Henrik Christrup (H): Verdict highly unlikely.
Mr. Chairman Poul Jørgensen
Skorkærvej 86990 Ulfborg
to the charges raised against you and other previous members of the
Board for the Foundation to the support of Humanitarian purposes, to
the enhancement of research and to the Protection of the Environment
(from here on called the Foundation), where you are accused of
severe breach of mandate and of tax fraud, you have requested a
statement with regard to these charges in relation to laws on
foundations and certain associations.
connection with the above I have the following statements:
objectives of the Foundation are to be found in § 2, which declares
the objectives of the Foundation, with interest-bearing or interest
free loans, grants or in other ways to render support to
humanitarian objects, to the enhancement of research and to the
Protection of the Environment world wide.
Viholm and Tove Birkø, who paid the principal capital of DKr.
200,000, established the Foundation on 16th February 1987.
to the § 3 of the objectives, it is the responsibility of the Board
to ensure that none of the founders or contributors nor any of their
family members, hereunder spouses and/or children, can gain any
economic advantages from the activities of the Foundation, referring
also to § 9.
20 clearly states that the capital can never be repaid to the
founders or to the contributors, or to and persons close to the
objectives, hereunder the §§ 2, 3 and 20 are recognized by the
Civil Directorate as late as 3rd March 2000. As is stated
in the above, The Civil Directorate has had no objections against
the comprehensive objectives and its estimative character, just as
the Civil Directorate has had no objections against the other
objectives of the Foundation and whom it was not allowed to give
the written charges by the Chief Constable dated 26 March 2001,
which are attached as enclosure No. 1, the Chief Constable claims
that the breach is substantiated in the fact that “the accused, in
contradiction to the recognized objectives of the Foundation and
under the pretence that the grants were given to nonprofit or
similar objectives, has transferred the stated amount (app. Dkr. 75
million) to organizations or persons who, in power of an
arrangement, an economic community, organizational community or in
any other way have been close to the charged, or had closely similar
interests with the charged, and who according to the objectives and
the laws would not be eligible for legal payments form the
charges of grave breach of tax regulations are connected to – as
the charges are formulated – to the charges of breach of mandate.
In the case there is no breach of mandate, there is also no breach
of tax regulations.
we have been trhough the Foundation’s objectives to whom there
could be given no grants. As it is clear from the above, the charges
are mentioning “Agreements”, “economic community”,
“organisatinal community”, or closely similar interests. These
expressions are not included in the list
that are prohibited from receiving grants.
charges include cases where grants according to regulations
unjustified. Thus there are reasons to take a closer look at the
regulations for foundations and certain communities and find out
where there is prohibition of giving out grants.
§ 31 states the following
31. Parrt 1.The Board cannot give grants to founders, board members,
auditors, directors or persons who play a leading role in the
Foundation, but can only give remunerations which cannot amount to
more than is usual for the kind of business and the kind of work
involved. The same is valid with regard to person who are connected
to the above persons through marriage or cohabitatiaon.
2. The Board cannot give out loans or give guarantees of loans
persons who appear in part 1.
31 of the Law is being commented in Lennart Lynge Andersen:
Fonde og Foreninger, 4. udgave, side 158-162.
is particulalry reasons to emphasise the notes on pages 161-162
which are attached in Enclosures 2 Bilag
Here it is made clear that in order to exclude a research prject
from receiving funds as a result of a board member being connectd to
the project, the board member must have an economic interst in the
research project. Thus, there is at no point in the law, in the
Foundation Objectives or in the literature, any obstructions for
giving grants to other foundations or legal perwsons, also in cases
where there is an economic common interst between grant-giver and
grant receiver. The board in the receivngf foundation or the legal
person is just not allowed to have any economic or personal
interests directly in the grant receiving project.
Enclosuere 3 Bilag 3
please find a list of projects which have received grants from the
app. 75 million DKr. And as enclosure no 4, there is an overview
which shows the projects to which the Foundation has given grants
and where they are carried out by independent institutions, limited
companies, or other forms of legal åpersons in or outside of
Denmark, but which are legally founded on local regulations.
should be added here that the above is not an expression of taking a
stand to whether the foundations, organizations or institutions
mentioned in enclosures 3 and 4 above have any economic or
organizational common interests. The above is only expressing that
even if so should be the case, this is not necessarily making it
illegal for the Foundation to support them.
to my evalutions, the legal position with reagrtd to giving out
grants by the Foundation could be summerised as follows:
The decisive factor in givcing out legitimate grants from the
Foundation is whether funds are given to proejcts which are within
the objectivews of the Foundation.
Graants must not be given to projects where members of the
Board or founders or contributors or any persons close to the above
will gain economic benefits or where the above have a direct
Grants can legitimately be given to projects outside of
The realisatin of a project will usually necessitate the
purchae of materials, services or work force from others than the
grant receiver. Funds received as grants can legally be spent in
order to purchase such services from any other foundations and
institutions etc. on market conditions, as long as persons mentioned
in point 2 do not receive economic benefits.
A given grant e.g. does not become illegal where the reseach
does not lead to any results.
A given grant is only becoming illegal provided that the
receiver – without the grant givers consent – is using the grant
contrary to the objectivbes to which the grants has been given.
decisive factor for the legality of a grant as mentioned above, is
whether the grant is given to objects or projects which are included
in the Foundation’s objects clause.
the charges by the Chief Constable (encl. 1) that there is economic
and organizational common interests etc. between the giver and
receiver – even if such may exist – are not sufficient for
stating breach of mandate.
far as I am concerned, the charges are expressing that the
prosecution wishes to construct rules and regulations for
institutions which, according to the state administration have
connections to the School Cooperation Tvind – rules which have not
been valid before. This is done in the same way as it was done by
the legislative power when they made law No 506 of 12th
June 1996 (the Tvind exceptional Law) which unsuccessfully tried to
put schools with a connection to the School Coopeartion Tvind in a
poorer position than other schools.
it is worth mentioning, that even in cases where the Board has given
out grants that, when taken to the courts, will be found to be
outside of a foundation’s objects clause, it does not
automatically lead to a conclusion of breach of mandate. According
to the Criminal Law, § 280, it must be intentional, in order to
gain unlawful profits for self or others, to enforce loss of fortune
by abuse, or to act against the best interests of the