Does the jurisdiction have a basic legal definition and different types of foundation?
Art. 34 of the Constitution of 1978/Constitución Española de 1978 recognises the right to establish a foundation for general interest purposes. The framework of foundations has recently changed in Spain. In December 2002, a new Foundation Act (LF) was approved, leaving behind the regulation applicable until then, the Foundation Act 30/1994. The new regulation is the Foundation Act 50/2002 (LEY 50/2002, de 26 diciembre, de Fundaciones).
Regional governments have also developed laws and by-laws in their areas of competence. Some Autonomous Communities/Comunidades Autónomas (Cataluña, Galicia, Navarra, etc) have specific legislation for foundations. The central government (except for Navarra and País Vasco) has full competence in the field of taxation.
The Act 50/2002 defines foundations in Art. 2.1 as non-profit organisations, whose assets are, according to the wish of the founders, allocated permanently to the fulfilment of general interest purposes. The common definition is “assets serving a general interest purpose”. The recently approved Foundation Act covers foreign foundations that develop activities in Spain on a regular basis if they can show that they are correctly constituted according to the law of their country of origin. In addition, these foundations are under the supervision of the State supervisory authorities (Protectorates) in the same terms as Spanish foundations.
Structural elements: legal capacity, purpose, assets,
governance, will of founder.The foundation must have assets that are allocated permanently to achieve general interest purposes defined by the founder. General interest purposes are listed in Art. 3.1 LF: social matters, education, culture, sports, health care, cooperation for development, environment, scientific research or volunteer work or any other public benefit purpose (open clause). This article stresses that foundations cannot pursue any private purpose like giving benefits to the founder or his/her family. At least 70% of the annual income must be used for the public benefit purposes of the foundation. According to Arts. 2.2 LF, a foundation is ruled by the founder’s will and the foundation’s statutes and the Law.