Великобританії набагато більше роз- винутий, ніж у будь-якій іншій європейській країні, державі доводилося пропонува- ти національні програми в сфері розширення можливостей, аби допомогти громад- ським організаціям у виконанні їхніх нових функцій Необхідно мати стратегію фінансування на підтримку загальної стратегії розвитку, що формує бачення (див. приклад, наведений у розділі «Загальні висновки») Необхідно мати достатньо даних та інформації для прийняття продуманих страте- гічних рішень – за відсутності таких даних державі доведеться здійснювати інвести- ції, аби їх виробити (в минулому декілька британських державних установ проводили аналіз різних аспектів реалізації Партнерської угоди) Необхідно постійно проводити оцінку процесу реалізації та ступеня його відкритості, аби гнучко змінюватись.
Зауваження Партнерську угоду як таку складно «скопіювати» в інших контекстах, але можна запози- чити її принципи, що передбачають партнерство, співпрацю, чітке визначення прав і функ- цій, двосторонні зобов’язання. Діючий уряд намагається скоротити видатки на соціальні потреби та фінансування громадських організацій, але політика так само формується із за- стосуванням стратегічного підходу (під назвою «Велике суспільство»107).
Соціальне контрактування Культурно-історичні умови У Великобританії існує давня традиція застосування справедливих та відкритих про- цедур укладання контрактів на надання державних послуг для забезпечення ефективнос- ті роботи уряду. В принципі, громадські організації, приватний (прибутковий) сектор і ор- гани місцевої влади розглядаються як гравці, що мають однакові шанси отримати держав- ні контракти. Внаслідок активізації приватизаційного процесу за часів правління Тетчер на ринку державних послуг протягом доволі тривалого часу домінували прибуткові постачаль- ники. Проте протягом останніх 15 років, відтоді як з’явилася Партнерська угода, все важ- ливіша роль у цьому процесі, зокрема в житлово-будівельній сфері, сферах соціальних по- слуг і освіти, відводиться громадським організаціям. Цьому сприяли програми уряду Бле- ра, спрямовані на розширення можливостей громадських і благодійних організацій, з ме- тою підвищення рівня їх професіоналізму відповідно до вимог контрактування і життєздат- ності, аби забезпечувати довгострокові партнерства.
Національні особливості Провідним принципом, за яким у Великобританії укладаються контракти на надання со- ціальних послуг, є так званий принцип «найкращої вартості». Він був важливим принципом, який наразі використовується більшістю учасників тендерів у сфері надання державних по- слуг. Раніше провідним фактором відбору при закупівлях була ціна. Однак слід визнати, що при наданні більшості державних послуг, зокрема вищезазначених соціальних, лише ціна не може бути стимулом до конкуренції, яка може призвести до суттєвого зниження якості
107 Див.: http://www.cabinetoffice.gov.uk/content/big-society-overview Міжнародні практики фінансування ОГС... 201
послуг. Забезпечення певного рівня якості є основним фактором у випадку соціальних по- слуг, послуг у сфері освіти та інших подібних послуг. Принцип «найкращої вартості», що за- стосовується при оцінці тендерних пропозицій у сфері послуг, поєднує в собі високу якість послуги із помірною ціною108. У Великобританії існують певні ознаки того, що громадські організації взагалі надають більш якісні послуги, ніж інші сектори, зокрема державний. У 2007 році британська Ауди- торська комісія109 опублікувала Звіт110, що містить деякі дані стосовно порівнянь неприбут- кових (громадських), прибуткових (приватних) і урядових (державних) постачальників со- ціальних послуг. У Звіті робиться висновок, що «громадські постачальники послуг відпові- дають більшій кількості мінімальних стандартів, запроваджених на національному рівні, ніж внутрішні [тобто державні] чи приватні постачальники». Дані отримані від Комісії з контро- лю за роботою соціальних служб. Проводиться аналіз семи різних видів послуг з надання соціальної допомоги дітям, підліткам і особам похилого віку (здебільшого в межах закладу) за період з 2003 по 2006 рік. Шість видів послуг, які надавалися громадськими постачаль- никами протягом цих чотирьох років, краще відповідали національним стандартам, ніж по- слуги, що надавалися за цей період іншими двома секторами. Лише за рівнем відповідності стандартам допомоги спеціалізованим школам-інтернатам громадський сектор дещо по- ступився приватним постачальникам111. Крім того, британські громадські організації можуть забезпечити додатковими ресурса- ми муніципалітети. Вони спроможні залучати волонтерів і пожертвування (аби покрити час- тину витрат або створити додаткову вартість наданих послуг). У вищезгаданому британ- ському Звіті як приклад наведений Великий Ноттінгем, де, за даними дослідження, за кож- ний фунт стерлінгів, інвестований муніципальною радою у формі гранту місцевій громад- ській організації, громадський сектор, завдяки мобілізації волонтерів і ресурсів громади, повертав до 6 фунтів стерлінгів. У Ньюкаслі за кожний фунт стерлінгів, наданий як грантова допомога, від місцевих громадських організацій надходило 14 фунтів стерлінгів112.
Роль громадських організацій Громадські організації розглядаються як стратегічні партнери в постачанні соціальних послуг, а відтак держава здійснює інвестиції, спрямовані на розширення їх можливостей щодо забезпечення відповідності стандартам якості.
Приклади, найкращі практики Поряд з принципом найкращої вартості існують ще дві практики, які варто згадати: від- шкодування витрат у повному обсязі й орієнтація на користувача. Обидві є результатом стратегічних адвокаційних процесів, очолюваних громадським сектором.
108 Незважаючи на те, що наразі замість нього застосовується більш новий та складний метод оцінки, прин- цип «найкращої вартості» залишається основним принципом розміщення контрактів. Див.: http://www.idea.gov. uk/idk/core/page.do?pageId=5184420 109 Аудиторська комісія – це незалежний орган, який відповідає за ощадливе, результативне й ефективне використання державних коштів з метою надання на місцях високоякісних послуг населенню. 110 Серце й розум: постачання послуг громадським сектором. Аудиторська комісія Великобританії, Націо- нальний звіт про постачання державних послуг (Hearts and minds: commissioning from the voluntary sector. Audit Commission Public Services National Report), липень 2007 року. 111 Там само, стор. 19-20. Слід зазначити, що, на думку Аудиторської комісії, «наявні дані не дозволяють провести точну оцінку окупності послуг. Наприклад, вони не дають уявлення про те, скільки коштує забезпечен- ня відповідності більшій кількості мінімальних стандартів, і не дозволяють визначити, чи справді відповідність більшій кількості мінімальних стандартів забезпечує надання більш якісних послуг кінцевим споживачам» (хоча остання думка є лише припущенням). 112 Там само, стор. 24. Два попередні розділи запозичені в: Нільда Буллен і Любен Панов: Посібник з моде- лей недержавного постачання соціальних послуг (Nilda Bullain and Luben Panov: Handbook on non-state social service delivery models), ЄЦНП і ПРООН, 2011 р. (у процесі публікації). 202 Міжнародні практики фінансування ОГС...
– Принцип відшкодування витрат у повному обсязі є одним із принципів фінансування, передбачених у Партнерській угоді, і означає фінансування з боку державних надавачів коштів не лише прямих витрат, пов’язаних з наданням послуги, але й будь-яких пов’язаних з її наданням непрямих (накладних, адміністративних) витрат, понесених громадською організацією як такою. Для отримання більш детальної інформації див. Розділ «Важливість стратегічного підходу», Розділ III «Загальні висновки». – Принцип орієнтації на користувача – це принцип, який у 80-ті роки минулого століття, коли якість послуг вимірювалася переважно за інфраструктурою (зокрема, при наданні допомоги в межах закладу) та на основі професійних (експертних) оцінок, британські громадські організації відстоювали як альтернативу державним послугам. Як найбільш важливий фактор громадські організації наводили задоволення користувачів послугою, яку вони отримують, а також їх участь у плануванні, розробці й оцінці послуг. Сам термін «користувач» є відходом від традиційного терміну «клієнт» чи «пацієнт», оскільки передбачає право набувача допомогти користуватися послугою та не визначає його як об’єкт послуги. В результаті тривалого адвокаційного процесу наразі принцип орієнтації на користувача перетворився на основний принцип постачання всіх державних послуг і призвів до перебудови моделей надання послуг (включаючи консультації з користувачем, посилення впливу на процес надання послуг з боку користувача, послуги, керовані користувачем, та інші подібні методики в сфері розвитку послуг і управління ними).
Зауваження Місцеві муніципалітети у Великобританії заохочуються до укладання контрактів систе- мою оцінки ефективності надання державних послуг. Відтак стимули до укладання конт- рактів (а отже, забезпечення ефективності та результативності) вбудовані на противагу природним інтересам установ, що намагаються самі надавати послуги. На відміну від біль- шості країн Центральної та Східної Європи, британські муніципалітети не бачать у громад- ських організаціях конкурентів і зацікавлені в їх результативній роботі. Водночас громадські організації мають високий рівень професійних та інфраструктурних можливостей, що зале- жить від надавача фінансування лише певною мірою. Саме ці два фактори уможливили по- яву відносно успішної моделі соціального контрактування.
Приватні пожертвування за використання інституціоналізованого механізму Культурно-історичні умови Загальним правом не передбачено жодної окремої організаційно-правової форми фонду. Однак у Великобританії існують фонди, які можуть набувати різних організаційно- правових форм. Здебільшого це трасти. Траст – організація, створена з метою зберігання й адміністрування активів на користь інших осіб. Траст створюється у благодійних цілях, а управління його діяльністю здійснюють розпорядники. Трасти в Англії мають глибоку іс- торію. Так, первинною метою системи регулювання благодійної діяльності, що з’явилася в XVII столітті, був захист приватної власності, призначеної для використання в суспіль- них цілях. Благодійні трасти є ключовим фактором розвитку громадського сектора та суспіль- ства в цілому. Багато з них надають підтримку лікарням, школам або музеям. Інші в основному надають гранти громадським і благодійним організаціям задля досягнення Міжнародні практики фінансування ОГС... 203
суспільно корисних цілей. Решта – так звані інститути інвестиційного фінансування со- ціальної сфери, що позичають кошти підприємствам, соціальним підприємствам і фі- зичним особам, які намагаються отримати фінансування у звичайних банків і кредит- них установ. Вони допомагають незаможнім громадам, надаючи доступні позики та під- тримку тим, хто не може отримати кредит в іншому місці. Вони також можуть створюва- тися урядом. Зазвичай траст не є юридичною особою. Проте, відповідно до Закону «Про благодій- ні товариства» від 1993 року, розпорядники його активів можуть звернутися до Комісії у справах благодійних організацій, аби одержати свідоцтво про реєстрацію. Зареєстрова- ні розпорядники являють собою юридичну особу, але без звичайного обмеження відпо- відальності. Іншими словами, розпорядники несуть особисту відповідальність за активи трасту. Реєстрація дозволяє йому виконувати певні функції – зберігати майно, укладати договори, а також подавати позови та відповідати за ними – від свого імені, а не від іме- ні розпорядників. Благодійні трасти регулюються Комісією у справах благодійних організацій. Внаслідок жорсткого нормативного середовища та того факту, що розпорядники несуть особисту від- повідальність, трасти є стабільним сектором та можуть розраховувати на підтримку з боку громадськості.
Національні особливості У Великобританії існують три основні групи благодійних організацій, що надають гранти:113 Благодійні трасти та фонди. Незалежні благодійні трасти та фонди надають під- тримку громадському сектору у Великобританії в різні способи. Більшість фондів переважно надають гранти. Більшість британських фондів не займаються жодною операційною діяльністю, як-от надання послуг або іншої прямої підтримки одержу- вачам Фонди громад. Фонди громад – благодійні трасти, що надають підтримку міс- цевим громадам. Роль таких фондів – здійснювати адміністрування коштів до- норів і формувати ендавменти, а також надавати гранти благодійним органі- заціям і групам членів громади, прив’язуючи місцевих донорів до місцевих по- треб Інші благодійні організації. Деякі великі оперативні благодійні організації чи опера- тивні фандрейзингові благодійні організації (тобто ті, що постачають прямі послуги) також займаються діяльністю з надання грантів. Такі види грантів часто надаються на підтримку власних програм і проектів благодійних організацій та/чи фінансування діяльності, що належить до кола їхніх інтересів (наприклад, Британський фонд з бо- ротьби із серцевими захворюваннями й Оксфам).
За оцінками, у Великобританії загалом існує 8800 трастів і фондів. Видатки трастів і бла- годійних організацій, що надають гранти, є порівнянними з видатками центральної влади (2,5 млрд фунтів стерлінгів) і в дев’ять разів перевищують готівкові пожертвування юридич- них осіб, що становлять 0,3 млрд фунтів стерлінгів114.
Роль громадських організацій Громадські організації зазвичай є одержувачами грантів, що надаються трастами.
113 Надання грантів британськими трастами та благодійними товариствами (Grant-making by UK trusts and charities), ACF (Асоціація благодійних фондів) і CAF, січень 2007 року. http://www.acf.org.uk/uploadedFiles/ Publications_and_resources/Publications/0416B_TrustAndFoundationBriefingPaper.pdf 114 Там само. 204 Міжнародні практики фінансування ОГС...
Приклади, найкращі практики
Позитивною практикою є підвищений рівень звітності при зберіганні активів у суспільно корисних цілях. Незважаючи на те, що вона не передбачена континентально-європейським правом, особиста відповідальність розпорядника активами служить прикладом створення більш потужних стимулів до здійснення продуманого керівництва суспільно корисною ор- ганізацією.
Зауваження Великобританія має потужний, великий та незалежний сектор грантового фінансуван- ня. Трасти є вельми розмаїтими не лише за розміром і кількістю грантів, які вони надають, і типом, але й за віком, схемами надання грантів і сферами, в яких вони надають підтрим- ку115. Саме завдяки цьому сектору британські громадські організації здатні на інституцій- ний розвиток, залишаючись при цьому незалежними і, таким чином, стаючи рівноправни- ми партнерами держави.
Пожертвування приватних юридичних осіб Культурно-історичні умови Концепція корпоративної соціальної відповідальності з’явилася у Великобританії кілька століть тому, у вікторіанську епоху на тлі індустріалізації, коли успіх підприємств по всій кра- їні призвів до того, що масам урбанізованих фабричних робітників доводилося мешкати в переповнених нетрях. Одним з найперших з-поміж «промисловців-філантропів» згадується підприємець-квакер Кедбері, який задумав збудувати фабрику з виробництва кави та чаю (і шоколаду), що було «сумлінним бізнесом: квакери вірили в рівність і соціальну справед- ливість, і Кедбері сподівався, що його продукція стане привабливою альтернативою алко- голю, що вважався головною причиною бідності та негараздів робітничого класу»116.
Ідея корпоративної соціальної відповідальності отримала новий поштовх на по- чатку 80-х років минулого століття, коли внаслідок приватизації, що проводилася урядом Тетчер, у поєднанні зі світовою кризою та кінцем обробної промисловос- ті, Великобританію охопили хвилювання соціально незабезпечених мас. Новий рух серед британських підприємств призвів до створення організації «Business in the Community» («Бізнес у суспільстві»), яка донині залишається провідною членською організацією, яка відстоює ідею корпоративної соціальної відповідальності. У 1985 році її очолив принц Уельський, а наступного року Тетчер була присутньою на від- критті Відсоткового клуба (Per Cent Club), компанії-члени якого запрошуються ви- діляти зазначеній «Business in the Community» та на фінансування інших проектів, принаймні пів-відсотка прибутку готівкою або в натуральній формі до сплати з ньо- го податку.
«Однак варто зазначити, що ці прояви щедрості з боку бізнесу були викликані не лише філантропічними настроями, але й корисливими міркуваннями. (…) більшість великих компаній, що надавали підтримку організації «Business in the Community», скорочували набагато більше робочих місць, ніж створювали, та мали продемонструвати решті сво- їх працівників, профспілкам і громадам (…), що вони щось роблять, аби допомогти по-
115 http://www.acf.org.uk/trustsandfoundations/?id=74#Grant-making_by_Uk_Trusts_and_Charities_a_briefing 116 Томкінс Рімчард. Зрушення в корпоративній філантропії (Tomkins, Richard: Shifts in corporate philanthropy), у Файненшл Таймс від 17 січня 2009 р. http://www.ft.com/cms/s/2/3a0856c6-e1d5-11dd-afa0-0000779fd2ac. html#ixzz1ITRCUAKO Міжнародні практики фінансування ОГС... 205
страждалим. З іншого боку, процвітання бізнесу пов’язували з розвитком суспільства: Девід Зіфф (David Sieff), член правлінь компанії «Marks & Spencer» і організації «Business in the Community», з самого початку зазначав, що статки мешканців центральних вулиць залежать від здоров’я завулків. Цей афоризм був приречений стати гаслом соціально від- повідального капіталізму»117. У середині 90-х років минулого століття у світі з’явився новий поштовх до запроваджен- ня соціальної відповідальності в сфері охорони довкілля для майбутнього планети (пер- шим представником цього руху була компанія «Body Shop»). За останні 15 років ця тен- денція призвела до зміни мислення щодо корпоративної соціальної відповідальності серед британських (і багатонаціональних) компаній, що замість соціальної допомоги та благодій- них пожертвувань (корпоративна філантропія) зосередилися на своїй основній діяльнос- ті з точки зору забезпечення «етичності» поставок, виробництва та розподілу їхніх товарів і послуг, кадрової політики та практики господарювання (з дотриманням принципів безпеки для довкілля, розмаїття, стабільності тощо).
Національні особливості Кращі практики на основі принципів корпоративної соціальної відповідальності та кор- поративної філантропії запроваджуються як малими підприємствами, так і багатонаціо- нальними компаніями. За наявними даними, рівень корпоративної філантропії за остан- ні десять років знизився (внаслідок вищезгаданої зміни акцентів корпоративної соціаль- ної відповідальності). За даними Фонду благодійної допомоги, незважаючи на зростання за останні роки надходження загальних благодійних пожертвувань від 500 найбільших ком- паній в реальному вираженні, за відсотком прибутку до сплати з нього податку вони скоро- тилися більш ніж наполовину – від 1,6 відсотка у період з 2001 по 2002 рік до лише 0,7 від- сотка в 2005–2006 роках, коли аналіз проводився востаннє. Саме в 2006 році закрився Від- сотковий клуб118. Основну підтримку громадам надає невелика кількість компаній. За даними останньо- го (7-го) видання «Guide to UK Company Giving», нещодавно опублікованого організацією «Directory of Social Change», лише на 50 із 490 компаній, що увійшли в довідник, припадає понад три чверті загального розміру благодійних пожертвувань готівкою. Із загальних по- жертвувань за період з 2007 по 2008 рік, що склали 500 млн фунтів стерлінгів, близько 77% (384 млн фунтів стерлінгів) припали на цю невелику групу компаній119. Окремо варто відзначити пожертвування із заробітної плати. Незважаючи на те, що ця схема являє собою пільгу при сплаті податку на доходи фізичних осіб, вона має бути від- несена до категорії пожертвувань юридичних осіб, оскільки таку пільгу своїм працівникам повинна надати компанія як їх роботодавець. Пожертвування із заробітної плати означає відрахування компанією певної суми заробітної плати працівника, включеного до цієї сис- теми, й автоматичну передачу цієї суми благодійній організації, яку обере працівник. Це пожертвування повністю звільняється від податку, тобто донор заощаджує 20–40% сво- го доходу. Обсяги пожертвувань із заробітної плати у Великобританії зростають: із 37 млн фунтів стерлінгів (1999–2000 рр.) у період з 2009 по 2010 рік вони збільшилися до понад 106 млн фунтів стерлінгів. Але ця цифра може і далі зростати: схеми пожертвувань реалізуються за участю лише 4% працівників британських компаній (для порівняння: у США в цьому беруть участь майже 35% працівників). За даними дослідження, на думку компаній, що пропонують своїм працівникам жертвувати частину своєї заробітної плати, це покращує імідж компанії, надає додаткового поштовху у реалізації програм, спрямованих на активізацію населення, та
117 Там само. 118 Там само. 119 http://www.companygiving.org.uk/page.aspx?SP=CG_News 206 Міжнародні практики фінансування ОГС...
сприяє волонтерству серед працівників. На думку 96% компаній, пожертвування із заробітної плати є схемою, яку повинен пропонувати будь-який добрий роботодавець, при цьому май- же всі повідомили про свій намір підвищити рівні участі у своїх організаціях120.
Роль громадських організацій Громадські організації активно залучають кошти компаній. Однак протягом останніх 15 років вони все активніше виконують також інші ролі, виступаючи партнерами компаній у реалізації програм, спрямованих на поширення корпоративної соціальної відповідаль- ності (наприклад, у сфері «маркетингу з опорою на доброчинність»121), їхніми консультан- тами та тренерами в сфері корпоративної соціальної відповідальності (що включає такі напрями, як, наприклад, забезпечення розмаїтості робочих місць чи «озеленення офісу») та спонукаючи компанії звітувати про свої практики (адвокаційні кампанії). Однією з при- чин запровадження британськими компаніями етичних практик є спроможність громад- ських організацій, у разі небажання деяких компаній запроваджувати зазначені практи- ки, мобілізувати проти таких компаній громадську думку (наприклад, організувати спо- живацькі бойкоти).
Приклади, найкращі практики Стимулювання до пожертвувань із заробітної плати (як однієї з форм пожертвувань) яв- ляє собою позитивну практику, оскільки створює спільні стимули для роботодавців, пра- цівників і благодійних організацій. Працівники заохочуються до організованого просуван- ня цієї форми пожертвувань на своїх робочих місцях, а компанії запроваджують її з метою поліпшення свого іміджу. Часто вони паралельно із сумами, пожертвуваними її працівника- ми, відраховують якусь частину свого прибутку, що, в свою чергу, може привести до надан- ня компанії податкових пільг.
Зауваження Таких сприятливих для розвитку корпоративної філантропії культурно-історичних умов, що склалися у Великобританії, не існує в жодній країні європейського континенту, не ка- жучи вже про країни Центральної та Східної Європи. Проте глобалізація та об’єднання єв- ропейських ринків означають поширення кращих практик на основі принципу корпоратив- ної соціальної відповідальності і на цей регіон. Коли рівні корпоративної філантропії та по- жертвувань у грошовій формі є низькими, залишається ще багато простору для взаємодії між громадськими організаціями та компаніями, а також створення державою інноваційних стимулів до благодійництва.
Пожертвування фізичних осіб Культурно-історичні умови Великобританія належить до країн, де рівень благодійних пожертвувань є найви- щим у Європі та світі. Вона посідає 8-е місце у «Світовому рейтингу доброчинності», де найвищий рейтинг з-поміж європейських країн мають лише Ірландія, Швейцарія та Ні- дерланди122. Це важливо у розумінні сили, яку громадський сектор у Великобританії на- буває внаслідок наявності у нього потужної бази надавачів підтримки, незалежних від держави. 120 http://www.payrollgiving.co.uk/index.php?getID=4&getTitle=Employer 121 Це схема, коли компанія продає товар, використовуючи логотип добре відомої громадської організації та передаючи їй частину доходів від продажу. 122 Світовий рейтинг доброчинності, 2010 р., Фонд благодійної допомоги http://www.cafonline.org/pdf/ WorldGivingIndex28092010Print.pdf Міжнародні практики фінансування ОГС... 207
Особливою формою пільги щодо оподаткування благодійних пожертвувань є допомога пожертвуванням (Gift Aid). Вона не обов’язково означає податкову пільгу для донора, яка натомість може бути отримана благодійною організацією123. Якщо донор претендує на до- помогу пожертвуванням, Міністерство фінансів паралельно перераховує благодійній ор- ганізації пропорційну суму податку з пожертвування. Так, на кожний пожертвуваний фунт стерлінгів благодійна організація отримає від Міністерства фінансів ще 25 пенсів. (Певною мірою це є подібним до механізму відсоткової філантропії, але, на відміну від останньої схе- ми, в цьому випадку благодійна організація повинна отримати від донора пожертвування в реальній формі.) Той факт, що рівень пожертвувань залишається високим (на благодійні цілі щороку жертвують 54–58% британців), незважаючи на те, що донори не отримують реаль- ної податкової пільги, свідчить про важливість культурного коріння благодійництва. Іншим елементом, який важливо відзначити, є чітке регулювання благодійної діяльності. Реєстрація благодійних організацій і контроль за їхньою діяльністю здійснюються Комісією у справах благодійних організацій – незалежним регулюючим органом, що спеціалізується на формуванні розуміння діяльності благодійних організацій, наданні їм підтримки та проведен- ні досліджень у сфері благодійництва. У результаті тривалого та послідовного застосування практики регулювання діяльності благодійних організацій громадськість вважає їх надійними та такими, що заслуговують на підтримку. Таким чином, ознака «благодійний» перетворилася на щось на кшталт торгової марки, якій люди можуть довіряти, жертвуючи кошти.
Національні особливості Під час кризи (2008–2009 рр.) спостерігалася тенденція до зменшення розміру пожерт- вувань, але вже в 2010 році, за повідомленнями, він дещо зріс. Нижче наведені основні ви- сновки останнього дослідження рівня пожертвувань у Великобританії:124
Благодійні пожертвування залишаються поширеною практикою. У 2009–2010 роках кошти на благодійні цілі пожертвували 56% дорослих членів британських сі- мей. Сума, що надходила щомісяця від кожного донора в період з 2009 по 2010 рік, як правило, складала 12 фунтів стерлінгів за медіаною та 31 фунт стерлінгів у серед- ньому. За нашою оцінкою, максимальна загальна сума, пожертвувана всіма такими особами на благодійні цілі в період з 2009 по 2010 рік, становить 10,6 млрд фунтів стерлінгів, що є істотним внеском у роботу громадського сектора. Крім того, пожерт- вування зі спадщин фізичних осіб склали, за оцінками, ще принаймні 2 млрд фунтів стерлінгів (за останньою оцінкою на основі показників 2007–2008 рр.). Донори значних коштів справляють найбільший вплив на загальні суми по- жертвувань. Частка загальних пожертвувань, що надходять від донорів значних коштів (тих, що роблять пожертвування на суми понад 100 фунтів стерлінгів), які взяли участь у дослідженні, дещо збільшилася (з 6% у 2005–2006 рр. до 8% у 2009– 2010 рр.). Крім того, це не враховує дуже заможних британців, які жертвують великі суми коштів (..). За оцінками (…), від осіб з дуже великими статками надійшло 100 пожертвувань у розмірі 1 млн фунтів стерлінгів або більше кожне (…), що загалом склало 1,0 млрд фунтів стерлінгів. З послабленням кризи відновлюється рівень пожертвувань. Протягом остан- нього року частка доброчинників дещо збільшилася після її зменшення в період кри- зи (2007–2009 рр.). Також зросла типова (медіанна) сума пожертвувань (з 10 фунтів
123 На податкову пільгу можуть претендувати лише особи, які сплачують податок за високою ставкою. Ця пільга є різницею між мінімальною ставкою податку (20%) та ставкою, за якою вони сплачують податок (40 чи 50%). Отже, вони можуть отримати пільгу в розмірі 20 чи 30% від суми пожертвування. 124 Аналіз доброчинності у Великобританії, 2010 р. (UK Giving 2010). CAF і NCVO, грудень 2010 р. http://www. cafonline.org/pdf/UK%20Giving%202010_101210.pdf 208 Міжнародні практики фінансування ОГС...
стерлінгів у 2008–2009 рр. до 12 фунтів стерлінгів у 2009–2010 рр.). Загальна сума пожертвувань на благодійні цілі склала 10,6 млрд фунтів стерлінгів, що в реальному вираженні було на 400 млн фунтів стерлінгів більше, ніж у період з 2008 по 2009 рік (10,2 млрд фунтів стерлінгів, з урахуванням інфляції). Однак загальні рівні пожертву- вань 2007–2008 рр. досягнуті не були. Склад осіб, які жертвують кошти, та спосіб, в який вони це роблять, залиши- лися переважно такими самими, як і в попередні роки. Жінки у віці від 45 до 64 років продовжують бути найбільш імовірними донорами (68%), а молоді чоловіки у віці від 16 до 24 років – найменш імовірними (31%). Особи, які обіймають керів- ні посади та займаються професійною діяльністю, є найбільш імовірними донорами (69%), які також жертвують у середньому більші суми за медіаною (19 фунтів стер- лінгів). Готівка залишається найпоширенішою формою пожертвувань, що в період з 2009 по 2010 рік використовувалася половиною всіх донорів (50%). Збільшившись у періоди з 2005 по 2006-й та з 2008 по 2009 рік, частка донорів, які жертвують кошти із застосуванням прямих дебетів, наразі є доволі стабільною та становить 29%. Осо- би, які жертвують значні суми коштів, як правило, користуються чеками/картками та застосовують прямі дебети. Використання схеми допомоги пожертвуванням, вочевидь, вирівнюється. У період з 2009 по 2010 рік схемою допомоги пожертвуванням користувалися 40% до- норів, і майже стільки ж донорів використовували її в 2009–2010 роках. Доти частка донорів, які користувалися цією схемою, поступово збільшувалася. Особи, які жерт- вують значні суми коштів, з більшою ймовірністю користуватимуться схемою допо- моги пожертвуванням. У період з 2009 по 2010 рік цю схему використовували 73% донорів значних коштів (тих, що роблять пожертвування на суми понад 100 фунтів стерлінгів) і лише 20% осіб, які жертвують 10 фунтів стерлінгів або менше.
Роль громадських організацій Громадські організації у Великобританії відіграють потужну роль у залученні коштів в суспільних цілях. Однак «громадські організації не лише отримують пожертвування, вони також виступають у ролі повідомлювачів соціальних потреб надавачам і потенційним нада- вачам фінансування на соціальні потреби»125.
Приклади, найкращі практики Створення благодійного сектора є важливим прикладом, який країни європейського континенту можуть наслідувати, розробивши належне законодавство у сфері соціального забезпечення. Благодійний сектор становить лише близько третини всього громадського сектора, але він є найбільш інституціоналізованою та професійною його частиною, що до- кладає великих зусиль до здобуття і збереження довіри та фінансової підтримки з боку на- селення. Комісія у справах благодійних організацій не лише здійснює контроль за діяльніс- тю сектора, але й допомагає йому стати більш професійним і таким, що заслуговує на до- віру громадян126.
Якщо говорити більш технічною мовою, краща британська практика, яка може бути за- позичена, полягає в тому, що Великобританія визначає певний рівень пільг, котрі благодій- на організація може надати донорам «в обмін на» або, скоріше, на знак подяки за пожерт- вування. У системі регулювання доцільно чітко відрізняти пожертвування від спонсорства. 125 Цитата запозичена із: Аналіз доброчинності у Великобританії, 2010 р. (UK Giving 2010), CAF і NCVO. 126 Нещодавно, також зазнавши дії бюджетних скорочень, Комісія у справах благодійних організацій почала віддалятися від своєї ролі надавача підтримки, яку вона виконувала до того часу, більше зосередившись на ролі регулятора. Проте наразі ті, хто надає підтримку благодійним організаціям, можуть користуватися більш роз- виненою інфраструктурою. Міжнародні практики фінансування ОГС... 209
У наступній таблиці наведені межі розміру пільг щодо оподаткування коштів донорів, коли може працювати схема допомоги пожертвуванням.
Межі розміру пільг щодо оподаткування пожертвувань127
Сума пожертвування Межа розміру пільги 0-100 фунтів стерлінгів 25% від суми пожертвування 101-1 000 фунтів стерлінгів 25 фунтів стерлінгів 1001-10 000 фунтів стерлінгів 5% від суми пожертвування Понад 10 000 фунтів стерлінгів не більше 2500 фунтів стерлінгів 128
Іншим позитивним практичним методом є запровадження пільг щодо оподаткування ін- вестицій у розвиток громади, що дозволяє особам, які здійснюють інвестиції в інститути фі- нансування розвитку громад (див. вище), протягом п’яти років користуватися податковою пільгою в розмірі до 25 % їхніх інвестицій.
Зауваження Скорочуючи обсяги прямого фінансування громадських організацій з боку держави, но- вий уряд розширює діапазон і збільшує розміри пільг щодо оподаткування благодійних по- жертвувань. За новою інформацією щодо востаннє ухваленого бюджету Великобританії, Джордж Озборн (George Osborne) – канцлер казначейства (міністр фінансів), «повідомив про цілу низку заходів, спрямованих на те, аби допомогти громадським організаціям у здій- сненні, за його словами, «найбільш радикальних і широкомасштабних реформ у сфері бла- годійництва за понад 20 років»129. Реформи дозволять кожній благодійній організації отримувати допомогу при отриман- ні пожертвування в розмірі до 5000 фунтів стерлінгів, не маючи жодної справи з папера- ми, адже до 2013 року буде запроваджена онлайнова система запитів щодо отримання податкових пільг, крім того, особам, за чиїми заповітами 10 відсотків їхніх статків перехо- дить до благодійної організації, буде надана 10-відсоткова знижка з податку на спадщину. Озборн зазначив, що він має намір зробити «пожертвування благодійній організації 10 від- сотків спадщини новою нормою в нашій країні». Також буде збережена пільга щодо оподат- кування інвестицій у розвиток громади, яку рекомендувалося скасувати. Крім того, в грудні 2010 року Кабінет опублікував так звану Зелену книгу про благодій- ність (Giving Green Paper), в якій викладені «початкові ідеї уряду розбудови більш міцної культури пожертвувань часу та коштів, аби розпочати національні обговорення ставлення нашого суспільства до пожертвувань»130. Ця політика свідчить про те, що, віддаючи перевагу іншим засобам підтримки благодій- них організацій, ніж лейбористський уряд (тобто непрямим, а не прямим стимулам), уряд консерваторів ставить такий самий наголос на їх ролі в забезпеченні добробуту суспільства та розвитку країни. Ідеї стосовно непрямих стимулів можуть бути цікавими для урядів кра- їн Центральної та Східної Європи, що з обережністю ставляться до прямого фінансування громадських організацій.
127 http://www.hmrc.gov.uk/charities/gift_aid/basics.htm 128 У 2011 році ця цифра повинна зрости до 5000 фунтів стерлінгів. 129 Рікеттс Енді. Реформа системи допомоги пожертвуванням і виділення податкових пільг у бюджеті (Ricketts, Andy: Gift Aid reform and tax relief figure prominently in Budget). Див: Третій сектор онлайн» (Third Sector Online), 23 березня 2011 р. http://www.thirdsector.co.uk/news/Article/1061503/Gift-Aid-reform-tax-relief-figure- prominently-Budget/ 130 http://www.cabinetoffice.gov.uk/resource-library/giving-green-paper 210 Міжнародні практики фінансування ОГС...
Заробляння доходу Культурно-історичні умови Законодавство в сфері благодійництва дозволяє благодійним організаціям займатися економічною діяльністю у ході досягнення їхніх основних цілей. Така діяльність загальнові- дома як «економічна діяльність, пов’язана з основними цілями». Вона включає, наприклад, надання благодійною школою чи коледжем платних послуг у сфері освіти, проведення не- комерційною картинною галереєю чи музеєм художньої виставки, вхід на яку є платним, або продаж благодійним театром квитків на свою виставу131. Однак якщо основною або єдиною метою економічної діяльності є залучення коштів (наприклад, продаж поштових листівок дитячою благодійною організацією), така діяль- ність називається «не пов’язаною з основними цілями економічною діяльністю». Відповід- но до законодавства у сфері благодійництва, благодійним організаціям не дозволяється безпосередньо займатися не пов’язаною з основними цілями економічною діяльністю, що може піддати їх активи серйозному ризику. Існують спеціальні принципи оподаткування, покликані допомогти благодійним організаціям, які мають намір здійснювати обмежену не пов’язану з основними цілями економічну діяльність, коли всі прибутки від неї використо- вуватимуться благодійною організацією. Максимальний обіг при здійсненні не пов’язаної з основними цілями економічної діяльності за фінансовий рік становить 5 000 фунтів стер- лінгів, якщо така діяльність здійснюється благодійною організацією, чий загальний дохід є меншим за 20 000 фунтів стерлінгів, 25% загального доходу благодійної організації, річний дохід якої становить 20 000-200 000 фунтів стерлінгів, і 50 000 фунтів стерлінгів, якщо така діяльність здійснюється благодійною організацією, річний загальний дохід якої перевищує 200 000 фунтів стерлінгів132. Комерційна/економічна діяльність, що не належить до попередніх винятків, не може провадитися благодійною організацією безпосередньо. Проте будь-яка комерційна/еко- номічна діяльність може здійснюватися через прибуткове дочірнє підприємство, що пере- дає неоподатковуваний прибуток благодійній організації. Наразі багато благодійних орга- нізацій мають такі комерційні дочірні підприємства для цілей залучення коштів.
Національні особливості Соціальні підприємства133 – це окрема форма підприємств у Великобританії, які здій- снюють економічну діяльність у суспільних і природоохоронних цілях. Перші соціальні під- приємства з’явилися ще в 40-х роках ХІХ століття, наприклад, у місті Рочдейлі, де, аби хоч якось полегшити умови праці робочих на фабриці, що вважалися експлуататорськи- ми, був створений робітничий кооператив, який мав забезпечити робітників високоякіс- ною дешевою їжею. Відродження соціального підприємництва почалося наприкінці 90-х років минулого століття, коли згадали про різні традиції, включаючи кооперативи, підпри- ємства громад, підприємницькі громадські організації та інші форми соціальних підпри- ємств. Соціальні підприємства відрізняються тим, що центральне місце в їхній діяльності посідає досягнення суспільних та/чи природоохоронних цілей, а їхні прибутки реінвесту- ються, аби продовжувати здійснення їхньої основної діяльності, метою якої є досягнення змін на краще, та розвивати її. До відомих британських соціальних підприємств належать, серед іншого, «The Big Issue», газета, що розповсюджується безпритульними, та ресто- ран Джеймі Олівера «Fifteen».
131 Інформація про Великобританію, надана в рамках проекту USIG http://www.usig.org/countryinfo/ england.asp 132 Там само. 133 В основу цього розділу покладена інформація, розміщена на веб-сторінці Коаліції соціальних підпри- ємств Великобританії. http://www.socialenterprise.org.uk/pages/frequently-asked-questions.html Міжнародні практики фінансування ОГС... 211
За оцінками уряду («Щорічний аналіз діяльності малих підприємств у Великобританії за 2005–2207 рр». (Annual Survey of Small Businesses UK 2005-2007)), у Великобританії іс- нує приблизно 62 000 соціальних підприємств, внесок яких в економіку становить не менше 24 млрд фунтів стерлінгів. За оцінками, на соціальних підприємствах зайняті 800 000 осіб. За даними «Аналізу стану соціальних підприємств» (The State of Social Enterprise Survey), опублікованого в листопаді 2009 року, незважаючи на кризу, переконаність у майбутньо- му зростанні серед соціальних підприємств є вдвічі більшою, ніж серед традиційних ма- лих і середніх підприємств (ствердно відповіли 48% представників соціальних підприємств і лише 24% представників малих і середніх підприємств). Крім того, відтоді, як почався еко- номічний спад, 56% соціальних підприємств збільшили свій обіг у порівнянні з попереднім роком, і в менше ніж 20% обіг зменшився. За цим показником соціальні підприємства у Ве- ликобританії почуваються значно краще, ніж малі та середні, лише 28% яких збільшили свій обіг, а 43% – зменшили. Соціальні підприємства здійснюють діяльність у цілій низці галузей. За даними до- слідження, проведеного Міністерством торгівлі і промисловості у 2005 році, надан- ня послуг у сфері охорони здоров’я та соціального забезпечення являють собою най- більшу категорію економічної діяльності соціальних підприємств, оскільки 33% рес- пондентів визначили ці послуги як основне джерело доходів від економічної діяльнос- ті, а послуги в сфері освіти – лише 15% респондентів. Соціальні підприємства також є дуже активними гравцями на енергетичному ринку, ринках транспортних послуг та переробки відходів. Проте соціальне підприємство може досягти успіху на будь-якій ниві незалежно від того, чи це приватний магазин велосипедів, чи консалтингова фір- ма у сфері інформаційних технологій, в якій працюють особи, які страждають синдро- мом Аспергера. Соціальні підприємства можуть набувати різних організаційно-правових форм, з яких найбільш часто використовуються компанія з відповідальністю учасників у гарантованих ними межах (форма некомерційної компанії), а також членські організації або нещодав- но запроваджена «компанія суспільних інтересів». З міркувань оподаткування, що є важ- ливими, багато з них також отримують статус благодійних, однак це тягне за собою низ- ку норм, дотримуватися яких готові не всі соціальні підприємства. В лютому 2010 року був запроваджений бренд соціального підприємництва – Марка соціального підприєм- ства (Social Enterprise Mark). Аби отримати її, підприємство має задовольняти шести ви- значеним критеріям134.
Роль громадських організацій Громадські організації у Великобританії часто є підприємницькими та здійснюють еко- номічну діяльність, аби досягти своїх благодійних цілей . У цьому випадку вони стають, по суті, подібними до комерційних підприємств, що опікуються численними пов’язаними з ними особами (клієнтами, громадою та набувачами їхньої допомоги).
Приклади, найкращі практики Стимулювання соціального підприємництва у Великобританії є позитивною практикою. Що стосується регулювання у сфері доброчинництва, то звільнення від податку економіч- ної діяльності, пов’язаної з основними цілями, є беззаперечним стимулом, що може мати наслідком створення та поширення соціально-орієнтованих підприємств, що створювати- муть робочі місця, надаватимуть соціальні послуги та послуги у сфері охорони здоров’я, сприятимуть освіті, розвитку громад і братимуть участь у процесі соціально-економічного розвитку країни.
134 Для отримання більш детальної інформації див. http://www.socialenterprisemark.org.uk 212 Міжнародні практики фінансування ОГС...
Зауваження Правове середовище у Великобританії загалом є сприятливим для здійснення підпри- ємницької діяльності, включаючи створення та діяльність малого чи середнього підпри- ємства. За даними досліджень «індексу легкості ведення бізнесу», що проводилися Сві- товим банком у 2010 і 2011 роках, Великобританія за цим показником посідає 4-те місце серед 183-х країн світу135. Це говорить про те, що сприятливе правове середовище необ- хідне не лише з точки зору регулювання діяльності громадських організацій, але й (пере- дусім) з точки зору соціальних підприємств, аби сприяти розвитку культури соціального підприємництва.
135 http://www.doingbusiness.org/data/exploreeconomies/united-kingdom/ Міжнародні практики фінансування ОГС... 213
IV.5. ЧЕСЬКА РЕСПУБЛІКА
Основна інформація про неприбутковий сектор Чеської Республіки Неприбутковий сектор Чеської Республіки складається з громадських асоціацій, фун- дацій, фондів-ендавментів, суспільно корисних установ, релігійних організацій та організа- ційних підрозділів громадських асоціацій, таких як професійні асоціації. Наприкінці вересня 2009 року в Чеській Республіці діяли 105758 неприбуткових організацій. Найбільш пошире- ним видом неприбуткових організацій є громадські асоціації, яких в країні налічується 68 057. Наразі єдиною інформацією про загальний дохід і структуру доходу сектора є оцінка, проведена в рамках проекту в сфері НПО Університету ім. Джона Хопкінса. За даними Frič і Goulli (2001 р.), частка державного фінансування в грошовому доході чеського неприбут- кового сектора становить 39,4%, тоді як на збори припадає 46,6%, а на приватну філан- тропію – 14,0%. Якщо включити церкви та релігійні організації та додати вартість волон- терської праці, оцінка істотно зміниться: на державне фінансування припаде 31,8%, збори складуть 36,7%, а благодійництво – 31,4%. Проте цим цифрам більше десяти років. Благодійні та громадські асоціації в «землях корони Чеської» мають багаті та давні традиції. Вони з’явилися за часів зародження чеської держави в ІХ і Х століттях. Піки їх тривалої еволю- ції припали на другу половину ХІХ століття (наприкінці нього чисельність благодійних і громад- ських асоціацій у чеських землях була найбільшою в Австро-Угорській імперії) та на двадцяти- річний період існування першої Чехословацької Республіки (20-ті та 30-ті роки минулого століт- тя). Потім цей процес на п’ятдесят років перервав тоталітарний режим (1939–1989 рр.). Незважаючи на жорстокі репресії, існувала певна громадянська ініціатива й опозиція комуністичному режиму, але їх прояви залишалися поодинокими та слабкими. В минуло- му столітті були придушені і рання роз’єднана опозиція 50-х, і більш потужний реформіст- ський рух «Празької весни» 60-х, а отже, після окупації країни Радянським Союзом у 1968 році культурним активістам і громадським лідерам довелося шукати нових шляхів незалеж- ного існування та створення опозиції режиму. І вони знайшли такий шлях, створивши пара- лельний світ, в якому існували незалежні культурні ініціативи, публікації самвидаву, підпіль- ні церква й університет, а також Хартія 77, якою закладалися підвалини захисту прав люди- ни і громадянина, та яка надихала на захист таких прав.
Державне фінансування Культурно-історичні умови Комуністичний режим справив величезний вплив на громадянське суспільство в Чеській Республіці, наслідки його відчуваються й сьогодні. Їх проявами є, наприклад, помітна роль держави та патерналістське ставлення з боку громадськості, відсутність потужного серед- нього класу, мляві традиції пожертвувань та волонтерства тощо. Подібно до інших країн по- сткомуністичного простору, Чеська Республіка характеризується високим ступенем недо- віри до людей та демократичних інститутів, що перешкоджає розвитку потужного грома- дянського суспільства136.
У 90-х роках минулого століття чеські концепції громадянського суспільства зазнава- ли впливу полеміки, що велася двома видатними політичними діячами свого часу – Вацла- вом Гавелом (тодішній президент) і Вацлавом Клаусом (тодішній прем’єр-міністр). Ці деба-
136 Вайдова Тереза. Оцінка чеського громадянського суспільства в 2004 році: після п’ятнадцяти років роз- витку (Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development). За даними Звіту Civicus за результатами дослідження, проведеного в Чеській Республіці в рамках проекту «Індекс грома- дянського суспільства» http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf 214 Міжнародні практики фінансування ОГС...
Фінансово-правова база Культурно-історичні умови
Механізми фінансування Нейтральна Дебати щодо ролі громадянського суспільства та його відносин з дер- жавою між Гавелом і Клаусом – галь- мування розвитку схем державного фінансування
Соціальне контрактування Нейтральна /сприятлива Громадські організації почали нада- вати соціальні послуги в 90-х роках минулого століття. Створена спеці- альна організаційно-правова фор- ма постачальника суспільно корис- них послуг Взаємодія з державою
Альтернативне фінансування Зразкова Створення державою ендавментів приватних фондів, які надають гран- ти. З цією метою їм передається 1% доходу від приватизації, що є уні- кальним альтернативним методом фінансування. Див. нижче
Приватні пожертвування Зразкова У 1991 році був ухвалений закон, від- за використання інституці- повідно до якого 1% доходу від ва- оналізованого механізму учерної приватизації в Чеській Рес- публіці виділявся на посилення гро- мадського сектора (як форма повер- нення втраченого громадянському суспільству)
Пожертвування приватних Нейтральна/несприятлива Унаслідок тривалого процесу вау- юридичних осіб черної приватизації пожертвуван- ня від юридичних осіб почали над- Зароблений доход Взаємодія з приватним сектором
ходити пізніше, ніж в інших нових державах-членах
Пожертвування фізичних осіб Нейтральна /сприятлива У 90-х роках минулого століття по- жертвування фізичних осіб не були типовою практикою, але їх рівень почав зростати після повеней 2002 року. Громадські організації скорис- талися цією можливістю, аби вийти на передній план
Заробляння доходу Сприятлива Узагалі, асоціації мають велику кіль- кість членів. Надання громадськи- ми організаціями платних послуг є звичним, вони не повинні надавати послуги безкоштовно Міжнародні практики фінансування ОГС... 215
Національні особливості Роль громад- Приклади / найкращі прак- Зауваження ських органі- тики зацій Широко розповсюджена практи- Одержувачі фі- Використання коштів ЄС з Відсутність даних про сек- ка підтримки громадських орга- нансування з метою сприяння розвитку тор, які б дозволили розро- нізацій з державного та місцевих боку держави громадських організацій; бити ефективну стратегію. бюджетів за відсутності загальної укладання угод з незалеж- Держава розвиває сектор, політики чи структури ним надавачем грантів про використовуючи існуючі адміністрування грантів можливості
Існування принципу контракту- П о с т а ч а л ь н и - Ваучерна система може Громадські організації на- вання; отримання ліцензій на на- ки послуг, що в бути дуже перспективною, дають послуги за відсут- дання послуг на конкурсній осно- певних галузях якщо буде успішно запро- ності системи підтримки та ві; надання соціальної допомоги займають домі- ваджена. Являє собою по- розвитку довгострокових в натуральній формі, включаючи нуючу позицію зитивну практику, оскільки партнерств нещодавно запроваджені ваучери (персоналізова- надає користувачам більш на допомога) широкий вибір послуг і пра- во голосу
У період з 1999 по 2001 рік Фонд Фонди виступа- Ця схема сприяла створен- Громадський сектор зна- інвестицій у фонди розподілив ють довгостро- ню потужного вітчизняного ходить підтримку в гро- доходи від приватизації між біль- ковими страте- сектора фондів, спромож- мадськості та розробників ше ніж 200 фондами. Діяльність гічними партне- ного забезпечити життєз- стратегій як ключова скла- фондів чітко регулюється, а вони рами держави. датність громадських орга- дова процесу переходу до щороку повинні звітувати про свої нізацій, коли іноземні доно- демократії видатки ри підуть із країни
Податкові пільги існують, але Одержувачі по- Чеський форум донорів є Будь-які особливості чи ін- вони мінімальні. На пільгових за- ж е р т в у в а н ь позитивним прикладом об- новації відсутні садах оподатковуються не лише юридичних осіб міну кращими практиками пожертвування громадським ор- між донорами-юридичними ганізаціям, але й фізичним осо- особами бам
Відносно високий рівень пожерт- О д е р ж у в а ч і Громадські організації, що Громадяни Чехії беруть ак- вувань (не лише громадським ор- благодійних по- діяли конструктивно, став- тивну участь у суспільному ганізаціям) і волонтерства серед жертвувань лячи перед собою страте- житті (поданні петицій, де- населення. Для збору коштів на- гічні цілі, спромоглися за- монстраціях), а відтак мо- селення необхідно одержати до- лучити кошти під час прове- жуть бути мобілізовані та- звіл на здійснення фандрейзингу дення рятувальних заходів кож для надання фінансо- вої допомоги у справах, які є для них значимими
Чітке регулювання в сфері здій- Громадські ор- Громадські організації дуже Велика кількість членів і во- снення економічної діяльнос- ганізації висту- якісно надають певні види лонтерів свідчить про наяв- ті організаціями, що мають різ- пають поста- послуг, за що отримують ко- ність у громадських органі- ні організаційно-правові форми. чальниками по- шти від держави та користу- зацій міцних зв’язків з гро- Часткове звільнення від податку слуг, а фонди вачів послугами мадами та підвищує шан- доходу від економічної діяльнос- – інвесторами си цих організацій на існу- ті, пов’язаної з основними цілями вання 216 Міжнародні практики фінансування ОГС...
ти стали відображенням суперечливих відносин між державою та громадським сектором. Основним питанням було те, які повноваження у сфері захисту державних інтересів і фор- мування державної політики повинні мати громадські організації та чи є це легітимним (на відміну від обраних політичних представників). На думку Гавела, громадські організації ві- дігравали центральну роль у житті суспільства, та їм необхідно було повернути втрачене ними за часів диктатур так само, як і іншим членам суспільства (тобто громадянам, компа- ніям і церкві). Його ініціатива мала наслідком надання підтримки фондам (див. нижче). З ін- шого боку, Клаус вважав, що громадські організації були лише організаціями «за інтереса- ми», і що держава повинна утримуватися від будь-якого втручання в їхні справи, чи-то не- гативного (їх утискання), чи-то позитивного (надання їм підтримки). Ці дебати позбавили Чеську Республіку загальної політики в сфері розвитку громадського сектора, що розви- вався окремо від аналогічних секторів інших країн Вишеградської четвірки. Так, у ній була запроваджена спеціальна схема створення вітчизняних фондів, але закон про відсоткову філантропію ухвалений не був. Донині державне фінансування як таке належним чином не регулювалося.
Національні особливості Наразі громадські організації фінансуються з Державного бюджету та всіх місцевих бюджетів (на регіональному та муніципальному рівнях). Загальні обсяги такого фінансу- вання в 2007 році становили 264 млн доларів США. 70% цих коштів були надані Міністер- ством освіти та спорту і Міністерством праці й соціальних справ. Майже половина цих ко- штів була отримана громадськими організаціями, розташованими в Празі. Крім того, під- тримка громадянському суспільству в Чеській Республіці надавалася також зі спеціаль- них фондів (див. нижче). Поряд із фінансуванням з боку держави громадські організації отримували фінансування від 14 адміністративних округів і більш ніж 6000 муніципаліте- тів. Обсяги підтримки громадських організацій з боку держави в 2007 році загалом скла- ли 446,4 млн доларів США137. У Чеський Республіці запроваджена унікальна схема цільового фінансування розвитку громадянського суспільства не лише безпосередньо з Державного бюджету, але й зі спеці- альних фондів ЄС та за використання інших іноземних схем підтримки. Це, наприклад, Пе- рехідна програма ЄС, яка була інструментом, що допоміг новим державам-членам подола- ти перехідний період після їх вступу до ЄС138. Якщо в інших країнах ця допомога викорис- товувалася переважно для розширення можливостей органів місцевої влади, то в Чесь- кій Республіці частина коштів була спрямована на підтримку розвитку громадського сек- тора. На відміну від інших країн, в яких договори на адміністрування грантів укладалися з підконтрольними державі чи приватними організаціями, в Чехії такі договори укладалися з провідними фондами, що надавали гранти (наприклад, з Фондом розвитку громадянсько- го суспільства, NROS). Фонд розвитку громадянського суспільства також здійснює управління Чеським фон- дом НУО (Блоковий грант для НУО), що надає підтримку громадським організаціям в рам- ках Фінансового механізму Європейської економічної зони та Норвезького фінансового
137 Паяс Петр Ян. Громадянське суспільство в Чеській Республіці (Pajas, Petr Jan: Civil Society in the Czech Republic), 2011 р. Дані взято з: Аналіз фінансування громадських організацій з боку держави в 2007 році (Analysis of Financing CSOs from Public Resources in 2007) (Рада Уряду з питань діяльності неурядових неприбуткових ор- ганізацій, Прага, 2008 р.). Див: Ювень Лі (ред.). НУО в Китаї та Європі (Yuwen, Li (Ed): NGOs in China and Europe), Ешгейт, 2011 р. Стор. 266. 138 Перехідна програма була розроблена Європейською Комісією з метою надання країнам, які готують- ся до вступу до ЄС, подальшого сприяння у сферах, де адміністративні та інституційні можливості залишають- ся занизькими у порівнянні з аналогічними можливостями в існуючих державах-членах. Також акцент робився на сферах, де фінансування зі структурних фондів було неможливим. Реалізація програми була запланована на період з 2004 по 2006 рік, але існували проекти, що фінансувалися аж до 2009 року. Міжнародні практики фінансування ОГС... 217
механізму на суму понад 10 млн євро139. Незважаючи на те, що Норвезький механізм під- тримував громадські організації і в інших нових державах – членах ЄС, це була перша про- грама в регіоні, що надавала інституційну підтримку розвитку громадських організацій та громадського сектора.
Роль громадських організацій Громадські організації розглядаються як одержувачі державного фінансування та парт- нери держави в цьому процесі.
Приклади, найкращі практики Чеський уряд скористався європейськими коштами з метою сприяння розвитку грома- дянського суспільства. Щоб досягти цього, він уклав з незалежним вітчизняним фондом, що надавав гранти, контракт на адміністрування коштів. Це істотно підвищило ефектив- ність програми, оскільки Фонд розвитку громадянського суспільства мав досвід надання громадським організаціям міні-грантів, з якими завжди боролися більшість державних бю- рократичних структур. Це було ефективним методом збалансування потреби ЄС і уряду в чіткій звітній базі та потреби громадських організацій в гнучких, орієнтованих на конкрет- ні потреби проектах меншого масштабу. Громадським організаціям тепер було непотрібно брати на себе завеликий адміністративний тягар – дотримання вимог щодо звітності про видатки з державного бюджету забезпечував Фонд розвитку громадянського суспільства.
Зауваження Експертам, що вивчають чеський громадський сектор, важко провести точний аналіз, оскільки відсутні основні дані, а наявні є недостовірними та часто суперечливими або нере- презентативними140. Це є відображенням відсутності послідовної державної політики щодо розвитку сектора, оскільки такі дані є необхідними для розробки ефективної стратегії роз- витку громадянського суспільства. Виходячи з наявної інформації, єдиною особливістю чеської моделі є те, що задля адмі- ністрування державних коштів держава часто використовує вже існуючі в країні можливос- ті постачальників. Прикладом цього служить не лише Фонд розвитку громадянського сус- пільства, але й створення Чеського агентства з розвитку, ініційованого міністерством закор- донних справ задля того, щоб сформувати політику та здійснювати управління програмами у сфері співпраці в цілях розвитку Чеської Республіки. Замість створення нової установи мініс- терство скористалося вже існуючим «мозковим центром» – Чеським центром розвитку. Цей підхід також свідчить про те, що чеський уряд, на відміну від урядів деяких країн-сусідів, вва- жає незалежні чи напівнезалежні агентства ефективними при розподілі державних коштів.
Соціальне контрактування Культурно-історичні умови Громадські організації беруть участь в наданні послуг відтоді, як у 90-х роках минулого століття в країні відбулися політичні зміни. На це почасти надихнули економічні реформи, що почали реалізуватися після здобуття країною незалежності, чільне місце в яких посідала приватизація не лише державного майна (подібно до більшості інших країн), але й держав- них послуг. Цей підхід також знайшов своє відображення у законодавстві: в Чеській Респу- 139 Див. www.blokovygrant.cz 140 http://www.e-cvns.cz/soubory/Hladka_paper.pdf Гладка (Hladká) наводить два достовірні дослідження, дані яких використовуються більшістю дослідників при проведенні аналізу чеського сектора, перше з яких було про- ведене в 1995 році, а друге – в 2001 році. Результати останнього було переглянуто в 2004 році. Конкретні крос- секторальні дані складно зібрати навіть установам, що спеціалізуються на дослідженні сектора. 218 Міжнародні практики фінансування ОГС...
бліці вперше в регіоні для надання державних послуг була створена спеціальна форма під- приємства, а саме – суспільно корисна організація. Це нечленська, неприбуткова юридич- на особа, основна функція якої полягає в наданні громадськості соціальних послуг, послуг у сфері освіти та інших «загально корисних послуг» на рівних умовах (котрі, з іншого боку, не можуть надаватися безпосередньо фондами-ендавментами). Суспільно корисні організа- ції були створені, аби уможливити приватизацію державних організацій, якими надавали- ся суспільно корисні послуги. Однак на практиці суспільно корисні організації використовувалися зазвичай як альтер- натива організаційно-правовій формі фондів, створених до 1998 року, що не могли задо- вольнити критеріям створення фонду, визначеним у новому Законі «Про фонди» (див. ниж- че). Після ухвалення Закону «Про суспільно корисні організації» ними стали також інші орга- нізації, включаючи театри, лікарні, будинки престарілих, клініки з реабілітації наркозалеж- них та інші неприбуткові заклади, що надавали соціальні послуги141. Більш структурованій і активній участі громадських організацій у наданні послуг перешкоджали суперечливі полі- тичні погляди щодо ролі, яку відігравали громадські організації з точки зору держави (як це зазначається вище).
Національні особливості В основі загальної системи постачання соціальних послуг у Чеський Республіці лежить принцип контрактування. Постачальники соціальних послуг на конкурсній основі отримують лі- цензію, аби мати змогу зареєструвати та надавати послуги. Ліцензії на надання конкретних ви- дів послуг видаються органами місцевої влади залежно від того, чи спроможний постачальник дотриматися всіх умов, визначених у законодавстві142. Ці умови включають стандарти якості послуг, і їх дотримання регулярно перевіряється. Основним критерієм якості соціальних послуг є їх надання з дотриманням прав людини (що є прогресивним підходом у порівнянні з підхода- ми, що застосовуються в багатьох інших країнах регіону). Таким чином, до схеми соціального контрактування включено принцип конкурентоспроможності, що теоретично підвищує ефек- тивність надання соціальних послуг. Постачальниками послуг можуть стати громадські органі- зації, приватні фірми та навіть фізичні особи, які отримали на це ліцензію від держави. Крім пріоритетів соціального контрактування, що кожного року перевизначаються143, фінансування також виділяється на реалізацію інноваційних проектів, які не є пріоритетни- ми, якщо постачальник продемонструє додану вартість інновації. Особливістю чеського соціального устрою є те, що Законом №111/2006 «Про допомогу малозабезпеченим» також допускається надання соціальної допомоги в натуральній фор- мі. Соціальна допомога в натуральній формі повинна надаватися у формі ваучерів (тало- нів), призначених для придбання основних продуктів харчування й одягу, або у формі спе- ціальних кредитних карток. Метою цього є побудова тісніших зв’язків між ринком праці та системою соціальної допомоги. Наразі ця схема надання соціальної допомоги застосову- ється при реалізації пілотних проектів у деяких чеських муніципалітетах і районах міст144.
141 Інформація про Чеську Республіку, надана в рамках проекту USIG http://www.usig.org/countryinfo/ czechrepublic.asp 142 У березні 2006 року Парламент ухвалив три нові нормативно-правові акти в сфері соціального забезпе- чення, що набули чинності 01 січня 2007 року: Закон «Про допомогу малозпбезпеченим», Закон «Про прожит- ковий мінімум і мінімум, необхідний для існування», Закон «Про соціальні послуги». 143 Ці пріоритети щороку перевизначаються з метою проведення оцінки поступу в реалізації проектів і за- провадження технічних заходів, а не зміни напряму чи стратегії. Виходячи з досвіду, пріоритети є доволі ста- більними та залишають достатньо простору для напрацювання постачальниками послуг довгострокових стра- тегій відповідно до державних преференцій. 144 Проважнікова Романа. Альтернативне надання державних послуг – ваучери (Provazníková, Romana: An alternative provision of public services – the use of vouchers). Економічний факультет Пардубіцького університету, 2007 р. http://dspace.upce.cz/bitstream/10195/35612/1/ProvaznikovaR_AnAlternativeProvision_SP_FES_2007.pdf Міжнародні практики фінансування ОГС... 219
Роль громадських організацій На основі наявної інформації можна зробити висновок, що НУО явно розглядаються як постачальники соціальних послуг. Децентралізація послуг є не лише фінансовою, а й пов’язана з передачею повноважень і можливостей контролю. Децентралізація відбуваєть- ся в напрямі органів місцевої влади та від них до незалежних постачальників, з якими вони укладають контракти на надання послуг. Незважаючи на те, що основними постачальника- ми соціальних послуг залишаються органи місцевого самоврядування, громадські органі- зації відіграють провідну роль у наданні окремих видів послуг, як-от послуги в сфері соці- ального консалтингу та соціальної превенції145.
Приклади, найкращі практики Позитивною практикою може вважатися ваучерна система, включена до законодав- ства, яка поки що широко не застосовується. Відповідно до цієї системи, держава роз- повсюджує ваучери серед користувачів послуг, які обирають постачальника (з-поміж лі- цензованих), та відшкодовує постачальнику вартість фактично наданих послуг. Ця систе- ма відкриває перед користувачами послуг можливість вибору, забезпечує безпосередній зворотний зв’язок з постачальниками послуг і стимулює постачальників до конкуренції. Також існують контраргументи, зокрема, згадується той факт, що користувачі послуг час- то не володіють достатньою інформацією та можуть зробити хибний вибір (з точки зору професійності). Про будь-які помітні наслідки застосування цього засобу в Чеській Рес- публіці говорити ще зарано, оскільки воно є надто обмеженим. (Планується, що застосу- вання такої системи в деяких районах Праги носитиме більше обмежувальний характер. Наприклад, буде обмежене використання соціальної допомоги з метою придбання алко- голю тощо).
Зауваження Загалом чеська система, що ґрунтується на принципі контрактування, у поєднанні з про- зорою та дієвою системою акредитації постачальників соціальних послуг являє собою про- гресивний, орієнтований на користувача, децентралізований підхід, що відкриває простір для здійснення заходів, спрямованих на підвищення якості послуг. Громадські організації беруть участь у наданні соціальних послуг, але тут, на відміну від Великобританії та Німеччини, відсутня загальна схема, яка допомогла б їм стати життєздат- ними та надійними партнерами центральної та місцевої влади в наданні соціальних послуг населенню. Ваучерна система може бути корисною для громадських організацій, якщо вони будуть спроможні довести, що їхні послуги користуються великим попитом з боку на- бувачів допомоги.
Альтернативне фінансування / Приватні пожертвування за використання інституціоналізованого механізму146 За ініціативою Вацлава Гавела Парламент першого скликання нової Чеської Республіки ухвалив законодавче положення про приватизацію, відповідно до якого 1% загального до- ходу країни від приватизації повинен спрямовуватися на підтримку чеського неприбутко- вого сектора. Це положення ґрунтувалося на тому, що після 1989 року всі громадяни, церк- 145 Болгарський центр некомерційного права (БЦНП): Укладання контрактів на надання соціальних послуг між державою та НУО в Англії, Німеччині, Польщі, Угорщині, Чеській Республіці, а також болгарські практики. Софія, 2004 р. (BCNL: Contracting of Social Services between the State and the NGOs in England, Germany, Poland, Hungary, the Czech Republic and the practices in Bulgaria. Sofia, 2004) 146 Наприклад, аналіз чеського сектора фондів проводиться за обома цими категоріями, оскільки метод фі- нансування фондів є інноваційним і унікальним. 220 Міжнародні практики фінансування ОГС...
ви та приватні організації, за винятком громадських організацій, які, в більшості випадків, були новоствореними, отримували певну компенсацію (за майно, що було націоналізова- не урядом соціалістів). Аби чітко визначитися з формою підтримки, знадобилося майже десять років, про- тягом яких дохід від приватизації накопичувався на окремому рахунку. В 1998 році Пар- ламент ухвалив новий закон, в якому була викладена система: фонди в Чеській Респу- бліці повинні мати певні рівні ендавментів, не можуть займатися економічною діяльніс- тю та мають дотримуватися низки жорстких правил, спрямованих на забезпечення про- зорості та звітності. Такі фонди могли розраховувати на отримання коштів від привати- зації у формі ендавменту, який, у свою чергу, дозволяв їм надавати підтримку громад- ським організаціям на постійній основі, враховуючи їхнє географічне розташування та сфери діяльності. Завдяки цьому рішенню держава, здійснюючи разові інвестиції, почала відіграва- ти роль каталізатора розвитку громадянського суспільства. Наразі в Чеській Республіці гранти надають близько 300 вітчизняних фондів, що утворюють найбільш потужний сек- тор фондів у країнах Центральної та Східної Європи, таким чином звільняючи державу від тягаря фінансування малих організацій громад, нових організацій, пілотних проектів у сфері інновацій та інших ризикових або економічно необґрунтованих проектів у сфері благодійництва.
Національні особливості У 1991 році з виділеного 1% від часток другої хвилі купонної приватизації був створе- ний Фонд інвестицій у фонди (NIF). Він здійснював адміністрування активів, виділених для неприбуткового сектора. Фонд інвестицій у фонди був призначений для зміцнення непри- буткового сектора шляхом надання підтримки громадам в реалізації проектів, а також не- прибутковим організаціям. Він відіграє важливу роль у створенні потужної бази ендавмен- тів для чеського громадського сектора. Наразі на нього припадає більшість зареєстрова- них ендавментів чеських фондів. Тендер на отримання коштів з Фонду інвестицій у фонди відбувався в два етапи. На пер- шому етапі (1999 р.) загалом 500 млн чеських крон були поділені між 39-ма фондами в семи програмних сферах, на другому (2001 р.) 64 фонди отримали 849,3 млн крон. Ці фонди та- кож можуть розраховувати на отримання майбутніх доходів від продажу часток у портфе- лі Фонду інвестицій у фонди. Фонди, які отримали кошти за цією схемою, чітко регулюються. Вони повинні розпо- діляти річний дохід (якщо такий є) та використовувати доходи, отримані протягом кален- дарного року (реальні доходи), до кінця наступного року. При цьому існують певні прави- ла використання доходу (наприклад, відповідно до мети фонду та на основі відкритого конкурсу на отримання гранту). Однак фонди повинні намагатися зберегти реальну вар- тість активів-ендавментів. Вони можуть використовувати до 20% доходу на власні адміні- стративні потреби або для збільшення/збереження активів, тоді як інші 80% мають спря- мовуватися на надання грантів. Для фондів розроблена інвестиційна політика – вони по- винні щороку звітувати про доходи від інвестицій і використання цих доходів для надан- ня грантів. Натомість фондам надаються певні пільги. Наприклад, від оподаткування звільняються їхній дохід від інвестицій та дохід від економічної діяльності за використання майна, яке є частиною захищеного ендавменту фонду. Крім того, фонди об’єднали свої активи й уклали договір з інвестиційною компанією, яка розробила спеціальну портфельну схему відповідно до вимог законодавства, метою якої є отримання максимального доходу з урахуванням обмежень щодо ризиків, встановлених законодавством і належною практикою. Міжнародні практики фінансування ОГС... 221
Роль громадських організацій Фонди, які отримували державні кошти, розглядалися як довгострокові стратегічні парт- нери держави в наданні стабільної підтримки громадам і громадським організаціям в Чесь- кій Республіці.
Приклади, найкращі практики За наявності відповідного регулюючого середовища сама концепція надання ендавмен- тів приватним місцевим фондам, які надають гранти, являє собою найкращу практику. Завдяки тому, що Фонд інвестицій у фонди за рахунок надання ендавментів переважно стабілізував по- зиції сотень місцевих і національних громадських організацій, чеський донорський сектор є ак- тивним, розмаїтим і надає підтримку у здійсненні широкого діапазону заходів по всій країні. Це позитивна модель того, як забезпечити життєздатність громадських організацій за відсутності іноземного фінансування й уникнути залежності від держави.
Зауваження Унікальний приклад у Європі (та навіть у світі), коли держава не лише пропонує подат- кові кредити чи річну підтримку, але й робить свій практичний внесок у формування ендав- ментів незалежних установ, що надають гранти. Коли ця ідея з’явилася в Угорщині, з метою наслідування чеського прикладу, то угорські громадські організації так само, як і широка громадськість, відкинули її через недовіру фондам–потенційним одержувачам фінансуван- ня, оскільки не були впевнені, що такі фонди, яким надавалися ендавменти, спрямовувати- муть кошти на надання їм підтримки. У Чеській Республіці громадські організації та фонди розглядалися в більш позитивному світлі, але ця система сприймалася як складова проце- су переходу до демократії, а відтак не була сприйнята громадськістю негативно. Порівняно велика кількість зареєстрованих діючих громадських організацій у країні не могла б існувати без значної кількості донорів, якби не працював принцип децентралізова- ного фінансування, що свідчить про практичну доцільність теорії окупності великих разових інвестицій. У країні, в порівнянні з іншими новими державами-членами, існує доволі велика спіль- нота інституціоналізованих приватних донорів, які можуть обмінюватися один з одним від- повідним професійним досвідом у сфері надання грантів. Завдяки розмаїтості моделей фі- нансування ці надавачі також справляють вплив на практики надання грантів з боку держа- ви та юридичних осіб.
Пожертвування юридичних осіб Культурно-історичні умови Благодійні пожертвування юридичних осіб і різні форми їхньої участі у житті суспільства мають у Чеській Республіці міцне історичне коріння. Внаслідок тривалої ваучерної привати- зації активність юридичних осіб після змін, що відбулися в 1989 році, зростала мляво, але наразі її рівень порівнюється з активністю компаній в інших нових державах-членах, а в де- яких аспектах навіть перевищує його. Велика кількість фондів, яким було надано ендавмен- ти, змінила ставлення чеських фірм до благодійництва та спонукала їх постійно знаходити нові механізми надання благодійної допомоги.
Національні особливості Відповідно до податкового законодавства, субсидії, гранти та пожертвування, які отриму- ють НУО, оподатковуються на пільгових засадах, а фізичні особи та компанії можуть не вклю- чати певні суми пожертвувань у свій оподатковуваний дохід. Проте існуюча наразі макси- мально допустима знижка (в розмірі 5% оподатковуваного прибутку юридичних осіб) є зама- 222 Міжнародні практики фінансування ОГС...
лою, аби мотивувати потенційних донорів. У 2009 році ситуація погіршилися внаслідок змен- шення податкової ставки – отримавши можливість сплачувати менший податок, фізичні та юридичні особи були менше вмотивовані до зменшення своїх податкових зобов’язань за ра- хунок благодійних пожертвувань. Податкове середовище в Чеській Республіці також усклад- нюється внаслідок невизначеності тлумачень податкового законодавства. Наприклад, пра- вознавець, економіст, бухгалтер та фінінспектор можуть тлумачити його по-різному147. Пільги щодо оподаткування пожертвувань, передбачені чеським законодавством, ви- значаються видом діяльності, а не організаційно-правовою формою організації – одержу- вача пожертвування. Аби отримати пільгу, пожертвування повинно мати на меті «фінансу- вання діяльності в сфері науки й освіти, науково-дослідних і дослідно-конструкторських ро- біт, культури, забезпечення роботи шкіл, поліції, пожежних дружин, діяльності в сфері на- дання підтримки та соціального захисту молоді, захисту тварин і ветеринарії, надання со- ціальних послуг і послуг у сфері охорони здоров’я, охорони довкілля, гуманітарної та бла- годійної допомоги, релігійної діяльності зареєстрованих церков і конфесій, спортивних за- ходів, а також діяльності, спрямованої на надання підтримки політичним партіям». За пев- них обставин пільги можуть надаватися також, якщо пожертвування адресовані фізичним особам (наприклад, як допомога на навчання, пожертвування інвалідам, постраждалим від природних катастроф). Крім того, донор може отримати пільгу при пожертвуванні коштів будь-якій юридичній особі, яка належним чином подала заявку для отримання дозволу на збір коштів населення і здійснила його відповідно до Закону «Про збір коштів населення» (тобто фандрейзинг)148.
Роль громадських організацій Одержувачі фінансування з боку компаній. Інші ролі (консультантів, стратегічних партне- рів тощо) поки що не є типовими.
Приклади, найкращі практики Цікавим прикладом позитивної практики є Чеський форум донорів. Це членська органі- зація донорів, аналоги якої існують також в інших країнах. Однак завдяки існуванню в Чесь- кій Республіці потужного сектора фондів Форум здобуває величезні практичні знання в сфері надання грантів громадським організаціям і напрацьовує відповідні позитивні прак- тики, що також є дуже корисними для компаній. Таким чином, у компаній в Чеській Респу- бліці є спеціалізована організація, яка забезпечує їх ресурсами та просуває їхні інтереси, аби вони могли підвищити ефективність своїх пожертвувань і робити це у простий і еконо- мічно вигідний спосіб.
Зауваження За рівнями пожертвувань юридичних осіб і корпоративної соціальної відповідальності Чеська Республіка є подібною до інших нових держав-членів і не має жодних особливостей чи інновацій у цій сфері.
Пожертвування фізичних осіб Культурно-історичні умови Більша частина громадського сектора завжди отримувала дохід від надання плат- них послуг і членських внесків. Почасти у зв’язку з цим, почасти через надання великої кількості грантів фондами, насамкінець, через загальне ставлення, успадковане із со-
147 USAID. Показник життєздатності в 2010 році 148 Інформація про Чеську Республіку, надана в рамках проекту USIG. Міжнародні практики фінансування ОГС... 223
ціалістичного минулого, практика пожертвувань фізичних осіб у Чеській Республіці не була дуже поширеною, особливо протягом перших десяти років перехідного періоду. Проте серед провідних громадських організацій спостерігалася зростаюча тенденція до мобілізації підтримки з боку громадськості, а під час катастрофічних повеней 2002 року вони мали сумну, але водночас корисну нагоду спрямувати громадські настрої в русло благодійних пожертвувань. Ініціативи в сфері залучення коштів для допомоги по- страждалим від повені виявилися дуже результативними і сприяли розширенню гро- мадськими організаціями кола тих, хто надає їм підтримку в їхній «звичайній» роботі. Під час проведення рятувальних заходів чеські громадські організації, діючи швидко й професійно, часто навіть ефективніше, ніж державні органи, також спромоглися поліп- шити свій імідж.
Національні особливості За даними дослідження, проведеного Civicus в рамках проекту «Індекс громадянського суспільства», в 2004 році громадські організації отримали грошові чи майнові пожертвуван- ня від 47% громадян. Протягом попередніх чотирьох років рівень благодійних пожертву- вань у Чеській Республіці дещо підвищився (на 4%). За даними дослідження, проведеного в рамках проекту «Індекс громадянського суспільства» в 2004 році, загальна вартість май- нових чи грошових пожертвувань двох третин громадян попереднього року не перевищила 700 чеських крон. Середній розмір пожертвувань громадянина у 2004 році склав 1161 чесь- ку крону. З урахуванням чистого середньорічного доходу, що в 2001 році становив 83 000 чеських крон, це складає 1,4% річного доходу особи149. Найбільша частка пожертвувань фізичних осіб припадає на громадян з вищою освітою (минулого року пожертвування надійшли від 64% представників цієї групи). Підприємці, громадяни, чиї місячні доходи перевищують 15 000 чеських крон, представники більш за- можних верств населення та віруючі належать до груп, що жертвують на благодійні цілі на- багато більше, ніж інші. Чеські громадяни найчастіше жертвують свої кошти, аби допомогти дітям (49%), особам з фізичними вадами (35%) і постраждалим від природного лиха (24%). Це ті самі основні цільові групи, які були в 2000 році150. За даними того самого дослідження, на добровільних засадах минулого року пра- цювали 32% громадян Чеської Республіки. За критеріями оцінки індексу громадянсько- го суспільства, ця цифра становить меншість, але якщо порівняти з Польщею, то відсо- ток чеських громадян, які працювали волонтерами хоча б один раз протягом минулого року, майже вдвічі перевищує аналогічний показник Польщі. За даними дослідження ін- дексу громадянського суспільства, чеські громадяни також охочіше жертвують свої ко- шти громадським організаціям, ніж громадяни Польщі. Ці відмінності можуть бути зу- мовлені різною роллю, яку відіграє Церква в житті громадянського суспільства: якщо в Польщі вона значна, то Чеська Республіка – це одна з найбільш атеїстичних країн світу, 59% населення якої не є віруючими (за даними чеського статистичного бюро, 2004 р.). У проекті «Індекс громадянського суспільства» сама церква не віднесена до громад- ських організацій151. Стосовно законодавчої бази, громадські організації, що мають намір займатися діяль- ністю зі збирання коштів населення, повинні зареєструвати свою кампанію відповідно до Закону №117/2001 «Про збір коштів населення». Пройти реєстрацію й отримати дозвіл на збір коштів повинні не лише громадські організації, але й будь-яка особа, яка має на- 149 Вайдова Тереза. Оцінка чеського громадянського суспільства у 2004 році: після п’ятнадцяти років розви- тку (Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development). За даними Зві- ту Civicus за результатами дослідження, проведеного в Чеській Республіці в рамках проекту «Індекс громадян- ського суспільства» http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf, стор. 30-31. 150 Там само, стор. 30-31. 151 Там само, стор. 30. 224 Міжнародні практики фінансування ОГС...
мір здійснювати таку діяльність (наприклад, мати, яка збирає гроші для своєї хворої ди- тини). До доходу фізичних осіб можуть не включатися пожертвування відповідним НУО в розмірі до 10 % оподатковуваного доходу фізичної особи. Однак, аби отримати пільгу, фі- зична особа повинна пожертвувати принаймні 2 % свого оподатковуваного доходу, або 1000 чеських крон152.
Роль громадських організацій Громадські організації виступають одержувачами пожертвувань. Культура пожертву- вань у Чеській Республіці і досі має переважно благодійний (а не філантропічний) характер.
Приклади, найкращі практики Громадські організації, які під час природних катастроф діяли конструктивно, ставлячи перед собою стратегічні цілі, спромоглися пробудити інтерес до регуляр- них пожертвувань.
Зауваження Чеські громадяни активно висловлюють свою думку та намагаються бути почутими. Про це свідчить індекс громадянського суспільства: протягом останніх п’яти років май- же 50% чеського населення так чи інакше брало участь у відстоюванні громадських інте- ресів (близько 12% написали хоча б один лист до газети, приблизно 14% брали участь у де- монстрації та 43% поставили свій підпис під петицією). Це означає, що, якщо до них знайти ефективний підхід, вони охоче пожертвують свої кошти. Благодійні пожертвування для них є одним зі способів висловлення своєї думки щодо того, що саме необхідно змінити в їхній країні та громаді.
Заробляння доходу Культурно-історичні умови Незважаючи на відсутність даних про доходи, які громадські організації отримували останнім часом від економічної діяльності, зважаючи на їхню роль у наданні послуг, можна припустити, що більшу частину свого доходу чеські громадські організації отримують від постачання послуг, пов’язаних і не пов’язаних з їх статутною діяльністю. Активність громадян у Чеській Республіці є високою (див. нижче), тому членські внески можуть являти собою важливе джерело доходів, принаймні для великих асоціацій. Ця тен- денція зростає, за винятком профспілок, де частка членських внесків протягом останніх 20 років майже постійно зменшувалась153. За даними дослідження індексу громадянського суспільства, 47% чеського населення є членами принаймні однієї громадської організації, що значно перевищує показник 2000 року (29%). 23% громадян є членами одразу декількох організацій, а відтак майже полови- на членів громадських організацій належить до декількох організацій. Найбільшу кількість членів мають спортивні організації (16%) і профспілки (13%), далі йдуть організації садівни- ків і фермерів (6%), добровільні пожежні дружини (6%), релігійні організації (6%) та органі- зації рибалок (5%)154.
152 Інформація про Чеську Республіку, надана в рамках проекту USIG. 153 Мартін М’янт. Профспілки в Чеській Республіці (Martin Myant, Trade Unions in the Czech republic), 2010 р. 154 Вайдова Тереза. Оцінка чеського громадянського суспільства в 2004 році: після п’ятнадцяти років розвитку (Vajdova, Teresa: An assessment of Czech civil society in 2004: after fifteen years of development). За даними Звіту Civicus за результатами дослідження, проведеного в Чеській Республіці в рамках проек- ту «Індекс громадянського суспільства» http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf, стор. 30-31. Міжнародні практики фінансування ОГС... 225
Національні особливості155 Основною метою асоціації не може бути здійснення економічної діяльності. Організаці- ям і фондам забороняється займатися економічною діяльністю безпосередньо або через інші підприємства, за винятком надання в оренду нерухомого майна, що належить до їх ен- давменту, організації лотерей, зборів коштів населення, а також проведення культурних, соціальних, спортивних і освітніх заходів. Організації (але не фонди) мають право володіти не більш ніж 20-ма відсотками ак- цій акціонерного товариства й інвестувати до 20-ти відсотків їхнього майна – мінус вар- тість їхнього ендавменту – в цінні папери акціонерних товариств, що котируються на ре- гульованих фондових ринках. (Використання ендавменту на ринку капіталу чітко регу- люється.) Суспільно корисні організації можуть здійснювати так звані «доповнюючі операції» (на- приклад, займатися економічною діяльністю) за умови, що ці операції не завдають шкоди якості, обсягу та доступності суспільно корисних послуг, які надає організація. Суспільно корисні організації можуть створювати інші юридичні особи, але їм не дозволяється бра- ти участь у підприємницькій діяльності інших юридичних осіб. Будь-який прибуток, отри- маний від економічної діяльності, повинен спрямовуватися на розвиток суспільно корис- ної організації. Дохід від прибуткової економічної діяльності, пов’язаної зі статутними цілями громад- ської організації, оподатковується за зменшеною ставкою. Дохід від економічної діяльнос- ті, пов’язаної зі статутними цілями, в розмірі до 300 000 чеських крон (приблизно 17 250 дол. США) повністю звільняється від оподаткування. Загальний дохід (тобто дохід мінус пов’язані витрати), що станом на кінець фінансового року перевищує цю суму, перед опо- даткуванням зменшується на 30%, або 1 000 000 чеських крон (приблизно 57 500 дол.США), залежно від того, що є меншим, за умови використання цього доходу для здійснення ста- тутної суспільно корисної діяльності протягом трьох років після його отримання та дотри- мання інших умов.
Роль громадських організацій При зароблянні доходу громадські організації виступають здебільшого постачальника- ми послуг. Крім того, організації розглядаються як інвестори на ринках капіталу.
Приклади, найкращі практики Чеські громадські організації відіграють ключову роль в наданні послуг у певних сферах соціального забезпечення, переважно тих, де пропонуються персоналізовані, місцеві по- слуги. Надання громадськими організаціями платних послуг є звичним, вони не повинні на- давати їх безкоштовно.
Зауваження Рівень можливостей чеських громадських організацій отримувати ресурси від своїх гро- мад (членські внески, добровільні внески, плату за послуги, доходи від інших видів еконо- мічної діяльності) свідчить принаймні про певну «вкоріненість» громадських організацій. Вони міцно пов’язані зі своїми громадами і можуть покладатися на ці зв’язки і тоді, коли по- требують більшої фінансової допомоги від громадян. Незважаючи на суперечності, що іс- нують у законодавстві, в цілому чітко регульоване, сприятливе правове середовище допо- магає у здійсненні діяльності, пов’язаної із зароблянням доходу.
155 Інформація, викладена в цьому розділі, запозичена зі звіту про Чеську Республіку, наданого в рамках про- екту USIG. 226 Міжнародні практики фінансування ОГС...
V. ВИСНОВКИ ЗА РЕЗУЛЬТАТАМИ АНАЛІЗУ КРАЇН
На основі результатів аналізу різних аспектів механізмів фінансування у розглянутих країнах у цьому та наступних розділах дослідження робляться висновки та надаються рекомендації. Висновки стосуються загальних міркувань, оточуючих і політичних умов, що сприяють запровадженню ефективних механізмів фінансування (на основі чіткої стратегії, застосуван- ня більш розвинених систем забезпечення прозорості, звітності та мотивації шляхом визна- чення статусу суспільно корисної організації). Рекомендації (Розділ VI) стосуються конкрет- них технічних кроків і методів фінансування, можливість здійснення/запровадження яких в Україні може розглядатися законотворцями в сферах державного фінансування, соціального контрактування, приватних пожертвувань за використання інституціоналізованого механіз- му, пожертвувань юридичних та фізичних осіб і заробляння доходу. Рекомендації ґрунтують- ся на загальних висновках, зроблених за результатами аналізу країн, і визначених найкращих практиках, які можуть бути застосовані в українському контексті. Як бачимо на прикладі кра- їн, де запроваджені найкращі практики, бажаного, економічно доцільного впливу можна до- сягти лише із застосуванням гармонізованого підходу до здійснення заходів стратегічного рівня та за наявності великої палітри технічних засобів фінансування.
Висновки стосовно загальних умов фінансування Аби зробити український громадський сектор більш корисним для громадян і перетво- рити його на надійного партнера держави, якому вона довірятиме, необхідно розробити належну стратегію фінансування для цього сектору. Основні міркування при розробці стра- тегії фінансування включають: a. Наявність зв’язку між загальною політикою та механізмами фінансування: Дослідження продемонструвало, що успіх механізму фінансування великою мірою зале- жить від існування двох основних елементів: (a) чіткого розуміння (у формі державної полі- тики) наміченої ролі громадського сектору в соціальному розвитку та (b) стратегічного під- ходу до фінансування, що уможливлює виконання цієї ролі громадським сектором. Тому, щоб пов’язати механізми фінансування, які будуть впроваджені, з баченням та метою розвитку громадських організацій, необхідний підхід «від бачення до механіз- му»: законодавець повинен визначити функції громадських організацій, а потім роз- робити відповідні засоби для досягнення результатів. Основним елементом, як правило, є розробка стратегії розвитку громадських орга- нізацій, що передбачає чітку роль громадських організацій по відношенню до держа- ви. Проте підготовка самої стратегії не має великого значення з огляду на вплив дер- жавних заходів. Не менш (якщо не більш) важливою є відповідність стратегії бажа- ним впливам, а також відповідність політики фінансування стратегії.
b. Застосування підходу до розробки та контролю за функціонуванням механіз- мів фінансування на основі фактів: Мають бути наявними достатні дані й інформація, що дозволить приймати продума- ні, засновані на фактах стратегічні рішення в цій сфері. Це важливо, адже громад- ський сектор як стратегічний напрям часто не береться до уваги, і основних даних не вистачає. На постійній, систематичній основі необхідно здійснювати заходи з відстеження практики та впливу реалізації стратегії.
c. Фактори успіху «змішаної» системи фінансування громадського сектору: Громадський сектор не може фінансуватися за використання одного основного ме- ханізму. Потоки фінансування повинні відображати різні функції, організації та по- Міжнародні практики фінансування ОГС... 227
треби сектора. Стратегії фінансування великих громадських організацій, що нада- ють послуги, та малих організацій територіальних громад можуть відрізнятися. Може бути ефективною як пряма, так і непряма підтримка. Потоки фінансування мають надходити з довготермінових, стабільних ресурсів (дер- жавних і приватних), аби громадські організації мали змогу прогнозувати рівні фінан- сування та складати плани на довгострокову перспективу. Для того, щоб їх [джере- ла фінансування] встановити, необхідне застосування творчого підходу, але в цьому можуть допомогти висновки, отримані за результатами цього дослідження. Механізми фінансування повинні доповнювати один одного, а не конкурувати. На- приклад, організації, через які спрямовуються гранти, або організації-посередники не повинні конкурувати з громадськими організаціями, яким вони мають надавати підтримку. Незважаючи на те, що певні джерела доходу є менш важливими з точки зору загаль- них доходів сектора, їх відсутність чи наявність може суттєво змінити умови життє- здатності громадських організацій (принцип «чим менше, тим більше»).
d. Важливість існування сприятливих фінансово-правових умов: Механізми фінансування повинні розроблятися на довгострокову перспективу (8–10 років) і передбачати поступовий розвиток різних механізмів на основі один одного (наприклад, впровадження податкових пільг після перевизначення статусу суспільно корисних організацій). При створенні сприятливого правового середовища, наприклад запровадженні по- даткових пільг і статусу суспільно корисної організації, необхідно застосовувати по- слідовний підхід. Статус суспільно корисної організації може служити надійною осно- вою для надання громадським організаціям непрямої підтримки, але лише якщо він є чітко визначеним і тягне за собою отримання податкових пільг, які служать реальни- ми стимулами. Поведінка платників податку, громадських організацій та органів державної влади в будь-якій країні визначається в основному культурно-історичними традиціями. Од- нак продумана податкова політика може ґрунтуватися на можливостях, які відкри- ваються в середовищі, що постійно змінюється, та створювати стимули, які здатні успішно змінювати поведінку. При розробці законодавства можуть бути корисними інновації та творчий підхід. Інші країни можуть служити моделями, але кожна з них може знайти й своє власне най- більш ефективне рішення. Однак у такому випадку набагато вищим є ризик небажа- них впливів (див. законодавство у сфері відсоткової філантропії Угорщини та інших країн Центральної та Східної Європи).
e. Міркування щодо підтримки розвитку громадського сектора Держава повинна здійснювати інвестиції в розширення можливостей громадсько- го сектора. Навіть у найбільш розвинутих країнах громадські організації потребують підтримки, аби робити очікуваний від них збільшений внесок у добробут суспільства. Держава також повинна забезпечити наявність ресурсів для фінансування поточно- го розвитку громадського сектора – нових організацій, інновацій, розвитку послуг тощо. Зазвичай вони більш ефективно фінансуються з приватних джерел. Якщо та- ких джерел бракує, держава може або перебрати цю роль на себе, або надати сти- мули до виконання цієї ролі приватним гравцям. Держава повинна визначити різницю між стратегіями, що підтримують, з одного боку, громадські організації, які допомагають у постачанні державних послуг, якщо така підтримка має надаватися в більш довгостроковій перспективі та є прямою 228 Міжнародні практики фінансування ОГС...
і якщо виправдане більш суворе регулювання діяльності організацій, які активніше надають державні послуги, а з іншого – інших типів громадських організацій (орга- нізацій громад, організацій у сфері культури, природоохоронних організацій тощо), якщо, як правило, потрібні більші обсяги непрямої підтримки і пряма підтримка за проектами та якщо діяльність організацій не вимагає надто суворого регулювання. Міжнародні практики фінансування ОГС... 229
VI. РЕКОМЕНДАЦІЇ
Наступні пропозиції являють собою рекомендації, розроблені на основі прикладів най- кращих практик, визначених у ході дослідження країн, з урахуванням загальних висновків, а також їх потенційної застосовності в українському контексті. Вони повинні розглядатися в рамках стратегії, що ґрунтується на принципах, закріплених у державній політиці.
Статус суспільно корисної організації Запровадження чітко визначеного статусу суспільно корисної організації є, на нашу думку, центральним елементом стратегії фінансування громадських організацій, оскільки він може служити основою для отримання ними різних переваг від використання механізмів фінансу- вання. Статус суспільно корисної організації забезпечує вищий рівень звітності та прозорос- ті громадських організацій в обмін на надання їм більших прямих та/чи непрямих переваг, ніж «звичайним» громадським організаціям. Як такий, він може служити основою для отримання цілої низки перелічених нижче переваг і пільг, включаючи, наприклад, отримання норматив- ної підтримки, пільг щодо оподаткування пожертвувань, ендавментів тощо. Наразі існує статус «благодійності», що здебільшого стосується оподаткування пожерт- вувань за пільговою шкалою. Однак існують різні межі (наприклад, до складу валових ви- трат включаються пожертвування на охорону культурної спадщини в розмірі додаткових 5% від оподатковуваного прибутку); існуючі пільги, скоріш за все, є замалими стимулами, аби змінити поведінку; також відсутнє єдине розуміння статусу (що певною мірою нагадує си- туацію, яка існувала в Німеччині до 2007 року). Чітко визначений статус з чіткими умовами та відчутними перевагами, який може отримати ціла низка громадських організацій, може бути основою для більш розвинутого громадського сектора, в якому братимуть активнішу участь держава та приватний сектор і який характеризуватиметься більшою прозорістю та вищим рівнем звітності.
Державне фінансування Дане дослідження пропонує створити Фонд розвитку громадянського суспільства. Основною метою Фонду має бути розширення можливостей сектору двома методами: – підсилення громадських організацій, спроможних надавати послуги на основі контр- актів з державою; – підсилення малих громадських організацій та, в широкому розумінні, ініціативних груп громадян і громад за допомогою ефекту множення. Щоб досягти цього, Фонд може не лише надавати гранти безпосередньо громадським організаціям, але й мати можливість допомагати їм через регіональні ресурсні центри, роз- ташовані в усіх основних регіонах України. Ресурсні центри можуть надавати професійні методичні рекомендації громадським організаціям у регіоні та діяти як фонди соціальних інновацій. (Інноваційний фонд також може бути централізованим, однак до підтримки інно- ваційної діяльності на місцях може бути доцільним залучити місцевих посадовців, відпові- дальних за прийняття рішень на місцевому рівні.) Правління Фонду повинно складатися з надійних і незалежних експертів, досвідчених як у сфері розвитку громадянського суспільства (на рівні розробки стратегії та на практично- му рівні), так і в сфері надання грантів громадським організаціям. До складу Правління по- винні входити представники неприбуткового сектору, уряду (або Парламенту) та незалеж- них організацій, наприклад ЗМІ або академічних кіл. Правління повинно мати належну по- літику та процедури в сфері регулювання конфліктів інтересів і не намагатися лобіювати ін- 230 Міжнародні практики фінансування ОГС...
тереси своїх власних організацій. Воно має бути спроможним сформувати стратегічне ба- чення сектору, потреб не лише громадських організацій, але й суспільства, а також визна- чати шляхи їх максимального задоволення громадськими організаціями. Правління у скла- ді надійних незалежних експертів було ключем до успіху хорватського фонду, а також іншої успішної моделі в регіоні – естонської. Фонд займатиметься адмініструванням коштів в розмірі до 9–10 млн євро на рік, щороку спрямовуючи їх на підтримку близько 300 громадських організацій (включаючи багаторічні асигнування). Він може бути децентралізованим, на кшталт хорватського, через що може узгоджувати адміністрування грантів для цього регіону з існуючими громадськими органі- заціями з регіонального розвитку. Центральний підрозділ надаватиме великі гранти націо- нального рівня (в розмірі, наприклад, 30 000–50 000 євро), а регіональні – міні-гранти (в розмірі, наприклад, 5 000–25 000 євро). Таким чином, накладні витрати можуть коливатися в межах 8–12% (залежно від схеми адміністрування грантів). Фонд також один раз на три роки може проводити конкурси серед регіональних центрів. Фонд повинен надавати громадським організаціям інституційну підтримку. Існує багато способів тлумачення цих витрат, отже, дуже важливо забезпечити чітке визначення цих ви- трат (що також називаються основними, поточними, адміністративними чи накладними ви- тратами). Інституційна підтримка також може надаватися шляхом співфінансування, бажа- но, протягом трьох років, упродовж яких громадські організації повинні щороку збільшува- ти свою дольову участь у такому співфінансуванні. Також можуть існувати мінімальні вимо- ги щодо отримання такої підтримки, тобто коли на неї зможуть розраховувати лише ті орга- нізації, які мають бюджети відповідного рівня. Це забезпечить те, що Фонд буде розвива- ти існуючий потенціал, а не стимулюватиме до «створення» громадських організацій лише з метою отримання фінансування. Для надання інституційної підтримки держава також може прийняти рішення створи- ти амортизаційний фонд, що за 10–12 років дозволить розширити кадрові можливості де- кількох тисяч громадських організацій. Він буде частиною Фонду розвитку громадянсько- го суспільства, на яку припадатиме, скажімо, 30% загального бюджету останнього. Надалі один раз на три роки ця частина бюджету буде скорочуватися на 20%, доки врешті-решт не досягне мінімуму – близько 12% бюджету Фонду розвитку громадянського суспільства, що використовуватимуться для надання інституційної підтримки новоствореним організаціям. Фонд повинен буде з самого початку повідомити про цю стратегію, аби громадські органі- зації мали можливість вчасно скористатися її перевагами.
Соціальне контрактування Дане дослідження пропонує розглянути можливість запровадження в Україні нор- мативно-правової системи, подібної до угорської. Нижче пояснюється, чому ми пропонує- мо нормативно-правову систему замість системи контрактування: – вочевидь, як держава, так і громадські організації не готові розпочати між собою на- лежні контрактні відносини на систематичній основі. Наприклад, органи місцевої влади можуть без ентузіазму ставитися до укладання контрактів або може виявитися замало громадських організацій, спроможних взяти участь у конкурсах на розміщен- ня контрактів; – наразі провадиться реформа системи фінансування соціальних послуг, яка повинна запровадити схему розрахунків за кожну окрему послугу, що може виявитися осно- вою для надання нормативної підтримки на душу населення; – при застосуванні нормативно-правової системи громадські організації стануть не кон- курентами, а партнерами державних постачальників послуг, а фінансування здійсню- ватиметься лише при доведенні необхідності послуги (на основі кількості клієнтів). Міжнародні практики фінансування ОГС... 231
Ми не пропонуємо запроваджувати німецький принцип субсидіарності, відповідно до якого перевага віддається громадським постачальникам послуг. Проте важливо, аби (a) пе- ревага не віддавалася власним агентствам органів місцевої влади перед громадськими ор- ганізаціями подібно до того, як це відбувається в Угорщині, (b) органи місцевої влади мали стимули до взаємодії з громадськими організаціями. Це вимагає інноваційних правових га- рантій і рішень, а прикладом того, з чого слід починати, може служити Польща. Нормативно-правова система може бути запроваджена передусім у сфері соціальних послуг, а згодом, можливо, й у сфері охорони здоров’я та освіти. У випадку певних видів со- ціальних послуг (інституційні послуги та надання інтенсивної допомоги) може відбуватися ліцензування організацій – постачальників послуг. При цьому держава повинна встановити мінімальні вимоги до якості послуг, які вона має намір фінансувати, проте ми рекомендує- мо дозволити кожній організації самостійно вирішувати, яку систему управління якістю ви- користовувати.
Альтернативне фінансування На цьому етапі ми не радимо запроваджувати в Україні механізм відсоткової філантро- пії. На нашу думку, створивши належні податкові стимули до пожертвувань, можна досягти потужнішого і тривалішого впливу з точки зору розвитку благодійництва та створення ста- більних джерел доходу громадських організацій.
Приватні пожертвування за використання інституціоналізованого механізму Ми пропонуємо розглянути можливість запровадження системи стимулів для створення приватних фондів, що мають ендавменти, подібної до німецької моделі. В Україні приватні фонди вже існують, але вони розглядаються як політичні організації. Чітко визначений ста- тус суспільно корисної організацій допоможе уникнути втручання політичних чи приватних інтересів при здійсненні благодійних внесків до ендавментів приватних фондів і збільшити ступінь довіри до таких фондів. Немає жодних сумнівів у тому, що в Україні існують приват- ні кошти, а перед урядом постає проблема, як змусити їх працювати на добробут суспіль- ства. Німецька система пільгового оподаткування благодійних внесків до ендавменту (або на створення ендавменту), на нашу думку, добре працюватиме і в Україні за умови, що роз- мір пільги створюватиме мотивацію, а сама пільга діятиме протягом тривалого часу. Також можна розглянути можливість скорочення періоду, на який може бути розподілене пожерт- вування, наприклад до п’яти років при пожертвуванні незначних сум коштів (і до 10 років при пожертвуванні значних коштів). Збільшення підтримки українських громадських організацій з боку вітчизняних приват- них фондів, тобто підтримки у сфері соціальних інновацій, пілотних проектів, захисту прав тощо, особливо на національному та регіональному рівнях, буде, ймовірно, найкращою стратегією усунення прогалини, яка може утворитися, коли іноземні донори підуть з країни.
Пожертвування юридичних осіб Компаніям, у разі здійснення інвестицій типу «ґрінфілд», реалізації проектів з відновлен- ня земель, участі в приватизації та здійснення подібної діяльності, можна запропонувати спрямовувати 5% інвестицій на досягнення суспільно корисних цілей, надаючи підтримку організаціям, які можуть на неї розраховувати відповідно до законодавства про суспільно корисну діяльність. Це створить для громадських організацій реальний стимул до отриман- 232 Міжнародні практики фінансування ОГС...
ня статусу суспільно корисних із взяттям на себе зобов’язання щодо підвищення рівня звіт- ності та прозорості. Обсяги підтримки на регіональному та загальнодержавному рівнях мо- жуть відрізнятися. Важливо зазначити, що більшість механізмів, запропонованих у цих рекомендаціях, зосереджені на наданні підтримки на центральному, регіональному та місцевому рівнях тим громадським організаціям, які мають більші можливості. Водночас досвід інших країн свідчить про те, що найбільшу підтримку – не лише фінансову, а й у натуральній формі та формі волонтерської праці – громадським організаціям на місцях надають саме малі під- приємства. Тому малим підприємствам, які зазнають негативного впливу нового податко- вого законодавства, необхідно буде надати особливі стимули. Наприклад, можна визна- чити певну суму, що не буде зависокою та вже являтиме собою потужний стимул – подат- ковий кредит (можливо, в розмірі до 10% оподатковуваного прибутку), який неодноразо- во використовуватиметься, якщо воно надаватиме громадській організації довгостроко- ву підтримку. Також важливо віднести до категорії підтримки пожертвування в натураль- ній формі. Насамкінець, в Україні, де компанії доволі часто не декларують свій прибуток станом на кінець року, також може бути розглянута німецька модель звільнення від податку певного відсотка з обігу замість оподатковуваного прибутку.
Пожертвування фізичних осіб За результатами дослідження індексу громадянського суспільства кошти на благодійні цілі щороку жертвують уже до 65% населення156. Культура надання громадським організа- ціям регулярної підтримки (наприклад, щомісяця) є ще не до кінця розвиненою, однак цей процес може прискорити продумана податкова політика. Коли буде чітко визначена систе- ма суспільно корисних організацій, можуть бути переглянуті стимули до пожертвувань фі- зичних осіб. Можливо, буде доцільним дещо збільшити існуючий розмір пільги (5%), адже середньоєвропейський рівень наближається до 10–12%. Проте, вочевидь, аби допомогти громадським організаціям у здійсненні їхньої діяльності із залучення коштів, буде достат- ньо запровадити чіткі критерії та прості процедури отримання пільг.
Заробляння доходу Наразі, на нашу думку, не визначено, чи можуть громадські організації займатися еко- номічною діяльністю та звільнятися при цьому від податків157. Ми пропонуємо звільнити від податку на прибуток весь прибуток від економічної діяльності суспільно корисних організа- цій, пов’язаної з їхніми статутними цілями, та до 20% їх загального прибутку, отриманого від економічної діяльності, не пов’язаної зі статутними цілями (можливо, також обмеживши розмір такого прибутку). Насамкінець, ми хотіли б іще раз підкреслити, що ці пропозиції ґрунтуються виключно на результатах порівняльного аналізу, проведеного в ході дослідження. Необхідно провести додаткове дослідження з метою порівняння даних та інформації, що забезпечить посадов- ців, відповідальних за прийняття рішень, додатковою інформацією та дозволить їм прийма- ти обґрунтовані рішення на основі усвідомлення їх фінансових наслідків (наприклад, вплив на суми коштів, що підлягають пільговому оподаткуванню, потенційний вплив на діяльність Фонду розвитку громадянського суспільства тощо).
156 Звіт за результатами дослідження, проведеного Civicus в рамках проекту «Індекс громадянського су- спільства» в Україні, 2006 р., стор. 50 http://www.civicus.org/media/CSI_Ukraine_Country_Report.pdf 157 Там само. Міжнародні практики фінансування ОГС... 233
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35. Міністерство фінансів Великобританії: Поліпшення фінансових відносин з третім сектором: по- сібник для надавачів і одержувачів фінансування (HM Treasury, Improving financial relationships with the third sector: guidance to funders and purchasers), травень 2006 р. 36. Міністерство фінансів Великобританії: Аналіз ролі громадського сектора в постачанні по- слуг (HM Treasury, The crosscutting review of the Role of the Voluntary and Community Sector in Service Delivery), 2002 р. 37. Угорщина: Закон №2003/L «Про Національний фонд розвитку громадянського суспільства». 38. Угорщина: Постанова Уряду №160/2003. (X. 7.) щодо виконання Закону №2003/L «Про Національ- ний фонд розвитку громадянського суспільства». 39. Міністерство фінансів Великобританії: Поліпшення фінансових відносин з третім сектором: по- сібник для надавачів і одержувачів фінансування (Improving Financial Relationships with the Third Sector: Guidance to Funders and Purchasers, HM Treasury), травень 2006 р. 40. ICN: Statistik apočtunestátníchneziskových organizací v letech 1990 – 2005. [Статистика кількості неу- рядових неприбуткових організацій в Чеській Республіці у 1990-2005 рр.] Прага, 2005 р. 41. МЦНП: Попереднє дослідження законодавчої бази державного фінансування діяльності НУО в Бол- гарії, Хорватії, Угорщині, Румунії та Словаччині (ICNL, Preliminary Study of the Legal Frameworks for Public Financing of NGO Activities in Bulgaria, Croatia, Hungary, Romania, and Slovakia), «Міжнародний журнал неко- мерційного права», Том 3, Вип. 4, квітень 2001 р. 42. МЦНП: Рекомендації щодо реформування законодавства в сфері укладання контрактів на надан- ня державних соціальних послуг та його аналіз (ICNL, Recommendations and Analysis on Legal Reforms on State Social Contracting), лютий 2010 р. 43. Інглхарт Рональд Ф. і Крістіан Вельцель, 2005 р.: Модернізація, культурна зміна і демократія: послідовність людського розвитку (Inglehart, Ronald F. and Christian Welzel. 2005. Modernization, cultural change, and democracy: the human development sequence). 44. Кубар Урмо. Естонська концепція розвитку громадянського суспільства (EKAK): система співп- раці між третім і державним секторами: стислий огляд і деякі уроки (Kubar, Urmo., «Estonian Civil Society Development Concept (EKAK): Framework for Cooperation between Third and Public Sector: Brief Overview and Some Learning Points»), Європейська конференція «Як побудувати громадянський діалог» (European Conference «How to foster civil dialogue in Europe»), Брюссель, 15 травня 2008 р. 45. Куті Ева (ред.) (Kuti, Eva ed.). Vállalatiadományozás Magyarországon Tanulmányok 2005 («Благодійні пожертвування юридичних осіб в Угорщині»). 46. Закон «Про організації та фонди». Офіційний бюлетень №36/1995, 64/2001. 47. Лестер М. Саламон,. Світове громадянське суспільство: виміри неприбуткового сектора (Lester M. Salamon: Global Civil Society: Dimensions of the Nonprofit Sector), Том 2-й, Bloomfield, CT: Kumarian Press, 2004 р. 48. Лестер М. Саламон, С. Войцех Соколовскі, Регіна Ліст. Аналіз світового громадянського сус- пільства (Lester M. Salamon, S. Wojciech Sokolowski, Regina List, Global Civil Society – An Overview); здій- снений в рамках проекту Університету ім. Джона Хопкінса «Порівняльний аналіз неприбуткових секто- рів», 2003 р. 49. Морріс Д. Благодійні організації та культура контрактування: партнери чи підрядники? Конфлікт між законодавством і практикою (Morris D., Charities and the Contract Culture: Partners or Contractors? Law and Practice in Conflict), опубліковано кафедрою законодавства в сфері благодійності Університету Лівер- пуля, 2001 р. 50. Національна рада у справах громадських організацій: Держава та громадський сектор: останні тенденції у сферах державного фінансування та постачання державних послуг (NCVO, The State and the Voluntary Sector; Recent Trends in Government Funding and Public Service Delivery), 2009 р. 51. ОЕСР: ваучерні програми та їхня роль у розподілі послуг (OECD: Voucher Programmes and their Role in Distributing Services). Служба державного управління ОЕСР (PUMA). Париж: Організація співробіт- ництва та розвитку, 1998 р. 52. Меморандум про Програму інтенсивного лікування в спільноті. Огляд соціального контрактування в Україні (PACT memo, Overview of Social Contracting in Ukraine), липень 2010 р. 53. Паяс Петр Ян. Громадянське суспільство в Чеській Республіці (Pajas, Petr Jan: Civil Society in the Czech Republic). У Лі Ювень (ред.), НУО в Китаї та Європі (Li, Yuwen (ed.): NGOs in China and Europe), Еш- гейт, 2011 р. 54. Проважнікова Романа. Альтернативне надання державних послуг – ваучери (Provazníková, Romana: An alternative provision of public services – the use of vouchers). Економічний факультет Пардубіцького уні- верситету, 2007 р. http://dspace.upce.cz/bitstream/10195/35612/1/ProvaznikovaR_AnAlternativeProvision_ SP_FES_2007.pdf 236 Міжнародні практики фінансування ОГС...
55. Рікеттс Енді. Реформа системи допомоги пожертвуванням і виділення податкових пільг у бюдже- ті (Ricketts, Andy: Gift Aid reform and tax relief figure prominently in Budget). У: «Третій сектор онлайн» (Third Sector Online), 23 березня 2011 р. http://www.thirdsector.co.uk/news/Article/1061503/Gift-Aid-reform-tax- relief-figure-prominently-Budget/ 56. Робінсон М., Вайт Г. Роль громадських організацій в наданні соціальних послуг: на шля- ху до співпраці (Robinson, M., White, G.,The Role of Civic Organizations in the Provision of Social Services: Towards Synergy), 1997 р. http://www.wider.unu.edu/publications/working-papers/previous/en_GB/rfa-37/_ files/82530852568570736/default/RFA37.pdf 57. Сатор Балаж. Вік живи, вік учись: НУО, розширення можливостей та освіта в неприбутковій сфе- рі у Східній Європі (Sator, Balazs: Learning for a Lifetime: NGOs, Capacity Building and Non-Profit Education in Eastern Europe). Див.: Лі Ювень (ред.). НУО в Китаї та Європі (Li, Yuwen (ed.): NGOs in China and Europe), Ешгейт, 2011 р. 58. Шей Е. Державні послуги, контрактування та недержавні мережі: справедливість і безпека як то- вари і послуги державного та приватного походження (Scheye, E., State-Provided Service, Contracting Out, and Non-State Networks: Justice and Security as Public and Private Goods and Services), ОЕСР / Міжнарод- на мережа з проблем конфліктів і нестабільності та «Партнерство заради демократії», 2009 р. http://www. oecd.org/dataoecd/43/8/43599221.pdf 59. Зайденштат П. Укладання контрактів на надання державних послуг (Seidenstat P., Contracting Out Government Services), Praeger Publishers, 1999 р. 60. Тофтісова Р. Співпраця у сфері постачання соціальних послуг і механізми державного фінан- сування НУО (орієнтовні моделі) (Toftisova R., Cooperation in the Area of Social Services Delivery and Mechanisms of State Financing of NGOs (Sample Models)), Міжнародний журнал некомерційного права, Том 3. 61. Томкінс Річард. Зрушення в корпоративній філантропії (Tomkins, Richard: Shifts in corporate philanthropy). Див.: Файненшл Таймс від 17 січня 2009 р. http://www.ft.com/cms/s/2/3a0856c6-e1d5-11dd- afa0-0000779fd2ac.html#ixzz1ITRCUAKO 62. USAID: Показник життєздатності НУО в Центральній та Східній Європі і Євразії (USAID, The NGO Sustainability Index for Central and Eastern Europe and Eurasia), 2008 і 2009 рр. 63. Вайдова Тереза. Оцінка чеського громадянського суспільства в 2004 році: після п’ятнадцяти ро- ків розвитку (Vajdova, Teresa: Anassessment of Czech civil society in 2004: after fifteen years of development). За даними Звіту за результатами дослідження, проведеного Civicus в Чеській Республіці в рамках проек- ту «Індекс громадянського суспільства» http://www.civicus.org/media/CSI_CzechRep_Country_Report.pdf 64. Відачак Ігор. Розробка норм і механізмів державного фінансування НУО в Хорватії (Vidacak, Igor., Developing Standards and Mechanisms for Public Financing of NGOs in Croatia), Міжнародний журнал неко- мерційного права (IJNL), жовтень 2010 р. 65. Світовий банк: Як зробити так, аби перехідний процес працював на кожного: бідність і нерівність у Європі та Середній Азії (World Bank, Making Transition Work for Everyone: Poverty and Inequality in Europe and Central Asia), Вашингтон, округ Колумбія, 2000 р. 66. Світовий банк. Україна: поліпшення міжурядових фінансових відносин, а також політики державних видатків на охорону здоров’я та освіту: вибрані питання (World Bank, Ukraine: Improving Intergovernmental Fiscal Relations and Public Health and Education Expenditure Policy: Selected Issues), 2008 р. http:// siteresources.worldbank.org/INTUKRAINE/Resources/UkrainePFRFinalEng2.pdf МІЖНАРОДНА ПРАКТИКА ЗАХОДІВ, СПРЯМОВАНИХ НА ЗМІЦНЕННЯ ДОВІРИ МІЖ ДЕРЖАВОЮ ТА ОРГАНІЗАЦІЯМИ ГРОМАДЯНСЬКОГО СУСПІЛЬСТВА
АЛЬБЕНА КУЮМДЖИЄВА, експерт ОБСЄ 238 Міжнародні заходи зміцнення довіри...
КОРОТКИЙ ЗМІСТ
Дефіцит демократії, втрата довіри суспільства, брак довіри… За останній десяток років усі ці вислови міцно укорінилися в міжнародній публічній сфері, відтак привертаючи увагу політиків і мас-медіа до проблеми, яка загрожує підривом головних демократичних ціннос- тей, сповідуваних упродовж останніх століть. Повільно, але неухильно тісний зв’язок між керівниками й керованими ослаб до такої міри, що громадяни втрачають віру у здатність політиків належним чином керувати державою, а органи влади не вірять у добрі наміри та підтримку з боку сектору громадянського суспільства. Цю тенденцію яскраво проілюстру- вало всесвітнє опитування, проведене у 2005 році Центром соціологічних досліджень «Гел- лап Інтернешнл»1, яке виявило наступний парадокс: близько 50% респондентів з усіх куточ- ків світу заявили, що вибори в їхніх країнах відбуваються вільно й справедливо, але тільки 30% з них вважали, що їхня країна справді керується волею народу. Реагуючи на це соціальне явище, міжнародні організації, уряди та організації громадян- ського суспільства започаткували по всьому світі цілу низку програм, програмних заходів та ініціатив, спрямованих на подолання браку довіри між владою та громадянами, зміцнення взаємної довіри та розуміння. У цій аналітичній розвідці представлені найважливіші події та явища двох останніх десятиліть з приділенням особливої уваги програмним заходам і пе- редовим практичним методам, які застосовуються Європейським Союзом і п’ятьма окремо взятими державами – членами ЄС (Австрія, Болгарія, Естонія, Нідерланди та Великобри- танія). Паралельно з цим розглядаються стратегічні програмні рекомендації Ради Європи, Організації Об’єднаних Націй та Організації економічного співробітництва і розвитку. Взя- ті в якості критеріїв три основних принципи належного державного управління: прозорість, участь і підзвітність – аналізуються крізь призму побудови взаємної довіри в тих зусиллях, які докладаються органами державної влади та організаціями громадянського суспільства для досягнення соціальної інтеграції, покращення умов життя й усталеного розвитку.
Основні моменти: Загальні тенденції Упродовж останніх десятиліть роль сектора громадянського суспільства поступово зростає. Цей процес відбувається поетапно – від надання інформації через консуль- тації – до діалогу та партнерства. Методи залучення третього сектора тісно пов’язані як з метою цього залучення, так і з політичним, адміністративним і соціальним розви- тком окремо взятої країни та її сектора громадянського суспільства; Європейський Союз застосовує на практиці різноманітні «жорсткі» та «м’які» доку- менти, присвячені зміцненню довіри. Основні засади громадської участі були сфор- мульовані в Договорі про Європейський Союз і Договорі про функціонування Євро- пейського Союзу. Джерелом потужної рушійної сили є Біла книга з питань європей- ського управління і Загальні принципи та мінімальні стандарти проведення консуль- тацій між зацікавленими сторонами. Встановлені цими документами стандарти були взяті на озброєння європейськими інституціями та державами-членами. Додатковий внесок у створення чіткої правової бази залучення громадян до участі в політичному процесі зробила Європейська ініціатива прозорості, а також нормативні положення, що регулюють порядок лобіювання; Паралельно зі структурою ЄС Рада Європи розробила додаткові документи щодо зміцнення довіри, які відкривають можливості для ширшого взаємного визнання та посилення співробітництва між сторонами. «Керівні засади розвитку та зміцнення
1 Інформація вміщена на вебсайті: http://news.bbc.co.uk/2/hi/4247158.stm Міжнародні заходи зміцнення довіри... 239
НПО в Європі», «Рекомендації щодо правового статусу неурядових організацій в Єв- ропі», а також «Кодекс передової практики громадської участі у процесі прийняття рі- шень», прийнятий у жовтні 2009 р. Конференцією міжнародних неурядових організа- цій, позначають собою головні напрями поширення стандартів активної громадської участі за межі ЄС, формуючи спільне загальноєвропейське розуміння того, як нале- жить будувати взаємну довіру між владою та громадянами; Існує спільне розуміння того, що чим більшу роль відіграють ОГС у політичному про- цесі, тим більше обов’язків слід на них покладати. Відтак дедалі зростають очікуван- ня того, що ОГС повинні дотримуватися таких самих правил прозорості й підзвітнос- ті, яких дотримуються державні інституції. Нові норми прозорості й підзвітності для ОГС розроблялися переважно на добровільній основі в самому секторі громадян- ського суспільства (скажімо, «Європейська хартія активної громадянської позиції», «Хартія відповідальності НУО» тощо), а також у посібниках, підготовлених такими ве- ликими міжнародними організаціями, як ООН і ЄС. Головна мета цих стандартів – за- безпечення того, щоб ОГС репрезентували «справжній» голос громадян і діяли ви- ключно задля суспільного блага; Тенденція підвищення підзвітності та прозорості в секторі ОГС головним чином під- тримується самим сектором. Принципи та посібники з питань належного управлін- ня розробляються, зокрема, такими міжнародними організаціями, як «Незалежний сектор» (Independent Sector), «Європейський центр фондів» (European Foundation Centre), «Центрально- та Східноєвропейська робоча група з питань управління ді- яльністю некомерційних організацій» (Central and Eastern European Working Group on Non-profit Governance). Крім того, була впроваджена ціла низка схем самоакредита- ції, акредитації силами сторонніх організацій та оцінки доброчесності. Існує нагальна потреба в розробці чітко сформульованих і зрозумілих критеріїв представництва для тих ОГС, які залучаються до розробки та проведення політич- ного курсу на міжнародному, національному та місцевому рівнях. Цю ідею, запро- поновану Європейською комісією, підтримав сектор громадянського суспільства на загальноєвропейському рівні всупереч позиції таких організацій, як Європейський соціально-економічний комітет і Платформа європейських соціальних НУО; До найпопулярніших документів забезпечення безперешкодного співробітництва між державними інституціями та організаціями громадянського суспільства належать різ- ного роду рекомендації та посібники, в яких окреслені права та обов’язки обох сторін політичного процесу. Прикладами таких посібників можуть, зокрема, служити: «Посіб- ник ОЕСР з інформації, консультацій та громадської участі у формуванні та проведен- ні політичного курсу», «Рекомендації щодо участі великих груп і зацікавлених сторін», розроблені Програмою ООН з навколишнього середовища (ЮНЕП) тощо; Розвиток електронних технологій переформував процедури надання державних послуг, привівши до заміни багатьох традиційних урядових механізмів. Синонімом сучасної ін- новаційної держави стало електронне врядування, в якому центральними елементами виступають якість, довіра і швидкість. Відповідно змінилися й засоби надання інформа- ції, проведення громадських консультацій та моніторингу, відкриваючи ширший простір для застосування засобів Інтернету як кращих і швидших каналів спілкування між вла- дою та громадянами. Тому органи влади в усьому світі активно впроваджують засоби електронного врядування в усі сфери взаємодії зі своїми громадянами.
Прозорість Право доступу до інформації та державних документів усвідомлюється як ключовий елемент належного управління, який зміцнює легітимність органів державної влади в очах суспільства і його довіру до них. Право доступу до інформації закріплене в різ- 240 Міжнародні заходи зміцнення довіри...
них міжнародно-правових документах (це, зокрема, Конвенція Ради Європи про до- ступ до офіційних документів, Хартія основних прав Європейського Союзу, Конвен- ція Європейської економічної комісії ООН (UNECE) про доступ до інформації, гро- мадську участь у прийнятті рішень і доступ до правосуддя в питаннях, які стосуються навколишнього середовища тощо) і правових системах держав – членів ЄС. На наці- ональному рівні право доступу до інформації вважається одним з основних прав, яке в широкому розумінні гарантується конституційними положеннями; На міжнародному рівні імплементація стандартів прозорості регулюється внутрішні- ми нормативними документами (Регламент №1049/2001 «Про публічний доступ до документів Європейського парламенту, Ради та Комісії»), посібниками, які в такий же простий спосіб роз’яснюють, як отримати доступ до тієї чи іншої інформації (при- міром, посібник Європейської комісії), або ж регулюється різноманітними Кодекса- ми поведінки («Кодекс належної адміністративної поведінки службовців Генерально- го секретаріату Ради Європейського Союзу в їхніх професійних стосунках з громад- ськістю», прийнятий Європейською комісією «Кодекс належної адміністративної по- ведінки у стосунках з громадськістю» тощо); Право доступу до інформації в окремо взятих країнах ЄС гарантується їхніми консти- туціями та спеціалізованими законами. В усіх країнах органи влади зобов’язані за- ймати проактивну позицію в процесі надання інформації, і в такий спосіб гаранту- ється, що діяльність державних органів перебуватиме під прискіпливим контролем. Стандарти та вимоги щодо обов’язкового надання інформації ретельно розроблені й сформульовані у відповідних нормативних актах. Вдалими прикладами незмінної відданості органів влади справі постійного й проактивного інформування громад- ськості можна назвати британські схеми публікації та словенську модель інформа- ційного каталогу; Урядові веб-портали перетворилися на провідні канали інформаційного обміну між органами влади та громадянами. Гарні приклади таких порталів: австрійський портал «Help», естонський «X-Road», фінський Suomi.fi та британський Direct.gov portal.uk; Яскравим прикладом успішного стимулювання розвитку електронного врядуван- ня в інтересах пересічного громадянина є голландська Програма «e-Citizen» і Хартія «e-Citizen». У тексті цієї Хартії підсумована точка зору голландських громадян на уряд у цілому й викладені основні принципи, яких повинні дотримуватися органи держав- ної влади у своїх стосунках з громадянами.
Участь і підзвітність Механізми забезпечення підзвітності органів державної влади часто застосовують- ся в поєднанні із заходами, спрямованими на підвищення прозорості та громадської участі; Громадські консультації вважаються безпрограшною для обох сторін формою вза- ємодії, яка уможливлює розробку ефективних і продуктивних програмних заходів. Участь громадян забезпечується по всій довжині політичного ланцюжка – від почат- кового задуму до втілення в життя. Зелені книги, що публікуються Європейською ко- місією, являють собою важливі консультаційні документи, що сприяють проведенню широких громадських обговорень на європейському рівні. Його підтримують числен- ні консультаційні ініціативи, зокрема «Громадянська агора» (Citizen Agora), «Ініціати- ва з інтерактивної розробки політики» (Interactive Policy Making Initiative), веб-портал «Ваш голос у Європі» (Your voice in Europe), європейські проекти громадських кон- сультацій тощо; В якості консультативних органів широко застосовуються експертні групи, які нада- ють корисні поради під час підготовки законодавчих пропозицій та програмних ініці- Міжнародні заходи зміцнення довіри... 241
атив. Державні реєстри забезпечують прозорість їхньої роботи, так само як добро- чесність їхніх членів; Загальні правила проведення громадських консультацій на національному рівні сформульовані в національних правових системах (Болгарія) або викладені у «м’яких документах» – скажімо, в «Суспільних договорах» чи хартіях (Великобританія, Нідер- ланди). Незважаючи на той факт, що останні не мають обов’язкової юридичної сили, їхні положення користуються широкою підтримкою з огляду на впровадження прин- ципу «виконуй або поясни». Додаткова підтримка консультаційного процесу забез- печується шляхом розробки спеціалізованих посібників, покликаних гарантувати на- лежне дотримання консультаційних процедур (Австрія, Великобританія, Болгарія). Участь громадськості забезпечується на всіх політичних рівнях – місцевому, регіо- нальному, національному та міжнародному; Ще одна форма сприяння широкій громадській участі у політичному процесі – це створення консультаційних порталів. Подібна практика зустрічається як на загаль- ноєвропейському рівні (приміром, «Європейська ініціатива з інтерактивної розробки політики», веб-портал «Ваш голос у Європі» тощо), так і в окремих державах-членах (болгарський портал strategy.bg, естонський osale.ee, австрійський partizipation.at, голландський Citizenlink); З метою сприяння співробітництву між владою та громадянами спільними зусилля- ми органів державної влади і сектора громадянського суспільства була розробле- на ціла низка стратегічних документів (Концепція розвитку естонського громадян- ського суспільства», Суспільний договір в Англії та Уельсі тощо). Головним завдан- ням цих документів є чітке окреслення основних ролей, принципів і механізмів спів- робітництва між органами державної влади та ОГС. На підтримку імплементації стра- тегічних документів публікуються Кодекси передової практики залучення громадян- ського суспільства (Естонія, Великобританія). Зі свого боку Відомство федерально- го канцлера Австрії ухвалило «Стандарти громадської участі», а британський уряд запропонував «Національну структуру розширення громадської участі»; Громадянські саміти, громадські журі, електронні петиції, громадські форуми та ін- струменти оцінки державної політики належать до основних механізмів, за допомо- гою яких влада прислухається до голосу народу; Успішні приклади моніторингових органів громадянського суспільства на міжнарод- ному рівні: Комітети громадянського суспільства ПРООН, Економічна і соціальна рада ООН, Європейський економічний і соціальний комітет. У державах – членах ЄС широко розповсюджена практика створення органів, які складаються з представни- ків організацій громадянського суспільства, контролюють імплементацію державної політики і беруть участь у її формуванні. Приклади таких органів можна знайти в Ір- ландії, Болгарії та Словенії; На місцевому рівні широко розвивається співробітництво громадян з органами міс- цевої влади, завдяки якому громадяни можуть сказати своє слово про розвиток се- редовища, в якому вони живуть. Місцеві «Стратегічні партнерства» (Великобританія) і партиципаторний бюджетний процес (Іспанія, Бельгія, Італія, Німеччина, Франція, Португалія, Данія, Нідерланди, Великобританія) є одними з кращих практичних ме- тодів зміцнення довіри між органами державної влади та громадянами. 242 Міжнародні заходи зміцнення довіри...
I. ВСТУП І МЕТОДОЛОГІЯ
Ця аналітична розвідка підготовлена в рамках Проекту ОБСЄ «Громадянське суспіль- ство – Дослідження передового міжнародного досвіду». Даний проект покликаний зроби- ти певний внесок у подальший розвиток громадянського суспільства в Україні шляхом ви- вчення й передачі успішного міжнародного практичного досвіду у сфері фінансування ор- ганізацій громадянського суспільства та заходів, спрямованих на зміцнення довіри між ор- ганами державної влади та організаціями громадянського суспільства (ОГС). Конкретною метою цієї розвідки є всебічний огляд деяких успішних форм міжнародної практики в рамках співробітництва меж органами державної влади та ОГС, а також стислий виклад існуючих на сьогодні заходів і механізмів зміцнення довіри, які сприяють розвитку діалогу й можуть бути застосовані в українському контексті. Упродовж останніх десятиліть перед «старими» і «новими» демократіями постає спіль- на для всіх проблема – дедалі ширший розрив між очікуваннями суспільства та реальни- ми результатами функціонування державних механізмів. Неухильне падіння суспільної до- віри й загальне невдоволення тим, як відбувається управління державними справами, ціл- ком прогнозовано призводить до спаду показників на «мікроекономічному» та «макрополі- тичному» рівнях. Ця розвідка зосереджує увагу передусім на макрополітичному рівні, де заходи щодо по- будови взаємної довіри можуть зміцнити демократичне управління, підвищити ефектив- ність державних інституцій і якість економічної політики. З огляду на те, що зусилля, спря- мовані на зміцнення довіри, можуть охоплювати широкий спектр заходів, а також з огляду на їхню глибину і доволі складну структуру, головна увага буде приділена одному з їх про- відних аспектів, і заходи щодо зміцнення взаємної довіри розглядатимуться крізь призму принципів належного управління. В якості основних порівняльних критеріїв при розгляді емпіричних прикладів із п’яти ві- дібраних для цілей цієї розвідки європейських країн слугуватимуть принципи підзвітності, прозорості та участі. Додаткової цінності цьому дослідженню надає детальна сфокусова- на інформація, спеціально підібрана з урахуванням потреб представників державних і не- державних органів, практиків та експертів, які займаються проблематикою діяльності ОГС в Україні, а отже, адаптована до умов місцевого середовища. Дане дослідження керується розумінням того, що участь громадянського суспільства у прийнятті рішень являє собою ключовий фактор демократичного розвитку та економічної стабільності кожної держави.
Труднощі перекладу – дедалі ширший розрив між громадянами та їхніми владними інститутами У всесвітньому масштабі 65% населення не вважають, що їхні країни керуються волею своїх народів, а в країнах колишнього радянського блоку такої думки дотримуються троє з кожних чотирьох громадян. Ці вражаючі цифри були отримані в ході одного з найбіль- ших всесвітніх опитувань громадської думки, проведеного у 2005 році соціологічним цен- тром «Геллап Інтернешнл»2. Втім, ці цифри не здивували ні політиків, ні політологів, оскільки проблема «втраченої довіри» вже принаймні два десятиліття залишається предметом га- рячих дискусій. Проте отримані результати перемістили це питання на чільне місце в між- народному порядку денному. Основною причиною цього був той факт, що суспільна довіра є одним з головних детермінантів економічного розвитку та соціальної згуртованості і час-
2 Опитуванням «Голос народу – 2005» було охоплено понад 50 000 осіб у 68 країнах, які репрезентували дум- ки 1,3 млрд людей з усього світу – про тих, хто зараз при владі, хто прагне її здобути, про те, як ця влада вико- ристовується (більш детально див. вебсайт http://news.bbc.co.uk/2/hi/4247158.stm). Міжнародні заходи зміцнення довіри... 243
то вважається індикатором соціального капіталу. Крім того, довіра є показником ставлен- ня людей до держави та її спроможності здійснювати соціальне забезпечення, пропагува- ти спільні економічні та людські цінності. Вона також демонструє, як громадяни сприйма- ють свою державу – як свій «захисний щит» і партнера, чи як опонента, над яким вони пови- нні взяти гору. Чим більше людей розглядають державу як свого партнера, тим краще вони узгоджуватимуть свої особисті цілі та завдання з цілями та завданнями всієї громади і, як наслідок, робитимуть свій внесок у розквіт держави. Якщо у «старих» демократіях падіння довіри і викликає серйозне занепокоєння, але все ж не так тяжко позначається на економічних показниках, то в країнах із перехідною економікою питання, пов’язані з соціальною та політичною довірою, благополуччям дер- жави та її громадян відіграють набагато важливішу роль, оскільки політичне середовище, заплямоване корупцією, уражене роздрібненістю владних структур і браком консенсусу є додатковою перепоною на шляху проведення розумної економічної політики. «Таким чи- ном, проблеми взаємної довіри прямо чи посередньо накладають відбиток на всі кроки, що вживаються лідерами країн, які переживають кризу або післякризовий період» (Blind 2007). Блайнд також стверджує, що широке розмаїття асоціативних зв’язків між соціаль- ною та політичною довірою в різних країнах, регіонах і в різні періоди часу підводить до наступного висновку: «Певний ступінь соціальної недовіри може генерувати підвищену політичну ак- тивність деяких людей, за деяких обставин і лише по відношенню до деяких форм по- літичної діяльності…. Водночас «сильне невдоволення демократією та вкрай низькі рівні довіри майже незмінно йдуть рука об руку» (Norris 1999, 228-33). Це підводить до думки, що хоча схильність громадян підозрювати своїх політичних представни- ків у діях, які суперечать волі їхніх виборців, є цілком здоровим явищем, надто трива- лі періоди соціальної та політичної недовіри з боку переважної більшості населення можуть призвести до руйнівних наслідків для влади і державного управління». Питання взаємної довіри ще більш ускладнюються, коли мова заходить про суспільства країн із перехідною економікою. Оскільки побудова довіри – це вулиця з двостороннім ру- хом, недовіра органів державної влади до організацій громадянського суспільства і «реаль- них» інтересів, які вони можуть представляти, теж стає питанням, яке необхідно вирішува- ти. З цієї позиції імплементація принципів підзвітності, прозорості та відкритості не пови- нна вважатися виключним обов’язком державних інституцій, а навпаки – має бути в рівній мірі вбудована в роботу організацій громадянського суспільства. Отже, забезпечення про- цесу формування політичного курсу з обох боків «паркану» належним чином гарантуватиме ефективність демократичного управління від імені народу.
Принципи належного управління як механізми зміцнення довіри Довіра справляє значний позитивний вплив на побудову процвітаючої й компетент- ної держави, в якій громадяни відчувають свою здатність впливати на політичний процес і розвиток держави як такої. Тому закономірним результатом устремлінь до кращого життя і майбутнього стала розробка принципів належного управління. Європейська комісія (далі – Комісія) назвала ці принципи3 головними рушійними сила- ми європейського демократичного процесу. У більш широкій міжнародній перспективі Про- грама розвитку ООН (ПРООН) визначила поняття «належне управління» як «зокрема, пар- тиципаторне, прозоре і підзвітне... Належне управління гарантує, що політичні, соціальні та економічні пріоритети базуватимуться на широкому консенсусі в суспільстві, а голоси най-
3 Принципи належного управління визначені Європейською комісією в Білій книзі з питань європейського управління. (COM (2001) 428 final). Вони здебільшого узгоджуються з єдиними адміністративними принципами, проголошеними ініціативою SIGMA («European Principles for Public Administration» [Європейські принципи дер- жавної адміністрації], Sigma Paper #27) 244 Міжнародні заходи зміцнення довіри...
бідніших і найбільш незахищених верств населення будуть почуті при прийнятті рішень про розподіл ресурсів розвитку»4. Спираючись на базові принципи концепції належного управління, це дослідження опи- сує механізми, які застосовуються європейськими державами з метою ширшого залучен- ня громадян до політичного процесу і подолання існуючого розриву між державними інсти- туціями і громадянським суспільством. У цьому дослідженні детально відслідковується імп- лементація наступних принципів:
Підзвітність: Громадськість має всі законні підстави очікувати від органів державної влади належної підзвітності та відповідальності. Ці очікування передбачають наявність у кожного члена суспільства права піддавати прискіпливій перевірці та контролю діяльність органів державної влади, з одного боку, і обов’язок самих органів влади звітувати перед громадянами – з другого. Існування цих прав покладає на органи державної влади відпо- відальність перед суспільством за виконання своїх функціональних обов’язків і покращує якість управління в державному секторі.
Участь: Впровадження будь-яких змін у державному секторі вимагає залучення та учас- ті всіх зацікавлених осіб і груп. З метою полегшення цього процесу слід запровадити чіт- кі й зрозумілі правила, які дозволять створити сприятливу для користувачів нормативну базу проведення громадських консультацій. Для створення належних передумов, які да- дуть змогу громадянському суспільству брати активну участь у політичному процесі, по- трібні спільні зусилля і новий підхід до соціальної та політичної участі.
Відкритість і прозорість: Обмін інформацією і суспільна обізнаність належать до клю- чових факторів підвищення прозорості. Теза «інформаційний обмін – випробуваний засіб зміцнення взаємної довіри»5 перетворилася на загальновизнаний метод практичної робо- ти у країнах Європейської спільноти. Така практика повинна включати регулярну публіка- цію інформації не лише про діяльність і проекти органів влади, але й про порядок викорис- тання ними державних коштів.
4 Управління усталеним людським розвитком. Політичний документ ПРООН, див. вебсайт: (http://mirror. undp.org/magnet/policy/chapter1.htm) 5 Цитата за текстом «Communication to the Commission from the President, Ms. Wallstrom, Mr. Kallas, Ms. Hubner and Ms. Fischer Boel. Proposing the Launch of a European Transparency Initiative. Memorandum to the Commission» [Повідомлення Комісії від Президента, пані Валльстрем, пана Калласа, пані Хюбнер і пані Фішер- Бьоль. Пропозиція щодо започаткування Європейської ініціативи прозорості. Меморандум для Комісії]. Міжнародні заходи зміцнення довіри... 245
II. МЕТОДОЛОГІЯ
З метою забезпечення широти охвату цього дослідження з одночасною адаптацією його змісту до потреб українського суспільства застосовуватиметься метод порівняльного ана- лізу. В основу цієї розвідки закладений кабінетний аналіз європейських програмних доку- ментів, теоретичні дослідження та довідкова документація, передовий практичний досвід п’яти відібраних європейських країн, а також аналітичні дані, підготовлені державними та недержавними акторами і провідними донорськими організаціями, які працюють у сфері сприяння належному управлінню і зміцненню довіри між державою та її громадянами. Ка- бінетний аналіз поєднується зі співбесідами, експертними висновками, результатами візи- тів в Україну, зустрічей із зацікавленими сторонами та дискусій за «круглим столом». Цей аналіз також базується на порівняльній методиці, спрямованій на підвищення ефективнос- ті шляхом вивчення і зіставлення передових практичних методів. У цьому відношенні для ці- лей даного дослідження застосовуються два основні підходи: Аналіз важливих стратегічних документів, прийнятих провідними міжнародними ор- ганізаціями і присвячених заходам щодо зміцнення взаємної довіри. У центрі уваги цього аналізу – основні стратегії, прийняті Європейським Союзом з метою подолан- ня тенденції спаду громадської довіри і запровадження принципів належного управ- ління. Крім того, в ньому детально розглядаються рекомендації та стратегічні ди- рективи, накреслені Радою Європи, Організацією Об’єднаних Націй та Організацією економічного співробітництва і розвитку (ОЕСР). У цьому дослідженні дається все- бічний огляд найновіших тенденцій, методів та інструментів, які застосовуються на глобальному управлінському рівні з метою відновлення громадської довіри і подо- лання розриву між громадянами та їхніми багаторівневими управлінськими структу- рами. Основна мета цього розділу – демонстрація успішних макрорівневих прикла- дів, які можна наслідувати та адаптувати до українських умов. Аналіз передових практичних методів, які застосовуються у п’яти відібраних краї- нах ЄС. Головний предмет розгляду – методи зміцнення взаємної довіри, що засто- совуються в Нідерландах, Великобританії, Австрії, Естонії та Болгарії з приділенням особливої уваги заходам щодо підвищення прозорості, підзвітності та участі гро- мадян у процесі прийняття рішень. У цьому розділі описані відповідні національні нормативно-правові структури сприяння вищезгаданим механізмам, а також «м’які» позазаконодавчі методи залучення громадськості. Відбір країн здійснювався з урахуванням розмаїття представлених у них форм соціально- економічної, політичної та адміністративної культури. Відібрані країни являють собою суміш високорозвинених «старих» західних демократій і нових держав-членів, які пережили всі труд- нощі політичних, економічних і соціальних перехідних процесів. Спільною для всіх рисою є те, що їхні методи належного управління розроблялися і вдосконалювалися протягом останніх де- сятиліть, прокладаючи шлях кращому залученню громадян до політичного процесу. З огляду на те, що кількісно вимірити ефект від впровадження принципів прозорості, під- звітності та громадської участі в кожній окремо взятій країні доволі складно, в якості спільно- го знаменника був узятий показник сприйняття громадянами рівнів корупції. Він показує, на- скільки успішно відібрані країни впровадили у себе концепцію належного управління і зуміли «перебудувати корабель у відкритому морі»6. Водночас застосовуватиметься індекс Всесвіт- нього банку (ВБ) «Право голосу і підзвітність»7 – цінний показник того, як громадська участь пов’язана із загальним рейтингом країни і перспективами належного управління. 6 Див. Elster J.,1998. Institutional Design in Post –Communist Societies: Rebuilding the Ship at Sea [Інституційна структура в посткомуністичних суспільствах: Перебудова корабля у відкритому морі] Cambridge University Press. 7 Індекс ВБ «Право голосу і підзвітність» показує сприйняття того, в якій мірі громадяни країни можуть бра- ти участь у виборі своєї влади, а також свободи слова, свободи об’єднань і свободи засобів масової інформації. 246 Міжнародні заходи зміцнення довіри...
«Транспаренсі Інтернешнл» Індекс сприйняття корупції (ІСК) Середній Естонія Болгарія Нідерланди Австрія Великобританія Україна Рейтинг ІСК 2005 для ЄС Рейтинг ІСК 2006 Рейтинг ІСК 2007 Рейтинг ІСК 2008 Рейтинг ІСК 2009
«Право голосу і підзвітність» Індикатори управління Всесвітнього банку Нідерланди Австрія Велико- Естонія Болгарія Україна британія 1998 99 91,3 88,9 77,4 60,1 39,4 2002 96,2 91,3 89,4 80,8 65,4 31,7 2008 99 93,8 92,3 83,2 65,9 47.1
Країни, відібрані в якості прикладів, демонструють широкий спектр показників за цими індексами. Їхнє завдання – послужити ілюстрацією як високорозвинених, так і відносно «стандартних» практичних методів, придатних для близького до українського соціально- політичного контексту. Міжнародні заходи зміцнення довіри... 247
Структура дослідження Дане дослідження складається з чотирьох основних розділів, у яких дається загальний огляд найновіших міжнародних стандартів і тенденцій, наводяться конкретні деталі деяких успішних форм національної практики та пропонуються рекомендації щодо можливостей вжиття деяких заходів в Україні. Згідно з цією ж логікою другий розділ містить огляд існуючих документів і прийнятих провідними міжнародними організаціями політичних програм, спрямованих на посилення участі громадянського суспільства у політичному процесі. Третій розділ знайомить читача з різними європейськими та національними приклада- ми передової практики сприяння активній громадській участі. У відповідності з описаними вище принципами належного управління він складається з трьох основних підрозділів, при- свячених: Нормам, які забезпечують кращу прозорість і відкритість процесу прийняття рішень (зокрема, законам про свободу/доступ до інформації; прикладним формам застосу- вання електронного врядування тощо). Практиці забезпечення громадської участі (зокрема впровадженню процедур гро- мадських консультацій та кращому залученню громадян до процесу прийняття рі- шень). Механізмам підзвітності, зокрема створенню стратегічних партнерств із неурядови- ми організаціями з метою проведення консультацій і створення механізмів моніто- рингу. У кожному підрозділі дається опис найважливіших європейських програмних заходів, спрямованих на створення механізмів зміцнення довіри, і водночас детально роз’яснюється, як ці заходи були вбудовані в нормативно-правову структуру вибраних держав–членів ЄС.
Спираючись на представлені у двох перших розділах практичні методи і програмні захо- ди, четвертий розділ описує практичні варіанти, які можуть знайти застосування в Україні, і розглядає конкретні пропозиції щодо майбутнього розвитку ефективної структури участі громадянського суспільства. 248 Міжнародні заходи зміцнення довіри...
III. ЗАГАЛЬНИЙ ОГЛЯД ПРОВІДНИХ МІЖНАРОДНИХ ДОКУМЕНТІВ І ПРОГРАМНИХ ЗАХОДІВ
3.1. Роль громадянського суспільства у забезпеченні демократичного управління Залежно від рівня і форми демократичного розвитку, а також політичного, економічно- го та соціального середовища різні країни світу застосовують різні методи залучення ОГС до політичного процесу. Прийнятий Радою Європи «Кодекс передової практики громадської участі у процесі прийняття рішень» містить чітко сформульоване роз’яснення різних етапів залучення громадянського суспільства: інформація, консультації, діалог і партнерство. Так звані «сходинки участі» розкривають широту (ступінь залучення або вилучення громадськос- ті) і можуть містити певні вказівки на глибину (поверхневий або інтенсивний характер) проце- су громадської участі8. Вони також служать показниками процесу еволюції суспільства і дер- жави з плином часу і рівня розвитку практики партиципаторного управління. Дослідження міжнародної практики в цій сфері аналізує та порівнює між собою різні «рівні» та механізми забезпечення більшої участі суспільства у політичному процесі. Зміст поняття «громадянське суспільство», яке застосовується в цьому дослідженні, роз’яснює робоче визначення, сформульоване Центром громадянського суспільства Лон- донської школи економіки та політичних наук: «Громадянське суспільство означає арену добровільної колективної діяльності, зосередженої навколо спільних інтересів, цілей і цінностей. Теоретично його інсти- туційні форми відрізняються від інституційних форм держави, сім’ї та ринку, однак на практиці межі між державою, громадянським суспільством, сім’єю і ринком часто за- плутані, стерті й носять договірний характер. Громадянське суспільство, як правило, охоплює широкий спектр сфер діяльності, акторів та інституційних форм з різними рівнями формалізації, автономії та влади. Громадянські суспільства часто населені такими організаціями, як зареєстровані благодійні організації, неурядові організації розвитку, місцеві громадські групи, жіночі організації, релігійні організації, профе- сійні асоціації, профспілки, групи взаємодопомоги, соціальні рухи, бізнес-асоціації, коаліції та адвокаційні групи»9. Це визначення широко застосовується інституціями Європейського Союзу і донорськи- ми організаціями10, оскільки воно добре вписується не лише в найновіші концепції, що ви- никли разом із процесом глобалізації, а й у ті концепції різноманітних, багатовимірних і ба- гаторівневих організацій, котрі зараз перебувають на стадії розробки. Упродовж останніх десятиліть ідея громадянського суспільства поступово розвиваєть- ся, змінюючи погляди громадян і урядовців на його роль і додаткову цінність. Багато років уряди країн усього світу вбачали в організаціях громадянського суспільства перешкоду, яка радше заважала діяльності органів влади, ніж чинила якийсь вплив на її користь. До посту- пової зміни поглядів у бік усвідомлення, що насправді ОГС є незамінними й цінними парт- нерами влади, привела необхідність зупинити спад довіри до державних інституцій і подо-
8 CIVICUS Participatory Governance Programme 2006-2008, Concept Note, June 2006, World Alliance for Citizen Participation [Програма партиципаторного управління CIVICUS 2006-2008, Концептуальна записка, червень 2006, Всесвітній альянс за громадську участь]. 9 http://www.lse.ac.uk/collections/CCS/what_is_civil_society.htm 10 Див. Council of Europe, 2009, Code of Good Practice for Civil Participation in the Decision Making Process; the definitions given by DIFID [Рада Європи: Кодекс належної практики громадської участі у процесі прийнят- тя рішень] (http://www.dfid.gov.uk/About-DFID/Who-we-work-with1/Civil-society/) а також Civil Society Index Programme of CIVICUS [Програма «Індекс громадянського суспільства»]. Міжнародні заходи зміцнення довіри... 249
лати дедалі ширший розрив між громадянами та органами влади. Необхідність започат- кування конструктивного діалогу між громадянами та владними інститутами і забезпечен- ня більш прозорого, відкритого й підзвітного управління, яке б чутко реагувало на потре- би своїх громадян, сформувала сучасне глобальне усвідомлення ролі громадського діало- гу в процесі прийняття рішень. Серцевиною цієї нової концепції стала необхідність розви- тку партиципаторної демократії та відповідального управління, які б підкріплювали та під- тримували одне одного.
3.2. Європейські документи, спрямовані на залучення громадськості (ЄС і Рада Європи) «Цей Договір знаменує новий етап у процесі створення дедалі міцнішого союзу народів Європи, в якому прийняття рішень здійснюється з максимально можливою відкритістю і, по можливості, максимально наближене до громадян». Консолідовані тексти Договору про Європей- ський Союз і Договору про функціонування Європейського Союзу.
Вступ у силу Лісабонського договору11 знаменував собою початок нової епохи в демо- кратичному розвитку Європи. Він зробив більш прозорим, підзвітним, відкритим і партици- паторним європейський процес прийняття рішень, тим самим втілюючи в життя сподіван- ня громадян на більш ефективне і продуктивне державне управління. Цей документ ще раз підтвердив деякі давно визнані демократичні цінності, доповнивши їх новими механізмами більшого залучення громадськості. Втім, процес ідентифікації, пропаганди та включення згаданих вище принципів у євро- пейські та національні правові системи проходив не гладко через розрив між громадянами та їхніми владними інститутами, який постійно посилювався. Усвідомлюючи дедалі більше ослаблення довіри до європейських і національних органів влади і відчуження європейців від політичного процесу, Європейська комісія (далі – Комісія) розгорнула на початку 2000 року реформу європейського управління, зробивши її одним зі своїх стратегічних завдань. Нова реформа була спрямована на усвідомлення того, що демократичні інститути європейського і національного рівня повинні докласти всіх зусиль, аби «відновити зв’язок» зі своїми громадянами і тим самим підвищити ефективність дер- жавного управління. У Білій книзі «Про європейське управління»12 Комісія продовжила роз- вивати цю концепцію, стверджуючи, що поставлене завдання можна виконати лише шля- хом посилення громадської участі в політичному процесі та впровадження відкритих і про- зорих процедур прийняття рішень. На практиці Комісія зобов’язалася: • Надавати в режимі онлайн актуальну інформацію про підготовку програмних заходів на всіх етапах прийняття рішень; • Установити та опублікувати мінімальні стандарти проведення консультацій; • Посилити спілкування з широкою громадськістю щодо питань загальноєвропейсько- го значення, тим самим даючи людям змогу контролювати процес прийняття рішень на всіх його етапах; • В окремих сферах діяльності установлювати партнерські відносини, які виходять за рамки мінімальних стандартів і зобов’язують Комісію проводити додаткові консуль- тації взамін на більші гарантії відкритості та представництва тих організацій, з якими проводяться подібні консультації.
11 Лісабонський договір був підписаний 13 грудня 2007 р. в Лісабоні і вступив у силу 1 грудня 2009 р. 12 Commission of the European Communities (2001), European Governance, A White Paper [Комісія Європей- ських Співтовариств (2001), Біла книга з питань європейського управління]COM (2001) 428 final. 250 Міжнародні заходи зміцнення довіри...
Комісія сформулювала п’ять базових принципів, які лежать в основі демократії та на- лежного управління: • Відкритість. Державні інституції повинні працювати більш відкрито. Спільно з державами-членами вони мають активно спілкуватися з громадськістю, інформую- чи її про те, що робить ЄС і які рішення він приймає. Вони повинні користуватися до- ступною й зрозумілою для широкого загалу мовою. Це має особливе значення для посилення довіри до складних державних інституцій. • Участь. Якість, актуальність і ефективність програмних заходів ЄС залежить від забез- печення широкої громадської участі по всій довжині політичного ланцюжка – від почат- кового задуму до реалізації. Можна сподіватися, що це приведе до збільшення віри у кінцевий результат і ті державні інституції, які проводять даний політичний курс. Гро- мадська участь значною мірою залежить від інклюзивного підходу центральних орга- нів влади при розробці та реалізації програмних заходів ЄС. • Підзвітність. Необхідно більш чітко визначити ролі різних сторін у законодавчому та виконавчому процесах. Кожна інституція ЄС повинна роз’яснювати й брати на себе відповідальність за те, що вона робить у Європі. Проте існує також потреба в більшій ясності та відповідальності з боку держав-членів і всіх причетних до розробки та про- ведення політичного курсу ЄС на будь-якому рівні. • Ефективність. Програмні заходи мають бути ефективними, своєчасними і прино- сити необхідні результати на основі чітко поставлених завдань, оцінки майбутнього ефекту і, по можливості, минулого досвіду. Ефективність однаково залежить від про- порційного способу реалізації політичного курсу ЄС і прийняття рішень на найбільш доцільному рівні. • Послідовність. Програмні заходи і дії мають бути послідовними і добре зрозумілими. Необхідність взаємної узгодженості в рамках Союзу незмінно зростає: спектр завдань стає ширшим; розширення самого Союзу збільшує внутрішнє розмаїття; а такі глобаль- ні проблеми, як кліматичні та демографічні зміни виходять за межі конкретного політич- ного фундаменту, на якому був побудований Союз; регіональні та місцеві органи влади дедалі більше втягуються в реалізацію політики ЄС. Узгодженість вимагає сильного по- літичного керівництва і почуття відповідальності з боку державних інституцій. Це дасть змогу забезпечити послідовний підхід у рамках великої та складної системи»13. Ці принципи знаходять застосування на всіх рівнях управління – глобальному, європей- ському, регіональному і національному, а їх виконання є ключовим механізмом вирішен- ня завдань, поставлених новою реформою управління. Кожний з цих принципів важливий сам по собі. Але тільки їх спільне застосування може гарантувати краще майбутнє, еконо- мічний і політичний розвиток. Застосування цих принципів також вимагає від усіх зацікав- лених сторін спільних зусиль і спільної відповідальності. Незважаючи на те, що головна від- повідальність за відновлення довіри до європейських і національних владних інститутів ле- жить передусім на самих інститутах, Європейська комісія у своїй Білій книзі прямо відзна- чила, що більше залучення громадянського суспільства означає також більшу відповідаль- ність. Наділяючи громадські організації новою роллю, цей документ настійно рекомендує їм дотримуватися тих же принципів належного управління з акцентом на підзвітності та від- критості своєї роботи. Громадські обговорення ухваленої Комісією Білої книги тривали протягом дев’яти мі- сяців, і за цей час було подано 260 пропозицій. У своїх відгуках громадськість в основно- му підтримала п’ять сформульованих принципів належного управління і майже одностайно схвалила відкритість, більше залучення і участь громадськості як засоби посилення підзвіт- ності у процедурах формування політичного курсу14. 13 Там само. 14 Див. European Commission (2003), Report from the Commission on European Governance [Європейська Ко- місія (2003), Доповідь Комісії про європейське управління]. Міжнародні заходи зміцнення довіри... 251
Необхідність організації ефективного співробітництва з громадянським суспільством стала предметом уважного розгляду і при розробці стратегічних завдань Комісії на 2005– 2009 роки. У своєму баченні європейського оновлення Європейська комісія підкреслила, що складні й різноманітні завдання, які стоять перед Європою, можна вирішити лише спіль- ними зусиллями. Цей підхід вимагає: • Спільної роботи всіх акторів: не самих лише інституцій, а та й соціальних партнерів і громадянського суспільства на всіх рівнях. • Залучення громадян шляхом роз’яснення, чого прагне досягнути Європа, та участі у спільних зусиллях. • Спільної відповідальності: кожний європейський громадянин повинен вкладати свою частку в роботу Союзу, і кожний європеєць має нести власну частку відповідальності за реалізацію спільних європейських цілей15. Виходячи з твердого переконання, що європейське суспільство заслуговує на те, щоб мати ефективні, підзвітні та готові служити йому державні інституції, Комісія опу- блікувала у травні 2006 р. свою Зелену книгу «Європейська ініціатива прозорості»16. Під- ґрунтям цієї ініціативи послужили попередні заходи, які вживалися співтовариством у цій сфері (доступ до законодавчих документів, «Кодекс належної адміністративної пове- дінки», різного роду консультаційні процедури та діалоги за участю багатьох зацікавле- них сторін тощо) та основні програмні положення Білої книги з питань належного управ- ління. Головною її метою було надання допомоги у відновленні тісних зв’язків Європи зі своїми громадянами шляхом подолання політичного відчуження і хибного розуміння єв- ропейського політичного процесу. Одним із чотирьох стовпів цієї ініціативи було забез- печення більшої прозорості в діяльності представників інтересів (лобістів). Зелена кни- га дає визначення терміну «лобіювання», яким охоплюються всі види діяльності з метою впливу на процеси формування політичного курсу та прийняття рішень у європейських інституціях17. Рекомендації Європейської комісії відносять до категорії «лобіювання» на- ступні форми діяльності: «установлення контактів з членами або посадовими особами європейських інституцій, підготовка, розповсюдження, розсилання листів, інформацій- них матеріалів або документів з викладом певної аргументації чи позиції, організація за- ходів, зустрічей або пропагандистської діяльності (в офісних приміщеннях чи інших міс- цях) на підтримку цілей представництва інтересів. Сюди також входять заходи, що ста- новлять складову частину формальних обговорень законодавчих пропозицій та інших відкритих консультацій18. Таким чином, цією нормою були охоплені практично всі орга- нізації громадянського суспільства. З метою підвищення їхньої прозорості всі представники інтересів були зобов’язані роз- кривати фінансові дані, що дають чітку уяву про їхні джерела фінансування та інтереси, які можуть стояти за їхніми політичними рекомендаціями. Для реєстрації в реєстрі Комісії в обов’язковому порядку подаються наступні документи: • загальний бюджет з постатейною інформацією про головні джерела фінансування НУО і експертно-аналітичних центрів; 15 Strategic Objectives 2005 – 2009, Europe 2010: A Partnership for European Renewal Prosperity, Solidarity and Security, Communication from the President in agreement with Vice-President Wallström, COM(2005) 12 final [Стра- тегічні завдання 2005 – 2009, Європа 2010: Партнерство заради європейського відновлення, процвітання, солі- дарності та безпеки, Повідомлення Президента за погодженням з Віце-президентом Валльстрем]. 16 European Commission (2005), Green paper, European Transparency Initiative, Brussels, COM (2006) yyy final [Європейська Комісія (2005), Зелена книга «Європейська ініціатива прозорості», Брюссель] 17 Згідно з визначенням Зеленої книги, лобісти – це особи, які провадять лобістську діяльність, працюючи в різноманітних організаціях, до яких належать консалтингові та юридичні фірми, НУО, експертно-аналітичні цен- три, відділи лобіювання корпорацій («штатні представники») або професійні асоціації». 18 European Transparency Initiative-Frequently Asked Questions on the Commission’s register for Interest Representatives [Європейська ініціатива прозорості – питання, що часто ставляться стосовно Реєстру пред- ставників інтересів] (див. вебсайт: http://ec.europa.eu/transparency/docs/reg/FAQ_en.pdf). 252 Міжнародні заходи зміцнення довіри...
• оборотність коштів професійних консалтингових і юридичних фірм, які можуть бути віднесені на рахунок лобіювання європейських інституцій, а також відносна частка їх- ніх найбільших прибічників; • кошторис витрат на пряме лобіювання інституцій ЄС, понесених штатними лобіста- ми та професійними асоціаціями. Необхідність запровадження суворих правил прозорості для будь-яких спроб чинення впливу на формування політичного курсу була зумовлена, з одного боку, нагальною потре- бою в ширшому залученні громадян до процесу прийняття рішень, а з другого – особли- востями самого процесу формування політичного курсу. Хоча чинення впливу на політику є складовим елементом європейської демократичної системи, воно вважається надзвичай- но чутливим процесом, якому притаманний високий корупційний ризик. Європейський парламент і Європейська комісія як провідні директивні органи, що розпоряджаються бюджетом у розмірі близько 134 млрд євро19 і представляють 492 млн громадян 27 держав-членів, – це європейські інституції, що зазнають найбільшого тис- ку і спроб впливу. Про цей факт свідчить присутність близько 15,000 лобістів і 2500 ло- бістських організацій, зареєстрованих в одному тільки Брюсселі20. Втім, ці цифри носять індикативний характер, оскільки кількість незареєстрованих лобістів і груп тиску нікому не відома. Ще раз наголошуючи на тому принципі, що «більше залучення громадськос- ті тягне за собою більшу відповідальність»21, Європейська комісія і Європейський парла- мент запровадили заходи, спрямовані на збільшення відкритості та посилення зовніш- нього контролю над стосунками між інституціями ЄС і представниками інтересів. Після створення Європейською комісією добровільного реєстру лобістів Європейський парла- мент22 настійно рекомендував інституціям ЄС взяти на озброєння єдиний спільний під- хід щодо запровадження суворіших правил лобістської діяльності і забезпечення макси- мальної прозорості процесу формування політичного курсу. Для початку дві інституції до- мовилися23 створити спільний добровільний реєстр представників інтересів24. При цьому було підкреслено, що представники інтересів зобов’язані дотримуватися принципів від- критості, прозорості, чесності та непідкупності, чого від них законно сподіваються грома- дяни та інші зацікавлені сторони. Згідно з Кодексом поведінки це означає, що, як мінімум, представники інтересів будуть завжди: • «називати своє ім’я і назву суб’єкта (суб’єктів) господарювання, на якого вони пра- цюють або інтереси якого представляють; • не повідомляти про себе неправдиву інформацію при реєстрації з метою введення в оману третіх сторін та/або персоналу ЄС; • декларувати свої інтереси, а також, по можливості, прибічників або членів, яких вони представляють; • забезпечувати, щоб надана ними інформація була, наскільки їм відомою, об’єктивною, актуальною і правдивою;
19 Бюджет ЄС на 2009 р. вміщений на вебсайті http://eur-lex.europa.eu/budget/www/index-en.htm 20 European Parliament, Report on the development of the framework for the activities of interest representatives (lobbyists) in the European institutions [Європейський парламент, Доповідь про розробку нормативної бази діяль- ності представників інтересів (лобістів) у європейських інституціях] (2007/2115(INI)). 21 Commission of the European Communities (2001), European Governance, A White Paper, [Комісія Європей- ських Співтовариств (2001) Біла книга з питань європейського управління] COM (2001) 428 final. 22 Report on the development of framework for the activities of interest representatives (lobbyists) in the European Institutions [Доповідь про розробку нормативної бази діяльності представників інтересів (лобістів) у європей- ських інституціях] (2007/2115(INI), European Parliament. 23 Joint statement regarding the progress achieved to date High level Working Group on a common register and Code of Conduct for lobbyists [Спільна заява про досягнутий прогрес, Робоча група високого рівня з розробки єдино- го реєстру та Кодексу поведінки лобістів] (див. вебсайт: http://ec.europa.eu/archives/commission_2004-2009/ kallas/doc/joint_statement_register.pdf). 24 Реєстр вміщений на вебсайті http://europa.eu/lobbyists/interest_representative_registers/index_en.html Міжнародні заходи зміцнення довіри... 253
• не добувати або не чинити спроб добувати інформацію чи домагатися прийняття рі- шення нечесним шляхом; • не схиляти персонал ЄС до порушення застосовних до них правил і стандартів; • у разі найняття на роботу колишніх працівників апарату ЄС поважати їхній обов’язок щодо дотримання застосовних до них правил і вимог конфіденційності» (Кодекс по- ведінки представників інтересів) У своїй резолюції від 8 травня 2009 р. про роз- Стаття 10 робку нормативної бази діяльності представни- 3. Кожний громадянин має право ків інтересів у європейських інституціях Європей- брати участь у демократичному жит- ський парламент зайшов ще далі, зробивши низку ті Союзу. Наскільки можливо, рішення пропозицій щодо посилення правил прозорості. приймаються відкрито і з максималь- Парламент запропонував запровадити так звану ним наближенням до громадян. «правову зону впливу» (залучений до парламент- Стаття 11 ської доповіді індикативний список зареєстрова- 1. Інституції адекватними способа- них представників інтересів, з якими провадили- ми забезпечують можливість грома- ся консультації і які зробили важливий внесок у дянам і представницьким асоціаціям можливість доводити до загального ві- підготовку доповіді або законодавчої пропозиції), дома свої думки і публічно обмінювати- а також обов’язкову реєстрацію всіх лобістів, які ся ними в усіх сферах діяльності Союзу. бажають отримати право входу до всіх інституцій 2. Інституції підтримують відкритий, ЄС. Хоча ці пропозиції досі не прийняті Комісією прозорий і регулярний діалог з пред- і Радою, вони є свідоцтвом помітного просуван- ставницькими асоціаціями та грома- ня вперед і нової тенденції до більшої відкритості дянським суспільством. процесу формування політичного курсу. 3. З метою забезпечення послідов- Нове європейське бачення ролі громадян у ності та прозорості дій Європейська процесі прийняття рішень знайшло яскравий ви- Комісія провадить широкі консультації раз у консолідованих текстах Договору про Єв- з зацікавленими сторонами. ропейський Союз і Договору про функціонування Консолідований текст Договору про Європейського Союзу з поправками, внесеними Європейський Союз після вступу в силу Лісабонського договору. Лі- сабонський договір практично надав суспільному діалогу статус фундаментального прин- ципу, який поширюється на всі сфери діяльності ЄС. У своїх положеннях про демократич- ні засади Договір про Європейський Союз, зокрема, проголосив відкритість і громадську участь базовими цінностями демократичного життя Союзу. Він також зобов’язав інституції зробити все необхідне, щоб громадяни та їхні організації мали реальне право голосу в єв- ропейському політичному процесі. Провідними каналами спілкування між владою та гро- мадянами були названі: надання доступу до інформації та проведення публічних консуль- тацій. Договір також запровадив нову концепцію громадської участі, наділивши громадян правом законодавчої ініціативи. Згідно зі статтею 11.4, громадяни в кількості не менше од- ного мільйона осіб, які належать до громадянства значної кількості держав-членів, можуть запросити Європейську комісію внести відповідну пропозицію з питань, щодо яких, на дум- ку цих громадян, необхідне прийняття правового акту Союзу. Згідно з новими положеннями Договору, Європейський парламент у своїй Резолюції від 13 січня 2009 року «Про перспективи розвитку суспільного діалогу на основі Лісабонсько- го договору, закликав інституції ЄС застосовувати при підготовці міжінституційних угод і обов’язкових правил призначення представників громадянського суспільства методи ор- ганізації та фінансування консультацій, які відповідають загальним принципам і мінімаль- ним стандартам проведення консультацій із зацікавленими сторонами25.
25 Див: Повідомлення Комісії від 11 грудня 2002 р. «До укріплення культури консультацій і діалогу – За- гальні принципи та мінімальні стандарти проведення Комісією консультацій із зацікавленими сторонами» (COM(2002)0704). 254 Міжнародні заходи зміцнення довіри...
На користь удосконалення нормативних положень і створення більш чіткої правової бази промовляла ще одна непроста проблема – існуюча недовіра органів влади до потен- ційних можливостей і репрезентативності організацій громадянського суспільства. У пре- амбулі Європейської хартії активного громадянства цей парадокс представлений наступ- ним чином: «від громадян і їхніх незалежних об’єднань очікують участі (в матеріальній і не- матеріальній формі) у процесі подолання «дефіциту демократії» в Європейському Союзі, проте водночас державні органи часто не сприймають такі об’єднання всерйоз і нерідко ставляться до них з недовірою». Ця проблема безпосередньо пов’язана з нормативно- правовою системою ЄС, в якій відсутнє чітке визначення ролей, прав і обов’язків ОГС, а та- кож відповідних обов’язків державних органів. Розробка Хартії громадянства26 була ініційована сектором громадянського суспільства з метою подолання існуючого розриву. З цією метою Хартія дає визначення «автономних громадянських організацій», роз’яснюючи їхні права та обов’язки поряд з обов’язками ор- ганів державної влади. В серцевину громадянського партиципаторного процесу закладене право проведення консультацій, доступу до інформації та постійного моніторингу. З друго- го боку, надання інформації та забезпечення своєчасного зворотного зв’язку були названі ключовими обов’язками органів державної влади. Крім того, державні установи зобов’язані визначити та застосовувати набір чітких критеріїв ідентифікації громадських організацій, з якими вони планують співробітничати, та встановлювати партнерські стосунки. Ці критерії повинні адаптуватися до конкретних ситуацій і змінюватися залежно від передбачуваного типу стосунків, але вони жодним чином не повинні обмежувати чи звужувати діалог із гро- мадянським суспільством. Зміцнення довіри та подолання існуючого розриву між громадянами та їхніми уря- дами – це вирішальна сфера політики, яка гарантує належне виконання всіх горизонталь- них програмних заходів і забезпечує достатній простір для свободи, безпеки та правосуд- дя в межах Союзу. Проте ці зусилля повинні охопити увесь європейський континент, не об- межуючись лише рамками ЄС. Центральну роль у цьому процесі відіграє Рада Європи (РЄ). Паралельно з нормативно-правовою базою ЄС Рада Європи розробила додатковий ін- струментарій зміцнення довіри між державою та громадянським суспільством. Правова система, в якій функціонує Рада Європи27, створила можливості для ширшого визнання та посилення співробітництва між ними. Водночас вона дала змогу розробити стандарти, за- стосовні для країн поза межами ЄС. З метою забезпечення послідовного підходу до організацій громадянського суспільства Рада Європи прийняла у 2007 році рекомендації щодо правового статусу неурядових орга- нізацій в Європі. Цей документ побудований на засадах, сформульованих у документі «Ке- рівні принципи розвитку та укріплення НГО в Європі», прийнятому Радою Європи у 1996 році, а також в «Основних принципах статусу неурядових організацій в Європі», розробле- них у 2002 році. Метою цих рекомендацій було запровадження мінімальних стандартів, яких належить дотримуватися при формуванні національного законодавства щодо ОГС. У цих документах також наголошується, що «урядові та квазіурядові механізми всіх рівнів пови- нні забезпечувати ефективну участь НУО, не допускаючи дискримінації при проведенні діа- 26 Текст Європейської хартії активного громадянства є результатом реалізації проекту під керівництвом Ме- режі активного громадянства за участю наступних організацій: World of NGOs (Австрія); Consumers Defence Association (Чеська Республіка); Sozialburo Main-Taunus (Німеччина); Ghaqda-tal-Konsumatori (Мальта); Association of Polish Consumers (Польща); Animar (Португалія); Romanian Association for Consumer Protection (Ру- мунія); Legal Information Center for NGOs (Словенія); Helsinki Citizens Assembly (Туреччина). Цей проект був ре- алізований завдяки підтримці Генерального директорату з питань освіти і культури Європейської Комісії, а та- кож банку Unicredito. 27 Рада Європи складається із 47 членів, які представляють практично весь європейський континент. Рада Європи прагне розвивати в усій Європі спільні демократичні принципи на основі Європейської конвенції з прав людини та інших нормативних документів про захист прав людини. (інформація вміщена на вебсайті: http:// www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en). Міжнародні заходи зміцнення довіри... 255
логу та консультацій стосовно завдань державної політики та прийняття рішень… Сприяти цій участі та співробітництву необхідно, забезпечуючи належне розкриття офіційної інфор- мації або доступ до неї»28. Практичні рекомендації щодо того, які механізми необхідно за- провадити задля кращого залучення громадськості, дає Кодекс належної практики громад- ської участі у процесі прийняття рішень, прийнятий в жовтні 2009 року Конференцією між- народних неурядових організацій29. Цей Кодекс не лише окреслив параметри залучення громадянського суспільства до політичного процесу, а й наголосив, що «діяльність в інте- ресах суспільства вимагає від НУО і державних органів відкритості, відповідальності, ясно- сті та підзвітності з дотриманням прозорості на всіх етапах»30. Цей документ також відзна- чив важливу роль ОГС на різних етапах політичного процесу, окреслив відповідні обов’язки органів влади та головні механізми подолання розриву між обома дійовими особами.
Джерело: Кодекс належної практики громадської участі у процесі прийняття рішень, CONF/PLE(2009)CODE1
Форми участі ОГС: Корисний інструментарій Зобов’язання державних органів: та механізми співробітництва:
– Адвокаційна діяльність; – Інформація; – Обмін інформацією; – Інформація та забезпечення – Консультації; – Процедури; обізнаності; – Діалог; – Забезпечення ресурсами; – Експертиза та поради; – Партнерство – Здатність реагування – Інновація; – Надання послуг; – Наглядові функції
З метою ілюстрації та роз’яснення відносин, притаманних втручанню ОГС на різних ета- пах політичного процесу, була розроблена матриця громадської участі (див. Додаток 1). Кодекс належної практики визначив чотири рівні участі, залежно від ступеня її інтенсив- ності у процесі прийняття рішень: • Інформація. Цей рівень лежить в основі розвитку всіх інших етапів втручання. Як правило, на цьому етапі головним змістом процесу є надання органами влади інфор- мації сектору громадянського суспільства, а також має місце лише незначна взаємо- дія або участь ОГС. • Консультації. На прохання органів влади від ОГС очікуються зауваження, зворотний зв’язок і рекомендації. Як правило, ініціаторами консультацій виступають державні органи. Консультації лежать в основі всіх етапів процесу прийняття рішень, особливо етапів підготовки проектів, моніторингу та переформулювання. • Діалог. Надзвичайно цінний метод, застосовний на всіх етапах політичного процесу. Діалог може бути ініційований будь-якою стороною і являти собою або двостороннє обговорення певної сфери спільних інтересів (діалог взаємодії) або обговорення ши- рокого політичного порядку денного (широкий діалог). Форми діалогу можуть бути різ- ними – від відкритих слухань до регулярних чи спеціально скликаних засідань. • Партнерство. Це найвища форма громадської участі, яка передбачає спільну від- повідальність на всіх етапах політичного процесу. Партнерство може здійснюватися в таких формах, як форуми за участю всіх зацікавлених сторін, об’єднані органи, що приймають спільні рішення, або залучення ОГС до надання деяких послуг (аутсор- синг). 28 Стаття 76. Рекомендація державам-членам щодо правового статусу неурядових організацій в Європі (CM/Rec(2007)14). 29 За участю Ради Європи. 30 Кодекс належної практики громадської участі у процесі прийняття рішень, CONF/PLE(2009)CODE1. 256 Міжнародні заходи зміцнення довіри...
Втім участь у процесі прийняття рішень може бути ефективною лише в разі побудови взаємної довіри не лише з точки зору громадянського суспільства, але й з боку влади. Від- гуком на покладання більшої відповідальності на сектор громадянського суспільства ста- ла пряма заява Платформи європейських соціальних НУО про те, що неурядові організації повинні «відповідати своєму мандату, бути підзвітними, прозорими та ефективними. Євро- пейським НУО і Комісії належить спільно вивчати шляхи розробки цих та інших стандартів, а самим НУО – розробляти керівні принципи в цій сфері»31. Вищезгадані критерії фігурують у переліку основних інструментів сприяння взаємній довірі в діяльності ОГС та висловлен- ні ними своїх думок. У своєму дискусійному документі про побудову партнерських зв’язків із сектором НУО32 Європейська комісія запропонувала, щоб деякі заходи щодо забезпечення прозорості включали набір об’єктивних і заздалегідь визначених критеріїв, у числі яких: • Структура і членський склад НУО. • Прозорість їхньої організації та методів роботи. • Попередня участь у роботі комітетів і робочих груп. • Послужний список як свідоцтво компетенції та права надавати поради в конкретній галузі. • Здатність виступати в ролі каталізатора процесу обміну інформацією та думками між Комісією та громадянами. Щоправда, визнається, що застосування цих критеріїв не завжди буває можливим або доцільним. У таких випадках корисною альтернативою може бути самовідбір у рамках спіль- ноти НУО шляхом призначення представників і створення мереж або платформ. Європейський економічний і соціальний комітет говорить про необхідність розробки чіт- ких критеріїв для груп інтересів у ЄС. У своєму висновку щодо Білої книги з питань європей- ського управління Комітет сформулював дев’ять критеріїв репрезентативності, яких пови- нні дотримуватися європейські організації, щоб на законних підставах виражати думки гро- мадян ЄС при проведенні консультаційних процедур: • Постійно існувати на рівні Співтовариства; • Забезпечувати прямий доступ до експертних знань своїх членів, а відтак прискоре- ний і конструктивний характер консультацій. • Бути виразниками загальних інтересів, які узгоджуються з інтересами європейсько- го суспільства. • Входити до складу визнаних на рівні держави-члена органів у якості представників окремих інтересів. • Мати членські організації у більшості держав – членів ЄС. • Забезпечувати підзвітність перед своїми членами. • Мати повноваження на представництво і діяльність на європейському рівні. • Бути незалежними й неухильно виконувати свої функції, не будучи зв’язаними ін- струкціями сторонніх органів. • Бути прозорими, особливо у фінансовому відношенні і у своїх структурах прийняття рішень33. «Пояснювальний меморандум до Рекомендації РЄ щодо правового статусу неурядових організацій в Європі» встановлює додаткові вимоги щодо прозорості та підзвітності. Згідно
31 Democracy, Governance and European NGOs, Building a Stronger Structured Dialogue, 2001, Platform of European Social NGOs [Демократія, управління та європейські НУО, Побудова більш ефективного структурова- ного діалогу, 2001, Платформа європейських соціальних НУО]. 32 Commission Discussion Paper, The Commission and Non-Governmental Organisations: Building a Stronger Partnership, [Дискусійний документ Комісії, Комісія і неурядові організації: Побудова більш міцного партнер- ства] COM(2001) 11 final (див. вебсайт: http://ec.europa.eu/civil_society/ngo/docs/communication_en.pdf). 33 Висновок Європейського економічного і соціального комітету щодо Білої книги з питань європейського управління (COM(2001) 428 final). Міжнародні заходи зміцнення довіри... 257
з цим Меморандумом НУО, які одержують державну фінансову підтримку, повинні подава- ти щорічні звіти про свою діяльність і звітну документацію про витрачені державні кошти. З метою забезпечення більшої прозорості і подолання сумнівів у тому, що кошти неурядових організацій витрачаються на суспільно корисні цілі, від НУО можуть зажадати розкриття да- них про співвідношення між сумою зібраних пожертв і адміністративними витратами та під- давати їх незалежним аудиторським перевіркам.
3.3. Міжнародна правова база для участі громадян у процесі прийняття рішень (ОЕСР, ООН)
Подібно до Кодексу належної практики РЄ Організація економічного співробітництва та розвитку (ОЕСР) визначила34 три основні стадії відносин між владою і громадянами: інфор- мування, консультації та активна участь (партнерство). Головні передумови розвитку кож- ної з цих стадій: • Надання інформації та забезпечення доступу до неї вимагає наявності чіткої нормативно-правової бази, сильних суспільних інститутів, суворих наглядових ме- ханізмів і суспільства, яке добре знає свої права і діє відповідним чином. Якщо при- йняття законів, проведення політики, яка забезпечує свободу інформації, та ство- рення відповідних інституційних механізмів є виключним обов’язком органів держав- ної влади, то побудова сильних наглядових органів, які контролюватимуть виконання цих законів і розвиватимуть сильну громадянську культуру, вимагає активної участі громадянського суспільства. Влада може застосовувати різні способи «активного» надання інформації (скажімо, щоріч- ні звіти, листівки, каталоги) та механізми її доставки – як прямі (інформаційні та колл-центри), так і непрямі (висвітлення в засобах масової інформації, рекламні оголошення тощо); • У різних країнах практикуються різні форми проведення консультацій – від створен- ня сильної нормативно-правової бази (приміром, законів та урядових постанов) до запровадження неформальних правил і певних практичних методів. Правова база може бути або широкою (установлення прав на подання скарг, проведення референ- думів з окремих питань, загальний обов’язок проводити консультації), або вузькою (обов’язкове проведення консультацій щодо конкретного питання з певними гру- пами: профспілками, професійними спільнотами, меншинами тощо). Подальшому розвитку цього процесу сприятиме створення постійно діючих або тимчасових до- радчих органів і комітетів за участю ОГС. Для забезпечення зворотного зв’язку з громадськістю і отримання відгуків на програмні пропозиції влада може користуватися різними методами – від опитувань громадської дум- ки і обстежень до семінарів, громадських слухань, фокусних груп, періодів подачі заува- жень і повідомлень тощо (у випадку законодавчих пропозицій); • Активна участь визнає здатність ОГС самостійно готувати й формулювати програм- ні пропозиції. Від органів влади вона вимагає ділитися інформацією про свої рефор- маторські плани та враховувати пропозиції, спільно підготовлені організаціями гро- мадянського суспільства і державними органами. Його правова база може варіюва- ти від правового регулювання до проведення гнучкої політики, яка дозволяє грома- дянам брати активнішу участь у процесі прийняття рішень (скажімо, створення робо- чих груп). Активному залученню громадськості можуть сприяти такі практичні мето- ди, як громадські збори, консенсусні конференції тощо.
34 Engaging citizens in policy making: Information, Consultation and Public Participation,2001, OECD Public Management Policy Brief, N 10 [Залучення громадян до формування політики: Інформація, консультації та гро- мадська участь, 2001, Концептуальна записка ОЕСР з питань управлінської політики]. 258 Міжнародні заходи зміцнення довіри...
Втім слід прямо наголосити, що жодний з названих підходів чи методів не підходить для всіх без винятку країн чи ситуацій. ОЕСР підкреслює, що вибір методів значною мірою зале- жатиме від наявних ресурсів, умінь і строків. ОЕСР також відзначила, що нерідко доводить- ся адаптувати певний набір методів до умов місцевої культури та середовища. Проте пер- шим кроком на цьому шляху завжди залишається чітке визначення мети застосування того чи іншого методу в залежності від того, на яку цільову групу він спрямований (цей підхід ба- гато в чому узгоджується з підходом, який практикується Європейською комісією). Розроблені ОЕСР керівні принципи залучення громадян до формування політичного курсу вміщені в Додатку 2. З метою надання підтримки урядовцям у їхніх зусиллях, спрямованих на зміцнення дові- ри, ОЕСР видала у 2001 році Посібник з інформування, проведення консультацій та громад- ської участі в розробці політичного курсу. Цей Посібник задуманий як дорожня карта побу- дови ефективної правової бази надання інформації, проведення консультацій та забезпе- чення громадської участі. Він містить чіткі інструкції щодо застосування цих принципів на практиці. Крім того, дає 10 порад про те, як можна зміцнити стосунки між владою та грома- дянами. Нижче наводиться стислий виклад цих порад:
1. Поставтеся до справи серйозно: Самого лише продукування безлічі брошур і відеоматеріалів недостатньо для зміцнення стосунків між владою і громадянами. Головними питаннями, на які слід дати відповідь до по- чатку кожної кампанії, мають бути: Що станеться з цією продукцією? Яку інформацію вона несе? Чи доходить вона до широкого загалу чи так і залишається лежати в якійсь шафі? Користуються громадяни цією інформа- цією чи відкидають її? Визнає й цінує влада реагування та відгуки громадян – чи пропускає їх повз вуха? Зміц- нюють ці заходи стосунки з громадянами – чи залишають їх без змін або навіть погіршують?
2. Перш за все погляньте на справу з позиції громадянина: Спочатку обміркуйте точки зору громадян і постав- теся до них з повагою. Як на те, чому громадяни взагалі мають бути зацікавлені в отриманні інформації або у власній участі? Для того щоб привернути увагу громадян і заохотити їх до активної участі, органи влади пови- нні пристосувати свою діяльність до їхніх потреб. Це означає: адаптувати свою мову і стиль до вимог широко- го загалу, зробити взаємодію більш цікавою, привабливою, дружньою й чесною, без найменшого натяку на зверхність; 3. Робіть те, що обіцяєте: Вкрай важливо тримати власне слово і зміцнювати довіру до себе. Якщо органи вла- ди бажають зміцнити свої стосунки з громадянами, вони повинні виконувати свої обіцянки;
4. Слідкуйте за строками: Інформування, консультації та активна участь потребують часу – з наскоку нічого не вийде. Грубо кажучи, громадяни не стануть відразу ж виявляти більше довіри до влади тільки тому, що вона щойно почала залучати їх до якоїсь одної політичної ініціативи. Тим паче громадяни не зможуть зробити бодай якийсь внесок у формування політичного курсу, якщо не матимуть часу на ознайомлення з проблемами і роз- робку власних пропозицій;
5. Будьте креативні: У різних країнах стосунки між владою і громадянами складаються по-різному. Тому ор- ганам влади слід розробляти власні заходи в контексті своєї специфічної ситуації та кола проблем – творчо і по-новаторськи;
6. Збалансуйте різні інтереси: Інформування, консультації та активна участь можуть привести до широкого узгодження інтересів і формування широкого консенсусу. Водночас вони можуть виявити розбіжності в погля- дах і порушити невирішені питання з різних позицій. Зміцнення стосунків між владою та громадянами сприяє кращому розумінню та з’ясуванню політичної проблеми, надаючи громадянам і зацікавленим сторонам мож- ливість бути почутими, зробити власний внесок у спільну роботу і поділитися ним з іншими;
7. Будьте готові до критики: Золоте правило інформування, консультацій та активної участі – «якщо ви запро- шуєте громадян до висловлення своєї думки, не дивуйтеся, якщо вони саме це й зроблять»;
8. Залучайте до роботи свій персонал: Органи влади можуть скористатися інформаційними заходами, кон- сультаціями та активною участю як нагодою зазирнути у дзеркало й запитати себе: Як ми самі, тобто владні структури, справляємося з розробкою власного політичного курсу та втіленням його в життя? Чи поінформо- вані наші працівники про нові програмні ініціативи? Чи хтось цікавиться їхньою думкою і рахується з нею? Чи беруть наші працівники активну участь у розробці та плануванні програмних заходів, а згодом у їх реалізації?; Міжнародні заходи зміцнення довіри... 259
9. Розробіть послідовний політичний курс: Зміцнення стосунків між владою та громадянами є само по собі по- літикою. Органам влади слід поміркувати, до якої міри варто її формалізувати. Елементарний набір офіцій- них законів, норм і структур видається цілком достатнім для забезпечення правової бази подальшого розви- тку стосунків. Прозорість, підзвітність, відповідальність і необхідність контролю поширюються на цю, як зре- штою й на всі інші сфери політики;
10. Дійте, не гаючи часу: Краще запобігти хворобі, ніж її лікувати. Відновити втрачену довіру до влади набагато важче, ніж її зберегти. Тим органам влади, які не мають попереднього досвіду застосування цих методів, важ- ливо зробити перший крок, але не варто братися за все відразу. У цій справі потрібен поетапний підхід. Для того щоб набратися досвіду, можна почати з побудови загальної правової, політичної та інституційної бази і проведення спеціалізованих пілотних заходів.
Джерело: Стислий список порад, вміщених у Посібнику для органів влади з інформування, проведення консультацій та громадської участі у формуванні політичного курсу, 2001, ОЕСР
Хоча ці поради призначені для використання в повсякденній роботі державних чиновни- ків і політичних керівників, ними з такою ж легкістю можуть користуватися організації гро- мадянського суспільства. Гарним прикладом того, як можна спростити процес громадської участі, коли йдеться про цілком конкретну програму, яка проте має глобальне значення, є «Керівні принципи участі основних груп і зацікавлених сторін», розроблені Програмою з навколишнього се- редовища ООН (ЮНЕП). Метою цього документа є створення чіткої та збалансованої струк- тури участі громадськості, яка керується розумінням того, що «взаємодія між ЮНЕП і гро- мадянським суспільством необхідна як для самої ЮНЕП, так і для захисту тендітного і враз- ливого природного довкілля планети. У цій взаємодії закладений потенціал відродження демократії та екологічної свідомості»35... Цей документ викладає основні сподівання ЮНЕП, основних груп і зацікавлених сторін щодо їхнього взаємного співробітництва. Він також на- креслює структуру управління участю основних груп у програмній роботі ЮНЕП. З метою сприяння кращому співробітництву застосовуються наступні консультаційні механізми: • Організація Глобального форуму основних груп і зацікавлених сторін (наступника Глобального форуму громадянського суспільства). Мета Форуму – посилення впли- ву та участі основних груп і зацікавлених сторін у процесі прийняття рішень. • Організація щорічних регіональних консультативних зустрічей. Ці зустрічі слугують також платформою для встановлення зв’язків і нарощування потенціалу, створюючи можливості для обміну думками на регіональному рівні. • Створення Організаційного комітету основних груп (наступника Глобального керів- ного комітету громадянського суспільства). Роль цього Комітету полягає в забезпе- ченні керівництва та координації участі основних груп у циклі підготовки глобальних форумів громадянського суспільства. Занепокоєння в усьому світі спадом громадської довіри стало предметом дискусій на 7-му глобальному форумі ООН з питань формування уряду нового типу, який відбувся у Від- ні в 2007 році. У своїй Віденській декларації про зміцнення довіри до уряду його учасники розробили низку рекомендацій щодо шляхів зміцнення довіри до державних органів. Ниж- че наводиться перелік цих рекомендацій: • забезпечення легітимності уряду; • установлення пріоритетів у наданні послуг і забезпеченні доступу до них; • підвищення прозорості та підзвітності в цілях боротьби з корупцією;
35 Guidelines for Participation of Major Groups and Stakeholders in Policy Design at UNEP,2009, United Nations Environmental Programme [Керівні принципи участі основних груп і зацікавлених сторін у розробці політики Про- грами ООН з навколишнього середовища UNEP, 2009]. 260 Міжнародні заходи зміцнення довіри...
• розширення доступу до інформаційно-комунікаційних технологій (ІКТ); • підтримка ефективного залучення громадянського суспільства; • заохочення конструктивної зацікавленості вільних засобів масової інформації; • наближення уряду до народу; • створення умов для розвитку партнерських зв’язків між державним і приватним сек- торами; • сприяння новаторським методам реформування державного сектора; • відновлення довіри в країнах, які переживають кризовий або пост конфліктний пе- ріод. Ці рекомендації ще раз підтвердили ті головні принципи та методи, яких належить до- тримуватися в процесі зміцнення довіри. Вони також продемонстрували зростаюче розу- міння всіма провідними міжнародними організаціями необхідності та механізмів подолання дефіциту довіри між громадянами та урядами, а також їхню політичну синергію. Міжнародні заходи зміцнення довіри... 261
IV. ПЕРЕДОВА ЄВРОПЕЙСЬКА ПРАКТИКА СПРИЯННЯ АКТИВНІЙ ГРОМАДСЬКІЙ УЧАСТІ
4.1. Відкритість і прозорість – надання інформації «… Демократія залежить від спроможності людей брати участь у публічних дебатах. Для цього вони повинні мати доступ до достовірної інформації ... і можливість контролювати політичний процес на різних етапах». Біла книга з питань європейського управління, Європейська комісія, 2001
Принципи відкритості та прозорості тісно пов’язані з фундаментальним правом людини отримувати інформацію та притягати державні органи до відповідальності за їхні дії. Коли у 2001 році віце-президент Європейської комісії Каллас започатковував Європейську ініці- ативу прозорості, він підкреслив, що «обмін інформацією – це добре випробуваний засіб зміцнення довіри, здатний відновити довіру громадян до спроможності державних органів ефективно і продуктивно керувати своєю країною»36. Ця думка знайшла подальший розвиток у пояснювальній записці до Конвенції Ради Єв- ропи про доступ до офіційних документів, де прозорість державних органів характери- зується як «ключовий фактор належного управління та індикатор того, чи є дане суспіль- ство справді демократичним і плюралістичним, готовим протистояти всім формам коруп- ції, здатним критикувати тих, хто ним керує, і відкритим для освіченої участі громадян у справах, які становлять суспільний інтерес. Право доступу до офіційних документів має та- кож величезне значення для саморозвитку людей і здійснення ними своїх фундаменталь- них прав. Це право також посилює легітимність державних органів в очах суспільства і його довіру до них». Виходячи з цього розуміння, Рада Європи настійно рекомендувала національним пра- вовим системам визнати й належним чином забезпечувати дотримання права кожної лю- дини на доступ до офіційних документів, що продукуються або зберігаються державними органами. Зокрема, з метою забезпечення доступу до публічної інформації та підвищен- ня громадської поінформованості про питання, пов’язані з державним управлінням, органи державної влади повинні, як мінімум: • Публікувати щорічні та періодичні звіти про свою діяльність. • Забезпечити в режимі онлайн доступ до законодавчих і підзаконних актів, якими ре- гулюються функції даного державного органу. • Суворо дотримуватися норм, передбачених відповідними законами про свободу ін- формації. • Впровадити принцип «одного вікна» у процес надання інформації. У контексті постійного зростання суспільних сподівань на забезпечення більш прозоро- го й відкритого управління Конвенція РЄ про доступ до офіційних документів проголосила той принцип, що органи державної влади повинні стати проактивними акторами і з власної ініціативи публікувати офіційні документи, якими вони володіють, «в інтересах підвищення прозорості та ефективності державної адміністрації, а також сприяти поінформованому за- лученню населення до справ, які становлять загальний інтерес» (Стаття 10).
36 Extract from «Communication to the Commission from the President, Ms. Wallstrom, Mr. Kallas, Ms. Hubner and Ms. Fischer Boel. Proposing the Launch of a European Transparency Initiative. Memorandum to the Commission». [Ви- тяг з «Повідомлення Комісії від Президента, пані Валльстрем, пана Калласа, пані Хюбнер і пані Фішер-Бьоль. Пропозиція щодо започаткування Європейської ініціативи прозорості. Меморандум для Комісії»]. 262 Міжнародні заходи зміцнення довіри...
Попри те, що прозорість і відкритість давно визнані як основні принципи забезпечення вартого довіри управління, право доступу до інформації набуло загального визнання лише за останні 20 років. Починаючи з 1990 року більш ніж 90 країн світу прийняли спеціалізова- ні закони, що регулюють доступ до інформації. Переважна більшість національних право- вих систем держав – членів ЄС базується на принципах, проголошених наступними дирек- тивними документами: • Рекомендація N R (81) 19 Комітету міністрів державам-членам про доступ до інфор- мації, яка знаходиться в розпорядженні державних органів (прийнята Комітетом мі- ністрів 25 листопада 1981 р. на 340-му засіданні заступників міністрів). • Рекомендація N (2002)2 про доступ до офіційних документів (прийнята Комітетом мі- ністрів 21 лютого 2002 р. на 784-му засіданні заступників міністрів). • Конвенція UNECE про доступ до інформації, громадську участь у прийнятті рішень і доступ до правосуддя в питаннях, які стосуються навколишнього середовища (при- йнята 25 червня 1998 р. на Четвертій міністерській конференції в процесі «Навколиш- нє середовище для Європи»). • Модель закону про свободу інформації, розроблена НУО «Стаття XIX» у 2001 році. • Конвенція Ради Європи про доступ до офіційних документів (прийнята Комітетом мі- ністрів 27 листопада 2008 р. на 1042-біс засіданні заступників міністрів). Основні принципи, викладені в Моделі закону та Конвенції РЄ про доступ до офіційних документів були ще раз підтверджені в тексті Брісбенської декларації37, прийнятої на все- світній конференції ЮНЕСКО, присвяченій свободі преси (Австралія). Ця декларація закли- кає своїх членів: • «Ввести в дію законодавство, яке гарантує право на інформацію згідно з міжнарод- новизнаним принципом максимального розкриття. Такого роду законодавство по- винно встановити обмежену кількість винятків, проактивні зобов’язання щодо роз- криття інформації, чіткі й прості процедури подання запитів, незалежну та ефективну систему контролю та адекватні заходи щодо сприяння. • Забезпечити ефективне здійснення права на інформацію шляхом виділення достат- ніх фінансових і людських ресурсів для структур і систем, необхідних для успішної імплементації законодавства. • Забезпечити, щоб загальне правове середовище узгоджувалося з правом на інфор- мацію та підтримувало його, зокрема шляхом захисту свободи слова і свободи пре- си, створення інших систем розкриття інформації і приведення правил секретності у відповідність з принципом максимального розкриття. • Сприяти інформуванню громадськості про право на інформацію і розвивати для кож- ного можливості здійснювати це право, приділяючи особливу увагу незахищеним і вразливим групам населення, зокрема жінкам, етнічним меншинам, корінним наро- дам та особам з обмеженими можливостями. • Максимально використовувати потенціал інформаційно-комунікаційних технологій (ІКТ) з метою реалізації права на інформацію та сприяння посиленню плюралізму в інформаційних потоках»38. Право доступу до інформації прямо закріплене Хартією основних прав Європейсько- го Союзу. Зокрема, стаття 42 передбачає наступне: «Кожний громадянин або громадян- ка Європейського Союзу, чи будь-яка інша фізична або юридична особа, яка проживає або має офіційне зареєстроване місцеперебування в одній з держав-членів, має право досту- пу до документів інституцій, органів, установ і агентств Союзу, незалежно від носія, на яко- 37 Freedom of Information: The right to Know, declaration adopted by the participants at the UNESCO World Press Freedom [«Свобода інформації: Право знати», декларація, прийнята учасниками всесвітньої конференції ЮНЕС- КО, присвяченої свободі преси]. 38 Повний текст вміщений на вебсайті: http://portal.unesco.org/ci/en/ev.php URL_ID=30318&URL_DO=DO_ TOPIC&URL_SECTION=201.html Міжнародні заходи зміцнення довіри... 263
му вони зафіксовані»39. Процедури доступу до інформації та офіційних документів знайшли подальший розвиток у «Кодексі належної адміністративної поведінки», прийнятому Євро- пейським парламентом у 2001 році. Ці принципи повсюдно впроваджуються в національ- ні правові системи держав – членів ЄС шляхом прийняття та забезпечення виконання зако- нів про свободу інформації. У дослідженні, проведеному у 2006 році на замовлення Інституту «Відкрите суспільство», була зроблена спроба визначити ефект і додаткові переваги від прийняття спеціалізова- них законів про вільний доступ до інформації. Зібрані його авторами емпіричні дані свід- чать про те, що закони про свободу інформації підвищують відповідальність органів влади і справляють значний позитивний вплив на загальне управлінське середовище. Досліджен- ня також виявило, що на розвиток нормативно-правової бази впливають такі фактори, як політична воля і зовнішні політичні стимули. Автори показали, що активне залучення орга- нізацій громадянського суспільства до процесу розробки, прийняття та імплементації за- конів про доступ до інформації призводить до підвищення відповідальності влади в більшій кількості випадків, ніж у тих країнах, де організації громадянського суспільства не брали та- кої ж активної участі в цих процесах. На основі результатів дослідження були розроблені на- ступні основні рекомендації щодо покращення доступу до інформації: • Національні та місцеві законодавчі органи повинні прийняти закони та імплемен- таційні положення, що гарантують усім громадянам доступ до інформації, яка зна- ходиться в розпорядженні державних органів та органів, які виконують державні функції; • Національні уряди повинні чітко роз’яснити посадовим особам, державним службов- цям та всім іншим відповідним працівникам державних органів, що дискримінаційне ставлення до запитів щодо надання інформації є неприпустимим і потягне за собою дисциплінарні, а можливо, й правові наслідки. • Організації громадянського суспільства повинні тримати під постійним контролем практику забезпечення свободи інформації, розслідувати підозрілі випадки дискри- мінації, порушувати судові справи у випадках її виявлення та домагатися призначен- ня покарань, передбачених антидискримінаційними законами. • Державні органи повинні послідовно реагувати на запити щодо надання інформа- ції. Вони можуть цього досягнути шляхом навчання посадових осіб, державних служ- бовців та інших відповідних працівників і шляхом запровадження прозорих внутріш- ніх систем та процедур обробки запитів. Такі системи та процедури можуть включати призначення посадових осіб, відповідальних за надання відповідей на інформаційні запити, а також впровадження системи відстеження цих запитів40.
Як ці принципи та рекомендації виконуються на практиці? Після підписання у 2001 році Амстердамського договору41 Рада Європи і Європейський парламент прийняли Регламент №1049/2001 про публічний доступ до документів Євро- пейського парламенту, Ради та Комісії. Імплементація даного Регламенту регулюється вну- трішніми правилами цих трьох інституцій і виходить за рамки попередньої нормативної бази, забезпечуючи більшу відкритість і прозорість політичного процесу шляхом: • Створення структури доступу до неопублікованих документів інституцій та органів ЄС через реєстр документів або за індивідуальними запитами; 39 Charter of Fundamental Rights of the European Union [Хартія основних прав Європейського Союзу], (2007/C 303/01). 40 Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute, New York [Прозорість і мовчання, Огляд законів та практики доступу до інформації в 14 країнах, Інститут «Відкрите суспільство», Нью-Йорк]. 41 Стаття 255 цього договору наділяє громадян правом доступу до документів Європейського парламенту, Ради та Комісії. 264 Міжнародні заходи зміцнення довіри...
• Розширення доступу до документів, які походять від третіх сторін (приміром, держав- членів, третіх країн, інших установ). • Впровадження правила, згідно з яким навіть якщо певний документ захищений від розголосу у винятковому порядку (крім захисту суспільних інтересів або недоторка- ності приватного життя), він все одно може бути обнародуваний, якщо інтереси сус- пільства переважають над інтересами захисту документа. • Скорочення строків обробки запитів до 15 робочих днів і створення реєстру доку- ментів42. З метою сприяння імплементації регламенту Європейська комісія видала посібник з чіт- кими й простими роз’ясненнями, як отримати доступ до інформації. Посібник складається з двох основних розділів. У першому пояснюється, як отримати доступ до вже опублікова- ної інформації, а у другому – як отримати доступ до неопублікованих документів. Подальші стандарти відкритості та надання інформації вміщені в Кодексі належної адміністративної поведінки службовців Генерального секретаріату Ради Європейського Союзу у їхніх профе- сійних стосунках з громадськістю43 та Кодексі належної адміністративної поведінки у сто- сунках з громадськістю, прийнятому Європейською комісією. Ці кодекси встановлюють за- гальні стандарти надання інформації та обробки запитів громадян. Згідно з їхніми положен- нями, вся інформація (якщо вона не захищена окремим законом) повинна надаватися без ускладнень і в повному обсязі. Якщо чиновник вважає, що не може надати запитану інфор- мацію, причини відмови обов’язково повідомляються авторові запиту. Всі канали зв’язку – пошта, телефон або електронна пошта – вважаються однаково придатними для надсилан- ня і прийому запитів про надання інформації. Для сприяння дотриманню принципу підзвіт- ності кодекси зобов’язують чиновників при спілкуванні з громадянами називати себе, свою установу та посаду. Положення, схожі з тими, що містяться в Регламенті ЄС і кодексах належної адмі- ністративної поведінки, можна знайти в національних правових системах переважної більшості держав – членів ЄС. Право доступу до інформації вважається одним з осно- вних прав і широко гарантується конституційними положеннями. Основні домінуючі тен- денції, притаманні більшості законодавчих актів, підсумовані в дослідженні,44 проведе- ному Шведським агентством у справах державного управління і характеризуються на- ступним чином: • Право доступу до документів може бути обмежене, коли розкриття інформації може призвести до порушення державної/ відомчої/ комерційної або банківської таємниці чи становити загрозу для зовнішньої політики. У доступі до документів може також бути відмовлено, коли вони містять приватну інформацію про третю особу. • Особа, що звертається за інформацією, як правило, не мусить називати себе ані по- яснювати причини свого запиту. • Здебільшого за надання інформації встановлюється певна плата, проте її розмір не повинен перевищувати фактичних витрат на пошук і копіювання документів та інфор- мації.
42 Реєстр Комісії вміщений на вебсайті http://ec.europa.eu/transparency/access_documents/index_en.htm# 43 Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 25 June 2001 on a code of good administrative behavior for the General Secretariat of the Council of the European Union and its staff in their professional relations with the public [Рішення Генерального секретаря Ради/Верховно- го представника з питань спільної зовнішньої та безпекової політики від 25 червня 2001 р. «Про кодекс належ- ної адміністративної поведінки службовців Генерального секретаріату Ради Європейського Союзу в їхніх про- фесійних стосунках з громадськістю]. 44 Principles of Good Administration, In the Member States of the European Union,2005, Swedish Agency for Public Management [Принципи належної адміністрації в державах – членах Європейського Союзу, 2005, Шведське агентство у справах державного управління]. Міжнародні заходи зміцнення довіри... 265
Нормативні положення про доступ до документів Загальна норма зако- Необхідність повідомляти причини Можлива нодавчого чи консти- плата за туційного акту копіювання Австрія Обов’язок посадових Ні Ні осіб інформувати гро- мадськість
Бельгія Так Лише при поданні запитів на документи особисто- Так го характеру Кіпр Так Так Чеська Республіка Так Ні Так Данія Так Ні Так Естонія Так Фінляндія Так Ні Так Греція Так Ні Так Угорщина Так Так Ірландія Так Ні Так Італія Так Латвія Так Лише при поданні запиту на інформацію для об- Так меженого доступу Литва Так Ні Так Нідерланди Так Так Так Словаччина Так Так Так Словенія Так Ні Так Іспанія Так Так: має бути сформульоване індивідуальне про- Так хання Швеція Так Як правило, ні. В окремих випадках і лише в разі Ні необхідності відповідний орган може запитати про причини, щоб мати змогу вирішити, чи можна на- дати цей документ Великобританія Так
Джерело: Принципи належної адміністрації в державах – членах Європейського Союзу, 2005, Шведське агентство у справах державного управління
Крім того, розвиток комп’ютерних технологій докорінно змінив порядок надання дер- жавних послуг, замінивши собою чимало традиційних урядових механізмів. Комп’ютерні технології та прикладні програми електронного врядування поступово проникли в управ- лінську сферу, допомігши знайти рішення багатьох задавнених проблем, з якими безуспіш- но боролися уряди всього світу. Відповідно змінилися й засоби надання інформації, від- кривши простір застосуванню сітьових інструментів як кращих і швидших каналів спілку- вання між урядом і громадянами. У ХХІ столітті електронне врядування стало синонімом сучасної інноваційної держа- ви, центральними елементами якої виступають якість, довіра і швидкість. Методи елек- тронного врядування трансформували уряди, зробивши їх більш доступними для своїх громадян, більш підзвітними, ефективними й прозорими. Застосовані належним чином механізми електронного врядування здатні зцементувати стосунки між урядом і грома- дянами, а відтак допоможуть урядам завоювати суспільну довіру шляхом проведення по- літичного курсу, сформованого під впливом громадської участі. Тому уряди всього світу активно сприяють впровадженню методів електронного врядування в усі сфери взаємо- дії зі своїми громадянами. Наріжним каменем у цих зусиллях є надання інформації широ- кій громадськості. 266 Міжнародні заходи зміцнення довіри...
Доступ до інформації та методи електронного врядування в окремих державах-членах Естонія В Естонії головним правовим документом, який гарантує доступ до публічної інформа- ції, є конституція. Її положення знайшли подальший розвиток у Законі про публічну інфор- мацію, метою якого є, зокрема, створення відповідного механізму моніторингу діяльнос- ті державних органів. Для цього Закон прямо зобов’язує державні органи зайняти проак- тивну позицію в процесі надання інформації і встановлює перелік інформації, яка підлягає обов’язковому розкриттю (стаття 28). Ця інформація включає: законопроекти, доповіді/ звіти, концептуальні записки та програмні документи, статистичні дані, проекти бюджетів, дані про використання активів і бюджетних коштів тощо. Стаття 4 далі встановлює, що з ме- тою забезпечення демократичності процесу державні органи повинні надавати запитува- ну інформацію найшвидшим і найпростішим з можливих способом. Закон також зобов’язує державні установи чітко роз’яснювати процедури доступу до інформації і надавати особам допомогу в оформленні та поданні запитів. Запити можна робити або в усній формі, або письмовій – звичайною чи електронною поштою або факсом. Успішним прикладом застосування естонського Закону про публічну інформацію є веб- сторінка естонського Податково-митного департаменту (www.emta.ee). На ній розміщена вся необхідна для платників податків інформація, зокрема форми податкових декларацій, інструкції щодо їх заповнення, тексти законодавчих актів тощо. Тут же надається детальна інформація про номери телефонів, порядок звернень із письмовими запитаннями, сервіс- ні бюро, а також про повернення прибуткового податку тим платникам, які подали свої по- даткові декларації в електронній формі. Упродовж останнього десятиліття Естонія систематично сприяла розвитку концепції електронної держави та електронного уряду як інструменту наближення органів держав- ної влади до своїх громадян. Як результат, за показниками 2009–2010 років Всесвітній еко- номічний форум поставив Естонію на 25-е місце (зі 134 країн світу) за Індексом сітьової го- товності45, визнавши її в цьому відношенні лідером серед країн Центральної та Східної Єв- ропи. Яскравою ілюстрацією того, як нові технології можуть сприяти наданню інформації, а отже, підвищувати прозорість і відкритість уряду, служить система «X-Road» (Перехрестя). Ця система забезпечує надійний доступ в електронному режимі до таких державних послуг, як вибори, школи, уряд, поліція, охорона здоров’я та податкова служба. У 2008 році в цій системі було задекларовано 88% прибуткових податків. Парламентські вибори 2007 року стали для естонських громадян нагодою проголосувати не виходячи з дому, і нею скорис- талися 5,5% від загальної кількості виборців. Система «X-Road» сприяє прищепленню культури прозорості в державному секторі і ак- тивній громадській участі в процесах прийняття рішень. Вона полегшила передачу даних поміж державними цифровими базами даних і створила можливості для здійснення без- печної їх передачі між фізичними особами та державними установами46. Паралельно з роз- витком системи «X-Road» уряд Естонії створив у 2001 році веб-портал під назвою «Сьогод- ні я приймаю рішення». Державним установам було настійно рекомендовано розмістити на цьому порталі всі свої законопроекти та поправки до них, що дозволило людям перегляда- ти їх, робити власні зауваження і пропозиції щодо розробки тих чи інших законів та пропо- нувати внесення змін до чинного законодавства. Пропозиції, подані на цій веб-сторінці, пе- ресилаються до відповідних міністерств, які зобов’язані на них реагувати (див. більш де- тальну інформацію в наступному розділі).
45 The Global Information Technology Report 2009–2010, ICT for Sustainability, World Economic Forum [Доповідь про глобальні інформаційні технології, 2009-2010, ІКТ для усталеного розвитку, Всесвітній економічний форум]. 46 Детальніше див. вебсайт: http://www.ria.ee/indexphpid27309. Міжнародні заходи зміцнення довіри... 267
Австрія В Австрії загальну правову базу забезпечення доступу до інформації становлять Фун- даментальний закон про обов’язок надавати інформацію та Закон про обов’язок надава- ти інформацію. Визначати конкретний перелік інформації, яка може надаватися громадя- нам, зобов’язані органи влади земель (Laender). Саме вони повинні встановлювати прави- ла щодо того, в якому обсязі надаватиметься інформація, як окремі установи відповідають за виконання свого обов’язку її надавати. При цьому Федеральний закон передбачає, що кожна людина має право затребувати інформацію в письмовій, усній формі або в телефон- ному режимі. Інформація повинна надаватися без зайвих затримок і не пізніше ніж через вісім тижнів після надходження відповідного запиту. З 2001 року одним із головних каналів інформаційного обміну між австрійськими орга- нами влади та громадянами є веб-портал «Help»47. HELP надає інформацію з майже двох- сот різних тем, пов’язаних з офіційними процедурами, в тому числі про необхідні докумен- ти, розміри державного мита за різні послуги, строки подання документів, онлайн-форми та шаблони. Портальна технологія забезпечує цілодобовий інтерфейс між державними ор- ганами та громадянами. За час, що минув з відкриття порталу, він забезпечує виконан- ня дедалі більшої кількості різних процедур у режимі онлайн. Він надає інформацію про всі справи, які громадянин може вести з державними органами (реєстрацію новонароджених, укладання шлюбу, житлові чи паспортні питання) і дає можливість виконувати деякі з цих процедур в електронному режимі. Контент вебсайту розподілений на чотири головні секції, призначені для різних груп населення: фізичних осіб, бізнесменів, молоді та осіб старшого віку. Всі ці сервіси побудовані на основі єдиних критеріїв: прозорість, комплексний харак- тер, ясність інформації та зосередження уваги на основних фактах. Паралельно з цим уряд створив федеральну онлайн-систему законодавчої інформації,48 яка забезпечує вільний доступ до всього масиву австрійських законів. Ця система спрощує і стандартизує цю процедуру, даючи громадянам змогу знайомитися з новими законодав- чими актами з моменту набрання ними чинності.
Фінський веб-портал Suomi.fi49 – це єдина адреса надання державних послуг. Він побу- дований згідно з цією ж логікою, яка була закладена в основу розробки австрійського пор- талу HELP. Suomi.fi надає інформацію про всі основні ситуації, з якими громадянин стика- ється в житті. Деякі інформаційні пакети являють собою збірки веб-сторінок, призначені для окремих цільових груп, тим часом як інші містять загальну інформацію про фінське су- спільство і державний сектор Фінляндії. Головні завдання цього порталу: • підвищувати відкритість, помітність і одностайність державного сектора; • сприяти впровадженню єдиного стандарту веб-послуг у державному секторі; • підвищувати доступність і якість державних послуг в інтересах громадян; • полегшити пошук інформації про діяльність державного сектора; • сприяти активній взаємодії між громадянами та органами влади; • звести до мінімуму дублювання в роботі державних органів; • допомагати громадянам у пошуку відповідного державного органу для вирішення тих чи інших проблем.
Нідерланди Закон про урядову інформацію базується на конституційному праві доступу до інформа- ції. Він передбачає, що документи, створені державними установами, мають бути відкриті для широкого доступу. Рішення по запитах про надання інформації виносяться в усній або
47 http://help.gv.at 48 http://www.ris.bka.gv.at 49 http://www.suomi.fi/suomifi/english/index.html 268 Міжнародні заходи зміцнення довіри...
письмовій формі, але у разі відмови запитувач може вимагати письмового повідомлення. Заява про надання інформації розглядається в якнайстисліші строки і в будь-якому разі не пізніше двох тижнів після її отримання. Якщо з якихось причин державний орган не може дати відповіді у встановлені строки, він повинен надіслати запитувачу письмове повідо- млення з поясненням причин затримки. Це має бути зроблено до закінчення першого дво- тижневого строку. Закон також зобов’язує державні органи ініціативно надавати інформацію про свою по- літику та її реалізацію всякий раз, коли таке інформування відповідатиме інтересам ефек- тивного демократичного управління. Ця інформація повинна надаватися в повному обся- зі і в такий спосіб, щоб охопити максимально можливу кількість громадян за час, який до- зволить їм довести свою точку зору до відома адміністративного органу. Задля виконання цих вимог голландські органи влади широко застосовують різноманітні електронні засоби. Електронні технології застосовуються з метою покращення інформаційного обміну, на- дання послуг та інтерактивної участі шляхом установлення нових партнерських стосунків між громадянами та владою. Задля цього широкій громадськості надається більше варі- антів вибору з одночасним покладанням на неї більшої відповідальності. Для стимулюван- ня розвитку електронного врядування з точки зору громадянина голландський уряд запро- вадив програму «e-Citizen». Це незалежний форум, який залучає громадян до політично- го процесу, даючи їм змогу давати поради державним органам і контролювати досягну- тий прогрес. З метою надання допомоги громадянам у їхній новій ролі програма «e-Citizen» розробила Хартію «e-Citizen». В основу цього документа були закладені результати обсте- жень громадських сподівань та існуючих систем забезпечення якості. У ньому підсумована точка зору голландських громадян на уряд у цілому. Незважаючи на те, що положення Хар- тії не є обов’язковими для адміністративних органів, принцип «виконуй або поясни» всіляко підтримується. Хартія «e-Citizen» містить десять наведених нижче принципів, які в основно- му базуються на міжнародно визнаних принципах належного управління та сучасних тен- денціях у забезпеченні державного управління:
1. Вибір каналу зв’язку: Як громадянин, я можу самостійно вибирати, в який спосіб взаємодіяти з урядом. Уряд забезпечує багатоканальне надання послуг, тобто доступність усіх комунікаційних каналів: особистого спілкування, листування, телефонного зв’язку, e-mail, Інтернету.
2. Прозорий державний сектор: Як громадянин, я знаю, куди звертатися за офіційною інформацією та дер- жавними послугами. Уряд гарантує надання послуг у режимі «одного вікна» і діє як єдина структура без бюро- кратичної тяганини.
3. Загальний огляд прав і обов’язків: Як громадянин, я знаю, які послуги я маю право отримати й на яких умо- вах. Уряд постійно забезпечує прозорість моїх прав і обов’язків.
4. Персоналізована інформація: Як громадянин, я маю право на отримання повної, актуальної та достовірної інформації. Уряд надає інформацію, яка відповідає моїм потребам.
5. Зручні послуги: Як громадянин, я можу один раз надати свої персональні дані і в подальшому отримувати проактивні послуги. Уряд чітко роз’яснює, які облікові дані про мене він зберігає, і не використовує цих даних без моєї згоди.
6. Універсальні процедури: Як громадянин, я можу легко дізнатися, як працює уряд, і контролювати хід робо- ти. Уряд постійно інформує мене про процедури, пов’язані з цим наглядом і стеженням.
7. Довіра та надійність: Як громадянин, я вважаю уряд компетентним у сфері електронних технологій. Уряд га- рантує безпечне управління ідентичністю та надійне зберігання електронних документів.
8. Уважна адміністрація: Як громадянин, я можу вносити пропозиції щодо вдосконалення роботи та подавати скарги. Уряд виправляє допущені помилки й користується зворотним зв’язком для вдосконалення своїх про- дуктів і процедур. Міжнародні заходи зміцнення довіри... 269
9. Підзвітність і порівняльний аналіз: Як громадянин, я можу порівнювати, перевіряти та вимірювати результа- ти роботи уряду. Уряд активно надає вихідну інформацію про результати своєї діяльності.
10. Залучення та розширення можливостей: Як громадянина, мене запрошують брати участь у прийнятті рі- шень і відстоюванні своїх інтересів. Уряд підтримує розширення моїх можливостей і гарантує доступність не- обхідної інформації та документів.
Джерело: Хартія E-Citizen, Citizenlink, Netherlands (див. вебсайт: http://www.burgerlink.nl/englishsite/e- citizen-charter/e-Citizen-Charter.xml)
Започаткувавши програму «e-Citizen», голландський уряд визнав важливість створення прозорих офіційних вебсайтів як способу зміцнення громадської довіри. Відтак, у 2007 році був запроваджений набір Web-стандартів. Вони є обов’язковими для всіх урядових вебсай- тів і складаються зі 125 вимог, які охоплюють усі аспекти цифрового спілкування: доступ- ність, прозорість, ясність, відкритість і передбачуваність. Для вимірювання ефективності своїх вебсайтів голландський уряд користується методом самооцінки, який включає 78 зі 125 критеріїв виміру ефективності. Тісний зв’язок між прозорим наданням інформації та, зокрема, прозорими вебсайтами державних органів підтвердило дослідження, проведене у Сполучених Штатах Федеральною комісією зв’язку. Після аналізу даних, отриманих від 36 000 відвідувачів федеральних вебсай- тів, 14 відомств-учасників, з’ясувалося, що коли громадяни бачать високу прозорість феде- рального вебсайту, вони на 85% більше задоволені, ніж ті, хто низько оцінює рівень його про- зорості. Громадяни, які сприймають федеральний вебсайт як дуже прозорий, як правило, більше довіряють загальній діяльності уряду (46%) і в майбутньому більше схильні до участі у співробітництві з даним відомством шляхом висловлення своїх думок та ідей через Інтернет або поза ним (40%). Ці типи поведінки та відношення громадян кваліфікуються як «священ- ний грааль відкритого, економічного, демократичного та ефективного уряду»50.
Великобританія Закон про свободу інформації спрямований на підвищення підзвітності уряду і надання більшої прозорості роботі державних органів. Він також забезпечує більшу справедливість, демократичність і відкритість процесів формування політичного курсу. Закон зобов’язує дер- жавні установи розкривати запитувану публічну інформацію та письмово інформувати запи- тувача в разі передачі його запиту до іншого компетентного органу. Закон також зобов’язує державні установи надавати поради та допомогу особам, які подали або мають намір пода- ти запити щодо надання інформації. Згідно з цим законом усі державні органи повинні впро- ваджувати схеми публікації та суворо їх дотримуватися. Схема публікації – це зобов’язання проактивно й систематично надавати інформацію широкій громадськості. Була розроблена модель такої схеми (див. Додаток 3), яка включає сім класів інформації, а саме: • Хто ми такі, і що ми робимо. • Які кошти ми витрачаємо і в який спосіб. • Які у нас пріоритети і як ми працюємо. • Як ми приймаємо рішення. • Наші внутрішні правила та процедури. • Списки та реєстри. • Послуги, які ми пропонуємо51.
50 The Inaugural ForeSee Results’, E-Government Transparency Index: Quantifying the Relationship Between Online Transparency and Trust in Government, 2010, Larry Freed [Л. Фрид, 2010, Початкові прогностичні результати, Індекс прозорості електронного уряду: Кількісний вимір співвідношення між онлайн-прозорістю та довірою до уряду]. 51 Модель схеми публікації вміщена на вебсайті: http://www.ico.gov.uk/upload/documents/library/freedom_ of_information/detailed_specialist_guides/generic_scheme_v1.0.pdf 270 Міжнародні заходи зміцнення довіри...
Імплементації закону про свободу інформації сприяє прийняття Кодексу практики вико- нання державними органами своїх функцій. Мета цього Кодексу – трансформувати «культу- ру державного сектору, надавши їй більшої прозорості, дати можливість громадянам кра- ще розуміти рішення державних органів, а також забезпечити, щоб послуги державного сектора надавалися ефективно і в належний спосіб». Бюро Комісара з питань інформації розробило спеціальні інструкції щодо того, які типи інформації повинен публікувати той чи інший державний орган. Крім того, британський уряд створив онлайн-платформу, яка служить для громадян єди- ним пунктом доступу до інформації та послуг державного сектора. Портал (www.direct.gov.uk) використовується як центр надання інформації, онлайн-послуг і опитування громадської дум- ки з питань, винесених урядом на широке обговорення. П’ять секцій порталу надають додатко- ву інформацію, призначену для окремих груп населення – молоді, британців, які проживають за кордоном, батьків, осіб з обмеженими можливостями та осіб, які за кимось доглядають.
Уряд Словенії теж обрав єдиний підхід до надання публічної інформації, багато в чому схожий на британські схеми публікації. У постанові про надання публічної інформації ви- кладений метод надання та розміщення в Інтернеті публічної інформації, а також методи- ка складання каталогу публічної інформації. Уряд зобов’язав усі державні установи створи- ти на своїх вебсайтах та регулярно оновлювати каталоги публічної інформації. Нижче наво- диться зразок каталогу, вміщений у додатку до урядової постанови:
Зразок каталогу публічної інформації 1. Основні деталі каталогу
Назва органу – Повна назва органу чи органів, які згідно зі Статтею 2(3) постанови про надання публічної інформації, можуть вести спільний каталог
Відповідальна посадова особа –(Наукове звання), повне ім’я, (професійний титул), посада відпові- дального чиновника Дата першої публікації каталогу – Дата прийняття каталогу Дата внесення останньої зміни – Дата (останній день місяця, в якому була внесена остання зміна) Веб-адреса, за якою можна отрима- – Веб-адреса ти доступ до каталогу Інші форми каталогу – Жорстка копія, CD, DVD чи інші носії, а також детальні дані про їхню фі- зичну доступність 2. Загальні відомості про орган та публічну інформацію, яка знаходиться в його розпорядженні
2a. Штатний розклад і деталі організаційної структури державного органу Стислий опис сфери діяльності ор- – Опис сфери діяльності згідно з установчими документами гану Список усіх внутрішніх організацій- – Назва організаційного підрозділу них підрозділів – Адреса підрозділу – Контактні дані підрозділу (для кожного окремо) – Примітки (лінк до каталогу органів, якщо внутрішній організаційний підрозділ є незалежним органом) Штатний розклад органу Лінк до окремого документа 2b. Список інших органів, які працюють у даній сфері діяльності (лише для міністерств) Список усіх інших органів у даній – Назва органу сфері діяльності – Адреса органу – Контактні дані органу (для кожного окремо) – Примітки (лінк до каталогу органів) 2c. Контактні дані посадової особи (осіб), відповідальної за надання інформації Міжнародні заходи зміцнення довіри... 271
Відповідальна посадова особа – Повне ім’я, титул, посада, адреса, номер телефону, email-адреса 2d. Список законів, правових актів і нормативних документів Європейських Співтовариств, які стосуються сфери діяльності даного органу (через національний, місцевий або європейський реєстр правових актів) Національні правові акти – Лінк до національного реєстру правових актів Правові акти місцевих органів – Лінк до місцевого реєстру правових актів (тільки для органів місце- вої влади) Правові акти ЄС – Лінк до європейського реєстру правових актів 2e. Список проектів правових актів (через національний, місцевий або європейський реєстр правових актів) Проекти правових актів – Лінк до національного чи місцевого реєстру правових актів – Лінк до порталу ЄС 2f. Список стратегічних і програмних документів по окремих сферах діяльності Список стратегічних і програмних – Прийняті стратегічні та програмні документи по окремих сферах ді- документів яльності – лінки до окремих документів – Проекти стратегічних і програмних документи по окремих сферах ді- яльності – лінки до окремих документів 2g. Список типів адміністративних, судових чи законодавчих процедур Типи процедур, які виконуються да- – Типи процедур ним органом – Детальні дані про умови виконання окремих типів процедур згідно зі Статтею 10 постанови 2h. Список публічних архівів, які знаходяться в розпорядженні органу Список архівів – Назва архіву – Архів створений на підставі (юридична підстава) і містить дані про (основний зміст, визначений у юридичній підставі) – Як орган добуває інформацію для внесення в архіви (за характером служби, на основі представлених документів) – Опис і умови доступу згідно зі Статтею 10 постанови – Лінки до інших публічних архівів 2i. Список інших комп’ютеризованих баз даних Список баз даних – Назва комп’ютеризованої бази даних – Стислий опис призначення бази даних – Стислий опис отримання даних із бази даних – Опис доступу до бази даних 2j. Найважливіші тематичні зони іншої публічної інформації або список окремих документів Тематичні сфери інформації – піс- – Інша публічна інформація згідно зі Статтею 11 постанови ля опису сфери, в якій працює даний – Розподіл по інших тематичних зонах орган, з розподілом по темах – Список важливих документів (не обов’язково)
3. Опис способу доступу до іншої публічної інформації
Опис доступу до окремих компонен- – Опис доступу через Інтернет із зазначенням технічних умов та форм тів інформації існування публічної інформації – Опис «фізичного» доступу із зазначенням робочих годин, місць і спо- собів ознайомлення з інформацією – Опис доступу для осіб з особливими потребами згідно зі Статтею 13 постанови – Опис часткового доступу – Лінк до таблиці витрат
4. Список найчастіше запитуваної публічної інформації
Список 10 найчастіше запитуваних 1. документів або тем інформації (авто- 2. матично згенерований список, який 3. формується на основі попиту на ту чи 4….. іншу інформацію)
Джерело: Постанова про надання публічної інформації, опублікована в Офіційному бюлетені Республіки Словенія №. 76/05 від 12 серпня 2005 272 Міжнародні заходи зміцнення довіри...
Болгарія Закон про доступ до публічної інформації був прийнятий у 2000 році з метою підвищен- ня прозорості процесу прийняття рішень, надання громадянам можливості приймати поін- формовані рішення і водночас контролювати хід реалізації державних програм. Закон наді- ляє всіх громадян правом доступу до будь-якої інформації, наявної в усіх державних уста- новах. Інформаційний запит може подаватися в письмовій або усній формі, а також із ви- користанням Інтернет-технологій. Відповіді на всі запити повинні надаватися в 14-денний строк після дати їх подання. Якщо з якоїсь причини запитувана інформація не може бути на- дана у встановлений законом строк, відповідний орган повинен поінформувати запитувача про подовження терміну обробки його запиту. Загальний строк відповіді на запит не може перевищувати 24 днів. Крім того, органи влади зобов’язані оприлюднювати інформацію, яка була ними отримана або стала їм відомою при виконанні їхніх службових функцій у двох конкретних випадках: • якщо дана інформація спростовує попередньо розповсюджену неправдиву інфор- мацію, яка зачіпає важливі суспільні інтереси; • якщо дана інформація може становити інтерес для широкого загалу. З метою забезпечення більшої прозорості органи державної влади зобов’язані регуляр- но оприлюднювати оновлену інформацію, яка містить: • опис їхніх повноважень, а також дані про їхню організаційну структуру, функції та обов’язки адміністрації; • список правових актів, виданих у сфері їхніх повноважень; • опис масивів даних і ресурсів, якими користується відповідна адміністрація; • назву, адресу, номер телефону та робочі години відповідної державної установи, уповноваженої приймати заявки на доступ до публічної інформації. Крім того, деякі державні установи запровадили додаткові ініціативи, спрямовані на підвищення прозорості. Це, зокрема, прямі онлайн-трансляції засідань муніципальної ради Софії. Дебати, що відбуваються на цих засіданнях, потім архівуються і розміщують- ся на веб-сторінці столичного муніципалітету. У 2009 році з метою підвищення прозорос- ті та надання громадянам можливості «ближче придивитися» до дискусій, які відбувають- ся на міністерських засіданнях, уряд створив нову електронну систему, в якій розміще- ні повні тексти протоколів і рішень, прийнятих під час урядових засідань. Ці матеріали пу- блікуються у спеціальній секції урядового вебсайту того ж дня, коли відбулася та чи інша дискусія. Так само були проскановані й розміщені в мережі урядові рішення, які прийма- лися починаючи з 1990 року. Таким чином ОГС, засоби масової інформації та громадяни мають змогу стежити за розробкою політичного курсу, дізнаватися про причини прийнят- тя/відхилення того чи іншого рішення, контролювати процес їх виконання і притягати мі- ністрів до відповідальності. Ключову роль у моніторингу виконання болгарського Закону про доступ до публічної ін- формації відіграє НУО «Програма доступу до інформації» (AIP). Цей фонд був заснований у 1996 році групою болгарських журналістів, юристів, соціологів та економістів, які працюють у сфері захисту прав людини. За роки свого існування фонд став не лише провідним нагля- довим органом у цій сфері, але й партнером уряду, думки якого поважаються і, як правило, враховуються. Основні функції AIP: • Моніторинг болгарського законодавства про свободу інформації та участь у дебатах щодо його відповідності міжнародним стандартам у цій сфері. • Співпраця зі створеною в 26 містах країни журналістською мережею, яка здійснює моніторинг практичного забезпечення доступу до інформації та дає рекомендації щодо її вдосконалення. • Надання консультацій у справах, пов’язаних із правом доступу до інформації, та юри- дична допомога в окремих випадках запитування інформації. Міжнародні заходи зміцнення довіри... 273
• Організація спеціалізованих тренінгів з питань свободи інформації для державних службовців і чиновників органів місцевої влади, журналістів та неурядових організацій. • Підготовка та публікація посібників щодо порядку здійснення права на доступ до ін- формації, а також публікацій з роз’ясненнями окремих аспектів законодавства про доступ до інформації52. З 2006 року AIP публікує регулярні оцінки виконання органами виконавчої влади вимоги щодо активного оприлюднення інформації на Інтернет-сайтах. Крім того, вона щорічно оці- нює стан виконання Закону про доступ до інформації. У 2010 році, після 10 років імплемен- тації цього закону, AIP дала наступну оцінку розвиткові свободи інформації: «Імплементація цього закону в Болгарії пройшла через кілька етапів. Від повної зневаги з боку адміністра- ції через небажання і опір виконанню положень закону – до дедалі більшого числа держав- них установ, яким у «День права знати» організація «Програма доступу до інформації» (AIP) присуджує нагороди за зразкове дотримання закону53. В епоху ІКТ надання інформації нерозривно пов’язане з електронними технологіями. Ця тенденція чітко простежується у правовій системі забезпечення доступу до інформації, яка з розвитком електронних технологій закріпила їхній статус комунікаційного засобу, рівно- правного з дотеперішніми стандартними моделями. У наведеній нижче таблиці дається порівняльний огляд застосування деяких основних міжнародних стандартів, спрямованих на зміцнення довіри між владою та громадянами, у правових актах про свободу інформації деяких держав – членів ЄС.
Основні міжнародні стандарти та їх застосування в законодавчих актах деяких держав – членів ЄС про свободу інформації
Міжнародні документи про Аналогічні положення в законах держав – членів ЄС про свободу свободу інформації інформації
Стаття 19: Глобальна кампанія за Польща: Закон про доступ до публічної інформації свободу слова Стаття 1 Закону про доступ до публічної інформації визначає публічну інформацію наступним чином: «всяка інформація, що становить суспільний Визначення інтерес, є публічною інформацією в розумінні цього Закону» Термін «інформація» повинен мати широке визначення. Болгарія: Закон про доступ до публічної інформації Термін «інформація» включає всі Стаття 2.1 визначає: «публічна інформація – це будь-яка інформація, документи, які знаходяться в розпо- що стосується суспільного життя Республіки Болгарія і дає громадянам рядженні державного органу, неза- можливість формувати власну думку про діяльність осіб, на яких цей закон лежно від форми, в якій ця інформація покладає певні обов’язки». зберігається (документ, плівка, (2) Інформація, про яку йде мова в пункті (1), вважається публічною незалежно електронний запис тощо), її джерела від типу її фізичного носія (державний чи якийсь інший орган) і дати створення Естонія: Закон про публічну інформацію § 3. (1) Публічна інформація – це інформація, що задокументована і зберігається будь-яким способом і на будь-якому носії, отримана або створена у процесі виконання публічних обов’язків, установлених законами або виданими на їхній основі правовими актами
Принцип 2. Обов’язок оприлюд- Болгарія: Закон про доступ до публічної інформації нення Закон про доступ до публічної інформації Республіки Болгарія передбачає наступний механізм публікації актуальної публічної інформації. Державні органи повинні бути обов’я- Обов’язки щодо розкриття публічної інформації Ст. 14. (1) Державні органи зані оприлюднювати нформацію, яка інформують про свою діяльність шляхом її публікації або з використанням має особливе значення інших форм її оприлюднення
52 Більш детально див. http://www.aip-bg.org/index_eng.htm 53 Access to Information Report 2009, Access to Information Programme, 2010, Bulgaria [Доповідь про доступ до інформації. 2009, Програма доступу до інформації, Болгарія]. 274 Міжнародні заходи зміцнення довіри...
Під свободою інформації розу- (2) Державні органи зобов’язані оприлюднювати інформацію, яка була міється не лише те, що державні ними отримана. або стала їм відомою під час виконання своїх передбачених органи надають інформацію у від- законом функцій, якщо ця інформація: повідь на запити, але й те, що 1. містить факти, що загрожують життю, здоров’ю, безпеці або майну громадян; вони самі опилюднюють і широко 2. спростовує раніше розповсюджену неправдиву інформацію, яка зачіпає розповсюджують документи, які важливі суспільні інтереси; становлять особливий суспільний 3. становить або може становити інтерес для суспільства; інтерес, залежно від наявних ре- 4. повинна бути підготовлена і оприлюднена в силу закону. сурсів і можливостей Стаття 15. (1) З метою підвищення прозорості в діяльності адміністративних Конвенція Ради Європи про доступ органів і з метою максимального полегшення доступу до публічної інформації до офіційних документів кожний керівник адміністративного органу в системі виконавчої влади Стаття 10 – Опублікування документів регулярно публікує актуальну інформацію, яка містить: з ініціативи органів державної влади 1. опис його/її владних повноважень, а також дані про організаційну структуру, функції та обов’язки очолюваного ним/нею адміністративного органу. Органам державної влади нале- 2. список правових актів, виданих у межах сфери його повноважень; жить з власної ініціативи і в тих 3. опис масивів даних і ресурсів, якими користується відповідний випадках, коли це виправдано, адміністративний орган, вживати всіх необхідних заходів 4. назву, адресу, номер телефону та години роботи відповідного щодо опублікування офіційних до- адміністративного органу, уповноваженого приймати запити на доступ до кументів, які перебувають в їх- публічної інформації. ньому розпорядженні, в інтересах підвищення прозорості та ефектив- Естонія: Закон про публічну інформацію ності органів державного управління § 28. Обов’язок власника інформації обнародувати інформацію. та сприяння інформованому залу- (1) Власник інформації зобов’язаний оприлюднювати наступну існуючу у ченню громадськості у справи, які нього і пов’язану з виконанням його обов’язків інформацію: становлять загальний інтерес 1) узагальнюючу економічну статистику та економічні прогнози держави та одиниць місцевого самоврядування; 2) узагальнену статистику злочинів та адміністративних правопорушень; 3) положення про державні і муніципальні установи та їхні структурні підрозділи; 4) форми заяв та інших документів, які подаються до державних і муніципальних установ, а також інструкції щодо їх заповнення; 5) посадові інструкції чиновників державних і муніципальних установ; 6) штатні розклади державних і муніципальних установ, а також імена, прізвища, номери телефонів та адреси електронної пошти чиновників, які займають передбачені в цих установах посади, а також відомості про їхню освіту та спеціальність; 7) інформацію про небезпеку для життя, здоров’я та майна людей; 8) звіти про результати роботи державних і муніципальних установ та про виконання ними своїх обов’язків; 9) імена і адреси електронної пошти членів наглядових рад і правлінь публічно-правових юридичних осіб; 10) звіти про діяльність публічно-правових осіб і звіти про їхні доходи та витрати; 11) проекти бюджетів і бюджети державних установ, одиниць місцевого самоврядування та муніципальних установ, а також звіти про їх виконання; 12) інформацію про надходження доходів державних бюджетів; 13) інформацію про стан навколишнього середовища, заподіяння шкоди навколишньому середовищу та небезпечні екологічні наслідки; 14) приписи або рішення органів державного або службового нагляду з моменту їхнього вступу в законну силу; 15) підготовлені міністерствами проекти законів і постанов Уряду Республіки з пояснювальними записками до них при їх скеруванні на узгодження та поданні на розгляд Уряду Республіки; 16) проекти постанов міністрів та органів місцевого самоврядування з пояснювальними записками до їх подання на розгляд і прийняття; 17) проекти концепцій, планів розвитку, програм та інших перспективних планів загального значення до їх подання в компетентні органи для схвалення, а також відповідні схвалені або прийняті документи; 18) інформацію про дослідження та аналізи, замовлені державними та муніципальними установами; 19) інформацію про вакантні посади в державних і муніципальних установах; 20) інформацію про державні поставки, що здійснювалися або здійснюються державою та одиницями місцевого самоврядування; Міжнародні заходи зміцнення довіри... 275
21) інформацію про використання майна та бюджетних коштів, переданих державою або одиницями місцевого самоврядування приватно-правовим юридичним особам, заснованим державою або одиницями місцевого самоврядування або такими, що функціонують з їхньою участю; 22) програми публічних заходів; 23) зміни в роботі та обов’язках державних і муніципальних установ, пов’язаних з обслуговуванням осіб, – не пізніше ніж за десять днів до впровадження таких змін; 24) інформацію про години прийому керівників державних і муніципальних установ; 25) ставки заробітної плати, інструкції з оплати праці, а також порядок виплати доплат і надання спеціальних пільг, які діють у державних і муніципальних установах; 26) інформацію про ціноутворення комерційних товариств, які займають домінуючі позиції на товарному ринку або володіють спеціальними чи виключними правами, або володіють природною монополією; 27) інформацію про надання державних послуг, а також про зміни в умовах надання цих послуг і розцінок на них, до впровадження таких змін; 28) списки членів політичних партій; 29) рішення та вироки судів, які вступили в законну силу; 30) дані загальних національних реєстрів і державних реєстрів у передбаченому законом обсязі; 31) реєстри документів установ; 32) іншу інформацію та документи, обов’язок обнародування яких установлений міжнародними угодами, законами або прийнятими на їхній основі правовими актами, або інформацію та документи, обнародування яких власник інформації вважає необхідним.
Нідерланди: Закон від 31 жовтня 1991 р., що містить нормативні положення про публічний доступ до урядової інформації Стаття 8 1. Відповідний адміністративний орган ініціативно оприлюднює інфор- мацію про свій політичний курс, його розробку та імплементацію, якщо оприлюднення такої інформації відповідає інтересам ефективного демократичного управління. 2. Адміністративний орган забезпечує надання інформації у зрозумілій формі і в такий спосіб, щоб вона дісталася до зацікавленої сторони і максимально можливої кількості громадян за достатній час, який дозволить їм своєчасно довести власну думку до відома адміністративного органу.
Великобританія – Закон про свободу інформації Схеми публікації 19. (1) Кожний державний орган зобов’язаний – (a) запровадити та підтримувати функціонування схеми, яка забезпечуватиме публікацію інформації цим органом і буде затверджена Комісаром (у тексті цього закону «схема публікації») (b) публікувати інформацію згідно зі своєю схемою публікації, а також (c) від часу до часу переглядати свою схему публікації. (2) Схема публікації повинна – (a) містити перелік класів інформації, яку даний державний орган публікує або має намір публікувати, (b) містити перелік способів, якими публікується або може публікуватися інформація кожного класу, а також (c) указувати, на яких умовах (платних чи безоплатних) надається або надаватиметься публічний доступ до певного матеріалу. (3) При впровадженні або перегляді схеми публікації державний орган враховує суспільний інтерес – (a) відкриваючи публічний доступ до інформації, яка знаходиться в його розпорядженні; (b) до оприлюднення причин прийняття рішень даним державним органом. (4) Державний орган оприлюднює свою схему публікації у спосіб, який вважатиме доцільним. 276 Міжнародні заходи зміцнення довіри...
Стаття 19: Глобальна кампанія за Естонія: Закон про публічну інформацію свободу слова Стаття 4.2 Закону про публічну інформацію передбачає, що доступ до інформації повинен забезпечуватися максимально швидким і зручним для Принцип 1. Максимальна відкритість всіх способом. Державні органи зобов’язані роз- кривати інформацію, а кожний член Польща: Закон про доступ до публічної інформації суспільства має відповідне право Стаття 2. Кожна особа має право доступу до публічної інформації, у отримувати інформацію. Кожна особа, подальшому «право на публічну інформацію». присутня на території країни, повинна користуватися цим правом. Австрія: Фундаментальний закон про обов’язок надання інформації Органи влади Земель, муніципалітетів та місцевого самоврядування згідно Модель закону про свободу інфор- з земельним законодавством, оприлюднюють інформацію з питань, які мації належать до сфери їхньої діяльності, в тій мірі, в якій це не суперечить їхньому законному обов’язку зберігати таємницю. Частина II: Право доступу до інфор- § 2. Кожна особа має право запитувати інформацію. мації, яка знаходиться в розпоряд- § 3. Земельне законодавство регулює, в якій мірі може надаватися женні державних і приватних орга- інформація, і в якій мірі окремі установи несуть відповідальність за виконання нів обов’язку щодо надання інформації. Стосовно професійних організацій Свобода інформації Земельне законодавство передбачає, що вони повинні надавати інформацію 3. Кожна особа має право на свободу тільки своїм членам і лише в тій мірі, в якій це не заважає належному інформації, включаючи право доступу виконанню їхніх статутних обов’язків. до інформації, яка знаходиться в розпорядженні державних органів, Нідерланди: Закон від 31 жовтня 1991 р., що містить нормативні лише за умови дотримання положень положення про публічний доступ до урядової інформації цього Закону. Стаття 3 1. Кожна особа може звернутися до адміністративного органу або установи, Конвенція Ради Європи про доступ служби чи компанії, котра виконує роботу, за яку несе відповідальність до офіційних документів перед адміністративним органом, за інформацією, вміщеною в документах стосовно певного адміністративного питання. Стаття 2: Право доступу до офіцій-них 2. Запитувач указує адміністративне питання або пов’язаний з ним документ, документів про який він бажає отримати інформацію. Кожна Сторона гарантує право Великобританія – Закон про свободу інформації кожної людини, без дискримінації за 1. (1) Кожна особа, яка звертається до державного органу з інформаційним будь-якою ознакою, на доступ за її запитом, має право – вимогою до офіційних документів, які (a) бути письмово поінформованою цим державним органом про те, чи має знаходяться в розпорядженні органів він у своєму розпорядженні інформацію, опис якої вміщений у запиті, а також державної влади. (b) якщо це так, отримати запитувану інформацію. Стаття 5: Обробка запитів на отримання доступу до офіційних документів 3. Запити на отримання доступу до офіційних документів розглядаються на основі принципу рівноправності. 4. Запит на отримання доступу до офіційного документа розглядається в терміновому порядку. Рішення приймається, повідомляється запи- тувачу і виконується в найкоротший строк або в межах заздалегідь установленого розумного строку.
Стаття 19: Глобальна кампанія за Болгарія: Закон про доступ до публічної інформації свободу слова Стаття 24. (1) Прохання про надання доступу до публічної інформації подається у формі письмового або усного запиту. Принцип 5. Процеси, що сприяють (2) Запит вважається зробленим у письмовій формі також у випадках, коли доступу до інформації він надсилається в електронній формі, з дотриманням умов, установлених Усі державні органи зобов’язані відповідним органом. створити відкриті й доступні внутрішні системи забезпечення права гром- Чеська Республіка: Закон про вільний доступ до інформації адян на отримання інформації. § 13 Запит про надання інформації
Конвенція Ради Європи про доступ (1) Запит про надання інформації подається в письмовій або усній формі, а до офіційних документів також за допомогою телекомунікаційних засобів. Міжнародні заходи зміцнення довіри... 277
Стаття 4: Запити на отримання Великобританія – Закон про свободу інформації доступу до офіційних документів Інформаційний запит. 1. Запитувач офіційного документа 8. (1) У тексті цього Закону будь-яка згадка про «інформацій запит» означає не мусить повідомляти, з яких причин запит – він бажає отримати доступ до цього (a) поданий у письмовій формі, офіційного документа. (b) що містить ім’я запитувача та його поштову адресу, а також 2. Сторони вправі надавати за- (c) що містить опис запитуваної інформації. питувачам право залишатися ано- (2) Для цілей підпункту (1)(a) запит вважається поданим у письмовій формі, німними, за винятком випадків, коли якщо текст запиту – розкриття імені важливе для обробки (a) переданий засобами електронного зв’язку, запиту. (b) отриманий у читабельній формі, а також 3. Пов’язані з запитом формальності (c) може бути використаний для подальшого посилання. не повинні бути більшими, ніж це необхідно для обробки запиту.
Стаття 19: Глобальна кампанія за Естонія: Закон про публічну інформацію свободу слова § 15. Обов’язок власника інформації надавати допомогу особі, яка запитує інформацію Принцип 5. Процеси, що сприяють (1) Власник інформації зобов’язаний у зрозумілій формі роз’яснювати особі, доступу до інформації яка запитує інформацію, порядок, умови та способи доступу до інформації. (2) Посадові особи чи працівники власника інформації зобов’язані надавати Державні органи також зобов’язані особам, які запитують інформацію, всіляку допомогу в поданні інформаційних надавати допомогу особам, чиї запитів, ідентифікації необхідної їм інформації, її місцезнаходження, а також запити стосуються попередньо у визначенні найбільш підходящих для даної особи способів доступу до неї. опублікованої інформації; або якщо (3) Посадова особа чи працівник власника інформації, в компетенцію якого запит неясний, надто широкий або не входить виконання інформаційного запиту, зобов’язаний невідкладно потребує уточнення. направити особу, яка запитує інформацію, до чиновника або працівника, наділеного відповідними повноваженнями, або невідкладно передає Модель закону про свободу письмовий інформаційний запит названому чиновнику чи працівнику. інформації Частина II: Право доступу до інфор- Нідерланди: Закон від 31 жовтня 1991 р., що містить нормативні мації, яка знаходиться в роз- положення про публічний доступ до урядової інформації порядженні державних і при- Стаття 4: Якщо інформаційний запит стосується документів, які знаходяться ватних органів в розпорядженні іншого адміністративного органу, ніж той до якого цей Запит інформації запит був поданий, запитувач у разі необхідності скеровується до цього 8(2) Якщо запит інформації не органу. Якщо запит був зроблений у письмові формі, він пересилається до відповідає положенням цього відповідного органу, і запитувач отримує відповідне повідомлення. закону, чиновник, який отримав цей запит надає посильну й розумну Великобританія – Закон про свободу інформації безкоштовну допомогу, яка може 16. (1) Державний орган зобов’язаний в розумній мірі надавати поради та бути необхідною для приведення допомогу особам, які подали або мають намір подати до нього інформаційні запиту у відповідність до закону. запити. Конвенція Ради Європи про доступ до офіційних документів
Стаття 5: Обробка запитів на отримання доступу до офіційних документів 1. Орган державної влади повинен, по мірі можливості, допомогти запитувачу ідентифікувати запиту- ваний ним офіційний документ. 278 Міжнародні заходи зміцнення довіри...
4.2. Участь – залучення громадян до процесу прийняття рішень «Якість … політики ЄС залежить від забезпечення широкої участі громадян на всіх ланках політичного ланцюжка – від задуму до імплементації».
Біла книга з питань європейського управління», Європейська комісія, 2001
Упродовж багатьох років публічні консультації вважалися марною справою, яка забира- ла багато часу. З іншого боку, державні установи вважали, що цінні експертні знання скон- центровані тільки в їхній внутрішній системі, розглядаючи «втручання» інших сторін як об- тяжливе і непотрібне. Організації громадянського суспільства були знеохочені відсутністю реакції на їхні зауваження і загальним нехтуванням їхньою думкою. Процес глобалізації, який відбувався на тлі падіння «залізної завіси», посилення адвока- ційного потенціалу громадянського сектора та спаду довіри громадян до своїх політичних систем поступово призвів до зміни цієї точки зору і приніс з собою нове управлінське «мис- лення». Публічні консультації поступово зайняли належне їм місце ключового політичного ме- ханізму, прищеплюючи всім учасникам думку, що консультації з громадськістю слід розгля- дати виключно як взаємовигідне рішення. Ця точка зору знайшла пряме підтвердження в По- яснювальному меморандумі до Рекомендації щодо правового статусу неурядових організа- цій в Європі, в якому Рада Європи заявила: «Незважаючи на розбіжність поглядів НУО і дер- жавних органів, точкою перетину їхніх інтересів та інтересів суспільства в цілому є потреба в наявності ефективних механізмів консультацій та діалогу з повноцінним використанням екс- пертних можливостей всіх сторін. Ясна річ, компетентна і відповідальна участь НУО у процесі формування державної політики може стати величезним внеском у пошук рішення багатьох проблем, над якими необхідно працювати»54. РЄ закликала своїх членів впроваджувати мето- ди сприяння участі ОГС через органи, які відіграватимуть координаційну роль. Усвідомлюючи, що організації громадянського суспільства відіграють важливу роль по- середників у широкому політичному діалозі, Європейська комісія проголосила у 2001 році громадську участь одним із п’яти базових принципів належного управління. У своїй Білій книзі «Європейське управління» Комісія подала чіткий сигнал: «якість, актуальність та ефек- тивність політики ЄС залежить від забезпечення широкої громадської участі на всіх ланках політичного ланцюжка – від задуму до імплементації. Посилення громадської участі може сприяти посиленню віри в кінцевий результат цієї політики та інституцій, які проводять її в життя. Вирішальним фактором забезпечення цієї участі є застосування центральними органами влади інклюзивного підходу при розробці та проведенні в життя політики ЄС»55. І якщо Біла книга з питань європейського управління» розглядала принцип участі на макро- рівні, то Модель кодексу належної адміністрації, прийнята Радою Європи, сягнула за рамки суто програмного рівня, проголосивши, що навіть на рівні окремо взятих рішень «якщо не- має потреби у негайному вжитті заходів, державні органи надають приватним особам мож- ливість відповідними засобами брати участь у підготовці та виконанні адміністративних рі- шень, які зачіпають їхні права та інтереси»56.
54 Explanatory Memorandum to Recommendation CM/Rec (2007) 14 of the Committee of Ministers to member states on the Legal Status of Non-Governmental Organisations in Europe, Council of Europe [Пояснювальний мемо- рандум до Рекомендації СМ/Rec (2007) 14 Комітету міністрів державам-членам про правовий статус неурядо- вих організацій в Європі, Рада Європи]. 55 European Governance – A White Paper» of the Commission of the European Communities. Brussels, [Європей- ське управління – Біла книга Комісії Європейських Співтовариств. Брюссель] 25.7.2001. COM (2001) 428 final. 56 Article 8, Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration [Стаття 8, Рекомендація СМ/Rec(2007)7 Комітету міністрів державам-членам про належну адмі- ністрацію]. Міжнародні заходи зміцнення довіри... 279
Водночас Європейська комісія прямо наголосила, що культуру проведення консульта- цій неможливо сформувати лише шляхом прийняття правових актів. Її основу повинен ста- новити кодекс поведінки, який встановлює мінімальні стандарти – з яких питань проводи- ти консультації, коли, з ким і як. Це не лише допоможе відновити довіру суспільства, але й сприятиме розвиткові культури проведення консультацій, її впровадженню та ефективному застосуванню в державних установах.
Як ці принципи застосовуються на практиці? На європейському рівні одним з основних засобів сприяння широким публічним обго- воренням є Зелені книги, що публікуються Європейською комісією. Зелені книги – це доку- менти, які стимулюють обговорення певних тем на європейському рівні. Вони запрошують зацікавлені сторони (установи або фізичних осіб) взяти участь у консультаційному процесі та обговореннях внесених пропозицій. Зелені книги можуть дати поштовх певним законо- давчим процесам, які згодом знаходять відображення в Білих книгах. Надіслані зауваження та пропозиції, як правило, підсумовуються в рекомендаціях Комісії щодо здійснення певних програмних кроків, викладених у Білій книзі. З прийняттям у 2002 році Загальних принципів та мінімальних стандартів проведення кон- сультацій із зацікавленими сторонами (див. Додаток 4) Єврокомісія взяла на себе провідну роль у справі формування консультаційного процесу в Європі та продемонструвала практич- ний приклад того, як держави-члени повинні застосовувати принципи, проголошені Білою книгою з питань європейського управління. Головною метою Кодексу стандартів є перефор- мування нинішньої практики проведення консультацій в Комісії і впровадження послідовного структурованого підходу в цій сфері. Цей документ покликаний також забезпечити, щоб усі зацікавлені сторони мали однаковий доступ до інформації й були рівноправно представлені в процесі формування політичного курсу. Дотримання цього принципу забезпечує широке по- годження, технічну та практичну здійсненність пропозицій ЄК на основі підходу «знизу вгору». Згідно з належною практикою, яку бажала запровадити Комісія, проект Мінімальних стан- дартів проведення публічних консультацій теж широко обговорювався із зацікавленими сторо- нами. Надіслані пропозиції та рекомендації були розміщені не вебсайті Комісії разом з інфор- мацією про учасників обговорення. В такий спосіб вона не лише гарантувала відкритість і про- зорість політичного процесу, а й забезпечила застосування тих самих принципів до організацій громадянського суспільства, які брали участь у розробці стандартів. Тим самим Європейська комісія ще раз підтвердила свою переконаність у тому, що «задля успіху консультаційних від- носин відданість цим принципам не може бути однобічною: їх повинні ефективно застосовува- ти обидві сторони консультаційного процесу»57. З точки зору кращого залучення громадсько- сті застосування принципів належного управління означає на практиці, що Комісія: • Провадитиме максимально широкі обговорення важливих політичних ініціатив і, зокрема, законодавчих пропозицій (Участь) • Забезпечуватиме, щоб як безпосередні учасники обговорень, так і широка громадськість мали чітке розуміння: над якими питаннями ведеться робота; які застосовуються механізми проведення консультацій; з ким і чому проводяться консультації; що вплинуло на прийняття рішень при формуванні політичного курсу (Відкритість і підзвітність)
57 Communication from the Commission, Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission [Повідомлення Комісії «До посилення культури проведення консультацій та діалогу – Загальні принципи та мінімальні стандарти про- ведення Комісією консультацій з зацікавленими сторонами], COM(2002) 704 final. 280 Міжнародні заходи зміцнення довіри...
• Вимагатиме від усіх зацікавлених сторін, які прагнуть зробити свій внесок у розробку політики ЄС, подання інформації про інтереси, які вони представляють, і широту цього представництва (Відкритість і підзвітність) • Якомога раніше розпочинатиме процеси консультацій і дбатиме про те, щоб усі зацікавлені сторони залучалися до нього на тих етапах, де вони можуть впливати на формулювання основних цілей, методів реалізації, показників ефективності і там, де це доцільно – початкових контурів цього політичного курсу (Ефективність) • Забезпечуватиме узгодженість і послідовність дій власних департаментів і створюватиме механізми зворотного зв’язку, оцінки та перевірки (Послідовність) Загальні принципи та мінімальні стандарти проведення консультацій були задумані як практичні рекомендації, що дають відповіді на три головних запитання: з ким, як і коли кон- сультуватися. Проте з метою підвищення їхньої ефективності та забезпечення їх належного застосування ЄК передбачила вжиття наступних супровідних заходів: • розробка практичних інструкцій з наведенням прикладів передової практики, вміщених на Інтранет-вебсайті Комісії; • створення довідкової служби, на поштову скриньку якої працівники надсилатимуть свої запитання щодо застосування загальних принципів і мінімальних стандартів; • організація тренінгів та інформаційно-просвітніх заходів. З метою створення чіткої правової бази залучення ОГС до процесу прийняття рішень Комі- сія опублікувала у 2004 році Керівні принципи та належна практика участі недержавних акторів у діалогах і консультаціях з питань розвитку. Цей документ містить практичні рекомендації Де- легаціям ЄС щодо методів «зміцнення довіри» між урядами та недержавними акторами. У чис- лі перших рекомендованих методів було назване «картографічне дослідження» позицій недер- жавних акторів (НДА) в країні або регіоні. Це дослідження допоможе започаткувати партиципа- торний процес, а також накреслити загальну картину мереж ОГС і вкрай актуального діалогу, який відбувається на рівні країни/ регіону. Це дослідження може також оцінити потенційні мож- ливості ОГС, їхню роль і обмеження, з якими вони стикаються у своїй адвокаційній діяльнос- ті, питаннях моніторингу, проведенні політичного діалогу та наданні послуг. З метою виконан- ня поставлених завдань дослідження повинно проаналізувати наступні організаційні критерії: • місія та функції ОГС, здатність їх виконувати; • взаємні стосунки; • рівень залучення до політичного діалогу з національними державними органами або донорською спільнотою, моніторингу та імплементації в центрі та районах; зокрема поточний статус участі в роботі ЄК та співробітництва з іншими донорами; • голос рядових членів; • умови та стратегії фінансування (законодавча база фінансування та залежність від іноземної допомоги); • погляди, сподівання організацій громадянського суспільства та стратегії партнерства з центральними та місцевими органами влади; • інформаційні потоки всередині ОГС і поміж ними на центральному та місцевому рівнях: їхній характер («назад», тобто з центру в райони та місцеві громади, та/або «вперед», тобто з місцевих громад у райони і далі в центр) та їх зміст; • інформаційні потоки поміж донорами, урядом та громадянським суспільством: характер («назад»/«уперед») і зміст (стратегії, політика, підзвітність, процедури, доступ до фінансування тощо); • ознаки (географічні, секторальні тощо) того, що ОГС не організовані і потребують нарощування потенціалу з урахуванням можливої синергії та зв’язків з уже існуючими програмами й ініціативами в даній сфері діяльності58. 58 Guidelines on Principles and Good Practices for the Participation of Non-State Actors in the development dialogues and consultations, DG Development, European Commission [Керівні принципи та належна практика участі недержавних акто- рів у діалогах і консультаціях з питань розвитку, Генеральний директорат з питань розвитку, Європейська комісія] (див. вебсайт: http://ec.europa.eu/europeaid/what/civil-society/documents/guidelines_principles_good_practices_en.pdf). Міжнародні заходи зміцнення довіри... 281
Європейська комісія приділила особливу увагу створенню нових структур діалогу з гро- мадянським суспільством, інших ніж ті, що вже існують на сьогодні. Комісія підкреслила, що в принципі слід уникати створення нових структур – так само, як уникати створення донор- ських або урядових структур діалогу з громадянським суспільством. У протилежному ви- падку можуть з’являтися структури, які насправді не представлятимуть інтересів громадян- ського суспільства, не будуть елементом його істинної динаміки та існуватимуть виключно заради отримання донорських пожертв. Існування таких ОГС, як правило, підриває довіру уряду до діяльності ОГС у цілому і породжує запитання про їхні справжні цілі та приховані за ними інтереси. Європейська комісія також відзначила, що консультаційний процес вимагає належно- го балансу між економічними та соціальними партнерами і НУО, які представляють різні групи або сфери інтересів. Інклюзивний підхід до проведення консультацій породжує спільну відпо- Досягнення ІРП відальність за узгоджену на всіх рівнях політичну • Програма ІРП використовується ініціативу. «Керівні принципи» рекомендують поза в контексті спільного проекту Європей- моніторингом громадської участі у процесі при- ської комісії та держав–членів European йняття рішень відстежувати тенденції змін у став- Business Test Panel, [Тестова група єв- ленні ОГС до цього процесу. Слід піддавати оцін- ропейських компаній], створеного для ці потенційні можливості ОГС і цінність їхньої учас- оцінки впливу нових пропозицій на біз- нес. Цей проект, започаткований у ті у формуванні політичного курсу, готовність за- 2003 р., зараз охоплює понад 3 200 різ- безпечувати інклюзивні та прозорі процеси тощо. них за розміром компаній з усіх галузей і У цьому відношенні потребують відповіді три на- держав – членів ЄС. ступних запитання: • Технологія ІРП була застосована в • Чи готові ОГС скористатися можливостя- проекті «Механізм зворотного зв’язку» ми взяття участі у процесі розвитку (шля- (2000–2005), мета якого – збір інфор- хом нарощування власного потенціалу, по- мації про проблеми, пов’язані з різни- інформованості)? ми політичними заходами ЄС, з якими • Чи готові ОГС зміцнювати свої мережі (цен- громадяни стикаються в повсякденно- тральні органи – прислухатися до голосу му житті, через мережу з 300 контак- тних пунктів (Євро Інфо Центри, Євро- низових ланок, інформувати прибічників пейські центри захисту прав спожива- про підготовку консультацій, забезпечува- чів, Citizens’ Signpost Service). Нового ти зворотний зв’язок під час консультацій імпульсу цьому проекту надала ініціа- тощо)? тива ГД з питань підприємництва «SME • Наскільки якісний та актуальний внесок ро- feedback», в центрі уваги якої – пробле- блять ОГС у консультації та діалоги? ми, з якими стикаються малі та середні Моніторинг дозволить виявляти слабкі місця компанії при провадженні бізнесу в Єв- та недоліки, що потребують виправлення, зокре- ропі. ма відповідні точки введення інформації. • ІРП також служить засобом вну- Європейська конфедерація НУО з надзвичай- трішньої комунікації та управління пер- соналом, оскільки в Європейській ко- ної допомоги та розвитку у своєму висновку59 місії регулярно провадяться внутріш- щодо проекту документу Комісії рішуче підтри- ні опитування, а служби Комісії готу- мала проведення «картографічних» досліджень. ють з її допомогою різні заходи та кон- Вона відзначила, що належить приділити особли- ференції (реєстрація), проводять опи- ву увагу «сегментації» думок, висловлених під час тування користувачів вебсайту тощо. консультацій, і створити умови для висловлен- (Див. http://ec.europa.eu/yourvoice/ ня різних точок зору, але водночас рахуватися з ipm/index_en.htm) можливістю виникнення конфліктів у політично
59 Див. вебсайт: http://www.concordeurope.org/Files/media/0_internetdocumentsENG/olddocumentsFRE/3_ Sujets_traites/3_2_sujets_traites/3_2_16_acteurs_non_etatiques/3_2_16_1_2_documents_de_concord/ documentsdediscussiondecondord.pdf 282 Міжнародні заходи зміцнення довіри...
нестабільних країнах. Показники для оцінки участі ОГС повинні розроблятися на національ- ному рівні у тісному співробітництві з представниками ОГС. Одним із найбільш популярних методів, побудованих на концепції представництва різно- мантіних інтересів, є ініціатива «Інтерактивна розробка політики» (ІРП), започаткована Євро- пейською комісією у 2001 році. В її основу закладені електронні технології, які дають змо- гу якомога ширше залучати громадськість. ІРП – це прикладна веб-програма, за допомо- гою якої розробляються та проводяться опитування і публічні консультації. Зручні й прості онлайн-анкети цієї програми дозволяють респондентам без зайвих труднощів брати участь у консультаціях, а політичним керівникам – аналізувати їх результати. Вона дає можливість розробникам політичного курсу оперативно отримувати конкретні дані про реагування гро- мадськості на суперечливі питання та проблеми і точніше оцінювати можливі наслідки того чи іншого програмного заходу. Ця ініціатива швидко стала провідним інструментом оцінки про- грамних заходів ЄС і сприяння відкритим обговоренням нових ініціатив. З моменту запуску програми ІРП з її допомогою було проведено більш ніж 100 публічних консультацій на веб- порталі «Your voice in Europe» 60 [Ваш голос у Європі]. Цей веб-портал є «єдиною точкою до- ступу», через яку широка громадськість може отримувати інформацію та брати участь у різ- них консультаціях і дискусіях. Збір зауважень і рекомендацій, які надходять від різноманітних організацій, має двояку мету. Поза з’ясуванням другої точки зору на проекти програмних за- ходів Комісія користується ним як важливим джерелом експертних оцінок. З огляду на нові компетенції та завдання, поставлені перед Європейською комісією, експертні знання стають вирішальним фактором проведення більш розумної та виваженої політики. А оскільки в багатьох випадках необхідні знання дедалі частіше мають технічний характер, помітно зросла й потреба в технічній експертизі, поставивши на порядок денний створення експертних груп. Експертні групи – це дорадчі органи, створені Європейською комісією для надання кон- сультацій при підготовці законодавчих пропозицій та політичних ініціатив, а також для під- тримки самої ЄК при виконанні завдань з моніторингу, координації та співробітництва з державами – членами ЄС. До їх складу можуть входити представники національних, регі- ональних або місцевих органів влади, представники організацій громадянського суспіль- ства чи інших зацікавлених сторін, а також висококваліфіковані фахівці відповідної галузі. З метою забезпечення високого рівня прозорості списки членів експертних груп разом з інформацією про самі групи (керівний департамент ЄК, завдання групи та категорії учас- ників) оприлюднюються в публічному реєстрі експертних груп Комісії. Крім того, на веб- сайтах відповідних генеральних директоратів можуть розміщуватися списки з іменами екс- пертів, назвами організацій, які вони представляють, стислі звіти, висновки чи інші робо- чі документи групи. Робота експертних груп може доповнюватися іншими методами залу- чення експертних знань, зокрема шляхом публікації консультаційних документів (Зелених книг, Білих книг і повідомлень), проведення Інтернет-консультацій, слухань, семінарів, кон- ференцій тощо. З розширенням сфер компетенції ЄК кількість експертних груп поступово зростала – з 537 у 1975 році до 1041 у серпні 2010 року. Переважна більшість експертних груп при Європейській комісії зробили цей механізм проведення консультацій доволі стандартизованим і дуже важливим елементом європей- ської структури державного управління. Хоча експертні групи переважно виступають у ролі допоміжного політичного інструмен- ту ЄК, Європейський парламент запровадив ще один механізм «прислухання до голосу» громадянського суспільства. Громадянська агора Європейського парламенту – це кон- сультаційний механізм, покликаний подолати розрив між: • Європейськими інституціями та громадянами: Агора – прямий і широкомасштабний інструмент поліпшення зв’язку та взаєморозуміння між європейськими інституціями 60 http://ec.europa.eu/yourvoice/index_en.htm Міжнародні заходи зміцнення довіри... 283
та населенням Союзу. Вона сприяє кращому розумінню Європейським парламентом очікувань і потреб своїх громадян; • Різними секторами європейського громадянського суспільства: коли заходить мова про особливо чутливі проблеми, організації громадянського суспільства часто мо- жуть мати розбіжні інтереси. Як наслідок, у процесі консультацій вони діють наріз- но, рідко зіставляючи свої аргументи з чужими, а відтак дозволяють європейським органам приймати на власний розсуд часто не виважені компромісні рішення. Агора сприяє проведенню консультацій між цілими секторами європейського громадян- ського суспільства, які звичайно нічого не знають одне про одного. Шляхом створення «Громадянської агори» Європейський парламент прагнув започат- кувати структурований діалог з європейським громадянським суспільством і встановити тісний зв’язок з десятками тисяч неурядових організацій та мільйонами членів громадян- ського суспільства в Європі. Агора була створена передусім як відкритий і прозорий ін- струмент публічних консультацій для обговорення важливих тем європейського порядку денного. Водночас вона може служити засобом поширення інформації та зміцнення дові- ри, оскільки перша Агора була сприйнята громадянським суспільством як справжня озна- ка довіри. Агора складається з 500 організацій, відібраних тими парламентськими комітетами, чия сфера відповідальності пов’язана з винесеною на обговорення темою, та всіма зацікавле- ними членами Європарламенту. Кожну запрошену організацію може представляти тільки одна особа від кожної держави-члена. Це правило дає змогу також запрошувати організа- ції з-поза меж Європейського Союзу. Предметом обговорення першої Агори, організованої у 2007 році, був напрям майбут- нього розвитку Європи – головним чином новий Договір і можливості, що відкриваються попереду. Друга Агора відбулася у 2008 році й була присвячена зміні клімату. Проведен- ням її завершився випробувальний етап цієї ініціативи. По закінченні моніторингу її майбут- ню долю вирішуватимуть органи Європарламенту та, у разі доцільності, інші європейські ін- ституції. Багато спільного з «Громадянською агорою» має ініційований сектором громадянського суспільства проект «Європейські громадські консультації» (ЄГК). Ініціатором його виступив у 2009 році унікальний консорціум з більш ніж 40 незалежних європейських організацій- партнерів, до складу якого входять фонди, НУО, університети та експертно-аналітичні цен- три з усіх 27 держав – членів Європейського Союзу. Напередодні європейських виборів 2009 року ЄГК-2009 став для громадян ЄС плат- формою загальноєвропейського діалогу з питань, породжених економічно-фінансовою кризою. На першому етапі цього проекту близько 200 «Європейські громадські консуль- тисяч громадян відвідали консультаційну онлайн- тації надають населенню унікальну платформу, висловивши на ній свої ідеї щодо можливість обговорювати свої про- шляхів формування соціально-економічного блеми та ідеї як між собою, так і з по- майбутнього Союзу. Ці ідеї були згодом обго- літичними керівниками. Вони інфор- ворені на національних етапах консультацій, які мують людей і збагачують додатковим відбулися в усіх 27 державах-членах за участю змістом дискусії про те, як сформува- 1 600 довільно вибраних громадян. На кожному ти ефективну політику задля вирішен- спеціально організованому національному фо- ня проблем, які стоять перед нами, до- румі було вироблено 10 рекомендацій щодо по- повнюючи інформацію, яку ми отриму- дальших дій. На наступному етапі всіх учасни- ємо з опитувань громадської думки та консультацій з зацікавленими сторона- ків попросили шляхом голосування відібрати ми». Жозе Мануел Баррозу, Голова Єв- 15 найважливіших політичних рекомендацій з ропейської комісії усіх пропозицій, які були попередньо внесені на 284 Міжнародні заходи зміцнення довіри...
національних форумах. Згодом відбулося обговорення цих рекомендацій в найвищих по- літичних органах ЄС, включаючи Європейську комісію, Європейський парламент, дер- жаву, що головує в ЄС. Проект ЄГК-2009 розвинув успіх ЄГК-2007, запровадивши нову модель громадської участі, створену першим загальноєвропейським партиципаторним проектом. Завдання «Європейських громадських консультацій» багато в чому схожі із за- вданнями, поставленими Європейським парламентом у процесі організації «Громадян- ської агори». ЄГК-2009 мав на меті: • Сприяння дискусіям між громадянами та політичними керівниками під час підготов- ки до європейських виборів і після них. • Подолання розриву між ЄС і його громадянами шляхом наближення ЄС до громадян і наближення громадян до ЄС. • Активізація становлення нової тенденції та зорієнтованих на довгострокову перспек- тиву публічних консультацій на європейському рівні. • Врахування висловлених громадянами думок у політичних дебатах на європейсько- му та національному рівнях. • Посилення інтересу широкої громадськості до ЄС: організація детального висвітлен- ня у ЗМІ діалогу між ЄС та його громадянами. • Поглиблення європейського співробітництва з існуючими мережами громадянсько- го суспільства та їхніми партнерськими мережами, а також з провайдерами «елек- тронної участі»61. Європейська громадянська комісія [The European Citizen Panel] – ще одна ініціатива громадянського суспільства, що має багато спільного з ініціативою ЄГК, але, на відміну від ЄГК, в центрі її уваги була одна окремо взята сфера політики. Комісія розпочала свою роботу у 2006–2007 роках як пілотна ініціатива залучення громадян десяти різних регіонів Європи до обговорення проблем сільської місцевості. Метою цієї ініціативи було сприян- ня застосуванню політичного підходу «знизу вгору» та створення механізму, який допо- магав би громадянам розповсюджувати свої пропозиції щодо майбутніх програм розви- тку сільських регіонів Європи. Ця ініціатива функціонувала на двох рівнях – регіонально- му та європейському. • На регіональному рівні випадково відібрані представники різних верств населення обговорювали на засіданнях комісії проблеми сільської місцевості та розробляли рекомендації для відповідних політичних керівників. Цій роботі сприяла інформація, що надавалася ключовими зацікавленими сторонами та експертами з проблемати- ки сільських регіонів. • На європейському рівні відбулася зустріч певної кількості представників від кожної регіональної комісії з метою обміну думками та обговорення майбутньої ролі сіль- ських регіонів. За цією ініціативою в десяти регіонах Європи було створено 8 комісій. Усі регіональні ко- місії провадили обговорення, дотримуючись єдиної методології. По завершенні регіональ- них засідань 87 делегатів від усіх регіонів узяли участь у заключній загальноєвропейській нараді. Зіставивши свої точки зору, учасники підготували спільну доповідь з викладом своїх думок і рекомендацій щодо долі сільських регіонів у завтрашній Європі. Сформульовані єв- ропейськими громадянами висновки були публічно розіслані Комітетом ЄС у справах регі- онів відповідним європейським і регіональним органам влади. Механізми публічних консультацій, які застосовуються в державах-членах, загалом узгоджуються з існуючими в ЄС тенденціями щодо залучення громадян до процесу при- йняття рішень. Проте різні країни обирають різні підходи до цієї справи з огляду на особли- вості свого політичного, економічного та адміністративного розвитку. Найбільш характерні та інноваційні підходи будуть представлені в наступному розділі. 61 Більш детально про ЄГК-2009 див. вебсайт: http://www.european-citizens-consultations.eu Міжнародні заходи зміцнення довіри... 285
Болгарія Загальні механізми громадської участі у процесі прийняття рішень виписані в Законі про нормативні акти, Адміністративно-процесуальному кодексі, Законі про місцеве самовря- дування та місцеву адміністрацію, а також у цілій низці прийнятих урядом підзаконних ак- тів. Ця правова база забезпечує законодавчі гарантії залучення зацікавлених сторін на всіх рівнях державного життя – від прийняття законодавчих актів на національному рівні до роз- робки місцевих програм та окремих адміністративних актів. Закон про нормативні акти встановлює, що всі громадяни мають право брати участь у процедурах підготовки законопроектів шляхом ініціювання внесення змін до законодав- ства з метою вдосконалення чинної правової бази, або шляхом обговорення вже підготов- лених законопроектів. Закон прямо встановлює обов’язок проведення консультацій з гро- мадськістю як головний принцип законотворчих процедур поряд із принципами конститу- ційності, стабільності та відкритості. Обговорення проектів нормативних актів можуть від- буватися у два етапи: • До подання акту на розгляд Кабінету міністрів: Усі законопроекти повинні оприлюднюватися на вебсайтах відповідних органів влади разом із обґрунтуванням їх прийняття. Широкому загалу надається не менше 14 днів на подання зауважень і рекомендацій. Тільки по закіченні вказаного періоду і аналізу зауважень та пропозицій законопроект подається на розгляд Кабінету міністрів. • До прийняття закону Народними зборами: Згідно зі статтею 28 Регламенту Народних зборів засідання Постійних комітетів про- вадяться відкрито, і представники громадськості можуть бути на них присутніми. Представники громадських об’єднань, професійних спілок і галузевих асоціацій ма- ють право бути присутніми на засіданнях Постійних комітетів, подавати письмові пропозиції та брати участь в обговореннях законопроектів, які стосуються їхньої ді- яльності та сфери інтересів. Цей же принцип застосовується на рівні місцевих органів влади. Закон про місцеве са- моврядування та місцеву адміністрацію передбачає, що одним з головних завдань місце- вих постійних комітетів є вивчення потреб місцевих громад у відповідних сферах і розроб- ка пропозицій щодо вирішення виявлених проблем. У цьому процесі комітети можуть звер- татися за допомогою до незалежних експертів і консультантів. Усі громадяни та їхні орга- нізації мають право подавати пропозиції та зауваження щодо обговорюваних питань. Засі- дання всіх комітетів місцевих народних зборів відбуваються у відкритому режимі й можуть транслюватися по радіо чи телебаченню. Участь зацікавлених сторін у вирішенні питань «місцевого» або «специфічного» харак- теру регулюється Адміністративно-процесуальним кодексом. Згідно з його положення- ми, широка громадськість може брати участь у процесі розробки загальних адміністратив- них актів62 шляхом подання зауважень і пропозицій. Державний орган, що видає такий акт, зобов’язаний відкрити процедуру прийняття загального адміністративного акту шляхом розміщення публічного оголошення в засобах масової інформації, розсилання його про- екту організаціям зацікавлених осіб або в інший підходящий спосіб. У повідомленні мають бути вказані основні причини видання даного акту, а також форми участі зацікавлених осіб у процедурі його прийняття. Може бути обрана одна з наступних форм участі: • письмові пропозиції та заперечення; • участь у роботі консультативних органів, створених при органі, який видає даний акт; • участь у засіданнях органу, який видає даний акт, якщо це колективний орган; • громадське обговорення.
62 Стаття 55 Адміністративно-процесуального кодексу передбачає, що загальні адміністративні акти – це акти одноразової юридичної дії, якими створюються певні права чи обов’язки або які чинитимуть прямий вплив на права, свободи чи законні інтереси невизначеної кількості осіб, а також відмови у виданні таких актів. 286 Міжнародні заходи зміцнення довіри...
Період публічних консультацій не може бути коротшим ніж один місяць із дня публікації повідомлення. Загальний адміністративний акт може бути виданий лише після з’ясування всіх важливих для даної справи фактів і обставин, а також після розгляду всіх пропозицій та заперечень, поданих зацікавленими громадянами та їхніми організаціями. Остаточний текст загального адміністративного акту оголошується в такий же спосіб, у який було зроблене від- повідне повідомлення. Якщо у процедурі прийняття брали участь окремі зацікавлені особи чи організації, їм розсилаються окремі оголошення про видання даного акту (стаття 72.2). У якості доповнення до правової бази Рада міністрів опублікувала рекомендації щодо порядку проведення публічних консультацій. Мета цього документа – надати державним органам практичну інформацію щодо того, як посилити й краще організувати громадську участь у політичному процесі. Рекомендації поділені на шість основних етапів, які стисло роз’яснюють, як, коли і з ким консультуватися. Основні етапи консультаційного процесу сформульовані наступним чином: • Попереднє планування консультаційних процедур. • Визначення зацікавлених сторін. • Підготовка документів, які стануть предметом обговорення. • Вибір і проведення консультаційних процедур. • Аналіз і підсумовування отриманих зауважень і пропозицій. • Зворотний зв’язок із зацікавленими сторонами. З метою сприяння проведенню загальнонаціональних обговорень законопроектів та державної політики був створений портал публічних консультацій (www.strategy.bg).
Естонія Концепція розвитку естонського громадянського суспільства (КРЕС) була прийнята ес- тонським парламентом у 2002 році. Головна мета концепції – накреслення основних ролей, принципів і механізмів співробітництва між державними органами та ОГС. Концепція передбачає, що державні органи повинні підтримувати громадянські ініціативи шляхом створення сприятливого правового середовища, інформування громадськості про свою роботу, залучення громадян та їхніх об’єднань до планування та виконання відповідних рішень. У процесі розробки політичного курсу громадські об’єднання і державний сектор зобов’язуються: • співпрацювати при розробці, проведенні в життя та оцінці програм у різних галузях через своїх уповноважених членів або представників згідно зі сферами їхньої діяль- ності та компетенції; • організувати збір думок, необхідних для формування політичного курсу та ініціюван- ня правових актів, та їх систематизоване представлення уповноваженим органам у взаємно погоджений строк і в обумовленій формі; • враховувати досвід одне одного при формуванні політичного курсу та ініціюванні правових актів та консультуватися при їх розробці з об’єднаннями громадян, надаю- чи їм достатній час на сформування власної думки; • оцінювати на всіх етапах розробки різних програмних стратегій та правових актів їх- ній вплив на суспільство та навколишнє середовище; • підвищувати компетенцію своїх представників для участі в розробці, проведенні в життя та оцінці програм; • враховувати при формуванні політичного курсу щодо малих груп позиції та точки зору громадських об’єднань, які представляють ці групи, і залучати їх до розробки законопроектів та політичних дебатів; • спільно формувати й застосовувати належну практику співробітництва з метою орга- нізації розробки, проведення в життя та оцінки програм, а також участі некомерцій- ного сектора в законотворчому процесі63. 63 Постанова парламенту Естонії про затвердження естонської Концепції розвитку громадянського суспіль- ства, Таллінн, 12 грудня 2002 р. Міжнародні заходи зміцнення довіри... 287
Прийнявши концепцію КРЕС, естонський парламент зобов’язався кожні два роки про- вадити обговорення процесу її реалізації. На основі принципів, проголошених концепцією КРЕС, був опублікований естонський Кодекс належної практики залучення громадськості для державних установ. Цей Кодекс на має обов’язкової сили, але державним органам, як правило, рекомендується його дотри- муватися. Головна мета Кодексу – гармонізація практики публічних консультацій та впрова- дження єдиних стандартів залучення ОГС до процесу прийняття рішень. В основу цього до- кумента закладені вісім основних принципів участі, а саме: 1. Влада повинна чітко і всебічно роз’яснювати цілі консультаційного процесу, а також якої участі та зворотного зв’язку вона очікує від залучених сторін. 2. Зацікавлені сторони мають бути чітко визначені, а їхні побажання, потреби та харак- терні особливості – взяті до уваги. Державні органи організують реєстрацію груп ін- тересів, щоб гарантувати поінформованість усіх зацікавлених сторін про початок під- готовки та/або обговорення стратегічних документів. 3. Усі зацікавлені сторони якомога раніше залучатимуться до підготовки проектів доку- ментів, а їхня участь у цій роботі триватиме протягом усього процесу. 4. До початку консультаційних процедур належить складати детальні плани залучення громадськості. Обрана форма залучення повинна відповідати змісту проекту доку- мента, його потенційним наслідкам, потребам, можливостям та іншим умовам залу- чених сторін. 5. При обговоренні проектів документів належить забезпечити безперебійний зв’язок між учасниками, гарантуючи в такий спосіб своєчасне інформування громадськос- ті, груп інтересів і сторін, на яких може позначитися дія даного стратегічного доку- мента. 6. Для контролю за безперебійним ходом консультаційного процесу згідно з планом виконується проміжний огляд і аналіз результатів зворотного зв’язку. За даними про- міжного огляду приймається рішення про можливе застосування додаткових форм і методів або необхідність розширення кола сторін-учасниць. 7. Усі залучені сторони інформуються про результати їхньої участі. Вони мають право отримати від організатора консультації стислий звіт із переліком усіх поданих про- позицій – як тих, що були прийняті, так і відхилених. Причини відхилення пропозицій мають бути пояснені. 8. Належить виконати оцінку проведеної консультації та застосовності її результатів. Результати оцінки повинні враховуватися при плануванні та проведенні наступних процесів залучення громадськості. Кодекс ніяк не обмежує тематики документів, які підлягають громадському обговорен- ню, але встановлює мінімальні обов’язкові стандарти. В обов’язковому порядку провадять- ся консультації стосовно наступних документів: • Проекти законів або зміни до них. • Проекти нормативних актів і директив Уряду Республіки. • Проекти міністерських постанов. • Документи, концепції, програмні заходи, плани розвитку та програми, важливі для розвитку країни. • Проекти законодавчих актів інституцій Європейського Союзу та інші стратегічні доку- менти (тобто «зелені» та «білі» книги). • Інструкції та процедури надання державних послуг. • Конвенції та міжнародні угоди, а також документи, що розробляються в рамках цих угод і чинять вплив на суспільство. Процес публічних консультацій в Естонії тісно пов’язаний з електронними засобами зв’язку, які за останні роки стали основним каналом обміну думками. 288 Міжнародні заходи зміцнення довіри...
Одним із практичних інструментів імплементації принципів КРЕС є відкритий у 2007 році естонський веб-портал (www.osale.ee). Головна мета цього порталу – організація двосто- роннього зв’язку з виборцями, який забезпечує більшу прозорість політичного процесу на урядовому рівні. Портал виконує три головні функції: • Служити платформою, на якій громадяни та групи інтересів можуть вносити нові за- конодавчі пропозиції, пропонувати ідеї, критикувати уряд і подавати петиції. Усі по- дані на портал пропозиції обговорюються та голосуються рештою користувачів. Піс- ля надходження відгуків інших зацікавлених сторін пропозиції пересилаються до від- повідних урядових департаментів, котрі згодом розміщують у мережі свої офіційні відповіді з роз’ясненнями, які саме заходи були або не були вжиті і чому. • Дати змогу громадянам брати участь у публічних консультаціях/ слуханнях. Окремі громадяни та ОГС можуть публічно висловлювати свою думку про підготовлені уря- довими установами законопроекти. Всі урядові установи отримали роз’яснення, як розміщувати на консультаційному веб-сайті проекти своїх програмних документів, планів розвитку, законів або окремих нормативних положень. Втім, розміщення цих матеріалів здійснюється на добровільній основі і не регулюється адміністративними процедурами. • Стати центральним пунктом отримання доступної публічної інформації: Державним органам, як правило, рекомендується оприлюднювати інформацію про майбутні по- літичні рішення та відповідні публічні консультації. Крім того, цей портал дозволяє ко- ристувачам вести пошук правових актів на різних стадіях їх підготовки (тобто від по- літичної пропозиції до прийняття закону в парламенті). Портал OSALE – це також інструмент, який допомагає людям краще зрозуміти цілі та порядок функціонування адміністративних установ і водночас забезпечує органи влади цінним зворотним зв’язком, інформуючи їх про очікування суспільства. Одним з його складових елементів є прикладний Інтернет-портал електронної участі TOM (скорочен- ня виразу «Сьогодні вирішую я»), відкритий у 2001 році естонською Державною канце- лярією. Використання Інтернет-технологій та активна громадська участь дали поштовх запо- чаткуванню таких масштабних громадянських ініціатив, як кампанія «Давайте це зробимо», в ході якої 50,000 добровольців допомагали збирати та вивозити сміття (2008) та кампа- нії «Моя Естонія» (2009). Остання була громадянською ініціативою, спрямованою на під- вищення якості життя в Естонії шляхом використання природної взаємодії між людьми та інформаційних технологій. 1 травня 2009 року більш ніж 11 000 осіб провели групові сесії «мозкового штурму» для обговорення спільних проблем і взаємної підтримки в досягненні спільних цілей. З цією метою організатори провели засідання 400 «експертних груп» у куль- турних центрах, школах та інших популярних інституціях. Дискусії одночасно відбувалися в режимі онлайн, а згодом були підключені до центрального веб-сайту. «Мозкові штурми» були також організовані естонськими громадами у 12 зарубіжних країнах.
Австрія У 2008 році Федеральна Канцелярія Австрії прийняла «Стандарти громадської участі»64 з метою надання допомоги австрійським державним чиновникам у забезпеченні високої якості процесів громадської участі. «Стандарти» були підготовлені міжвідомчою робочою групою за участю законно утворених представництв інтересів, НУО та незалежних експер- тів. У цьому документі описані три основних етапи процесу участі: підготовка, імплемента- ція, моніторинг і оцінка. До нього звертаються щоразу, коли ведеться розробка програм- них заходів, планів, програм і загальних правових документів. «Стандарти» рекомендують в обов’язковому порядку провадити публічні консультації, зокрема, у випадках, якщо: 64 Ці стандарти вміщені на вебсайті: http://www.partizipation.at/standards_pp.html Міжнародні заходи зміцнення довіри... 289
• предмет обговорення зачіпає інтереси великої кількості людей; • предмет обговорення може носити суперечливий характер; • реалізація політичних заходів, планів, програм і застосування правових документів вимагає співробітництва з тими, на кому позначаються ці документи і хто в них заці- кавлений; • ставиться за мету більш широке розуміння, схвалення і, як результат, більш висока якість. У числі головних принципів, якими повинен регулюватися процес громадської участі, проголошуються принципи прозорості та контрольованості. «Стандарти» наголошують на тому, що громадська участь вимагає спільної відповідальності за спільно виконану роботу та її результат. Вважається, що це дозволить підвищити якість результатів і чітко визначити позиції різних людей. «Стандарти» поділені на три основні категорії: • стандарти інформативної участі (інформація); • стандарти консультативної участі (консультації); • стандарти спільних публічних консультацій (співробітництво); Ці стандарти розроблені у формі опитувальних листів, на які необхідно дати відповіді при проведенні кожного процесу громадської участі. Якщо на всі запитання будуть дані по- зитивні відповіді, тоді стандарти високоякісної громадської участі вважатимуться викона- ними. З метою сприяння застосуванню «Стандартів» був розроблений спеціальний прак- тичний посібник. Цей посібник, призначений для державних службовців і звичайних грома- дян, містить чітку та легку до зрозуміння інформацію про методи та механізми, якими вони можуть скористатися під час процедур громадської участі. У посібнику також вміщений пе- релік успішних прикладів практичного застосування партиципаторних механізмів, які де- монструють вплив громадської участі у процесі прийняття рішень. Перед початком кожного партиципаторного процесу рекомендується вжити наступних заходів: • добування та розповсюдження інформації; • оцінка наявності умов для формального процесу громадської участі; • кількісна оцінка можливих переваг від проведення неформального процесу громад- ської участі; • визначення можливих форм процесу громадської участі спільно з іншими зацікавле- ними сторонами, політиками та представниками адміністрації Всі ці рекомендації виписані у спосіб, який уможливлює їх застосування як організаці- ями громадянського суспільства, так і державними службовцями, незалежно від того, хто був ініціатором партиципаторного процесу. Поряд із розробкою «Стандартів» і посібника був створений веб-портал публічних кон- сультацій (http://www.partizipation.at). На цьому порталі у стислому вигляді вміщена вся не- обхідна інформація про процес громадської участі, додаткова інформація про передову практику та платформа для обміну думками. Тут же розміщена корисна інформація про від- бір найбільш доцільних методів громадської участі. Поряд із описаним вище порталом одним з найцікавіших австрійських проектів елек- тронної участі, реалізованих у 2006 році, можна назвати проект mitmachen.at. Він являє со- бою процедуру громадської участі, яка дає змогу молодим громадянам розробляти полі- тично значущі концепції майбутнього розвитку Австрії. Мета цього проекту – встановлен- ня зв’язків між молоддю та державними інститутами і водночас зміцнення довіри молодо- го покоління до системи державного управління їхньою країною. Цільовою групою даного проекту є молоді люди, які проживають в Австрії та поза її межами. Під час реалізації про- екту всі австрійські школи інформували про нього своїх учнів на уроках інформатики. Поза школою до проекту були в такий же спосіб підключені всі молодіжні організації (молодіжні групи, Австрійська служба зайнятості, Австрійський союз студентів тощо). Реалізація про- екту відбувалася в три етапи. Зміст обговорень на Етапі 1 (Пропозиції або обговорення) 290 Міжнародні заходи зміцнення довіри...
був визначений громадянами, а концепції, сформовані експертами на Етапі 2, пройшли пе- ревірку на Етапі 3 шляхом громадського голосування. На Етапі 1 було отримано 2 074 про- позиції, згруповані навколо восьми тем. На Етапі 2 спеціалісти розробили на основі попе- редньо поданих пропозицій 174 майбутні концепції. На Етапі 3 було отримано 2 578 опиту- вальних листів (54 626 відповідей на поставлені запитання). Проект був реалізований відра- зу ж після австрійських національних виборів і став для політиків джерелом корисної інфор- мації про проблеми, які хвилюють молодь.
Нідерланди У 2005 році гарячі дискусії про необхідність внесення змін до голландської виборчої сис- теми зайшли в глухий кут. Оскільки на рівні політичних партій не вдалося досягти порозу- міння, голландський уряд вирішив застосувати новаторський підхід і порадитися з вибор- цями, тобто з тими, хто виявляє найбільш неупереджений інтерес до виборчої системи. За- позичивши позитивний досвід канадської провінції Британська Колумбія65, голландський уряд оголосив про створення Громадянського форуму «Виборча система». Перед Фору- мом було поставлене завдання – визначити найбільш оптимальну систему виборів до ниж- ньої палати парламенту. Громадянський форум був організований як цілком незалежна платформа і працював з максимально можливою прозорістю. Пленарні засідання були від- криті для публіки та засобів масової інформації. Робота форуму була поділена на три ета- пи: етап навчання, етап консультацій та етап прийняття рішень. Форум складався зі 142 громадян, відібраних з випадкової вибірки чисельністю 50 000 осіб. Спочатку з цієї вибірки була сформована група тих, хто сам зголосився взяти участь у подальшій роботі. Остаточ- ний склад форуму був відібраний з цієї групи шляхом жеребкування з дотриманням рівного представництва чоловіків і жінок та географічного охвату всіх регіонів країни. Крім того, при формуванні групи учасників була максимально врахована вікова структура голландського населення. Засідання Громадянської асамблеї тривали з березня по листопад 2006 року і в грудні того ж року її рекомендації були подані на розгляд парламенту. Аналогічний підхід був застосований голландським урядом для оцінки очікувань на- селення від впровадження системи електронного врядування. Програма «e-Citizen» була створена як незалежний форум, що стимулює розвиток електронного врядуван- ня з точки зору громадян. Цей форум був складовим елементом впровадження ІКТ в систему голландського державного управління. Спеціально створений Керівний комі- тет представляв інтереси громадян і здійснював контроль за виконанням програми. Го- ловним завданням «e-Citizen» була розробка Хартії «e-Citizen» з метою проведення ре- гулярних опитувань громадської думки і присудження Web-премій за застосування пе- редових практичних методів. Слідом за програмою «e-Citizen» голландський уряд започаткував у 2007 році ініціати- ву «Citizenlink» (Burgerlink), спрямовану на підвищення ефективності державного сектора шляхом активного залучення громадськості. Ініціатива «Citizenlink» уповноважена пропа- гувати високі стандарти якості, здійснювати кількісну оцінку громадського задоволення та всіляко стимулювати електронну участь в управлінні державними справами. Ця платформа дала змогу розробити чотири інструменти електронної участі, які відповідають трьом рів- ням громадської участі (політична, програмна та соціальна): o Voting assistant та Voting Tracker (watstemtmijnraad.nl) – успішні голландські при- клади застосування електронних технологій при проведенні виборів і для цілей за- безпечення підзвітності. «Voting Assistant» дозволяє порівнювати програми різних політичних партій за 30-ма основними пунктами і тим самим допомагає виборцям зробити свій вибір. Під час останніх національних виборів послугами цього «поміч-
65 Громадянські форуми – це відносно новий метод залучення громадськості, вперше застосований у канад- ських провінціях Онтаріо та Британська Колумбія. Міжнародні заходи зміцнення довіри... 291
ника» скористалося близько п’яти мільйонів виборців (майже половина тих, хто має право голосу). Програма «Voting Tracker» відстежує історію участі у виборах різних партій і політиків, показуючи, які позиції вони займали з тих чи інших питань в різні часи. Таким чином, виборці можуть приймати рішення, орієнтуючись на фактичну по- ведінку кандидатів, а не на їхні обіцянки. o ePetitions (www.petities.nl) – згідно із голландським законодавством, поряд з пра- вом подавати петиції громадяни мають право започатковувати громадські ініціати- ви. Якщо певне питання підтримується достатньою кількістю людей, воно може бути порушене у представницькому органі (муніципальній раді або парламенті), який зобов’язаний його обговорити. Оскільки збір потрібної кількості підписів може бути важкою справою, цей процес полегшує спеціальний Інтернет-сайт. Чимало голланд- ських муніципалітетів уже створили власні платформи для стимулювання громадян- ських електронних ініціатив. o WeEvaluate (wijwaarderen.nl) – це Інтернет-платформа, на якій громадяни вислов- люють свої думки про якість і соціальне значення державних послуг. В основу цьо- го веб-сайту закладені моделі рейтингів комерційних вебсайтів (ресторанів, готелів тощо). Громадяни можуть або створити власну рейтингову систему, або скориста- тися спрощеною моделлю Національного обстеження рівня задоволення громадян, основаною на критеріях Хартії «e-Citizen».
Великобританія У липні 2008 року Міністерство юстиції опублікувало «Національну правову базу підви- щення громадської участі», в якій були враховані пропозиції Зеленої книги з питань управ- ління Британією щодо конституційного оновлення. У цьому документі дається перелік пи- тань національного значення, які в обов’язковому порядку повинні обговорюватися і роз- роблятися спільно з громадянами: • питання, здатні призвести до значних конституційних змін; • питання, в яких задля отримання помітного ефекту поряд з діями уряду необхідна ак- тивна участь самих громадян – скажімо, боротьба з курінням або ожирінням; • якщо є кілька варіантів політики, щодо яких уряд не прийшов до остаточного висно- вку; • якщо існує суспільна користь від вивчення складних і важких компромісів між різними політичними рішеннями – скажімо, між особистим бажанням літати дешевими авіа- рейсами та суспільною потребою у зменшенні вуглецевих атмосферних викидів66. Крім того, цей консультативний документ установив низку основних критеріїв, прита- манних ефективним механізмам зміцнення народної довіри, і детально охарактеризував дві нові форми, що можуть застосовуватися поряд зі стандартними консультаційними про- цедурами: • Громадянські саміти: на них збираються великі групи людей (як правило, 500–1000) для обговорення одного чи кількох пов’язаних між собою питань. Саміт відбувається за особистої присутності учасників або в режимі онлайн. Рекомендації саміту пода- ються до парламенту для подальшого розгляду • Громадські журі: незалежний громадський форум, призначений для аналізу та об- говорення важливих питань державної політики. Громадські журі мають багато спіль- ного з журі присяжних у судовій системі. Громадське журі збирає експертну інфор- мацію з обговорюваних питань, може ставити запитання відповідним експертам, піс- ля чого приймає своє рішення. У свою чергу, уряд зобов’язаний опублікувати влас- ну відповідь на таке рішення – або в порядку загального реагування на результати 66 A national framework for greater citizen engagement. A discussion paper, July 2008, Ministry of Justice, UK [На- ціональна правова база підвищення громадської участі. Дискусійний документ, липень 2008 р. Міністерство юс- тиції, Великобританія]. 292 Міжнародні заходи зміцнення довіри...
широких громадських консультацій, Будь-які механізми посилення участі грома- або у формі окремого публічного до- дян у демократичних процесах і зміцнення до- кумента; віри досягатимуть своєї мети, лише якщо вони • Петиції до Вестмінстера: регла- відповідатимуть наступним критеріям: ментний комітет Палати громад за- пропонував електронну систему по- • Вони враховують інтереси відповідних груп населення. Для цього вони повинні вважа- дання петицій, яка б діяла паралель- тися корисними, а їхні учасники – почуватися но з традиційною. Пропонується три краще інформованими в результаті їх застосу- рази на рік обговорювати окремі вання; електронні петиції в Палаті громад. • Вони забезпечують максимально широке Принцип електронної петиції був також представництво і доступність, залучення широ- охарактеризований як цінний механізм ких верств населення і участь у процесі пропо- громадської участі в Білій книзі «Місце- рційного зрізу відповідних аудиторій; ве самоврядування»67. Втім, ще до опри- • Вони заслуговують довіри, а отже, люди відчувають свою значущість. Для цього має іс- люднення цього програмного докумен- нувати та ефективно виконуватися дієвий та численні органи місцевої влади запро- об’єктивний стандарт застосування механіз- вадили у себе процедури подання елек- мів залучення громадськості до обговорення тронних петицій паралельно з традицій- питань національної політики: повинен існува- ним «паперовим» процесом. Цей електро- ти зворотний зв’язок з учасниками обговорень нний інструмент виявився одним з най- і обов’язкова оцінка результатів на відповідному більш ефективних механізмів забезпечен- рівні; ня більшої громадської участі у місцевих • Відкритість і прозорість: учасники повинні заздалегідь знати можливий ступінь свого впли- процесах прийняття рішень. ву, і як уряд рахуватиметься з їхніми висновками. Дотримуючись курсу на проведення Повинно існувати взаєморозуміння щодо того, більш відповідальної та прозорої політики, коли і як будуть застосовуватися ці механізми; британський уряд організував консульта- • Системний характер та інтегрованість у тивну платформу «Have your say» [Слово за процес формування політики, інакше люди вва- вами] (http://www.homeoffice.gov.uk/about- жатимуть їх рекламним трюком, який підриває us/consultations). У цьому порталі знайшов легітимність процесу; вираз головний принцип роботи британ- • Вони відповідають фундаментальним принципам представницької демократії. Уряд ського Міністерства: усім без винятку змі- і парламент повинні й надалі залишати певний нам у політиці повинні передувати публіч- простір для врахування ефекту від будь-яких ні консультації. З цією метою Міністерство змін у політиці – зокрема там, де помітно зрос- внутрішніх справ публікує пропозиції щодо туть потреби в ресурсах. Уряд вважає вкрай важ- проведення консультацій з того чи іншо- ливим, щоб ці механізми доповнювали собою, а го питання і пропонує громадянам подава- не ставили під сумнів верховенство нашої сис- ти свої зауваження та рекомендації. Кож- теми представницької демократії, і має існувати ний консультаційний документ містить ін- чітке розуміння співвідношення цих механізмів з розглядом питань у парламенті. струкції про порядок надсилання відпові- (Джерело: Національна правова база під- дей і строки подачі зауважень. Цей меха- вищення громадської участі. Дискусійний доку- нізм є близьким аналогом прийнятого Єв- мент, липень 2008, Міністерство юстиції, Вели- ропейською комісією механізму консуль- кобританія) тацій, про який йдеться в Білій та Зеленій книгах.
67 Strong and prosperous communities. The Local Government White Paper, Department of Communities and Local Government, October 2006, London [Сильні та процвітаючі громади. Біла книга з питань місце- вого самоврядування, Департамент у справах громад і місцевого самоврядування, жовтень 2006, Лон- дон]. Міжнародні заходи зміцнення довіри... 293
Німеччина Громадські журі, про які згадувалося у пропозиції британського уряду, являють собою ефективний інструмент громадської участі. У 2001–2003 роках місто Берлін підключило- ся до програми «Соціальне місто», в якій беруть участь органи влади федеральних земель і місцевих громад. Протягом цього трирічного періоду в 17 районах Берліна функціонува- ли громадські журі з метою: • мобілізації громадської участі; • покращення іміджу державних чиновників; • раціоналізації державних витрат. Громадські журі наполовину складалися з випадково відібраних громадян, наполови- ну – з представників місцевого громадянського суспільства. Журі обговорювали пред- ставлені різними громадянами проекти й мали право приймати рішення щодо фінансуван- ня того чи іншого проекту залежно від його «корисності» та загальної якості. Остаточне рі- шення, як правило, приймалося шляхом таємного голосування. На засіданнях громадських журі, які відбувалися в середньому 15 разів на рік, було обговорено близько 72 проектів. Половина з них була в кінцевому рахунку профінансована.
4.3. Підзвітність – механізми моніторингу Протягом останнього десятиліття підзвітність посіла провідне місце в міжнародному по- літичному та соціальному порядку денному. Терміном «підзвітність», як правило, називають широкий спектр різноманітних форм взаємодії між різними групами та зацікавленими сто- ронами. Вона вважається однією з ключових передумов побудови ефективної та продук- тивної демократичної держави. Підзвітність – не самоціль, а механізм досягнення набагато ширших цілей, а саме соціальної справедливості, рівноправності та справедливого пере- розподілу ресурсів (Дж. Гавента, 2006). У цілому підзвітність можна охарактеризувати як правовий, політичний або моральний обов’язок звітувати перед громадськістю, пояснювати та обґрунтовувати свої дії, а також відповідати на запитання про ті чи інші справи. Поняття підзвітності також включає підпо- рядкування моральним, правовим або політичним санкціям тих, хто не відповідає встанов- леним критеріям. Концепція підзвітності передбачає два головних параметри досягнення ефективної підзвітності: відповідальність (право висувати претензії та домагатися відпові- ді) і правова забезпеченість (механізм застосування санкцій за відсутність реагування). З інституційної точки зору, підзвітність – це комплекс взаємовідносин і механізмів контролю. З політичної та соціальної точки зору це – загальний обов’язок виконувати волю виборців і широкої громадськості. Підзвітність часто осмислюється в різних параметрах – політичному, соціальному, адміністративному та правовому. Сучасні дослідження зосереджують увагу на соціаль- ній підзвітності, яку Всесвітній банк охарактеризував як «оснований на залученні гро- мадськості метод зміцнення підзвітності, при якому рядові громадяни та/або організа- ції громадянського суспільства прямо чи посередньо домагаються дотримання суво- рої підзвітності»68. Механізми соціальної підзвітності часто застосовуються з метою ви- світлення або підкріплення діяльності різних акторів горизонтальних систем підзвітнос- ті шляхом прискорення змін за допомогою важелів закону та мас-медіа. Вони значною мірою спираються на готовність держави толерантно сприймати критику і наявність до- ступної та функціональної правової системи, здатної підтримати претензії громадян до своєї держави. 68 Вебсайт Всесвітнього банку; http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS EXTSOCIALDEVELO PMENT/EXTPCENG/0,,contentMDK:20509424~menuPK:1278120~pagePK:148956~piPK:216618~theSite PK:410306,00.html 294 Міжнародні заходи зміцнення довіри...
Соціальна підзвітність є вираженням фундаментального демократичного права грома- дян домагатися підзвітності влади і складовою частиною «суспільного договору» між учас- никами демократичного процесу69. Позитивна соціальна підзвітність є обов’язковою передумовою переходу від звичай- них протестів до прийняття політичних рішень шляхом побудови конструктивного та систе- матичного процесу, який підвищує шанси впровадження позитивних змін і кращої громад- ської участі. Точніше, активна участь і залучення громадян відрізняє соціальну підзвітність від інших її форм, у яких широка громадськість сприймається як спостерігач або пасивний актор, перед яким повинні звітувати органи влади. Підзвітність – одна із базових цінностей процесу європейського управління. У Білій книзі «Європейське управління» вона проголошена одним із п’яти ключових принципів належно- го управління. Підзвітність розуміється як універсальний принцип, застосовний не лише до інституцій ЄС та національного рівня, але й до сектора громадянського суспільства. Механізми притягнення до відповідальності органів державної влади часто застосову- ються в поєднанні з механізмами прозорості, підзвітності та громадської участі. Тісна вза- ємодія принципу підзвітності з рештою принципів належного управління чітко окреслена в робочому документі Всесвітнього банку70, присвяченому соціальній підзвітності. У цьому документі названі три практичних методи забезпечення підзвітності: • «Контроль: ініціативи, що покращують оцінку, аналіз і контроль за діями уряду, спи- раючись на силу інформації, щоб примусити владу звітувати перед громадянами. З такими ініціативами найчастіше виступають ОГС (приміром, контролювання витрат) або законодавчі та/або судові гілки влади (наприклад, омбудсмен); • Наближення: з цими ініціативами найчастіше виступають уряди з метою скорочення «відстані» між громадянами та органами влади. Вони часто намагаються з’ясувати потреби чи уподобання громадян, не прагнучи забезпечити пряму громадську участь в урядових заходах (наприклад, публічні консультації, громадські кабінети міністрів). • Залучення: ініціативи такого роду здебільшого запроваджуються урядом і ефектив- но підключають громадян безпосередньо до процесу прийняття рішень (наприклад, партиципаторне формування бюджету) у бюджетному циклі»71. Ці три методи можна або поєднати з функціями одного органу, або поширити на різні ін- струменти підзвітності. Малена, Фостер і Сінгх (2004) висловили припущення, що «ініціати- ви соціальної підзвітності приносять найбільший ефект, якщо вони інституціоналізовані», а державні механізми внутрішньої (горизонтальної) підзвітності «більш прозорі й відкриті для громадської участі». Отже, в кінцевому рахунку, прозорість і підзвітність тісно пов’язані між собою.
Громадські ради та суспільні договори як механізми моніторингу Комітети ОГС при ПРООН – це партиципаторні інструменти забезпечення підзвітності, які дають змогу організаціям громадянського суспільства зайняти активну позицію у фор- муванні пріоритетів і моніторингу роботи бюро ПРООН в різних країнах світу. Перший Комі- тет ОГС був створений у 2000 році при штаб-квартирі ПРООН як дорадча платформа з ме- тою забезпечення кращої орієнтації вищого керівництва в політичних питаннях, які відігра- 69 Carmen Malena, Reiner Forster and Jenmejay Singh (2004), «Social Accountability, An Introduction to the Concept and Emerging Practice», Social Development Papers – Participation and Civic Engagement,#76, World Bank [Соціальна підзвітність. Передмова до концепції та практики, що формується, Публікації на теми соціального розвитку – Участь і залучення громадськості №76]. 70 J.Caddy, T. Peixoto,M. McNeil, 2007. Beyond Public Scrutiny: Stocktaking of Social Accountability in OECD Countries, World Bank Institute [Поза громадським контролем: Критичний аналіз соціальної підзвітності в краї- нах ОЕСР]. 71 Там само. Міжнародні заходи зміцнення довіри... 295
ють ключову роль у визначенні майбутніх напрямів діяльності організації. Комітет склада- ється з лідерів 14 ОГС, які працюють у таких сферах спільних інтересів, як зменшення бід- ності та збалансований борг; інклюзивна глобалізація – демократизація торгівлі та фінан- сів; запобігання конфліктам та зміцнення миру; права людини та людський розвиток; за- лучення приватного сектора. Дорадчий комітет ОГС не лише служить механізмом спільно- го визначення порядку денного, політичних дискусій, індивідуальної підзвітності, але й по- легшує обмін думками між вищими керівниками та лідерами громадянського суспільства щодо майбутніх напрямів діяльності ПРООН. Всі ці елементи створюють надійний фунда- мент для побудови міцних партнерських стосунків на основі принципів горизонтальності та довіри. Позитивний досвід роботи першого комітету ОГС стимулював створення місцевих дорадчих комітетів ОГС при національних бюро ПРООН. Посиленню ролі організацій громадянського суспільства у глобальному процесі при- йняття рішень і моніторингу сприяє також їхня участь у роботі Економічної та соціальної ради ООН (ЕКОСОР). Цей консультативно-дорадчий орган координує економічну, соці- альну та іншу відповідну роботу 14 спеціалізованих агентств, функціональних комісій та п’яти регіональних комісій ООН. Він служить платформою для обговорення міжнародних економічних та соціальних проблем і формулювання політичних рекомендацій. З метою сприяння громадській участі в політичному процесі та підвищення довіри до своєї діяль- ності ЕКОСОР провадить широкі консультації з науковцями, представниками ділових кіл і більш ніж 3 400 неурядових організацій. Організації громадянського суспільства наділені консультативним статусом і, залежно від рівня їхньої участі, можуть отримати один із на- ступних статусів: • Загальний статус: надається великим міжнародним НУО, чиї інтереси охоплюють більшу частину порядку денного ЕКОСОР. Вони можуть виступати перед делегатами, розповсюджувати заяви обсягом до 2 000 слів і вносити питання до порядку денного. Раз на чотири роки вони зобов’язані подавати звіти про свій внесок у діяльність ООН; • Спеціальний статус: надається тим НУО, які «мають спеціальні знання та досвід у деяких сферах діяльності Ради». Вони теж зобов’язані подавати 4-річні звіти, але не мають права вносити питання до порядку денного. Обсяг їхніх письмових заяв обмежується 500-ма словами • Списочні НУО: це НУО, які займаються одним чи кількома конкретними питаннями. Вони можуть бути присутніми на засіданнях, але не мають права виступати чи розповсюджувати заяви72. НУО повинні відповідати наступним кваліфікаційним критеріям: не менш як дворічний строк існування; наявність офіційної штаб-квартири; демократично прийняті статутні доку- менти; право виступати від імені своїх членів; представницька структура; належні механіз- ми підзвітності; демократичні й прозорі процеси прийняття рішень. З метою сприяння ефективному спілкуванню та посиленню діалогу з дедалі зростаю- чим числом НУО, наділених консультативним статусом, Відділ НУО Управління з питань під- тримки та координації ЕКОСОР відкрив спеціальний Інтернет-портал (http://esango.un.org/ irene) для неурядових організацій, агентств, фондів і програм ООН. Цей портал дає змогу ОГС і агентствам ООН обмінюватися передовим практичним досвідом, подавати рекомен- дації та консультативні висновки, порушувати різні питання та виявляти недоліки, що по- требують виправлення. Наслідуючи приклад ЕКОСОР, Європейський Союз теж утворив власну консультативну структуру – Європейський економічний і соціальний комітет (ЄЕСК). Згідно з положення- ми Договору про функціонування Європейського Союзу, ЄЕСК складається з «представ- ників організацій роботодавців, найманих працівників та інших сторін, які представляють громадянське суспільство, зокрема, в соціально-економічній, громадській, професійній та 72 Джерело інформації: http://www.un-ngls.org/spip.php?page=article_s&id_article=799 296 Міжнародні заходи зміцнення довіри...
культурній сферах»73. Головне завдання Комітету полягає в забезпеченні кращого залучен- ня громадськості до формування європейського порядку денного та подоланні існуючо- го розриву між інституціями ЄС і європейським громадянським суспільством. Хоча роль і склад ЄЕСК були вперше визначені Ніцьким договором, Лісабонський договір додатково розширив його функції, прямо зобов’язавши Європейську комісію подавати звіти з широ- кого кола питань. Водночас у цьому договорі визначено, що Економічний і соціальний ко- мітет надаватиме допомогу Європейському парламенту і Європейській комісії в якості до- радчого органу74. У 2009 році ЄЕСК знову підтвердив свою активну роль моста між грома- дянським суспільством та інституціями ЄС, розробивши «Програму для Європи: пропозиції громадянського суспільства». У цій програмі були викладені основні проблеми, які повинен вирішити ЄС, щоб забезпечити підтримку орієнтованого на прогрес усталеного соціально- економічного відновлення. Пропозиції Комітету згруповані під чотирма рубриками: еконо- мічне оздоровлення; фундаментальні права та європейська соціальна модель; усталений розвиток; управління. У сфері демократичного управління Комітет підкреслив, що голов- ною передумовою та основою легітимізації участі громадянського суспільства є адекват- не представництво тих, хто виступає від імені організованого громадянського суспільства, відзначивши при цьому, що це представництво має бути не лише якісним, але й кількісним. Моделі ЄЕСК та ЕКОСОР знайшли успішне застосування на рівні держав – членів ЄС.
Ірландія Національна економічна і соціальна рада Ірландії має давні традиції зменшення роз- риву між громадянським суспільством і державними органами, започатковані ще у 1973 році. Рада складається з представників професійних спілок роботодавців, фермерських організацій, НУО, ключових урядових департаментів і незалежних експертів. Основні функції Ради: • подання на розгляд прем’єр-міністра результатів аналізу та доповідей зі стратегічних питань ефективного розвитку економіки та досягнення соціальної справедливості; • розвиток стратегічної структури співробітництва, що сприяє зміцненню стосунків і веденню переговорів між урядом і соціальними партнерами Перша угода про соціальне партнерство була укладена у 1987 році разом з прийнят- тям Програми національного відродження. Після неї було укладено ще сім угод – остан- ня з них під назвою «До 2016 року: Десятирічна рамкова угода про соціальне партнерство 2006–2015».
Словенія Яскравим прикладом дорадчого органу, чиє слово багато важить у процесі прийнят- тя рішень, є Національна рада Республіки Словенія. Згідно зі словенською конституцією Рада – це орган, що представляє соціальні, економічні, професійні та місцеві інтереси, до складу якого входять представники профспілкових та соціальних інтересів, а також пред- ставники місцевих інтересів. Національна рада складається із 40 членів, делегованих на- ступними групами ОГС: • четверо представників роботодавців; • четверо представників найманих працівників; • четверо представників фермерів, ремісників, торгівців і вільних професій; • шестеро представників некомерційних сфер діяльності; • 22 представники місцевих інтересів.
73 Article 300, Treaty on the Functioning of the European Union, Official Journal of the European Union, C83 [Стаття 300, Договір про функціонування Європейського Союзу, Офіційний журнал Європейського Союзу, С.83] 74 Article, 13.4, Treaty of the European Union, Official Journal of the European Union, C.83 [Стаття 13.4, Договір про функціонування Європейського Союзу, Офіційний журнал Європейського Союзу, С.83]. Міжнародні заходи зміцнення довіри... 297
Національна рада служить платформою, на якій групи інтересів можуть обговорювати й вирішувати питання, що є предметом спільної зацікавленості. Проте її роль виходить дале- ко за межі цих функцій. Згідно зі словенською конституцією, Національна рада може: • подавати до Національних зборів пропозиції щодо прийняття законів; • вимагати від Національних зборів повторного розгляду того чи іншого закону, перш ніж він буде введений у дію; • вимагати оголошення референдуму; • вимагати проведення розслідувань у справах, що мають велике суспільне значення; • доводити до відома Національних зборів свою думку щодо всіх питань, які належать до сфери компетенції Національних зборів; Надзвичайно широка сфера компетенції Національної ради робить її одним із провідних політично впливових органів національного рівня. Робота Ради організована на основі ро- бочих груп, які розглядають окремі питання законодавчого характеру, ініціативи та запити, що належать до їхньої сфери компетенції. Підготовлені робочими групами висновки над- силаються для схвалення до Національної ради або безпосередньо до Національних збо- рів та їхніх робочих органів. Національна рада проводить регулярні засідання один раз на місяць. Крім того, можуть скликатися позачергові засідання, якщо необхідно прийняти рі- шення у невідкладній справі. Всі засідання Ради та її робочих органів проводяться у відкри- тому режимі.
Болгарія Економічна та соціальна рада (ЕСР) позиціонує себе як «громадський парламент», який служить містком між громадянами та національним урядом. Вона була створена у 2001 році законом про Економічну та соціальну раду. Згідно з положеннями цього закону, ЕСР – «це консультативний орган, що виражає волю організацій громадянського суспільства в тому, що стосується економічного та соціального розвитку» (стаття 1). Ставши наступником На- ціональної тристоронньої ради, цей орган забезпечив широку громадську участь у процесі прийняття рішень. Рада виступає виразником і захисником інтересів громадського суспіль- ства, доводячи узгоджені заяви та пропозиції до відома законодавчих і виконавчих органів. У цьому відношенні ЕСР формулює висновки щодо проектів законів і програмних заходів; приймає резолюції та аналітичні документи; організує публічні консультації з ключових еко- номічних, соціальних, демографічних та інших питань. Головні завдання Ради: • забезпечити широку участь організацій громадянського суспільства в соціальному та економічному житті країни; • служити постійно діючою інституційною формою соціального діалогу та консультацій з питань економічної та соціальної політики між урядом і структурами громадянсько- го суспільства; • відповідати законним сподіванням соціальних та економічних груп і структур грома- дянського суспільства; • виражати думки, заяви та пропозиції стосовно актів законодавчої та виконавчої влади; • утверджувати принципи прямої демократії, застосовувати на практиці досвід і пере- дові методи роботи Європейського економічного і соціального комітету та інших ана- логічних організацій. Рада складається із 36 членів, поділених на три основні групи: • 12 членів призначаються керівними органами представницьких організацій робото- давців національного рівня, визнаних Радою міністрів згідно з Кодексом законів про працю; • 12 членів призначаються керівними органами представницьких організацій робітни- ків і найманих працівників національного рівня, визнаних Радою міністрів згідно з Ко- дексом законів про працю. 298 Міжнародні заходи зміцнення довіри...
• 12 членів від ОГС розподіляються наступним чином: один представник від організацій виробників аграрної продукції; один представник від промислових кооперацій; один представник від організацій ремісників; один представник від професійних організацій; один представник від організацій споживачів; один представник від жіночих організацій; один представник від екологічних організацій; один представник від організацій інвалідів; один представник від організацій пенсіонерів; один представник від організацій, які надають допомогу соціально незахищеним, інвалідам або особам, які потребують догляду; двоє незалежних науковців – спеціалістів з питань економічної та соціальної по- літики, призначених Радою міністрів за поданням міністра економіки та міністра праці і соціальної політики. Основний принцип участі полягає в тому, що одна організація може бути представле- на лише в одній із груп. Строк повноважень голови та членів ради становить чотири роки. Паралельно зі структурою ЕСР різні спеціалізовані правові акти передбачають можли- вості для створення громадських консультативних органів на місцевому рівні. Ці органи ма- ють на меті об’єднання зусиль місцевих зацікавлених сторін і водночас створення можли- востей для контролювання і моніторингу діяльності місцевих органів влади та державних установ у конкретній сфері суспільних інтересів. Типові сфери діяльності, що підлягають громадському контролю: • Соціальна підтримка: згідно з положеннями Закону про соціальне попечитель- ство, муніципальні ради мають право створювати громадські комітети у складі не більше дев’яти представників сектору громадянського суспільства, ділових кіл, громадян та орга- нів місцевого самоврядування. • Туризм: Закон про туризм передбачає для мерів міст можливість створювати гро- мадські комітети з питань туризму. Сфера їхньої діяльності, строки повноважень і особовий склад визначаються рішеннями муніципальної ради. • Зайнятість: Закон про стимулювання зайнятості передбачає створення двох типів громадських органів: комітету з питань зайнятості та ради співробітництва. Ці органи ство- рюються на регіональному рівні рішенням Ради міністрів. Конкретні сфери їхніх повнова- жень визначаються регіональними радами з питань регіонального розвитку. • Культура: громадські комітети з питань культури створюються на підтримку органів муніципальної адміністрації у справі збереження культурної спадщини. • Освіта: Закон про освіту передбачає створення двох типів громадських консульта- тивних органів: попечительських рад і педагогічних рад. Ці ради функціонують при структу- рах управління школами та дитячими садками. Крім того, Закон про місцеве самоврядування та місцеву адміністрацію наділяє ор- гани місцевої влади правом створювати громадські консультативні органи, які не зга- дуються в жодному іншому законі. Їхнім головним завданням є підтримка та моніто- ринг роботи органів місцевої влади в окремих, особливо важливих для місцевої грома- ди сферах.
Великобританія Договір про відносини між урядом і громадським сектором в Англії був укладений у 1998 році. Головним завданням цього документа є чітке окреслення характеру відносин між уря- дом і третім сектором, а відтак підвищення ефективності їхніх спільних втручань. Договір покликаний створити не юридично зобов’язуючу структуру, а радше правову базу, яка вста- Міжнародні заходи зміцнення довіри... 299
новлює єдині принципи роботи та обов’язки як для уряду, так і для ОГС. Основні принципи, якими повинні керуватися партнери Договору: • Повага: уряд і третій сектор по-різному відповідають за свою діяльність, але обидва повинні діяти прозоро й чесно. Ефективні партнерські стосунки будуються на основі взаєморозуміння і належного пошанування відмінностей між партнерами Договору. • Чесність: побудова і збереження міцних партнерських стосунків можливі лише шляхом відкритого спілкування. Повноцінні й відверті дискусії повинні стати основою для подолання труднощів. • Незалежність: незалежність третього сектора визнається і всіляко підтримується. Незалежність, зокрема, включає законне право ОГС проводити кампанії, коментувати та оспорювати політику уряду (які б фінансові чи інші відносини не існували у них з урядом), а також визначати напрями роботи та керувати своїми справами. • Розмаїття: уряд і третій сектор високо цінують розвиток громадянського суспільства, який приносить з собою інновації та широкі можливості вибору через багатоголосся думок і поглядів. • Рівноправність: справедливість для кожного незалежно від походження і стату- су є фундаментальним завданням, і уряд спільно з третім сектором спільно працюватимуть над його виконанням. • Розширення можливостей громадян: шляхом активної співпраці уряд і третій сектор здатні внести в життя місцевих громад і населення зміни, які задовольнятимуть їхні потреби та враховуватимуть їхній вибір. • Волонтерство: енергія та відданість справі тих, хто віддає свій час служінню інтересам суспільного блага, є важливим внеском у побудову життєздатного суспільства, а отже, заслуговує визнання та високої оцінки75. Договір описує три головних етапи розробки політичного курсу, закріплюючи обов’язки уряду і третього сектора в політичному процесі. З одного боку, Договір окреслює чіткі ди- рективи для державних чиновників щодо того, з ким, коли і як провадити консультації. Для третього сектора він передбачає обов’язки щодо ефективної участі, яка допомагає вста- новленню цінних зв’язків між обома секторами та зміцненню довіри до уряду. Договір знайшов широке визнання у третьому секторі і був підписаний Асоціацією міс- цевого самоврядування (об’єднання органів місцевої влади Англії та Уельсу) та організаці- єю «Compact Voice» [Голос договору] (незалежний представницький орган волонтерського і громадського сектора; налічує понад 2000 членів, які представляють більш ніж 20 000 во- лонтерських і громадських груп). Для того щоб додатково стимулювати виконання Договору, Секретаріат британського Кабінету міністрів розробив «Кодекс практики проведення консультацій». Він застосову- ється разом із «Кодексом належної практики консультацій та оцінки програмних заходів» – складової частини розширеного Договору про відносини між урядом і громадським сек- тором. Обидва документи не мають обов’язкової юридичної сили, але всі міністерства і ві- домства Великобританії повинні їх дотримуватися. Поза утвердженням багатьох загально- прийнятих принципів (залучення громадськості на ранніх етапах процесу формування по- літичного курсу, роз’яснення цілей, зворотний зв’язок тощо) ці Кодекси покладають на ОГС цілу низку чітких обов’язків, зокрема: ефективно організувати свою роботу, демонструвати свою легітимність і консультуватися зі своїми прибічниками. На місцевому рівні Місцеві стратегічні партнерства [Local Strategic Partnerships] (МСП) являють собою ще одну спрямовану на зміцнення довіри ініціативу, яка об’єднує сили міс- цевих рад, державних установ, бізнес-сектору і громадських організацій у визначенні та ре- алізації пріоритетних завдань, які стоять перед місцевими громадами. МСП – нестатутні,
75 The Compact on relations between Government and the Third Sector in England, December 2009, UK [Договір про відносини між урядом і третім сектором в Англії, грудень 2009, Великобританія]. 300 Міжнародні заходи зміцнення довіри...
невиконавчі організації, що функціонують на рівні, який дозволяє приймати стратегічні рі- шення і достатньо наближений до населення окремих районів, щоб приймати й виконува- ти рішення на рівні громад76. Кожна МСП має право самостійно визначати сферу своєї компетенції та обов’язки. Останні, як правило, зафіксовані в письмових статутах, мандатах або протоколах. Якщо го- ворити про їхню внутрішню структуру, то практично всі 152 МСП, чиї обов’язки зафіксова- ні Місцевими угодами, обрали приблизно однакову управлінську модель. У кожній з них був сформований керівний актив/рада, що контролює реалізацію стратегії «Життєздатна гро- мада» та виконання угод, укладених з органами влади. З метою кращого роз’яснення їхньої ролі, сфери компетенції, мандату та методів ро- боти, численні МСП публікують «посібники з питань управління». Успішним прикладом та- кого посібника є «Керівні принципи партнерства міста Ньюкасл» [Newcastle Partnership Guidance]. Цей документ роз’яснює, в який спосіб МСП працюватиме над розробкою та ре- алізацією довгострокової стратегії «Життєздатна громада» (СЖГ) [Sustainable Community Strategy, SCS] та короткострокової трирічної Угоди про розвиток територіальних громад (УРТГ) [Local Area Agreement]. Передбачається застосування наступних методів роботи: • забезпечити ефективну співпрацю партнерів задля досягнення спільної мети та ви- конання завдань, накреслених документами СЖГ та УРТГ; • залучати до партнерства населення, приватний, громадський та волонтерський сек- тори, в тому числі такі важкодоступні групи, як інваліди, особи похилого віку, молодь, члени релігійних, чорношкірих громад та етнічних меншин; • здійснювати моніторинг та управління процесом виконання СЖГ та УРТГ; забезпечу- вати, щоб вони реально поліпшували загальні умови життя та звужували прірву між бідними групами населення та рештою жителів міста чи країни; • забезпечувати, щоб громадськість була поінформована про свої досягнення і знала, куди звертатися за інформацією та допомогою; • консультуватися з громадою у скоординований та організований спосіб; • розвивати єдину структуру управління ефективністю в усіх організаціях-партнерах; • об’єднувати всі наявні фінансові ресурси, що допоможе виконувати пріоритетні за- вдання СЖГ та УРТГ; • докладати зусиль до спрощення всіх уже діючих партнерств, планів та ініціатив, уни- кати дублювання і всіх залучати до спільної роботи; • заохочувати учасників партнерства до постійного вдосконалення своїх умінь, знань і методів роботи77. Крім того, в Посібнику вміщений детальний опис сфери дії угоди між Виконавчою ра- дою [Delivery Board] та партнерствами, укладеними з метою реалізації згаданих стратегій, Список державних партнерів ініціативи «Обов’язок співробітничати», а також текст Угоди та структури партнерства між волонтерським сектором і сектором територіальних громад.
Групи зв’язку Згідно з міжнародною тенденцією, численні уряди країн Центральної та Східної Євро- пи створили групи зв’язку з НУО з метою посилення співробітництва з сектором грома- дянського суспільства. Як показало дослідження, опубліковане у 2005 році в Міжнародно- му журналі некомерційного права, групи зв’язку в цьому регіоні створені на основі чотирьох чітко визначених моделей:
76 Local Strategic Partnership. Governmental Guideline, March 2001, Department of the Environment, Transport and the Regions: London [Місцеве стратегічне партнерство. Урядова директива, березень 2001 р., Департамент захисту навколишнього середовища, транспорту та у справах регіонів: Лондон]. 77 Newcastle Partnership: Guidance and Members’ Handbook, 2009, NewCastle Partnership [Партнерство міста Ньюкасл: Керівні принципи та посібник для учасників, 2009]. Міжнародні заходи зміцнення довіри... 301
• У п’яти із десяти досліджених країн (Польщі, Хорватії, Словенії, Чеській Республіці та Словаччині) функції групи зв’язку з НУО виконує підрозділ державної адміністрації спільно з представницьким дорадчим органом; вони працюють у партнерстві, згідно з відповідними законами, постановами або статутами. • Другу модель представляють суто урядові структури: Директорат інституційного аналізу та відносин з асоціаційним середовищем (Румунія) та Директорат відносин з громадянським суспільством (Угорщина). Ці установи самостійно здійснюють на- гляд за співробітництвом між НУО та урядом, без участі дорадчого органу. • Департаменти, що існують у Латвії та Естонії, виконують функції ланок зв’язку між НУО та урядом додатково до інших своїх обов’язків, які, зокрема, включають інтегра- цію суспільства, місцеве самоврядування та регіональну адміністрацію. • Литва не має окремої централізованої групи зв’язку з НУО. Натомість різні урядові департаменти відповідають за координацію дій з НУО у своїх сферах діяльності78. У згаданому вище дослідженні дається наступне визначення групи зв’язку: «Термін «гру- па зв’язку» означає широкий діапазон структур, яким притаманні дві спільні характеристики: (1) вони інституціоналізовані у складі уряду і певною мірою мають урядові повноваження діяти; (2) вони несуть відповідальність за здійснення співробітництва з громадянським суспільством»79.
Естонія З прийняттям Естонської концепції розвитку громадянського суспільства на Міністер- ство внутрішніх справ був покладений обов’язок координувати та підтримувати робо- ту Об’єднаного комітету уряду та представників громадських об’єднань. Цей Комітет був сформований у 2003 році з мандатом на розробку системи оцінки підготовки, реалізації та виконання планів дій щодо імплементації КРЕС. З того часу Комітет розробив два плани за- ходів – на 2004–2006 і 2007–2010 роки. Комітет складається із 16 представників парасоль- кових організацій спеціалізованих громадських об’єднань і 11 представників державного сектору. Головним завданням Комітету є розробка та впровадження системи оцінки підго- товки, реалізації та виконання планів дій щодо імплементації Естонської концепції розвитку громадянського суспільства. Функції голови Комітету виконує міністр у справах регіонів, а свою роботу він провадить у трьох робочих групах: законодавство та залучення громадськості; громадянська освіта та суспільна поінформованість; усталений розвиток. Основні обов’язки міністра внутрішніх справ щодо підтримки роботи цих груп зосеред- жені на наступних напрямках: • підготовка Плану заходів щодо імплементації Програми розвитку підтримки громадянської ініціативи; • оцінка та доповнення Програми розвитку підтримки громадянської ініціативи в разі необхідності; • інформування та активне залучення інших споріднених інституцій – зокрема, інших міністерств, державних органів, некомерційного та комерційного секторів – до підтримки розвитку громадянського суспільства; • представництво Естонії та естонських позицій в питаннях підтримки розвитку громадянського суспільства на міжнародному рівні, в тому числі в міжнародних організаціях, пов’язаних зі сферою діяльності Міністерства внутрішніх справ80. 78 M. Gerasimova. The Liaison Office as a Tool for Successful NGO-Government Cooperation: An Overview of the Central and Eastern European and Baltic Countries’ Experiences, 2005, The International Journal of Not-for-Profit Law,Vol. 7, Issue 3 [М. Герасимова, Група зв’язку як інструмент успішного співробітництва між НУО та урядом: Загальний огляд досвіду країн Центральної та Східної Європи і Балтійського регіону, 2005, Між- народний журнал некомерційного права, Том 7, Випуск 3]. 79 Там само. 80 Development Plan for Civic Initiative Support 2007-2010, Ministry of Interior, Estonia [Програма розвитку під- тримки громадянської ініціативи на 2007-2010 рр., Міністерство внутрішніх справ, Естонія]. 302 Міжнародні заходи зміцнення довіри...
Польща Методи співробітництва між ОГС і урядом Польщі виписані в Законі про суспільно корис- ну діяльність і волонтерство, прийнятому в 2003 році. На підставі цього Закону була створе- на Рада з питань суспільно корисної діяльності, яка виконує функції експертно-дорадчого органу при міністрі, відповідальному за питання соціального забезпечення. Згідно зі стат- тею 35 цього Закону, Рада виконує наступні обов’язки: • висловлення експертної думки з питань, пов’язаних із застосуванням цього Закону; • висловлення експертної думки щодо урядових правових актів, якими регулюється суспільно корисна діяльність і волонтерство; • надання допомоги та висловлення експертної думки щодо конфліктів між органами державної адміністрації та суспільно корисними організаціями; • участь у процесі інспекції; • збір та аналіз інформації про проведені інспекції та отримані результати; • висловлення експертної думки у сфері державних завдань, доручення виконання цих завдань некомерційним організаціям і суб’єктам, а також рекомендування стандар- тів виконання державних завдань; • створення у співробітництві з неурядовими організаціями та суб’єктами механізмів широкого розповсюдження інформації про стандарти проведення суспільно корис- ної діяльності та випадки порушення цих стандартів. Термін повноважень Ради становить три роки; її особовий склад налічує 20 членів: • 5 представників органів центральної адміністрації; • 5 представників органів місцевого самоврядування; • 10 представників НУО призначаються з числа кандидатів, запропонованих організа- ціями громадянського суспільства.
Партиципаторне формування бюджету – як громадяни можуть брати участь у розподілі коштів Оскільки самі бюджети та їх виконання є віддзеркаленням політичних рішень та їх ви- конання, партиципаторне формування бюджету являє собою ключовий механізм «під- вищення підзвітності політичного процесу». Завдяки забезпеченню відкритого доступу до бюджетної інформації громадяни можуть здійснювати своє законне право на прозо- рість бюджетно-податкової політики і таке управління державними витратами, що змен- шує масштаби корупції та гарантує більш рівноправний і справедливий розподіл держав- них коштів. Великі міжнародні організації, зокрема Всесвітній банк, ПРООН та Азіатський банк розвитку, підтримують активну участь ОГС у партиципаторному бюджетному процесі, де їхня провідна роль як партнерів органів місцевого самоврядування з особливою силою проявилася в наступних сферах: • Активна участь у процесах планування місцевого розвитку та формування бюджету. • Притягнення органів місцевої влади до відповідальності за розподіл місцевих ресурсів. • Відстеження порядку витрачання ресурсів та ефективності місцевих політичних ініціатив і програм. Дослідження передової практики партиципаторного формування бюджету, проведене організацією Manchester Community Pride Initiative81, виявило наступні основні переваги та недоліки партиципаторного процесу формування бюджету:
81 Citizen Budgeting. Regenerating local democray through community participation in public budgeting, [Громад- ська участь у формуванні бюджету. Регенерація демократії на місцях шляхом участи територіальних громад у формуванні державного бюджету] Manchester Community Pride Initiative. Міжнародні заходи зміцнення довіри... 303
Основні переваги • Підвищення якості надання послуг та інфраструктури. • Зміцнення організацій територіальних громад і волонтерського сектора. • Відновлення демократичного та політичного процесу. • Вирішення проблем бідних кварталів. • Підвищення привабливості для бізнесу та міжнародне визнання.
Основні недоліки • Складність і забюрократизованість. • Необхідність суворої обов’язковості. • Необхідність нарощування потенціалу. • Небезпека надто завищених сподівань. Таким чином, були названі дві головні передумови забезпечення ефективного партици- паторного бюджетного процесу: наявність достатньої інформації та можливостей для учас- ті ОГС у бюджетному процесі; наявність достатніх знань, які дозволяють ОГС розуміти й від- стоювати кращі варіанти політичних рішень. З огляду на гостру потребу в останній з двох передумов у 1997 році при Центрі бюджетних і політичних пріоритетів було сформоване Міжнародне бюджетне партнерство (МБП)82. Мета цієї ініціативи – надання допомоги ОГС у кращому розумінні, обговоренні та участі в бюджет- ному процесі, а відтак формування довіри одне до одного і до методів витрачання державними органами бюджетних коштів. На сьогодні МБП співпрацює з ОГС більш ніж 100 країн світу, пе- реважна більшість яких знаходяться в країнах, що розвиваються, і нових демократіях. Метод партиципаторного формування бюджету був уперше розроблений у 1980-х ро- ках в Бразилії як складовий елемент широких зусиль, спрямованих на утвердження демо- кратії та громадської участі після кількох десятиліть військової диктатури, політичного по- кровительства та корупції. Незважаючи на інше політичне середовище, він став визнаною практикою у «старій» Європі, де дедалі більша кількість органів місцевого самоврядуван- ня почали впроваджувати цей процес, тим самим забезпечуючи прозорість, підзвітність та ефективність формування бюджету і зростання довіри громадян. Численні європейські міс- та в Іспанії, Бельгії, Італії, Німеччині, Франції, Португалії, Данії, Швейцарії, Нідерландах і Ве- ликобританії теж запровадили у себе партиципаторні процеси формування бюджету. У 2008 році Великобританія і Франція посіли два перших місця у світі за Індексом відкри- тості бюджету83, тим часом як дві нові держави-члени – Словенія і Польща увійшли до пер- шої десятки з числа 85 обстежених країн. Проте впровадження партиципаторного формування бюджету в країнах Центральної та Східної Європи відбувається дещо іншим шляхом, що зумовлений відмінностями їхнього політичного розвитку. Дослідження, проведене Всесвітнім банком у рамках серії «Управ- ління та підзвітність у державному секторі», показало, що при впровадженні партиципатор- ного бюджетного процесу в країнах ЦСЄ належить враховувати наведені нижче умови полі- тичного, адміністративного, правового та соціального середовища: • Громадяни, історично відсторонені від прийняття рішень, які впливають на їхнє життя, з недовірою ставляться до колективних дій і залишаються пасивними отримувачами державних послуг. • Колективні форми політичної та соціальної організації, в тому числі політичні партії та організації громадянського суспільства (ОГС), є відносно новими, як зрештою й виборна, незалежна та автономна система місцевого самоврядування. • Системи міжбюджетних відносин досі перебувають на стадії розвитку; ролі та обов’язки органів місцевого рівня визначені слабо й заплутано. 82 Інформація про діяльність Центру розміщена на вебсайті: http://www.cbpp.org 83 Більш детально див.:http://openbudgetindex.org/ 304 Міжнародні заходи зміцнення довіри...
• Зібраних податків, які надходять у розпорядження органів місцевого самоврядування, не вистачає на покриття їхніх бюджетних витрат, а міжбюджетні трансферти «згори вниз» здійснюються непрозоро і ненадійно. • Органам місцевого самоврядування бракує достатніх повноважень на прийняття рішень, і доволі часто вони ще тільки розвивають свій потенціал ефективного і продуктивного використання ресурсів для вирішення місцевих проблем. • Громадяни не задоволені місцевими державними службами, але не вірять у свою здатність вплинути на них, ані в те, що органи місцевого самоврядування можуть щось зробити для полегшення або вирішення проблем84.
Великобританія Міська рада міста Селфорд стала першим у Великобританії органом місцевої влади, який взявся запровадити у себе партиципаторну систему формування бюджету. У 2003 році тут була створена спеціальна група для розробки конкретних етапів її запроваджен- ня. Міська рада Селфорда запровадила спеціальну бюджетну процедуру, яка дає змогу кожному комітетові територіальної громади вирішувати, як повинні витрачатися виділе- ні бюджетні кошти (приблизно 3.00 фунтів стерлінгів на особу). Громадські комітети оці- нюють усі подані заявки й розробляють рекомендації щодо того, як належить витрати- ти гроші. До складу цих комітетів входять місцеві жителі та міські радники, які збирають- ся для обговорення найефективніших шляхів виконання пріоритетних завдань, включених до плану дій територіальної громади. У 2006 році міська рада виділила з коштів, призначених для утримання та ремонту ав- тошляхів, по 100 000 фунтів стерлінгів кожному з восьми районних громадських комітетів, наділивши їх правом вирішувати, на що будуть витрачені ці гроші. Ця ініціатива пересліду- вала дві мети: виявити важливі для місцевих жителів проекти і дати їм змогу самим визна- чити пріоритетність цих проектів шляхом їх оцінки за бальною системою. Партиципатор- ний бюджетний процес був організований наступним чином: спочатку міські радники готу- ють потенційні проекти фінансування на основі пропозицій, поданих громадянами, групо- вими зборами місцевих жителів тощо. Потенційним проектам дає стислу оцінку інженер- шляховик, висловлюючи зауваження щодо їх доцільності, технічного задуму та кошторисної вартості. Після цього визнані доцільними проекти вартістю до 100 000 фунтів стерлінгів ви- носяться на широке громадське обговорення. Цей процес дозволяє значній кількості міс- цевих жителів брати участь в обговоренні і приймати рішення щодо свого життєвого про- стору, а отже, не лише створювати схеми ефективного співробітництва, але й попереджу- вати потенційні соціальні конфлікти. Додаткову підтримку цій ініціативі надали місцеві стратегічні партнерства (МСП) та фі- нансування державою 12 пілотних проектів у 2007 році. Британський уряд висловився та- кож на користь того, щоб до 2012 року всі органи місцевої влади почали залучати своїх гро- мадян до формування бюджетів. Додатковим стимулом цього процесу послужила опублікована у 2006 році Біла книга з питань місцевого самоврядування. Нижче наводиться перелік рекомендованих Білою кни- гою основних кроків з метою подолання розриву між громадянами та органами влади. • Інформування громадян – надання повноцінної, легкодоступної інформації про те, як отримати доступ до послуг, і як ефективно ці послуги надаються; наприклад, шля- хом випуску бюлетенів, розміщення інформації на вебсайтах, у текстових повідо- мленнях, місцевих ЗМІ, або безпосередньої роботи з населенням.
84 A.Shah. Particpatory Budgeting, 2007. Public Sector Governance and Accountability series, The International Bank for Reconstruction and Development / The World Bank [А. Шах, Партиципаторне формування бюджету, 2007, серія «Управління та підзвітність у державному секторі», Міжнародний банк реконструкції та розвитку / Всесвітній банк] Міжнародні заходи зміцнення довіри... 305
• Консультації з громадянами та територіальними громадами – про формування місцевих послуг і програм за допомогою опитувань громадської думки, фокус-груп або планів розвитку місцевих громад і парафій. • Пряме залучення громадян до розробки, надання або оцінки ефективності тих чи інших послуг – наприклад, шляхом підключення групи молодих активістів до управ- ління роботою молодіжного центру. • Передача відповідальності за надання певної послуги – наприклад, шляхом управ- ління справами громади або передачу у власність місцевого культурно-громадського центру. Цей же документ рекомендує кожному органу влади вирішувати спільно з партнера- ми з ОГС, як краще виконувати свої обов’язки щодо інформування, проведення консульта- цій, залучення громадськості та передачі певних функцій, з урахуванням таких факторів, як економічність заходів щодо залучення громадськості, рівень свободи у прийнятті рішень та широкий спектр потреб і вимог різних громад у межах їхньої території85.
Нідерланди Подібно до Великобританії, місцеві органи влади впровадили різні форми партици- паторного формування районних бюджетів, при яких громадяни можуть самі вирішува- ти, як розподіляти кошти у своєму районі. Успішним прикладом подолання дефіциту до- віри є містечко Хогевен, де основні сфери компетенції місцевого органу влади переда- ні до відання громадян. Головна ідея цієї ініціативи – дозволити громадянам самостійно вирішувати, в якому середовищі їм жити, і водночас стимулювати їхню соціальну участь і співробітництво. Тут були впроваджені бюджети відновлення районів (Neighbourhood Revitalization Budgets), які дали громадянам змогу планувати, витрачати виділені їхнім ра- йонам кошти та контролювати їх витрачання. Відтак громадяни не лише можуть сказати своє слово при плануванні політичного курсу, але й несуть свою частку відповідальнос- ті за його розробку, краще розуміють механізми управління й, відповідно, більше довіря- ють органам влади. «Знайди свій шлях у системі місцевого самоврядування» – ще один успішний проект, реалізований у муніципалітетах різних міст Нідерландів. Головне його завдання – надати молодим людям віком 14–19 років можливість придбати навички, необхідні для активної участі у місцевих демократичних процесах прийняття рішень. Для подолання надзвичай- но поширеного відсторонення молоді від політичного процесу цей проект надав у розпо- рядження молодих людей певні кошти, водночас зобов’язавши їх розробляти та проводи- ти в життя заходи щодо розвитку місцевих громад. Учасники проекту мали змогу розро- бляти власні плани, вирішувати, як і на що витрачати виділені їм бюджетні кошти, та спіль- но з муніципалітетами працювати над виконанням бюджетів. Кінцевим результатом про- екту стала відновлена довіра й міцна переконаність у тому, що активне залучення грома- дян здатне принести позитивні зміни. Реалізація проекту відбувалася за наступною ме- тодикою: • учні готуються до дня активних дій на двох шкільних уроках, під час яких отримують загальну уяву про місцеве самоврядування/програми та практичну інформацію сто- совно дня активних дій; • у день активних дій учні, розділені на невеличкі групи розробляють політичні пропо- зиції на певну тему, підібрану місцевою владою за погодженням з учителями. Протя- гом дня вони зустрічаються з політиками, державними службовцями, представника- ми міської ради та груп інтересів для обговорення своїх проблем та ідей;
85 Strong and prosperous communities. The Local Government White Paper, Department of Communities and Local Government, October 2006, London [Сильні та процвітаючі громади. Біла книга з питань місцевого самовряду- вання», Департамент у справах громад і місцевого самоврядування, жовтень, 2006, Лондон]. 306 Міжнародні заходи зміцнення довіри...
• підготовлені проектні пропозиції виносяться на обговорення молодіжної ради, деле- гати якої більшістю голосів вирішують, який проект буде реалізований. Місцева вла- да виділяє певний бюджет на реалізацію «найкращого» проекту, відібраного учнями в день активних дій. З моменту започаткування цього проекту в 1994 році у Нідерландах щороку проводить- ся від 20 до 30 днів активних дій. Проект надає муніципалітетам унікальну можливість «вста- новити зв’язок» зі своїми майбутніми виборцями та сформувати з ними довірчі стосунки на цьому ранньому етапі залучення до громадського та політичного життя.
Оцінка якості надання послуг Угорщина У 2005 році в Угорщині був започаткований проект «Система якісної та кількісної оцінки ефективності електронного врядування» (e-GAMES) з метою проведення якіс- ної ті кількісної оцінки послуг, які надаються органами державної адміністрації, а також рівня громадського інтересу до різних питань. E-GAMES – це онлайн-форум, інтегрова- ний в угорський урядовий портал, на якому громадяни можуть висловлювати свої думки про якість державних послуг. Для забезпечення ефективного та відповідального зв’язку всіх громадян, які бажають брати участь у роботі онлайн-форуму, просять зареєструва- тися, вказавши своє справжнє ім’я та персональні дані. Правова база функціонування онлайн-форуму та системи e-GAMES була ретельно сформульована таким чином, щоб забезпечити належний баланс між вимогами щодо захисту даних, свободою виразу ду- мок та модеруванням розміщених на форумі постів. Вимога щодо реєстрації виходить з того, що кожний громадянин, який бажає стати учасником партиципаторних механізмів урядування, повинен відповідати за свої дії. Зареєструвавшись на форумі, кожний ко- ристувач може виставляти позитивні та негативні оцінки розміщеним на ньому комен- тарям, і в такий спосіб внесок кожного користувача отримує певну кількість балів. Нако- пичена сума балів дає уяву про загальну картину громадської думки. Державні чиновни- ки теж можуть бути користувачами форуму, проте вони не мають права коментувати ви- словлені на ньому думки. Високопоставлені представники органів влади регулярно запрошуються до участі в онлайн-чатах з громадянами у заздалегідь призначений час. Їхні відповіді та пропозиції, внесені під час таких онлайн-дебатів, оцінюються користувачами за бальною системою. Крім того, думки, висловлені аудиторією форуму, виконують функції спостерігача за медіа- публікаціями, що набагато ефективніше й продуктивніше, ніж будь-які програмні рішення. Отже, на практиці e-GAMES служить для керівників інструментом прогностичного контро- лю реакції населення при проведенні громадських обговорень різних запланованих заходів і водночас сприяє взаємодії між самими громадянами, а також між окремими громадяна- ми та громадськістю в цілому.
Великобританія Прагнучи забезпечити більшу прозорість і відповідальність своєї роботи, британ- ські органи місцевої влади широко застосовують засоби інформаційних технологій. У цьому відношенні успішним прикладом може послужити проект «Любіть чисті вулиці» [LoveCleanStreets], який дозволяє мешканцям лондонського передмістя Льюїшем над- силати текстові або електронні повідомлення про місцеві проблеми, які потребують втру- чання органів влади. На вебсайті місцевого органу влади з’являються зображення, які да- ють змогу мешканцям передмістя слідкувати за тим, які заходи вживаються для усунен- ня недоліків. Очікується, що до кінця 2010 року ця ініціатива буде поширена на все Сполу- чене Королівство. Міжнародні заходи зміцнення довіри... 307
4.4. Застосування принципів належного управління в організаційних стратегіях ОГС – міжнародні тенденції Реагуючи на необхідність підвищення прозорості та підзвітності сектора ОГС, а також у світлі Повідомлення Комісії «Про попередження та боротьбу проти фінансування терориз- му шляхом посилення координації на національному рівні та підвищення прозорості неко- мерційного сектору», ЄК опублікувала у 2009 році «Аналіз останніх ініціатив у сфері держав- ного і саморегулювання, спрямованих на підвищення прозорості та підзвітності некомер- ційних організацій у країнах Європейського Союзу»86. Метою цього дослідження був аналіз існуючих урядових і саморегуляторних ініціатив НУО, спрямованих на підвищення підзвіт- ності та прозорості неурядових організацій. Дослідження показало, що сильна регуляторна роль держави в країнах Центральної та Східної Європи зумовлена відносною незрілістю та слабкістю сектору громадянського суспільства. У цьому регіоні розвиток саморегулятор- них режимів був не надто ефективним, оскільки ідентичність і згуртованість сектору все ще перебуває на стадії формування, тим часом як у Західній Європі регуляторна роль держави зменшилася, поступившись місцем саморегуляторним ініціативам, оскільки зросли очіку- вання суспільства щодо підвищення ефективності та прозорості НУО. Дослідження вияви- ло десять основних тенденцій на рівні ЄС та держав-членів: 1. У всіх державах–членах ЄС існує чітка тенденція до підвищення підзвітності та прозо- рості секторів некомерційних організацій (НКО). 2. Ті країни–члени ЄС, де до цього часу не була розвинута всебічна правова база діяльності НКО, останнім часом заходилися створювати цю базу. Країни з уже існуючою правовою базою проводять комплексні реформи з метою її перегляду та вдосконалення. 3. У державах-членах існує чітка тенденція до створення центральних реєстрів або при- наймні до інтеграції вже існуючих реєстраційних даних у центральну, відкриту для широкого доступу базу даних. 4. У країнах з системами цивільного права впровадження статусу суспільно корис- них організацій (СКО) вочевидь стало найбільш прямим шляхом до поєднання обов’язків щодо підзвітності з наданням НКО відповідних державних пільг. Ціла низка країн – як старих, так і нових членів ЄС, де в тій чи іншій формі вже існує пра- вова база діяльності СКО – останнім часом почали запроваджувати суворіші вимо- ги до підзвітності та порядку звітування СКО (Болгарія, Італія, Латвія, Мальта, Ні- дерланди, Польща, Румунія). 5. Численні країни останнім часом запровадили більш суворе регулювання збору ко- штів – або окремими законодавчими актами (Закон про збір коштів, Фінляндія), або в порядку проведення широкої реформи (Австрія, Болгарія, Ірландія). Варто заува- жити, що майже всі реформаторські ініціативи включають принцип цільового вико- ристання коштів і встановлюють суворіші правила звітування про витрачання зібра- них грошей. 6. Спільна для всіх тенденція: саморегуляторні ініціативи зайняли провідне місце в зу- силлях, спрямованих на покращення управління НКО. Щоправда, ці ініціативи запро- ваджуються на субсекторальному рівні замість національного. 7. Кілька країн переглянули та уточнили ролі контрольно-наглядових органів і ввели в дію положення, спрямовані на посилення міжвідомчого співробітництва (Болгарія). 86 Study on recent public and self-regulatory initiatives improving transparency and accountability of non-profit organisations in the European Union, 2009, commissioned by the European Commission Directorate-General of Justice, Freedom and Security and elaborated by the European Center for Not-for-Profit Law [Аналіз останніх ініціатив у сфері державного і саморегулювання, спрямованих на підвищення прозорості та підзвітності некомерційних організа- цій у країнах Європейського Союзу, 2009. Підготовлений Європейським центром некомерційного права на замов- лення Генерального директорату Європейської комісії з питань правосуддя, свободи та безпеки]. 308 Міжнародні заходи зміцнення довіри...
Крім того поряд із запровадженням суворіших стандартів підзвітності для НКО були розширені повноваження на обмін інформацією та співробітництво при проведенні розслідувань (Австрія), а в Австрії та Угорщині створені централізовані бази реєстра- ційних даних. 8. Тенденція до підвищення прозорості державного фінансування націлена на змі- ну поведінки сторін шляхом запровадження правової основи фінансових відносин між урядом та волонтерським і громадським сектором, а також чіткого визначення зобов’язань обох сторін, виходячи з того, чого вони можуть очікувати одна від одної. Ще одне цікаве явище в цій сфері – значне поширення прекваліфікаційних систем, які початково діяли лише у сфері фінансування міжнародного розвитку. Згідно з цими системами ті НУО, котрі відповідатимуть певним критеріям, матимуть право на спро- щену адміністративну перевірку заявок на гранти. 9. Процедури консультацій з громадянським суспільством поступово набирають роз- маху і в тих країнах, де така традиція була відсутня. Найкращі приклади цієї практи- ки – Великобританія та Ірландія, особливо якщо мова йде про консультації на ранніх етапах, коли тільки починається розробка політичного курсу та концепції правово- го акту. Такий підхід вочевидь є вирішальним фактором здобуття підтримки та спів- робітництва з сектором НКО у справі прийняття та виконання законодавчих актів. Успішні моделі цієї практики можна знайти також в Австрії, Нідерландах, Франції, Ес- тонії, Болгарії та Мальті. 10. Партнерські стосунки між корпораціями та НУО неухильно розвиваються, причому корпорації поступово посилюють свою роль і вплив на підвищення підзвітності та прозорості НКО. У порядку реагування на необхідність посилення доброчесності та підзвітності органі- зацій громадянського суспільства, «Незалежний сектор» (форум керівного складу благо- дійних організацій, фондів та корпоративних благодійних програм в Америці та по всьому світі) сформулював 33 принципи належного управління та етичної практики87. Ці принципи згруповані в чотирьох основних категоріях: • Законослухняність і оприлюднення інформації – обов’язки та практика, зокрема впровадження правил попередження конфліктів інтересів та інформування про виявлені порушення, які допомагатимуть благодійним організаціям виконувати свої встановлені законом обов’язки та надавати інформацію широкій громадськості. • Ефективне управління – правила та процедури, яких має дотримуватися рада директорів, щоб ефективно виконувати свої контрольно-наглядові та управлінські обов’язки. • Суворий фінансовий контроль – правила та процедури, яких повинна дотримуватися організація, щоб забезпечити раціональне розпорядження благодійними ресурсами. • Відповідальний порядок збору коштів – правила та процедури, яких повинні дотримуватися організації, що займаються публічним збором коштів, щоб заручитися довірою та підтримкою донорів. Більш-менш такі ж принципи викладені у «Принципах належної практики» Європейсько- го центру фондів88. Цей документ дає загальні рекомендації щодо запровадження належної практики, відкритості та прозорості у спільноті європейських фондів, застосовні як у націо- нальній, так і міжнародній сфері діяльності фондів. Реагуючи на зростаюче занепокоєння станом прозорості та підзвітності діяльності НУО і враховуючи посилення ролі сектору ОГС у процесі прийняття рішень, група міжнародних НУО підготувала та публічно підписала першу глобальну хартію підзвітності міжнародних адвока-
87 Вказані принципи можна знайти на веб-сайті: http://www.independentsector.org/uploads/Accountability_ Documents/Principles_for_Good_Governance_and_Ethical_Practice.pdf 88 Див. веб-сайт: http://www.efc.be/Legal/Documents/EFCPrinciplesGoodPractice.pdf Міжнародні заходи зміцнення довіри... 309
ційних організацій. Цей детально розроблений саморегуляторний документ зобов’язує сто- рони, що його підписали, дотримуватися певних чітких принципів і стандартів, які можуть слу- жити критеріями відповідальності ОГС для бенефіціаріїв, прибічників, донорів і широкої гро- мадськості. У 2006 році Хартію підзвітності міжнародних неурядових організацій підписали 11 провідних міжнародних НУО. У цій добровільній саморегуляторній ініціативі сформульова- ні спільні цінності, принципи та практичні методи, якими повинна керуватися діяльність НУО. Хартія проголошує прозорість і підзвітність обов’язковими критеріями належного управлін- ня, а отже, НУО повинні суворо дотримуватися тих же високих стандартів, яких вимагають від інших. Прагнучи забезпечити більшу прозорість діяльності НУО, Хартія зобов’язує сторони, які її підписали, не рідше одного разу на рік звітувати про свою діяльність і досягнуті резуль- тати. Такий звіт повинен включати: • Місію та цінності. • Завдання та результати, досягнуті в програмній та адвокаційній діяльності. • Вплив на навколишнє середовище. • Структура та процеси управління, ключові посадові особи. • Основні джерела фінансування з боку корпорацій, фондів, урядів і фізичних осіб. • Фінансові показники. • Дотримання вимог цієї Хартії. • Контактну інформацію89. На національному рівні ОГС держав – членів ЄС розробили різноманітні Кодекси пове- дінки, які й були покладені в основу Хартії підзвітності неурядових організацій. Естонський кодекс етики некомерційних організацій був прийнятий у 2002 році на Генеральній асамблеї «круглого столу» естонських некомерційних організацій. У цьому Кодексі проголошені на- ступні основні принципи: доброчесність, рівноправність, гідність, відкритість, солідарність, співробітництво, розмаїття та надійність. Ключові принципи діяльності, про які йде мова в Кодексі: • Демократичне управління. • Громадянська мужність і уважність. • Самодостатність і розумне використання коштів та ресурсів. • Відповідальність і підзвітність. • Відкритість і прозорість. • Незалежність і уникнення конфліктів інтересів. • Обов’язковість і визнання авторства ідей. • Толерантність. Додатково до цих ініціатив Робоча група країн Центральної та Східної Європи з проблем управління неурядовими організаціями підготувала «Посібник з управління НУО». Він міс- тить набір рекомендацій, які б могли сприяти формуванню спільного для всього регіону ро- зуміння засад належного управління НУО. Посібник проголошує вісім основних принципів: • НУО підзвітні своїм громадам. • Належне управління має свою формальну структуру. • Належне управління – це базова форма підзвітності. • Належне управління передбачає відокремлення управління від менеджменту. • НУО – це організації, що виконують певну місію. • НУО дотримуються найвищих професійних та етичних стандартів. • НУО здійснюють відповідальне розпорядження ресурсами та їх мобілізацію. • НУО чуйно реагують на потреби громад, яким вони служать.
89 International Non Governmental Organizations Accountability Charter [Хартія підзвітності міжнародних неу- рядових організацій], див. вебсайт: http://www.ingoaccountabilitycharter.org/wpcms/wp-content/uploads/ingo- accountability-charter-eng.pdf 310 Міжнародні заходи зміцнення довіри...
Посібник містить контрольний список запитань, який допомагає ОГС контролювати до- тримання стандартів. Ще один саморегуляторний документ, спрямований на утвердження доброчесності в секторі ОГС і зміцнення довіри до відносин між громадянами та урядом,– це Схема сер- тифікації, якою користуються деякі ОГС для оцінки дотримання стандартів доброчесності. Ці схеми можуть базуватися на самооцінці або на результатах атестації, проведеної тре- тьою стороною. Схеми самосертифікації, як правило, застосовуються після прийняття Кодексу поведін- ки/хартії підзвітності. Вони вимагають від ОГС проходження процесу внутрішньої перевір- ки і виступу з формальною заявою про дотримання нею чіткого набору стандартів. Типовий приклад такої схеми самосертифікації – Акредитація національних відділень «Транспарен- сі Інтернешнл». Головна мета схеми – забезпечити, щоб усі національні відділення цієї ор- ганізації дотримувалися найвищих стандартів доброчесності і були сильно вмотивовани- ми, ефективними та підзвітними у своїх діях. Акредитація новоствореного відділення скла- дається з трьох основних етапів: 1. Підготовчий процес, під час якого група осіб (фізичних або вже існуюча організація) підписує з керівництвом ТІ «Угоду про надання статусу національної контактної осо- би». Цей статус надається на два роки. 2. Тимчасова акредитація: у дворічний строк після отримання статусу Національної контактної особи, організація «Національного відділення, що формується» має бути повністю завершена. Цей статус надає йому право присутності на загальних зборах членів ТІ, але без права брати участь у голосуванні. 3. Акредитація: у дворічний строк після отримання статусу «Національного відділен- ня, що формується», якщо організація продемонструє достатню рішучість, старан- ність і компетентність у справі боротьби з корупцією, вона може подати заявку на по- вну акредитацію. До заявки, яка надсилається до головного офісу ТІ, залучаються наступні документи: • заповнена форма самооцінки Національного відділення для початкової акредита- ції; • копії останніх за часом фінансових звітів, які пройшли аудиторську або іншу неза- лежну перевірку; • зведена фінансова звітність на вимогу Фінансового комітету правління ТІ; • документальне свідоцтво про розпочату або завершену реєстрацію назви та ло- готипу ТІ в країні даного Національного відділення / територіальній одиниці від імені ТІ; • кодекс поведінки; • публікація Реєстру інтересів членів керівного органу Національного відділення, що формується – згідно з діючими в ТІ внутрішніми правилами попередження конфлікту інтересів; • останній за часом план роботи та бюджет; • останній річний звіт90. Один раз на три роки провадиться перевірка Національних відділень ТІ на предмет під- твердження, що вони продовжують дотримуватися вимог Парасолькової заяви, основних принципів і цілей ТІ. Це робиться шляхом заповнення формуляру самооцінки відповідя- ми на запитання стандартної акредитаційної перевірки. Крім того, Акредитаційний комітет правління ТІ може в будь-який момент ініціювати окрему перевірку, вказавши її причини. Реалізований організацією One World Trust Глобальний проект підзвітності розробив по- дібну до схеми самоакредитації структуру GAP, яка служить організаціям зручним механіз- мом запровадження підзвітності на практиці. GAP установлює певні критерії підвищення 90 http://www.transparency.org/about_us/organisation/accreditation#accred Міжнародні заходи зміцнення довіри... 311
підзвітності організації перед зацікавленими сторонами. Ця система, що має форму опиту- вального листа, функціонує на основі чотирьох головних параметрів: • Прозорість; • Участь; • Оцінка; • Механізми подання скарг і реагування на них. Впровадження цих параметрів у практичну діяльність і внутрішні процедури організації дозволяє їй звітувати перед зацікавленими сторонами, враховувати їхні точки зору, а в разі необхідності вони й самі можуть притягати її до відповідальності. Структура GAP розробле- на як доповнення до вже існуючих нормативно-правових структур, кодексів поведінки та ініціатив підвищення підзвітності. На відміну від описаних вище схем? деякі країни та організації запровадили у себе схе- ми сертифікації третіми сторонами, згідно з якими незалежна організація перевіряє вико- нання певного набору принципів або стандартів. Прикладом такого механізму може послу- жити австрійський «Знак якості для пожертв». Цей механізм був створений після грандіоз- ного скандалу, який вибухнув у 1998 році навколо махінацій зі збором благодійних пожертв. У 1999 році Австрійський інститут фандрейзингових організацій створив робочу групу, по- ставивши перед нею завдання – розробити чіткі й прозорі стандарти збору коштів. До скла- ду групи увійшли члени парасолькових організацій НКО, представники державних установ, засобів масової інформації, фандрейзингових об’єднань та організацій захисту прав спо- живачів. Як результат, у 2001 році в Австрії був запроваджений «Знак схвалення» для бла- годійних організацій. Він містить список критеріїв, яких повинні дотримуватися організації, і за якими їх щороку перевірятимуть незалежні бухгалтерські фірми. Оскільки в Австрії всі бухгалтерські інституції є членами Австрійської палати ліцензованих бухгалтерів і податко- вих консультантів, організації можуть вибирати аудиторську фірму на власний розсуд. Ана- логічні системи акредитації створені в Нідерландах і Німеччині. На міжнародному рівні Міжнародний комітет фандрейзингових організацій, устано- вив стандарти, які допомагатимуть національним акредитаційним органам забезпечува- ти дотримання організаціями громадянського суспільства високих стандартів доброчес- ності та цільове витрачання державних коштів. Ці стандарти охоплюють п’ять основних сфер діяльності: • членський склад і коло обов’язків керівного органу; • реалізація суспільно–корисних цілей; • податково-бюджетний контроль, менеджмент і звітність; • практичні методи фандрейзингу [збору коштів]; • забезпечення публічної доступності інформації. Мета названих вище стандартів – гармонізація національних акредитаційних систем і встановлення принципів, яких повинні дотримуватися міжнародні неурядові або некомер- ційні приватні організації, що займаються публічним збором коштів у благодійних чи сус- пільно–корисних цілях. Конечність підвищення прозорості та підзвітності сектору громадянського суспільства на- брала ще більшої сили після терактів 11 вересня, які дали додатковий поштовх запроваджен- ню суворих механізмів підзвітності в секторі НУО. У своїй Пояснювальній записці до Спеці- альної рекомендації VIII щодо некомерційних організацій Група з розробки фінансових за- ходів боротьби з відмиванням грошей (ФАТФ), зокрема, настійно порекомендувала урядам: • проводити внутрішні перевірки своїх некомерційних секторів або мати можливість своєчасно отримувати інформацію про їхню діяльність, розміри та інші важливі ха- рактеристики; • проводити чітку політику сприяння прозорості, доброчесності та громадській довірі до адміністрації та керівництва всіх НКО; 312 Міжнародні заходи зміцнення довіри...
• вживати заходів з метою забезпечення ефективного нагляду та моніторингу своїх секторів НКО; • забезпечувати обов’язкове ліцензування або реєстрацію НКО та публічну доступ- ність інформації про: цілі та завдання їхньої заявленої діяльності; персональні дані осіб, які володіють, контролюють або керують їхньою діяльністю, включаючи старших співробітників, членів правлінь і попечителів. З метою забезпечення більшої прозорості та доброчесності в роботі сектора громадян- ського суспільства і попередження в такий спосіб спроб фінансування тероризму ФАТФ ре- комендує органам державної влади зобов’язати ОГС щорічно публікувати свої фінансові звіти з детальним постатейним відображенням доходів і витрат, а також запровадити ме- ханізми моніторингу дотримання організаціями громадянського суспільства застосовних норм і правил. Ці рекомендації не відрізняються скільки-небудь суттєво від уже існуючих механізмів у більшості країн ЄС. Різноманітні форми реєстрів, публічних баз даних і меха- нізмів моніторингу вже створені в Ірландії, Болгарії, Мальті, Угорщині, Австрії, Естонії, Ан- глії, Польщі та інших країнах. Виконанню зазначених вище вимог сприяють і деякі саморегу- ляторні ініціативи європейського та національного рівня (Хартія підзвітності, система акре- дитації в Нідерландах тощо). Зі свого боку ПРООН розробила критерії оцінки можливостей ОГС для своєї процедури відбору партнерів (див. Додаток 5). Основні критерії згруповані під наведеними нижче ру- бриками: • Правовий статус та історія; • Мандат, внутрішні правила та управління; • Прибічники та зовнішні підтримка; • Технічні можливості; • Управлінські можливості; • Адміністративні можливості; • Фінансові можливості. Цей документ служить посібником з відбору організацій-партнерів. Він не був задума- ний як придатна для будь-кого «безрозмірна одежина» чи оціночна картка для ОГС. Проте він допомагає забезпечити, щоб організації-партнери були так само підзвітні, прозорі та відкриті, як їхні організації-донори. Ця система визнає, що різні країни та ОГС суттєво від- різняються одна від одної за умовами функціонування громадянського суспільства, сфе- рами компетенції ОГС та роллю, яку вони відіграють у суспільстві, і тому рекомендує адап- тувати структуру відбору ОГС до місцевих потреб і контексту. Вжиття того чи іншого захо- ду з метою посилення підзвітності в жодному разі не повинно призвести до переобтяження сектору громадянського суспільства і поставити під загрозу його право вільного виражен- ня поглядів та інтересів громадян. Міжнародні заходи зміцнення довіри... 313
V. ВИСНОВКИ
Відносини між урядом і громадянським суспільством у ХХІ столітті У цьому дослідженні описані сучасні тенденції розвитку відносин між урядом і грома- дянами в контексті зміцнення взаємної довіри та забезпечення належного управління, що сприяє демократії, верховенству права та усталеному економічному розвитку. У ньо- му представлені зразки міжнародної, європейської та національної практики та ідеї, в яких знаходять вираження наступні основні тенденції: • Організації громадянського суспільства відіграють важливу роль у сучасному полі- тичному процесі. Вони сприймаються як цінні партнери, що приносять додаткові пе- реваги і полегшують розробку та проведення в життя урядової політики. • Організації громадянського суспільства мають бути ефективними та активними партнерами, вносити конструктивні й добре збалансовані зауваження та пропозиції, тобто стати складовим елементом процесу прийняття рішень. • Обов’язки та поле діяльності ОГС значно розширилися, і на всіх рівнях управління: міжнародному, європейському, національному, регіональному та місцевому – до ві- дання ОГС відноситься дедалі більша кількість питань. • Розширення сфери компетенції поєднується з більшою відповідальністю. Від ОГС очікують і вимагають дотримання тих же стандартів поведінки, що й від органів дер- жавної влади. • Сектор громадянського суспільства та органи державної влади спільними зусилля- ми дбають про те, щоб ОГС, залучені до процесу прийняття рішень, представляли іс- тинні інтереси громадян. • Підзвітність, прозорість і відкритість стали ключовими принципами, які однаково по- ширюються на всіх партнерів у відносинах між урядом і громадянським суспільством.
Механізми сприяння відносинам між громадянами та урядом Відносини, що сприяють зміцненню довіри між громадянами та урядами, регулюються «жорсткими» (правовими) та «м’якими» (кодексами поведінки тощо) документами. Засто- сування останніх залежить від політичного, адміністративного та культурного контексту в тій чи іншій країні. Найбільш поширені інструменти співробітництва: • Надання інформації: Закони про надання/доступ до інформації поряд із основним законом країни (конституцією) є головними гарантіями надання своєчасної та повноцінної ін- формації Інструкції для державних чиновників і громадян розробляються з метою дохідли- вого роз’яснення процедур доступу до інформації Органи державної влади зобов’язані займати активну позицію та брати на себе проактивну роль у процесі надання інформації. Головний принцип полягає в тому, що органи влади повинні надавати всю потрібну громадянам інформацію без по- переднього запиту Кілька держав-членів та інституцій ЄС розробили мінімальні стандарти надання інформації, які в обов’язковому порядку повинні оприлюднюватися державними органами Вебсайти/портали органів державної влади стали центрами легкого доступу до інформації. Розробляються стандарти уніфікації порядку надання інформації 314 Міжнародні заходи зміцнення довіри...
• Консультації: Створення консультативних органів на всіх рівнях прийняття рішень. До складу цих органів можуть входити представники державних органів та організацій гро- мадянського суспільства, або самі лише представники ОГС. Сфери їхньої компе- тенції можуть бути різними – від суто дорадчих функцій до права «вето» та форму- лювання певних програмних документів Процедури проведення консультацій або регулюються національною правовою системою, або приймаються як програмні документи, не обов’язкові до виконання Існує певне взаєморозуміння щодо основних етапів і стадій процесу проведення публічних консультацій Кодекси належної практики / рекомендації повсюдно сприймаються як найкра- щий інструмент проведення всебічних, зрозумілих та ефективних консультацій Консультаційний процес широко базується на засобах електронних технологій. З метою сприяння обміну думками та залучення до обговорень широкої громад- ськості були створені веб-портали участі/консультацій Громадянські форуми/ агори/ журі були організовані як чутливі засоби вимірю- вання «пульсу» сектору громадянського суспільства, даючи йому змогу активно формувати майбутню політику на всіх політичних рівнях • Підзвітність: Для того щоб забезпечити ефективне врахування інтересів та задоволення по- треб громадян, повсюдно створюються органи моніторингу із представників ор- ганізацій громадянського суспільства Суспільні договори/спільні заяви сприймаються як механізми забезпечення про- зорості та відповідальності у відносинах між урядом і громадянським суспіль- ством. Ці документи містять опис основних сфер втручання, інструментів спів- робітництва та стандартів поведінки, яких повинні дотримуватися всі зацікавлені сторони Ініціативи з партиципаторного формування бюджетів проклали собі шлях як ін- струменти забезпечення підзвітності на рівні місцевого самоврядування. Поза притягненням державних органів до відповідальності за свої дії вони дозволяють громадянам брати активну участь у розподілі та витрачанні державних ресурсів, даючи їм змогу самим формувати середовище, в якому вони живуть Електронні технології дозволили громадянам регулярно оцінювати ефективність роботи державних органів. Для оцінки якості та ефективності розробленого полі- тичного курсу широко застосовуються прикладні Інтернет-програми
Механізми сприяння розвитку довірчих відносин між урядами та ОГС «М’які» документи (рекомендації, кодекси поведінки) переважно застосовуються для забезпечення представницького характеру, підзвітності та відкритості діяльності ОГС. Ініці- ативи уряду та сектору ОГС втілюються в життя в наступних напрямах: • Кодекси поведінки/хартії підзвітності приймаються багатьма ОГС як заяви про цін- ності та стандарти поведінки, яких вони дотримуються і за виконання яких вони бу- дуть зобов’язані звітувати • Запроваджуються механізми самоакредитації та незалежної акредитації, які забез- печують дотримання організаціями громадянського суспільства високих стандартів доброчесності та цільове витрачання державних коштів • На підтримку виконання принципів належного управління у діяльності ОГС були роз- роблені практичні інструменти реалізації підзвітності (у формі рекомендацій, опиту- вальних листів для оцінки недоліків тощо) Міжнародні заходи зміцнення довіри... 315
• Існує чітке розуміння того, що прозорість, відкритість і підзвітність у стосунках між урядом і громадянами вимагають наявності чітко виписаної правової бази, яка ви- значатиме ролі, права та обов’язки ОГС, а також відповідні зобов’язання державних інституцій. Це також означає, що ОГС і уряди повинні спільними зусиллями розро- бити набір критеріїв для відбору тих громадських організацій, які залучатимуться до співробітництва та партнерських ініціатив. 316 Міжнародні заходи зміцнення довіри...
VI. ПРОПОЗИЦІЇ ТА РЕКОМЕНДАЦІЇ ЩОДО ШЛЯХІВ ЗМІЦНЕННЯ ДОВІРИ МІЖ ДЕРЖАВОЮ ТА ОГС
Заходи, спрямовані на зміцнення довіри громадян до спроможності органів державної влади забезпечувати належне управління • Розробка спільної заяви ОГС та пріоритетів у сфері управління, завдань та механізмів роботи (можливі приклади: Суспільний договір у Великобританії або Концепція роз- витку громадянського суспільства в Естонії). Головна мета: створення чіткої структу- ри співробітництва між урядом і громадянським суспільством. Водночас, підписав- ши цей документ, сектор громадянського суспільства та уряд зобов’язуються дотри- муватися єдиних стандартів поведінки. • Розробка мінімальних стандартів та/або керівних принципів проведення публічних консультацій. • Підготовка проектів та підписання міжінституційних угод та обов’язкових до виконан- ня рекомендацій щодо призначення представників громадянського суспільства, ме- тодів організації та фінансування консультацій. Ці рекомендації повинні спільно роз- роблятися урядом і сектором громадянського суспільства. • Відкриття консолідованого консультативного порталу як центрального пункту збору від- гуків громадян на політичні пропозиції та проекти нормативних актів. Цей портал має стати платформою для двостороннього зв’язку між громадянами та державними інсти- туціями (успішні приклади можна знайти в Естонії, Нідерландах та Великобританії). • Створення відкритої бази даних про НУО, які володіють експертними знаннями в різ- них сферах громадського життя (можна взяти за взірець публічний реєстр Європей- ської комісії). Така база даних ефективно впроваджуватие прозорість і підзвітність у ді- яльність ОГС. З іншого боку, вона сприятиме співробітництву між ОГС і державними ін- ституціями, якщо останні зобов’яжуться розсилати зареєстрованим ОГС, які працю- ють у відповідних сферах, проекти всіх нормативних актів, котрі підлягають обговорен- ню. Таким чином, створюватимуться додаткові гарантії того, що всі зацікавлені сторо- ни будуть поінформовані з перших кроків підготовки та/або обговорення стратегічних документів (див. процедури, що діють в Естонії та ЄК, як приклади належної практики). • Впровадження «законодавчого відбитку» (залученого до парламентської доповіді ін- дикативного списку зареєстрованих представників інтересів, з якими були прове- дені консультації і які зробили значний внесок у підготовку доповіді чи законодавчої пропозиції). • Забезпечення легкого доступу до документів та інформації шляхом впровадження правил уніфікації урядових вебсайтів. • Впровадження законодавчого регулювання лобістської діяльності. • Створення на національному рівні консультативного органу з розширеними дорад- чими функціями (успішні приклади: Національна рада у Словенії, Економічна і соці- альна рада в Болгарії). • Нарощування потенціалу та здатності державних чиновників і представників ОГС ак- тивно та конструктивно спілкуватися і взаємодіяти з ОГС/державними інституціями. Сприяння змінам у культурі та кращому розумінню ролі ОГС у процесі прийняття рі- шень. • Активізація застосування електронних технологій, які сприятимуть залученню гро- мадськості та моніторингу. Успішні приклади ініціатив, придатних до застосування в інших умовах: Міжнародні заходи зміцнення довіри... 317
Ініціатива з інтерактивної розробки політичного курсу (цей прикладний Інтернет- ресурс містить зручні й прості онлайн-анкети, полегшуючи респондентам участь у процесі, а політичним керівникам – аналіз отриманих результатів). Система якісної та кількісної оцінки ефективності електронного врядування (ін- струмент прогностичного контролю реакції населення при громадських обгово- реннях різних запланованих заходів, який сприяє взаємодії поміж громадянами, а також між громадянами та суспільством). Програми Voting assistant та Voting Tracker (Нідерланди).
Заходи, спрямовані на зміцнення довіри уряду до надійності експертних знань і висновків ОГС • Розробка спільних Хартій підзвітності /Кодексів, які встановлюють єдині стандарти поведінки • Впровадження Кодексів поведінки, процедур самоакредитації або незалежної акре- дитації • Підготовка щорічних звітів ОГС, які можуть включати наступні позиції: Місія та цінності Завдання та результати, досягнуті в програмній та адвокаційній діяльності Вплив на навколишнє середовище Структура та процеси управління, ключові посадові особи Основні джерела фінансування з боку корпорацій, фондів, урядів і фізичних осіб Фінансові показники Дотримання вимог Хартії підзвітності Контактна інформація • Визначення та застосування набору критеріїв для відбору тих громадських органі- зацій, з якими органи державної влади встановлюватимуть співробітництво та парт- нерські стосунки. Набір об’єктивних і попередньо визначених критеріїв може, зокре- ма, включати наступне: Структура та членський склад НУО Прозорість організації та методів роботи Попередня участь у роботі комітетів та робочих груп Послужний список, що свідчить про належну компетенцію, щоб давати консульта- ції у певній сфері діяльності Здатність виступати в ролі каталізатора обміну інформацією та думками між орга- нами влади та громадянами. (Дискусійний документ Комісії, Комісія та неурядові організації: Побудова більш міцного партнерства). Індикатори оцінки участі ОГС повинні розроблятися на національному рівні в тісному співробітництві з пред- ставниками ОГС. 318 Міжнародні заходи зміцнення довіри...
ЧАСТО ВЖИВАНІ СКОРОЧЕННЯ
ЦСЄ – Центральна та Східна Європа CIVICUS – Всесвітній Альянс за громадську участь РЄ – Рада Європи ОГС – Організації громадянського суспільства DIFID – Міністерство міжнародного розвитку Великобританії ЄК – Європейська комісія ЕКОСОР – Економічна та соціальна рада ООН ЄЕСК – Європейський економічний та соціальний комітет КРЕС – Концепція розвитку естонського громадянського суспільства ЄП – Європейський парламент ЄС – Європейський Союз НУО – Неурядові організації НДА – Недержавні актори ОЕСР – Організація економічного співробітництва та розвитку ОБСЄ – Організація з безпеки та співробітництва в Європі TI – Транспаренсі Інтернешнл Вбр – Великобританія ООН – Організація Об’єднаних Націй ПРООН – Програма розвитку ООН ЮНЕП – Програма ООН з навколишнього середовища ВБ – Всесвітній банк Міжнародні заходи зміцнення довіри... 319
ДОДАТОК 1
Матриця громадської участі, Кодекс належної практики громадської участі у процесі прийняття рішень Партнерство Робоча група Спільна Спільне Стратегічні Робочі групи Робочі або комітет підготовка прийняття партнерські або комітети групи або документів рішень зв’язки комітети
Діалог Слухання та Слухання, гру- Відкриті Семінари з Робочі групи Семінари та громадські пи запитань і пленарні за- нарощування або комітети дискусійні форуми відповідей сідання або потенціалу форуми Громад- Семінари екс- засідання Навчальні се- ські форуми пертів комітетів мінари та майбутні Багатосторонні ради комітети та до- Основні кон- радчі органи такти в ор- ганах управ- ління Слухання та Відкриті Заходи, кон- Механізми Конференції Консультації Петиції групи запитань пленарні за- ференції, фо- зворотного або зустрічі Консультації і відповідей сідання або руми, семі- зв’язку Консульта- в режимі он- Семінари екс- засідання нари ції в режимі лайн або інші пертів комітетів онлайн методи Багатосторонні комітети та до- радчі органи
Інформація Легкий та Відкритий та Кампанії та Відкритий до- Відкритий Відкритий відкритий вільний доступ лобіювання ступ до ін- доступ до ін- доступ до ін- доступ до ін- до програмних формації формації формації формації документів Вебсайт для Збір даних Дослідження Вебсайт для доступу до ін- Оцінки Кампанії та ключових доку- формації Дослідження лобіювання ментів Оповіщення Вебсайт для Кампанії та ло- електронною основних до- біювання поштою кументів Мовлення в Ін- Запитан- тернеті ня, що часто Внесок дослі- ставляться джень Процедури публічного тендеру Рівні участі
Етапи при- Розробка по- Підготовка до- Рішення Виконання Моніторинг Перегляд йняття полі- рядку ден- кументів тичних рішень ного 320 Міжнародні заходи зміцнення довіри...
ДОДАТОК 2
Керівні принципи залучення громадян до розробки політичного курсу Дане дослідження пропонує наступні керівні принципи успішного інформування, прове- дення консультацій та активної участі громадян у розробці політичного курсу:
1. Обов’язковість Керівництво та сувора обов’язковість у сфері інформування, консультацій та активної участі в розробці політичного курсу необхідні на всіх рівнях, починаючи з політиків, керівни- ків та державних чиновників. 2. Права Права громадян на доступ до інформації, забезпечення зворотного зв’язку, консульту- вання та активну участь у розробці політичного курсу мають бути основані на законі або по- літиці. Так само має бути чітко встановлений обов’язок уряду реагувати на дії громадян, які здійснюють свої права. Для реалізації цих прав необхідні незалежні інститути або їхні екві- валенти, які здійснюватимуть відповідний нагляд. 3. Ясність З самого початку мають бути чітко визначені цілі та межі інформування, консультуван- ня та активної участі в розробці політичного курсу. Відповідні ролі та обов’язки громадян (щодо участі) та уряду (щодо прийняття рішень, за які він відповідає) мають бути зрозумі- лими для всіх. 4. Час Публічні консультації та активна участь повинні починатися якомога раніше, щоб могло з’явитися більше політичних рішень і зросли шанси їх успішного виконання. Для того щоб консультації та участь були більш ефективними, необхідно надати достатній час. Інформу- вання необхідне на всіх етапах розробки політичного курсу. 5. Об’єктивність Інформація, що надається урядом, має бути об’єктивною, повною та доступною. При здійсненні права на доступ до інформації та участь не повинно бути дискримінації грома- дян. 6. Ресурси Для того щоб інформування, консультації та активна участь були ефективними, необ- хідні відповідні фінансові, кадрові та технічні ресурси. Державні чиновники повинні володі- ти необхідними вміннями, мати інструкції та можливості для навчання, а також організацій- ну культуру, яка підтримуватиме їхні зусилля. 7. Координація Ініціативи щодо інформування, вивчення думок громадян та консультацій з ними мають бути скоординовані в уряді, щоб покращити управління знаннями, гарантувати програмну узгодженість, уникнути дублювання та зменшити ризик «консультаційної втоми» серед гро- мадян і організацій громадського суспільства. Координаційні зусилля не повинні ослаблю- вати здатності державних установ впроваджувати інновації та гарантувати гнучкість. 8. Підзвітність Уряди зобов’язані звітувати в тому, як вони використали внесок громадян, отриманий шляхом висловлення ними своєї думки, публічних консультацій та активної участі. Для за- гального підвищення підзвітності уряду вирішальне значення мають методи, які гаранту- ють, що процес розробки політичного курсу буде відкритим, прозорим, підлягатиме зо- внішньому контролю та перевірці. Міжнародні заходи зміцнення довіри... 321
9. Оцінка Урядам необхідні засоби, інформація та здатність оцінювати їхню діяльність після на- дання інформації, проведення консультацій та залучення громадян до розробки політично- го курсу, щоб адаптуватися до нових вимог і мінливих зовнішніх умов. 10. Активна громадянська позиція Урядам корисні активні громадяни та динамічне громадянське суспільство; вони здат- ні робити конкретні кроки, щоб полегшити доступ до інформації та участь, збільшити поін- формованість, удосконалити освіту та вміння громадян, а також підтримати розвиток пра- воздатності організацій громадянського суспільства
Джерело: Залучення громадян до розробки політичного курсу: Інформація. Консультації та громадська участь, 2001, ОЕСР Концептуальна записка з питань державного управління, №10 322 Міжнародні заходи зміцнення довіри...
ДОДАТОК 3
Модель схеми публікації 91 Ця модель схеми публікації підготовлена та затверджена Комісаром з питань інфор- мації. Будь-який державний орган може взяти її на озброєння в незмінному вигляді. Вона не потребує додаткового затвердження й залишається чинною до окремого пові- домлення. Ця схема публікації зобов’язує орган влади робити інформацію доступною для широкої громадськості в порядку своєї повсякденної службової діяльності. Інформація, що підля- гає оприлюдненню, розподілена на вказані нижче класи, згідно з якими вона й зберігаєть- ся даним органом. Додаткову допомогу у визначенні класу інформації надають призначе- ні для окремих секторів практичні настанови, які видаються Комісаром з питань інформації. Схема публікації зобов’язує державний орган: • Проактивно публікувати інформацію або в інший спосіб робити її доступною в поряд- ку своєї повсякденної діяльності; в тому числі оприлюднювати екологічну інформа- цію, яка знаходиться в розпорядженні даного органу та підпадає під наведену нижче класифікацію. • Скласти перелік інформації, яка знаходиться в розпорядженні даного органу та під- падає під наведену нижче класифікацію. • Проактивно публікувати або в інший спосіб робити інформацію доступною в порядку своєї повсякденної діяльності згідно з положеннями цієї схеми. • Розробити та опублікувати методи, якими у звичайному порядку надається доступ до тієї чи іншої інформації, щоб громадяни мали можливість легко її знаходити та оці- нювати. • Регулярно переглядати та оновлювати інформацію, яку даний орган оприлюднює за цією схемою. • Скласти таблицю розцінок на доступ до інформації, яка проактивно оприлюднюється. • Зробити цю схему публікації доступною для широкої громадськості.
Класи інформації • Хто ми такі і що ми робимо. Організаційна інформація, місцезнаходження органу та його контактні дані, конституційне та правове регулювання • Які кошти ми витрачаємо і в який спосіб. Фінансова інформація про прогнозовані та фактичні доходи, витрати, тендери, закупівлі та контракти • Які у нас пріоритети, і як ми працюємо. Інформація про стратегії та ефективність роботи, плани, оцінки, інспекції та перевірки • Як ми приймаємо рішення. Політичні пропозиції та рішення. Процеси прийняття рі- шень, внутрішні критерії та процедури, консультації • Наші внутрішні правила та процедури. Чинні письмові протоколи виконання на- ших функцій та обов’язків • Списки та реєстри. Інформація, яка згідно з вимогами закону зберігається в реєстрах, а також в інших списках і реєстрах, пов’язаних із функціями даного органу • Послуги, які ми пропонуємо. Поради та рекомендації, брошури та листівки, тран- закції та прес-релізи. Опис послуг, які пропонуються 91 Зразок схеми публікації вміщений на вебсайті Офісу Комісара з питань інформації (Великобританія): http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/generic_ scheme_v1.0.pdf Міжнародні заходи зміцнення довіри... 323
Вказані вище класи інформації, як правило, не включають: • Інформацію, розкриття якої забороняється законом, або яка становить виняток згід- но із Законом про свободу інформації, або в інший законний спосіб, вважається за- хищеною від розкриття; • Інформація у формі проектів документів; • Інформація, яка вже не є легкодоступною, оскільки вона зберігається у переданих до архіву файлах, або доступ до якої утруднений з аналогічних причин
Метод опублікування інформації, згідно з цією схемою, доводиться до широкого відома Орган влади чітко й дохідливо доводить до відома громадськості, яка саме інформація охоплена цією схемою і як її можна отримати. Якщо державний орган має таку можливість, інформація надаватиметься на вебсайті. Якщо розміщувати інформацію на вебсайті недо- цільно або якщо громадянин не бажає ознайомитися з нею через вебсайт, державний ор- ган повідомляє, як цю інформацію можна отримати іншими способами, і надавати її вказа- ними способами. За виняткових обставин певна інформація може бути надана тільки для особистого перегляду. Якщо запитувачем названий саме такий спосіб, йому будуть пові- домлені потрібні контактні дані. Відповідний час для перегляду такої інформації признача- ється в межах розумного строку. Інформація надається тією мовою, в якій вона зберігаєть- ся, або іншою, яка вимагається законом. Якщо закон зобов’язує орган влади зробити пе- реклад будь-якої інформації, він це робить. Зобов’язання щодо надання інформації в інших формах чи форматах, передбачені законодавством про осіб з обмеженими можливостями та дискримінацію, а також будь-якими іншими законами, неухильно виконуватимуться при наданні інформації за цією схемою.
Плата, що може стягуватися за інформацію, опубліковану за цією схемою Мета цієї схеми – надання відкритого доступу до максимально можливого обсягу інфор- мації з мінімальними незручностями та фінансовими витратами для населення. Розцінки, що встановлюються органом влади за матеріали, опубліковані у звичайному порядку, по- винні бути обґрунтованими, прозорими та утримуватися на мінімальному рівні. Матеріали, опубліковані та розміщені на відкритому веб-сайті, надаються безкоштовно. Плата може стягуватися за інформацію, яка надається у визначеному Парламентом платному режимі. Плата може стягуватися для покриття фактичних витрат, пов’язаних з її наданням, зо- крема: • за фотокопіювання; • за відправку поштою та пакування; • витрати, понесені безпосередньо в результаті перегляду інформації
Плата може також стягуватися за надану згідно з цією схемою інформацію, якщо це санкціоновано законом. За будь-яких обставин, включаючи загальні принципи права на до- ступ до інформації, яка знаходиться в розпорядженні державних органів, розмір цієї пла- ти встановлюється обґрунтовано і згідно з опублікованою та відкритою для широкого зага- лу таблицею або таблицями розцінок. Якщо за надання інформації належить певна плата, тоді до надання такої інформації запитувачеві видається квитанція з підтвердженням пла- тежу. Внесення плати може бути затребуване до надання інформації.
Письмові запити Не опублікована за цією схемою інформація, яка знаходиться в розпорядженні держав- ного органу, може бути затребувана в письмовій формі, якщо її надання вважатиметься та- ким, що відповідає положенням Закону про свободу інформації. 324 Міжнародні заходи зміцнення довіри...
ДОДАТОК 4
Мінімальні стандарти проведення консультацій із зацікавленими сторонами92 A. ЧІТКИЙ ТА ЯСНИЙ ЗМІСТ КОНСУЛЬТАЦІЙНОГО ПРОЦЕСУ Усі пов’язані з консультаціями повідомлення мають бути чіткими й стислими, а також містити всю необхідну інформацію, щоб полегшити надання відповідей.
Інформація, вміщена в публічних і консультативних документах, повинна включати на- ступне: • стислий виклад контексту, сфери дії та завдань консультації, включаючи опис кон- кретних питань, винесених на обговорення, або питань, які мають особливе значен- ня для Комісії; • детальну інформацію про всі слухання, зустрічі або конференції – у відповідних ви- падках; • контактну інформацію та строки; • роз’яснення діючих у Комісії процедур обробки внесків, якого зворотного зв’язку слід очікувати, а також подробиці наступних етапів розробки даного політичного кур- су; • посилання на відповідну документацію, якщо вона не залучена (в тому числі у разі до- цільності, на допоміжні документи Комісії).
B. ЦІЛЬОВІ КОНСУЛЬТАТИВНІ ГРУПИ При визначенні цільової групи (груп) консультаційного процесу Комісія повинна забез- печити, щоб відповідні сторони мали можливість висловити свої точки зору.
Для того щоб консультація відбувалася справедливо, Комісія повинна забезпечити адекватне охоплення консультаційним процесом наступних сторін: • тих, на кого даний політичний курс справлятиме безпосередній вплив; • тих, хто братиме участь в імплементації даного політичного курсу; • тих органів, чиї заявлені цілі роблять їх безпосередньо зацікавленими в даному полі- тичному курсі. При визначенні відповідних учасників консультації Комісія повинна також враховувати наступні елементи: • ширший вплив даного політичного курсу на інші сфери політики – приміром, на еко- логічні інтереси чи політику у сфері захисту споживачів; • потребу в наявності спеціального досвіду, експертних або технічних знань – у засто- совних випадках; • необхідність залучення неорганізованих представників інтересів, у разі доцільнос- ті – послужний список учасників попередніх консультацій; • необхідність підтримки у відповідних випадках належного балансу між представни- ками: соціальних та економічних органів; великих і малих організацій або компаній; 92 Витяг з документа: «Communication from the Commission Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission»[Повідомлення Комісії: До зміцнення культури консультацій та діалогу – Загальні принципи та міні- мальні стандарти проведення Комісією консультацій з зацікавленими сторонами], COM(2002) 704 final Міжнародні заходи зміцнення довіри... 325
ширших аудиторій (наприклад, церков і релігійних громад) та окремих цільових груп (жінок, осіб похилого віку, безробітних або етнічних меншин); організацій держав – членів Європейського Союзу та країн, які не входять до скла- ду ЄС (наприклад, країн-кандидатів, країн, що розвиваються, або великих торго- вих партнерів Європейського Союзу). У разі доцільності Комісія заохочує внески зацікавлених сторін, організованих на євро- пейському рівні. Там, де існує офіційний або структурований консультативний орган, Комісія повинна вжити заходів з тим, щоб у його складі були належним чином представлені інтереси відпо- відного сектору. Якщо це не так, Комісія має обміркувати, як забезпечити належне враху- вання всіх інтересів (наприклад, через інші форми консультацій).
C. ПУБЛІКАЦІЯ Комісія повинна забезпечити достатній інформаційний розголос та адаптувати свої ко- мунікаційні канали до потреб усіх цільових аудиторій. Не відмовляючись від інших комуніка- ційних засобів, слід провадити відкриті публічні консультації в Інтернеті та розміщувати ого- лошення в «єдиних точках доступу». Для якнайширшого охоплення громадськості буде створена єдина точка доступу для проведення консультацій, де зацікавлені сторони зможуть знайти інформацію та відпо- відну документацію. З цією метою Комісія скористається веб-порталом «Your-Voice-in- Europe» [Ваш голос у Європі]. При цьому може бути корисним збереження більш тра- диційних альтернатив Інтернету (прес-релізів, поштових розсилок). У разі доцільності та здійсненності Комісія повинна надавати пов’язані з консультаціями документи в аль- тернативних форматах, щоб зробити їх більш доступними для осіб з обмеженими мож- ливостями.
D. ЧАСОВІ РАМКИ УЧАСТІ Комісія повинна виділити достатньо часу для планування, надіслання відповідей на за- прошення та письмових пропозицій. Комісія повинна надати, як мінімум, 8-тижневий строк на отримання відгуків при проведенні письмових публічних консультацій, і повідомляти про збори (засідання) не пізніше ніж за 20 робочих днів. Головне правило – надати тим, хто бере участь у консультаціях Комісії, достатньо часу на підготовку та планування. При визначенні тривалості консультацій слід досягти розумного балансу між необхідністю отримання достатньої вхідної інформації та необхідністю швид- ко прийняти рішення. У невідкладних випадках, або якщо зацікавлені сторони вже мали до- статньо можливостей для висловлення своїх думок, тривалість консультацій можна скоро- тити. З іншого боку, може виникнути потреба в подовженні консультаційного періоду понад установлений 8-тижневий строк з метою врахування: • потреби європейських або національних організацій проконсультуватися зі своїми членами з метою вироблення єдиної точки зору; • певних існуючих обов’язкових до виконання документів (це, зокрема, стосується ви- мог щодо надіслання повідомлень в угодах про вступ до ВТО); • специфіки даної пропозиції (приміром, з огляду на широке коло зацікавлених сторін чи складність обговорюваного питання); • основних святкових періодів. По закінченні строку подачі зауважень та пропозицій Комісія закриває консультацію і пе- реходить до наступних кроків адміністративного процесу (скажімо, до підготовки рішення Комісії). 326 Міжнародні заходи зміцнення довіри...
E. ПІДТВЕРДЖЕННЯ ОТРИМАННЯ І ЗВОРОТНИЙ ЗВ’ЯЗОК Отримання зауважень і пропозицій повинно підтверджуватися. Результати відкритої пу- блічної консультації належить розміщувати на вебсайтах, з’єднаних ланками з єдиною точ- кою доступу в Інтернеті.
Залежно від кількості надісланих зауважень і наявних ресурсів, підтвердження можуть надаватися у формі: • індивідуальної відповіді (електронною поштою або квитанцією про отримання) або • колективної відповіді (електронною поштою або в єдиній точці доступу для консуль- тацій Комісії в Інтернеті; якщо зауваження розміщуються в єдиній точці доступу у строк не більше 15 днів, отримання вважатиметься підтвердженим). Надіслані зауваження будуть ретельно проаналізовані, щоб з’ясувати, в якій мірі ви- словлені в них погляди можуть бути враховані в політичних пропозиціях. Зауваження, що надійшли під час відкритих публічних консультацій, будуть оприлюднюватися в єдиній точці доступу. Результати інших форм консультацій слід, наскільки можливо, представити на суд громадськості в єдиній точці Інтернет-доступу. Комісія забезпечуватиме належний зворотний зв’язок з респондентами і широкою гро- мадськістю. З цією метою пояснювальний меморандум, яким супроводжуватимуться зако- нодавчі пропозиції Комісії або повідомлення Комісії за підсумками консультаційного про- цесу, включатиме результати цих консультацій, а також пояснення щодо порядку їх прове- дення і врахування результатів у даній пропозиції. Крім того, результати консультацій, про- ведених у процесі оцінки наслідків, будуть підсумовані у відповідних звітах. Міжнародні заходи зміцнення довіри... 327
ДОДАТОК 5: ПРООН, Інструмент оцінки ОГС Джерело: Інструментарій зміцнення партнерства, ПРООН 2006
Частина І. Оцінка дотримання ОГС принципів ПРООН щодо партиципаторного людського розвитку та демократичного управління Індикатор Сфери оцінки Застосовні документи та методи 1.1 Правовий статус та історія Ступінь правової визначеності та біографічні показники 1.1.1 Правовий статус - Чи має ОГС законний статус? - Назва та імена посадових осіб - Чи дотримується ОГС усіх вимог зако- - Реєстрація в урядовому органі або «па- ну, пов’язаних з її правовою ідентичніс- расольковій» ОГС тю та реєстрацією? - Документи, що підтверджують реєстра- цію в якості юридичної особи
1.1.2 Історія - Дата створення та тривалість існуван- - Річні звіти ня - Біографічна довідка про ОГС - Причини та обставини створення ОГС - Інформаційний комплект - Чи розвивається ОГС за сферою охо- - Вебсайт плення та масштабами діяльності?
1.2 Мандат, політика та управління Сумісність цілей ОГС із цілями ПРООН і наявність розумної структури управління Індикатор Сфери оцінки Застосовні документи та методи 1.2.1 Мандат і політика - Чи поділяє ОГС принципи людського - Заява про місію/ Статутні документи розвитку ПРООН? - Річний звіт - Чи працює ОГС у тих же сферах по- - Програмні заяви слуг, що й ПРООН? - Наскільки чітко вона усвідомлює свою роль? 1.2.2 Управління - З кого складається керівний орган, і - Звіти про засідання керівного органу які обов’язки він виконує? - Профіль членів правління/ попечителів - У який спосіб незалежний керівний - Копії правил і процедур орган здійснює належний контроль? - Протокол засідання керівного органу - Чи має ОГС чітку організацій- або прийняття рішення ну структуру з налагодженими - Організаційна схема ОГС зв’язками?
Індикатор Параметри оцінки Застосовні документи та засоби 1.3 Прибічники та зовнішня підтримка Здатність будувати конструктивні відносини та завоювати високу репутацію в інших секторах 1.3.1 Прибічники - Чи має ОГС чітко окреслений контингент при- - Заява про місію/ ціль бічників? - Веб-сторінка/ веб-форум - Чи це організація членського типу, чи ні? - Бюлетень новин - Чи існує в ній бачення довгострокового роз- - Звіт про робочі візити на місця витку громади? - Висвітлення у ЗМІ - Чи має ОГС регулярні партиципаторні зв’язки - Ресурсний центр або приміщення зі своїми прибічниками? для відкритих зборів - Чи поінформовані прибічники про ОГС та її ді- яльність, чи підтримують її? 1.3.2 Місцеві та - Чи належить ОГС до «парасолькових» органі- - Членство/приналежність до «пара- глобальні зв’язки зацій та/або мереж ОГС у своєму секторі? солькової» ОГС ОГС - Чи має ОГС міцні зв’язки в рамках спільноти - Рекомендаційні листи ОГС та іншими суспільними інституціями? - Участь у регіональних/ національ- них/ міжнародних зустрічах і конфе- ренціях ОГС Угоди про партнерство з іншими ОГС 328 Міжнародні заходи зміцнення довіри...
1.3.3 Інші партнер- - Чи має ОГС партнерські зв’язки з державни- – Угоди про партнерство та/або ме- ські зв’язки, мере- ми установами/ агентствами ООН/ приватним морандуми про взаєморозуміння жі та зовнішні від- сектором/ фондами/ тощо? - Документація про фінансування та носини - Чи є ці партнерські зв’язки джерелом фінан- список посилань сування? - Звіти про зовнішню технічну під- тримку з боку національних та/або міжнародних агентств - Протоколи партнерської взаємодії
Індикатор Параметри оцінки Застосовні документи та засоби 2.2 Управлінський потенціал Здатність планувати, контролювати та координувати свою діяльність 2.2.1 Планування, - Чи розробляє ОГС чіткі, внутрішньо узгоджені - Ретельно розроблені проектні та моніторинг і оцінка пропозиції та механізми втручання? програмні документи, а також оцін- - Чи включає розробка програми її регулярний ки та звіти перегляд? - Плани роботи/ оперативні плани - Чи проводять ОГС щорічні збори, присвячені - Оціночні звіти та звіти про результа- перегляду програм чи проектів? ти моніторингу - Чи втілюється стратегічне планування в опе- ративну діяльність? - Чи є в оперативному плані завдання, які під- даються кількісному виміру? 2.2.2 Звітування та - Чи звітує ОГС про свою роботу перед донора- - Звіти про результати роботи контроль за вико- ми, прибічниками, іншими ОГС, які займаються - Звіти перед донорами та іншими за- нанням такою ж роботою, місцевою радою, відповідни- цікавленими сторонами ми міністерствами тощо? - Внутрішні та зовнішні оціночні та - Чи контролює ОГС виконання програми/про- аналітичні дослідження екту за конкретними показниками, чи оцінює досягнуті результати? - Чи враховує ОГС точку зору отримувачів сво- їх послуг при розробці та перегляді своїх про- грам?
2.3 Адміністративний потенціал Здатність забезпечити належну логістичну підтримку та інфраструктуру
2.3.1 Приміщення - Чи має ОГС логістичну інфраструктуру та - Належна логістична інфраструктура: та устаткування устаткування? офісні приміщення, базове устатку- - Чи може ОГС експлуатувати устаткування та вання, комунальні служби здійснювати його технічне обслуговування? - Комп’ютерна техніка та бібліотечні матеріали - Необхідне устаткування для даної сфери спеціалізації/ інвентарний спи- сок для контролю за станом майна і витрат
Індикатор Параметри оцінки Застосовні документи та методи
2.3.2 Постачання - Чи здатна ОГС постачати товари, послу- - Стандартні контракти ги та роботи на прозорій та конкурентній - Приклади того, як здійснюється по- основі? стачання - Писані процедури визначення на- лежного постачальника, здобуття найкращої ціни та розміщення замов- лень Міжнародні заходи зміцнення довіри... 329
2.4 Фінансові можливості Здатність забезпечити належне управління коштами (детальні інструкції та контрольні списки запитань для оцінки потенціалу фінансового менеджменту див. вебсайт: http://www. undg.org/documents/6642-Framework for Cash Transfers to Implementing Partners.doc
2.4.1 Фінансовий менедж- - Чи існує регулярний бюджетний - Поточні бюджети та фінансові зві- мент і ресурси фінансування цикл? ти - Чи продукує ОГС бюджети програм і - Список основних і неосновних до- проектів? норів, років фінансування - Якою максимальною сумою коштів - Писані процедури, що забезпе- розпоряджалася ОГС? чують ведення чіткої документа- - Чи забезпечує ОГС фізичну безпе- ції, дебету, кредиту та інвентарних ку авансованих коштів, готівки та до- списків кументації? - Система звітності, що відстежує - Чи здійснює ОГС виплати своєчасно всі зобов’язання та постатейні бю- та ефективно? джетні витрати - Чи існують в ОГС процедури щодо повноважень, відповідальності, конт- ролю та підзвітності грошових опера- цій? - Чи має ОГС репутацію фінансово стабільної та надійної організації?
2.4.2 Система бухгалтер- - Чи веде ОГС правильний, достовір- - Банківський рахунок або випис- ського обліку ний та інформативний бухгалтерський ки з нього облік? - Відревізовані фінансові звіти - Чи здатна ОГС забезпечити ведення - Правильна, достовірна та інфор- належної фінансової звітності та об- мативна система бухгалтерсько- ліку? го обліку - Писані процедури обробки пла- тіжних операцій для контролю ри- зиків шляхом розподілу обов’язків, ведення обліку фінансових опера- цій та звітності
Частина ІІ. Оцінка здатності ОГС здійснювати проектний менеджмент
Індикатор Сфери оцінки Застосовні документи та методи 2.1 Технічний потенціал Здатність реалізувати проект 2.1.1 Спеціалізація - Чи посідає ОГС потрібну технічну ква- - Публікації про діяльність, кон- ліфікацію? кретні проблеми, аналітичні статті, - Чи збирає ОГС вихідну інформацію програмні заходи про своїх прибічників? - Звіти про участь у міжнародних, - Чи володіє ОГС потрібними знання- регіональних, національних або ми? місцевих зустрічах - Чи перебуває ОГС у курсі про найно- - Інструментарій та методологія віші методики/ знання/ програмні за- - Кількісні та якісні оцінки ходи/ тенденції у своїй сфері компе- тенції? - Чи володіє ОГС знаннями і вміння- ми, які доповнюють собою компетен- ції ПРООН? 330 Міжнародні заходи зміцнення довіри...
2.1.2 Імплементація - Чи має ОГС доступ до відповідної ін- - Кількісні та якісні оцінки формації/ресурсів і досвіду? - Методології/ навчальні матеріали - Чи має ОГС корисні зв’язки та мере- - Використання інструментарію, ін- жі? дикаторів і критеріїв/ методів на- - Чи знає ОГС, як добути вихідні дані, рощування потенціалу розробити індикатори? - Бази даних (СВО, партнерів - Чи застосовує вона ефективні мето- тощо) ди охоплення цільових аудиторій (тоб- то партиципаторні методи)?
2.1.3 Людські ресурси - Чи володіє персонал ОГС достатніми - Загальна характеристика пер- знаннями і досвідом? соналу, зокрема компетентність і - Чи використовує ОГС місцеві можли- професійний досвід вості (фінансові/ людські/ інші ресур- - Плинність кадрів си)? - Таблиця розподілу ролей і функ- - Чи здійснює ОГС сильну присутність цій у даній сфері діяльності? - Звіти від національних або міжна- - Які ОГС має можливості координа- родних агентств про технічний до- ції зусиль між працівниками на місцях і свід для проведення діяльності та головним офісом нарощування потенціалу Міжнародні заходи зміцнення довіри... 331
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Communication from the Commission, Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 final [Повідомлення Комісії «До посилення культури прове- дення консультацій та діалогу – Загальні принципи та мінімальні стандарти проведення Ко- місією консультацій з зацікавленими сторонами]
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010/C 83/01 [Консолідовані тексти Договору про Європейський Союз і Договору про функціонування Європейського Союзу]
Council of Europe Convention on Access to Official Documents, (CETS No. 205) [Конвенція Ради Європи про доступ до офіційних документів]
Council of Europe, Recommendation to member states on the legal status of non-governmental organisations in Europe (CM/Rec(2007)14). [Рада Європи, Рекомендація державам-членам щодо правового статусу неурядових організацій у Європі]
Decision of the Estonian Parliament on the Approval of the Estonian Civil Society Development Concept, Tallinn, December 12, 2002 [Постанова естонського парламенту «Про затверджен- ня Естонської концепції розвитку громадянського суспільства», Таллінн, 12 грудня 2002 р.]
Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 25 June 2001 on a code of good administrative behaviour for the General 332 Міжнародні заходи зміцнення довіри...
Secretariat of the Council of the European Union and its staff in their professional relations with the public [Рішення Генерального секретаря Ради/Верховного представника з питань спіль- ної зовнішньої та безпекової політики від 25 червня 2001 р. «Про кодекс належної адміні- стративної поведінки службовців Генерального секретаріату Ради Європейського Союзу в їхніх професійних стосунках з громадськістю]
Democracy, Governance and European NGOs, Building a Stronger Structured Dialogue, 2001, Platform of European Social NGOs [Демократія, управління та європейські НУО, Побудова ефективнішого структурованого діалогу, 2001, Платформа європейських соціальних НУО]
Engaging citizens in policy making: Information, Consultation and Public Participation,2001, OECD Public Management Policy Brief, N 10 [Залучення громадян до формування політич- ного курсу: Інформація, консультації та громадська участь, 2001, Концептуальна записка ОЕСР з державного управління, №10]
European Charter of Active Citizenship, July 2006, Active Citizenship Network [Європейська хартія активного громадянства, липень 2006, Мережа активного громадянства]
European Parliament resolution of 13 January 2009 on the perspectives for developing civil dialogue under the Treaty of Lisbon(2008/2067(INI)) [Резолюція Європейського парламенту від 13 січня 2009 р. про перспективи розвитку суспільного діалогу згідно з Лісабонським договором]
European Parliament resolution of 8 May 2008 on the development of the framework for the activities of interest representatives (lobbyists) in the European institutions (2007/2115(INI)) [Ре- золюція Європейського парламенту від 8 травня 2008 р. про розвиток правової бази діяль- ності представників інтересів (лобістів) у європейських інституціях]
Explanatory Memorandum to Recommendation CM/Rec (2007) 14 of the Committee of Ministers to member states on the Legal Status of Non-Governmental Organisations in Europe [Пояснювальний меморандум до Рекомендації СМ/Rec (2007) 14 Комітету міністрів державам-членам про правовий статус неурядових організацій у Європі]
General principles and minimum standards for consultation of interested parties by the Commission’ [Загальні принципи та мінімальні стандарти проведення Комісією консульта- цій з зацікавленими сторонами] COM(2002)704.
Governance for sustainable human development. A UNDP policy document, available at: [Управління усталеним людським розвитком. Програмний документ ПРООН, вміщений на вебсайті] (http://mirror.undp.org/magnet/policy/chapter1.htm)
Guidelines for Participation of Major Groups and Stakeholders in Policy Design at UNEP,2009, United Nations Environmental Programme [Керівні принципи участі провідних груп і зацікав- лених сторін у розробці політичного курсу Програми ООН з навколишнього середовища (ЮНЕП), 2009]
Guidelines on Principles and Good Practices for the Participation of Non-State Actors in the development dialogues and consultations, DG Development, November 2004 [Керівні принци- пи та належна практика участі недержавних акторів у діалогах і консультаціях з питань роз- витку, Генеральний директорат у справах розвитку, листопад 2004 р.] Міжнародні заходи зміцнення довіри... 333
Handbook for governments on information, consultation and public participation in policy- making, 2001, OECD [Посібник для органів влади з інформації. Консультацій та громадської участі у формуванні політичного курсу, 2001, ОЕСР]
International Non Governmental Organisations Accountability Charter, 2003, International Non-Governmental Organisations [Хартія підзвітності міжнародних неурядових організацій, 2003, Міжнародні неурядові організації]
Interpretative Note to Special Recommendation VIII: Non-Profit Organisations, 2006, Financial Action Task Force [Пояснювальна записка до Спеціальної рекомендації VIII: Некомерцій- ні організації, 2006, Група розробки фінансових заходів боротьби з відмиванням грошей (ФАТФ)]
J.Court, E. Mendizabal, D. Osborne, J.Young, 2006, Policy Engagement. How Civil Society Can be More Effective, Overseas Development Institute, UK [Дж. Корт, Е. Мендісабаль, Д. Ос- борн, Дж. Янг, 2006, Участь у політиці. Як громадянське суспільство може підвищити свою ефективність]
L. Freed, 2010, The Inaugural ForeSee Results’, E-Government Transparency Index: Quantifying the Relationship between Online Transparency and Trust in Government [Л. Фрид, 2010, Початкові прогностичні результати, Індекс прозорості електронного уряду: Кількіс- ний вимір співвідношення між онлайн-прозорістю і довірою до уряду]
Local Strategic Partnership. Governmental Guideline, March 2001, Department of the Environment, Transport and the Regions: London [Місцеве стратегічне партнерство. Урядова директива, березень 2001, Департамент захисту навколишнього середовища, транспорту та у справах регіонів: Лондон]
Malena, C, Forster, R. and Singh, J. 2004. Social Accountability: An Introduction to the Concept and Emerging Practice. Washington: The World Bank, Social Development Paper No. 76 [Мале- на К., Форстер Р. і Сінгх Дж 2004. Соціальна підзвітність: Вступ до концепції та новітньої практики]
Marilyn Wyatt, Hand book of NGO Governance, 2003, European Center for Not-for-Profit Law [Мерілін Уайатт, Посібник з питань управління справами НУО, 2003, Європейський центр некомерційного права]
New Perspectives for Learning, Engaging People in Active Citizenship, 2003, Briefing Paper 44 [Нові перспективи навчання, прищеплення людям активної громадської позиції] (див. вебсайт: http://www.pjb.co.uk/npl/bp44.htm)
P. Blind, Building Trust in Government in the Twenty-First Century, Review of Literature and Emerging Issues, 7th Global Forum on Reinventing Government Building Trust in Government, 26-29 June 2007, Vienna, Austria [П. Блайнд Зміцнення довіри до влади у XXI столітті, Огляд літератури та проблеми, що виникають, 7-й Глобальний форум «Перебудова влади, зміцнення довіри до влади», 26-29 червня 2007 р., Відень, Австрія]
P. Newell and J. Wheeler,2006, Rights, Resources and Politics of Accountability, Zed Books LTD, New York [П. Ньюел і Дж. Уїлер, 2006, Права, ресурси та політика підзвітності] 334 Міжнародні заходи зміцнення довіри...
Principles for Good Governance and Ethical Practice A Guide for Charities and Foundations, Independent Sector, October 2007 [Принципи належного управління та етичної практики, По- сібник для благодійних організацій і фондів, Незалежний сектор, жовтень 2007]
Principles of Good Administration In the Member States of the European Union,2005, Swedish Agency for Public Management [Принципи належної адміністрації в державах-членах Євро- пейського Союзу, 2005, Шведське агентство державного управління]
R. Wohlgemuth, 2010, Compendium of International Legal Instruments and other Inter- Governmental Commitments Concerning Core Rights, World Alliance for Citizen Participation [Р. Вольгемут, 2010, Довідник міжнародних правових документів та інших міжурядових зобов’язань щодо основних прав громадянського суспільства, Всесвітній альянс за гро- мадську участь]
Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration [Рекомендація СМ/Rec(2007)7 Комітету міністрів державам-членам щодо на- лежної адміністрації]
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [Регла- мент (ЄК) №1049/2001 Європейського парламенту і Ради від 30 травня 2001 р. про публіч- ний доступ до документів Європейського парламенту, Ради та Комісії]
Report on the development of framework for the activities of interest representatives (lobbyists) in the European Institutions, (2007/2115(INI), European Parliament [Доповідь про розвиток нормативно-правової бази діяльності представників інтересів (лобістів) у європейських ін- ституціях]
Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions underPart I of the Freedom of Information Act 2000 [Міністр у конститу- ційних справах, Кодекс практики виконання своїх функцій органами державної влади згід- но з Частиною 1 Закону про свободу інформації 2000 р. ]
Standards of Public Participation, 2008; Austrian Council of Ministers [Стандарти громад- ської участі, 2008; Рада міністрів Австрії]
Strategic Objectives 2005 – 2009, Europe 2010: A Partnership for European Renewal Prosperity, Solidarity and Security, Communication from the President in agreement with Vice- President Wallström, COM(2005) 12 final [Стратегічні завдання 2005 – 2009, Європа 2010: Партнерство заради європейського відновлення, процвітання, солідарності та безпеки. Повідомлення Президента за погодженням з Віце-президентом Валльстрем]
Strong and prosperous communities. The Local Government White Paper, Department of Communities and Local Government, October 2006, London [Сильні та процвітаючі громади. Біла книга з питань місцевого самоврядування», Департамент у справах громад і місцево- го самоврядування, жовтень 2006, Лондон]
Study on recent public and self-regulatory initiatives improving transparency and accountability of non-profit organisations in the European Union, 2009, European Centre for Not-for-Profit Law [Аналіз останніх ініціатив у сфері державного і саморегулювання, спрямованих на підви- Міжнародні заходи зміцнення довіри... 335
щення прозорості та підзвітності некомерційних організацій у країнах Європейського Со- юзу, жовтень 2006, Лондон]
The Compact on relations between Government and the Third Sector in England, December 2009, UK [Договір про відносини між урядом і третім сектором в Англії, грудень 2009, Вели- кобританія]
The Global Information Technology Report 2009–2010, ICT for Sustainability, World Economic Forum [Доповідь про глобальні інформаційні технології 2009-2010, ІКТ для усталеного роз- витку, Всесвітній економічний форум]
The Prevention of and Fight against Terrorist Financing through enhanced national level coordination and greater transparency of the non-profit sector» COM (2005) 620 final [Поперед- ження і боротьба з фінансуванням тероризму шляхом посилення координації на національ- ному рівні та підвищення прозорості некомерційного сектору]
Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute [Прозорість і мовчання, Огляд законів про доступ до інформації в 14 країнах, 2006, Інститут «Відкрите суспільство»]
Transparency and Silence, A Survey of Access to Information Laws and Practices in Fourteen Countries, 2006, Open Society Institute, New York [Прозорість і мовчання, Огляд законів про доступ до інформації в 14 країнах, 2006, Інститут «Відкрите суспільство», Нью-Йорк]
Vienna Declaration on building trust in government, UN Headquarters, Vienna, 26 – 29 June 2007 [Віденська декларація про зміцнення довіри до уряду, Штаб-квартира ООН, Відень, 26–29 червня 2007 р.] Національні та міжнародні механізми фінансування громадянського суспільства. Міжнародні заходи зміцнення довіри між державою та громадянським суспільством
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Віддруковано в друкарні «Видавництво «Фенікс». Св-во суб’єкта видавничої справи ДК №271 від 07.12.2000 р. 03680, м. Київ, вул. Шутова, 13б. www.kniga.kiev.ua