Dear All, the discussion should cover two main points:
1) the possibility of lobbying into the EU institutions and how to start doing so; 2) the need to have an EU legal entity in order to receive funding from the EU institutions.
For number 1) I don't think we need a legal entity based in the EU, but we do need just a lobbyist. For number 2), we could start by exploring how to get funding from the EU institutions and then evaluate the possibility of creating a legal entity.
In the meantime, I think we could start with a simple representative office (a business address) of the XSF Foundation in Bruxelles.
Ciao Mario Sabatino Il 10/05/24 18:32, Winfried Tilanus ha scritto:
Hi,
I'm in favour, it would make several types of cooperation easier. But, I can't
judge what this would mean for taxes and so on.
Winfried
On 9 May 2024 12:09:32 CEST, Nicola Fabiano <nic...@fabiano.law> wrote:
;TLTR
Dear all,
Regarding what is in the subject, I reproduced below the entire thread of
emails exchanged with the Board members related to my proposal regarding
the
presence of XSF in Europe.
Each email is a block with a line separating one from the others.
All the best,
Nicola
--------------------------------------------------------------------------------
Dear all,
Following our last Board meeting, I propose to discuss the organization of
XSF's activities further to promote the XMPP protocol at every level,
including at European institutions, possibly by participating in projects
to
obtain contributions and funding (I have some ideas, but I will explain
later).
Each Board member's input is crucial.
I encourage everyone to outline a few items as our agenda for the next 6/12
months.
These points should be related to programmatic and organizational business
only (non-technical), reflecting your unique perspectives and expertise.
In that way, everyone can be in the running for one or more items to deal
with and what goal we (XSF) want to achieve following our program.
Hence, feel free to share your thoughts about the programmatic and
organizational business, and then we can discuss them.
Apart from programmatic and organizational business, the first step is the
proposal concerns amending the statutes of the registered office. That
modification is necessary to access the European institutions. Other
modification proposals are welcome, and we can evaluate all of them.
Otherwise, an amended version (in bold italic) of Article 1 follows.
ARTICLE I: Offices
*Section 1.1 Registered Office and Registered Agent.* The address of the
initial registered office of The XMPP Standards Foundation (the
“Corporation”) in the State of Delaware and the name of the initial
registered agent of the Corporation at such address are set forth in the
Certificate of Incorporation (the “Certificate”). The Corporation may, from
time to time, designate a different address as its registered office or a
different person as its registered agent, or both; provided, however, that
such designation shall become effective upon the filing of a statement of
such change with the Secretary of State of the State of Delaware as is
required by law.
/*Section 1.2 Principal Offices.*/ The principal offices of the Corporation
shall be at 1899 Wynkoop Street, Denver, Colorado 80202, /*and at xxxx,
xxx,
Europe,*/ or at such other place as the Board of Directors shall designate
from time to time. The business of the Corporation shall be transacted from
the principal /*offices*/, and the records of the Corporation shall be kept
there. /*Both principal offices have legal effect, irrespective of where
the
activities are carried out and where they are intended*/.
*Section 1.3 Other Offices.* The Corporation shall have such offices either
within or outside the State of Delaware and within or outside the United
States, as the Board of Directors may from time to time determine or as the
business of the Corporation may require. In the event the Corporation
desires to qualify to do business in one or more states other than
Delaware,
the Corporation shall designate the location of the registered office in
each such state and designate the registered agent for service of process
at
such address in the manner provided by the law of the state in which the
corporation elects to be qualified.
--------------------------------------------------------------------------------
Dear Eddie,
Thank you for your email.
I highlight that my email follows what I said during the Summit in
Bruxelles.
My intervention represents a proposal submitted to the Board, which must be
discussed and voted on.
On 27 Apr 2024, at 15:14, E.M. wrote:
Dear Nicola,
many thanks for the effort to bring to review of our XSF organizational
setup and make a suggestion to create a legal instance in Europe.
I assume there will be more coming than creating an European instance
for the XSF, right?
I thought it would be appropriate or helpful to try to be more proactive in
Europe.
This also involves ensuring that XSF has a European presence and is ready
with an action plan and agenda.
Not being a lawyer, I am supporting this attempt in general very much.
I
believe we have a strong community in Europe and should also back up
our
community here with a legal instance for the technology we standardize.
My question would be what legal aspects we need to discuss having a
"bilateral" (or more) organizational setup? Does this bring any
conflict?
How do we as Board member refer and deal with new things like DMA etc.?
What will EU legislation expect from us? What can we expect?
From my perspective, the legal aspects are mainly concerned with amending
the bylaws to provide for a seat in Europe and the existence of a program,
i.e., what XSF proposes to do to promote XMPP.
There shouldn't be any conflict because these are purely organizational
activities.
I think that Board members should continue performing the same current
activities in compliance with the bylaws, such as providing information,
communicating, providing support where necessary, plus implementing
programs.
It's important to note that XSF, as a foundation, must act respecting the
bylaws, make proposals, and realize projects (if they exist).
We should not expect more.
However, XSF has the potential to form partnerships with companies that
have
plans to present projects on a European level.
If we create a new legal instance, can we create the instance on an
"Europe level" or would the instance exist in a distinct EU country? If
so, which country?
The current bylaws already provide the possibility of setting up other
locations.
We should only add a European XSF legal office (any Member State) so anyone
can see this in the bylaws themselves.
My question to Board would be: As I am in all favor for this attempt,
and also in favor to put work and time into it, are you as well in
favor? Or are you not, and what does not meant to you? My basic
question
is that I don't want to spent time fighting something that is actually
not of interest by a majority in the Board or the XSF organization.
Please kindly review this for yourself, too.
I reiterate that my intervention is only a proposal that the Board
discusses
and votes on.
Therefore, I await the replies of others.
By the way, do we need to review the way we handle member applications
and personal data? Any other hosting of data?
Have a good day and stay healthy,
Eddie
On 26.04.24 16:28, Nicola Fabiano wrote:
Dear all,
Following our last Board meeting, I propose to discuss the
organization of XSF's activities further to promote the XMPP
protocol at every level, including at European institutions,
possibly by participating in projects to obtain contributions and
funding (I have some ideas, but I will explain later).
Each Board member's input is crucial.
I encourage everyone to outline a few items as our agenda for the
next 6/12 months.
These points should be related to programmatic and organizational
business only (non-technical), reflecting your unique perspectives
and expertise.
In that way, everyone can be in the running for one or more items
to
deal with and what goal we (XSF) want to achieve following our
program.
Hence, feel free to share your thoughts about the programmatic and
organizational business, and then we can discuss them.
Apart from programmatic and organizational business, the first step
is the proposal concerns amending the statutes of the registered
office. That modification is necessary to access the European
institutions. Other modification proposals are welcome, and we can
evaluate all of them.
Otherwise, an amended version (in bold italic) of Article 1
follows.
--------------------------------------------------------------------------------
ARTICLE I: Offices
*Section 1.1 Registered Office and Registered Agent.* The address
of
the initial registered office of The XMPP Standards Foundation (the
“Corporation”) in the State of Delaware and the name of the initial
registered agent of the Corporation at such address are set forth
in
the Certificate of Incorporation (the “Certificate”). The
Corporation may, from time to time, designate a different address
as
its registered office or a different person as its registered
agent,
or both; provided, however, that such designation shall become
effective upon the filing of a statement of such change with the
Secretary of State of the State of Delaware as is required by law.
/*Section 1.2 Principal Offices.*/ The principal offices of the
Corporation shall be at 1899 Wynkoop Street, Denver, Colorado
80202,
/*and at xxxx, xxx, Europe,*/ or at such other place as the Board
of
Directors shall designate from time to time. The business of the
Corporation shall be transacted from the principal /*offices*/, and
the records of the Corporation shall be kept there. /*Both
principal
offices have legal effect, irrespective of where the activities are
carried out and where they are intended*/.
*Section 1.3 Other Offices.* The Corporation shall have such
offices
either within or outside the State of Delaware and within or
outside
the United States, as the Board of Directors may from time to time
determine or as the business of the Corporation may require. In the
event the Corporation desires to qualify to do business in one or
more states other than Delaware, the Corporation shall designate
the
location of the registered office in each such state and designate
the registered agent for service of process at such address in the
manner provided by the law of the state in which the corporation
elects to be qualified.
--------------------------------------------------------------------------------
I look forward to receiving a reply from you.
All the best,
Nicola
ssigen
I am available.
--------------------------------------------------------------------------------
Ciao Peter,
Thank you for your email and your insights.
On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:
Ciao Nicola,
Thank you for initiating this discussion.
I don't feel qualified to provide accurate insights regarding your
proposal, so instead I will ask a few questions:
(1) Is the intent here primarily to seek funding from European
organizations (e.g., EU grants)?
Not only that, but the intention is to create a European positioning to
evaluate any possible initiative. XSF's official headquarters in the US
could be a distraction. From my point of view, an official presence in
Europe would facilitate involvement in possible partnerships and more
attention from the institutions (the European digital strategy is strongly
focused on an internal market). That is my idea, and I hope to be right.
(2) Is European domicile or a European business presence required in
order to receive such grants?
That may not be the case, but as I said, presence in Europe would
facilitate
access to possible resources.
(3) What are the legal, regulatory, tax (and thus also financial)
implications of establishing a European business presence or
"co-domicile" such as you have outlined?
I am not an accountant, so I am answering from my experience. Since XSF is
a
Foundation, contributions should not be taxed, especially if they come from
institutional sources (participation in any EU projects). It may be
necessary, with an office in Europe, to apply for a tax code or VAT number,
but this should be asked of an accountant.
(4) What is needed in order to establish such a presence or
co-domicile?
Do we need an office / physical address, or merely a mailing address?
The bylaws should be changed to provide for a seat in Europe with a postal
address of any kind.
(5) Should we perhaps consider moving the organization to Europe
entirely instead of having some presence in the USA and some in a
European country?
I propose to amend the bylaws, and I note two possible solutions:
1. change the registered office from the US to Europe and then have only
one office in the EU;
2. Add - as provided for in the statute - a seat in the EU that is as
official as the one in the USA; this second solution, legally, seems
less valid to me.
It always depends on what one wants to do, i.e., what projects are to be
realized and what XSF intends to do.
I'd like to "take a step back" and consider what our goals are.
Consider:
*
perhaps we feel it would be beneficial to significantly increase
certain kinds of activity, for example:
o promote XMPP as a neutral technology for interoperability (cf.
DMA)
o raise money that we can use to help support implementation of
key protocols in open-source servers and clients
*
perhaps we feel that the best way to do that would be to seek out
funding from European sources
*
perhaps we feel we won't be considered for such grants unless we
have a European business presence / co-domicile
*
then we might conclude that what you propose makes sense
But it seems to me that we need to be clear on the goals, first.
I agree, but XSF's identity and the goals it wants or would like to achieve
need clarification. Therefore, an organizational, administrative (not
technical) program is needed.
Peter
P.S. Aside from the reasoning outlined above, there might be other
reasons to consider a co-domicile arrangement or moving the Foundation
to Europe entirely. For example: most of the XSF's and the community's
activity (Summits, FOSDEM, major open-source projects and companies) is
in Europe, not North America. So that might be worth discussing anyway.
I agree, and this is one of the reasons why I made my proposal.
We are in no hurry. We can discuss it together, but we must evaluate it
soon. Otherwise, XSF remains isolated from the rest of the business world,
with a role relegated solely to technical aspects. XSF deserves more.
All the best,
Nicola
On 4/26/24 8:28 AM, Nicola Fabiano wrote:
Dear all,
Following our last Board meeting, I propose to discuss the
organization of XSF's activities further to promote the XMPP
protocol at every level, including at European institutions,
possibly by participating in projects to obtain contributions and
funding (I have some ideas, but I will explain later).
Each Board member's input is crucial.
I encourage everyone to outline a few items as our agenda for the
next 6/12 months.
These points should be related to programmatic and organizational
business only (non-technical), reflecting your unique perspectives
and expertise.
In that way, everyone can be in the running for one or more items
to
deal with and what goal we (XSF) want to achieve following our
program.
Hence, feel free to share your thoughts about the programmatic and
organizational business, and then we can discuss them.
Apart from programmatic and organizational business, the first step
is the proposal concerns amending the statutes of the registered
office. That modification is necessary to access the European
institutions. Other modification proposals are welcome, and we can
evaluate all of them.
Otherwise, an amended version (in bold italic) of Article 1
follows.
--------------------------------------------------------------------------------
|ARTICLE I: Offices |
/Section 1.1 Registered Office and Registered Agent./ The address
of
the initial registered office of The XMPP Standards Foundation (the
“Corporation”) in the State of Delaware and the name of the initial
registered agent of the Corporation at such address are set forth
in
the Certificate of Incorporation (the “Certificate”). The
Corporation may, from time to time, designate a different address
as
its registered office or a different person as its registered
agent,
or both; provided, however, that such designation shall become
effective upon the filing of a statement of such change with the
Secretary of State of the State of Delaware as is required by law.
//Section 1.2 Principal Offices.// The principal offices of the
Corporation shall be at 1899 Wynkoop Street, Denver, Colorado
80202,
//and at xxxx, xxx, Europe,// or at such other place as the Board
of
Directors shall designate from time to time. The business of the
Corporation shall be transacted from the principal //offices//, and
the records of the Corporation shall be kept there. //Both
principal
offices have legal effect, irrespective of where the activities are
carried out and where they are intended//.
/Section 1.3 Other Offices./ The Corporation shall have such
offices
either within or outside the State of Delaware and within or
outside
the United States, as the Board of Directors may from time to time
determine or as the business of the Corporation may require. In the
event the Corporation desires to qualify to do business in one or
more states other than Delaware, the Corporation shall designate
the
location of the registered office in each such state and designate
the registered agent for service of process at such address in the
manner provided by the law of the state in which the corporation
elects to be qualified.
--------------------------------------------------------------------------------
On 2 May 2024, at 1:38, Peter Saint-Andre wrote:
Ciao Nicola, more thoughts below...
On 4/30/24 1:32 AM, Nicola Fabiano wrote:
Ciao Peter,
Thank you for your email and your insights.
On 29 Apr 2024, at 21:22, Peter Saint-Andre wrote:
|Ciao Nicola, Thank you for initiating this discussion. I don't
feel
qualified to provide accurate insights regarding your proposal, so
instead I will ask a few questions: (1) Is the intent here
primarily
to seek funding from European organizations (e.g., EU grants)? |
Not only that, but the intention is to create a European
positioning
to evaluate any possible initiative. XSF's official headquarters in
the US could be a distraction. From my point of view, an official
presence in Europe would facilitate involvement in possible
partnerships and more attention from the institutions (the European
digital strategy is strongly focused on an internal market). That
is
my idea, and I hope to be right.
This seems like a reasonable hypothesis.
If there were no costs involved and we could identify people to handle
certain aspects of XSF operations (e.g., the Treasurer role that I've
filled for many years), I would be in favor of moving the entire
organization from the USA to the EU.
Of course, there are always costs involved and it's not always easy to
find people to fill certain roles in the long term. :-) But I think
it's
worth exploring.
Naturally, if this change led to more funding, then we'd have money to
spend on legal and accounting help to make the transition across the
Atlantic. But we have a bit of a "chicken and egg problem" here.
|(2) Is European domicile or a European business presence required
in order to receive such grants? |
That may not be the case, but as I said, presence in Europe would
facilitate access to possible resources.
|(3) What are the legal, regulatory, tax (and thus also financial)
implications of establishing a European business presence or
"co-domicile" such as you have outlined? |
I am not an accountant, so I am answering from my experience. Since
XSF is a Foundation, contributions should not be taxed, especially
if they come from institutional sources (participation in any EU
projects). It may be necessary, with an office in Europe, to apply
for a tax code or VAT number, but this should be asked of an
accountant.
For sure. I am reasonably familiar with U.S. rules for non-profits, but
I am utterly ignorant of the situation in the EU (or UK), I don't know
how things differ by country and which countries are most friendly to
non-profit organizations, etc.
|(4) What is needed in order to establish such a presence or
co-domicile? Do we need an office / physical address, or merely a
mailing address? |
The bylaws should be changed to provide for a seat in Europe with a
postal address of any kind.
BTW, the current Bylaws specify an address of 1899 Wynkoop Street in
Denver, but that was the old Jabber Inc. address and we no longer
receive mail there. At this point the Principal Address is probably my
house! (We do have a post office box, but business operations are not
conducted there.)
|(5) Should we perhaps consider moving the organization to Europe
entirely instead of having some presence in the USA and some in a
European country? |
I propose to amend the bylaws, and I note two possible solutions:
1. change the registered office from the US to Europe and then
have
only one office in the EU;
See above. This is not a trivial undertaking and we'd need to estimate
the costs, both initial and recurring. But I am not opposed to it.
2. Add - as provided for in the statute - a seat in the EU that
is as
official as the one in the USA; this second solution, legally,
seems
less valid to me.
It always depends on what one wants to do, i.e., what projects are
to be realized and what XSF intends to do.
True. We also need to think about things like organizational continuity
and succession planning. Specifically, I am uncomfortable being one of
the only active XSF members in the U.S., and the only one who can
access
our bank account, file tax forms, etc.
|I'd like to "take a step back" and consider what our goals are.
Consider: * perhaps we feel it would be beneficial to significantly
increase certain kinds of activity, for example: o promote XMPP as
a
neutral technology for interoperability (cf. DMA) o raise money
that
we can use to help support implementation of key protocols in
open-source servers and clients * perhaps we feel that the best way
to do that would be to seek out funding from European sources *
perhaps we feel we won't be considered for such grants unless we
have a European business presence / co-domicile * then we might
conclude that what you propose makes sense But it seems to me that
we need to be clear on the goals, first. |
I agree, but XSF's identity and the goals it wants or would like to
achieve need clarification. Therefore, an organizational,
administrative (not technical) program is needed.
Agreed.
|Peter P.S. Aside from the reasoning outlined above, there might be
other reasons to consider a co-domicile arrangement or moving the
Foundation to Europe entirely. For example: most of the XSF's and
the community's activity (Summits, FOSDEM, major open-source
projects and companies) is in Europe, not North America. So that
might be worth discussing anyway. |
I agree, and this is one of the reasons why I made my proposal.
We are in no hurry. We can discuss it together, but we must
evaluate
it soon. Otherwise, XSF remains isolated from the rest of the
business world, with a role relegated solely to technical aspects.
XSF deserves more.
I'm curious to hear more about your thinking here.
I agree with you. As you said, it is worth considering a legal office in
Europe.
Peter
Ciao Peter,
Thank you.
All the best,
Nicola
--------------------------------------------------------------------------------
On 2 May 2024, at 17:37, Peter Saint-Andre wrote:
On 5/2/24 1:01 AM, Nicola Fabiano wrote:
On 2 May 2024, at 1:38, Peter Saint-Andre wrote:
|Ciao Nicola, more thoughts below... On 4/30/24 1:32 AM, Nicola
Fabiano wrote: We can discuss it together, but we must evaluate it
soon. Otherwise, XSF remains isolated from the rest of the business
world, with a role relegated solely to technical aspects. XSF
deserves more. I'm curious to hear more about your thinking here. |
I agree with you. As you said, it is worth considering a legal
office in Europe.
Specifically, I would like to understand more fully why you say that
the
"XSF remains isolated from the rest of the business world, with a role
relegated solely to technical aspects."
Since its founding in 2001, the XSF as a standards development
organization has indeed been dedicated (or relegated) solely to
technical aspects: primarily defining standardized protocols along with
a very few ancillary matters. With a few rare exceptions, the XSF
hasn't
even actively supported (e.g., with monetary grants) the projects and
companies that develop XMPP-compatible software. In large part, this is
a legacy of the XSF's place in the Jabber/XMPP ecosystem and its
founding as a neutral organization that would not favor any particular
vendor or developer, or even favor open-source software over
proprietary
software. It is also consistent with the nature of our community, which
consists of technically-minded people who don't know much about things
like marketing or government policy.
In your mind, what would a closer integration with the rest of the
business world look like? What new activities would we engage in? What
expertise would we need to acquire? And so on.
Peter
Peter,
My meaning was that XSF—as a foundation—even though it was born in a
technical context and is dedicated to XEP, could also organize public
events, do dissemination, participate in competitions to obtain public or
private funding, be proactive in the communication and dissemination of
XMPP, etc.
I did not mean that XSF does not carry out activities but that these could
extend.
From my point of view, I see more opportunities in Europe than in the rest
of the world.
--------------
/This e-mail (including attachments) is intended only for the recipient(s)
named above. It may contain confidential or privileged information and
should not be read, copied, or used by anyone else. If you are not the
named
recipient, please contact the sender and delete the e-mail from your
system./
--
Normally there is some text here, bragging about the new phone and excusing for
the brevity. That is insane: if this phone was really that great, I would have
sent a decent mail.
-- Avv. Mario Sabatino ------------------------------------ www.studiosabatino.it
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