Nicole Fontaine, Rapporteur, European Parliament Committee on Legal Affairs and Citizens' Rights
Appendix 4.12 of the International Associations Statutes Series vol 1, UIA eds (1988)
At its sitting of 13 November 1984, the European Parliament referred the motion for a resolution tabled by Mr Eyraud and others on the role and administration of associations and the law governing them in the European Communities (Doc. 2-920/84) pursuant to Rule 47 of the Rules of Procedure to the Committee on Legal Affairs and Citizens' Rights. In addition, at its sitting of 13 June 1985, the European Parliament referred the motion for a resolution tabled by Mr De Gucht and others on freeedom of assembly and association (Doc. B 2-336/85) to the same Committee which decided to include it with the previous resolution in a joint report. The Rapporteur was Mrs N Fontaine.
The following Resolution on non-profit making associations in the European Communities was submitted by the Committee on Legal Affairs and Citizens' Rights to the European Parliament (1). This was accompanied by an explanatory statement (see Appendix 3.6). The report was tabled on 17 December 1986. The resolution was debated in the European Parliament on 12 March 1987 and and the following amended resolution was adopted on 13 March 1987 (2).
- Introduction
- Text: Resolution on non-profit-making associations in the European Communities
- Commentary
- Notes
Resolution on non-profit-making associations in the European Communities
The European Parliament,
- having regard to the motion for a resolution by Mr Eyraud and others on the role and administration of associations and the law governing them in the European Communities (Doc. 2-920/84),
- having regard to the motion for a resolution by Mr De Gucht and others on on freedom of assembly and association (Doc. B 2-336/85),
- having regard to Articles 2, 3, 7, 100 and 235 of the EEC Treaty,
- having regard to Articles 100A, 8A, 130F and 130O of the Single European Act,
- having regard to the Sixth Directive on VAT, Directive 77/388/EEC of 17 May 1977,
- having regard to the opinion of the Legal Affairs Committee on Petition N° 71/80 on the power of legal associations to take legal action in the field of the protection of flora, fauna and life (environmental protection) of 26 March 1982 (PE 76.764/fin.),
- having regard to Regulation N° 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (1)
- having regard to its resolution of 13 April 1983 on the cooperative movement in the European Communities (2),
- having regard to Recommendation 656 of the Consultative Assembly of the Council of Europe on tax treatment of non-profit organizations (1972),
- having regard to the European Convention on the recognition of the legal personality of international non-governmental organizations adopted by the Council of Europe,
- having regard to the report of the Committee on Legal Affairs and Citizens' Rights (Doc. A 2-196/86),
A. whereas freedom of association is an essential democratic right recognized in the Universal Declaration of Human Rights and the European Convention on Human Rights and whereas it must not merely be guaranteed in principle but be given the necessary means for its exercise,
B. whereas freedom of association implies freedom of membership and entitlement to respect for the confidential nature of such membership,
C. in view of the size of the association movement within the Community, the firm favourable response to it in the Community on the part of citizens of all States and the outstanding service which associations perform for the Community:
- by developing the spirit of initiative, responsibility and solidarity of their members,
- by setting up active centres of democratic life,
- by efficiently serving the common interest as a supplement to State measures,
- by fulfilling an irreplacable role with regard to conciliation, exchanges and social equilibrium,
D. whereas as far as European integration is concerned the specific nature of non-profit making associations makes them particularly suitable for promoting the values which are important for the European Community,
E. whereas greater participation of those associations in the life of the Community at the various levels of the interests they defend might prove to be a particularly appropriate means of revitalizing the democratic institutions,
F. whereas in view of the economic, social and cultural role of associations within the Community the European institutions should use their power to take with regard to them the measures to harmonize legislation or the support measures laid down by the Treaty establishing the EEC for the establishment of the internal market and the progress of Community integration, G.whereas the new developments in European exchanges, more particularly the implementation of the programmes which have recently been drawn up for that purpose for technological cooperation or on behalfof young people, increase the need for such harmonization of national legislation on non-profit making associations because the latter are required to cooperate increasingly at Community level,
1. Requests that all discriminatory measures based on nationality that affect the right to belong to, form or administer an association be rapidly abolished throughout the Community, in respect of citizens of Member States;
2. Believes that it is necessary, if freedom of association is to be upheld, for there to be no discrimination against anybody on the ground of his membership of an association which has been lawfully set up and that no-one should be required to make a public declaration of his membership of an association, without prejudice to what is laid down in the legislation on publicity and transparency with regard to associations;
3. Requests that non-profit making associations, whether or not subject to declaration or registration, which have some legal recognition in the Member State in which they have their head office, should have the same recognition in other Member States and, with a viez to facilitating the implementation of this provision, calls on the Commission to submit a proposal for a directive making provision for such mutual recognition;
4. Requests the Commission to draw up a proposal for a regulation incorporating a Community-wide statute for associations covering the requirements of associations operating in more than one Member State and national associations wishing to act in concert at European level;
5. Notes, with this in mind, that Regulation (EEC) N° 2137/85 on the EEIG is open to non-profit making organizations whose activities fall directly or not within the scope of a Community policy laid down in the Treaties or the Single Act (see Appendix 5.6);
6. Notes, however, that that form of organization is not suited to the needs and vocation of all associations assisting in the building of a People's Europe and hence that the regulation referred to in paragraph is indispensable and must be introduced as a matter of urgency.
7. Considers that there is every justification for allowing special tax concessions to non-profit-making associations which perform a service in the common interest and rely on voluntary membership, as a means of mitigating the fact that their resources are too often meagre and precarious, and proposes that such tax provisions be the subject of a recommendation for harmonization as between the Member States to ensure that associations wishing to work together on projects involving Community cooperation are more equally placed;
8. Considers it necessary for greater funds to be made available, for the benefit of the Community, to non-profit makingassociations which perform a service in the common interest by increasing their powers to accept donations from individuals, without prejudice to the public funding of such associations;
9. Considers, too, that donations from members of the public to such associations should be encouraged by making them tax-deductible, and proposes that the Community, by means of a recommendation, ask the Member States, by common agreement, to fix the levels of such deductions, depending on whether natural persons or companies are involved;
10. Proposes, in the interests of greater transparency in Community funding of associations, the setting-up of a European fund for the development of associations to finance the activities of associations referred to in paragraphs 4 and 6 above and recommends that the association sector should be better represented in the Community institutions;
11. Requests that, when drawing up its annual report, the Court of Auditors verify that the subsidies paid to associations from the fund have been distributed and used in accordance with the criteria laid down by the budgetary authority;
12. Asks that the proposals contained in paragraphs 4 and 10 be implemented by 1992 in connection with completion of the internal market;
13. Instructs its President to forward this resolution to the Commission and the Council.
1. The explanatory statement in the report with which the Motion for the above Resolution was originally presented is reproduced in Appendix 3.6. The text of the regulation on European Economic Interest Groupings (EEIGs), referred to in point 5, is reproduced in Appendix 5.6.
2. During the debate on the report in the European Parliament on 12 March 1987, the Rapporteur made the following points:
This is a new subject which the European Parliament has never discussed before. Yet associations are a vital and extremely varied balance of democracy in each of our countries. They are constant source of a wide variety of ideas, proposals and initiatives. They are active across the whole spectrum of public life: social, charity and voluntary work; cultural, educational, family, sports and recreational activities; environmental and consumer protection... It is significant that, whenever an initiative to promote European integration emerges, it takes the form of an association. Why are we now considering the possibility of action in this domain by the Community and Parliament? The time has come to take stock of the situation. A growing number of associations are aiming to extend theiractivities beyond national frontiers. This involves them in intractable legal and administrative problems as a result of the legislation applying to associations in the various Member States.
Similarly, should an association wish to cooperate with its counterpart in another Member State, there is at present no legal framework for such action. Naturally, the situation is even more difficult when it comes to setting up an association at Community level. We must, therefore, fill this legal void, the effects of which are likely to be felt increasingly strongly as a result of mounting pressure over the last few months for cooperation at Community level between associations.
Naturally, our legal affairs committee has given very careful consideration to the question of Community competence. We believe, for reasons that I shall merely summarize here but are explained in full in the report, that it is fair to say that the associations stimulate economic activity both through the services they require - in France, for example, they employ over 700,000 people - and the services they provide. They are obviously concerned with a large part of the Treaty and the measures we propose fall well within the objectives set out in the Single European Act concerning the completion of the internal market.
What do these proposals consist of? For those associations wishing to engage in activities in other Member States, we call for the rules concerning legal recognition to be harmonized throughout the Community. For those desiring to cooperate with associations in other Member States without losing their legal status, we propose drawing up a Community-wide statute for associations.
Finally, your rapporteur considered that it was impossible to draw up a report on associations without addressing the difficult problem of their funding, which is often inadequate and invariably precarious. I should add, moreover, that the fact that a number of associations will be called on to help achieve European integration, as is already happening in connection with Community programmes such as the YES to Europe programme, could tip the balance away from those organizations whose financial arrangements are least satisfactory. So I have expressed the hope that we might call on the Member States, in the context of a simple recommendation, to adopt a number of measures, particularly in the fiscal domain, to increase and guarantee the associations financial resources and place them on a more equal footing.
Two amendments to that effect will be submitted to you. For months now, ladies and gentlemen, we in this Parliament have been trying to promote a people's Europe. We are to some extent pioneers in that field, since we have understood that that is what is required to breathe new life into the process of European integration. Having worked closely with a very large number of associations in all countries, I can assure you that they expectParliament to recognize the exceptional work they are performing in the general interest and listen to their legitimate concerns. So, may I just say that I hope that the report and the amendments I shall submit to Parliament tomorrow will be adopted with the broadest possible consensus. (5)
3. In concluding the debate on the report in the European Parliament, Henning Christophersen, Vice-President of the Commission of the European Communities, made the following points:
It is clear that we are considering here a political and cultural problem which is of great significance for the Community. I imagine that nearly everyone present in this House is or has been a member of political or cultural associations, many of us in a European context. It should therefore be stressed first of all that as regards the substance of the problem the Commission by no means disagrees with Mrs Fontaine or the committee on the very great importance of the activity of European associations in shaping public opinion to support the development of the Community politically, economically and culturally.
I think too that there are a number of things we can do. I should like to begin by saying a few words about what I think we cannot do at the present time. Afterwards, I shall come to the positive aspects. In this own-initiative report, on which I should like to congratulate the committee, we see two problems. The first is naturally a legal problem with the Treaties, because some of the proposals put forward go, in the Commission's view, far beyond the Community's powers under the Treaties. The other problem is much more pratical. It is clear that the elaboration of proposals to establish a common legal basis for the work of associations in the Community would be an enormous task, since there are so many different traditions. There are Member States which have no legislative basis or framework for the activity of associations, and others in which associations can simply be set up without a specific legal basis or any special legislation. In addition there are very widely differing legal rules. All this leads me to say that if the Commission is to take this problem up it will involve an enormous amount of work and unfortunately that work will have to be performed by precisely those people who are working this year on the implementation of the White Paper - the legal and economic experts. The Commission therefore does not dare to make that promise at present. We simply have not sufficient resources to do so. That does not mean that we do not propose to examine the problems, but we would rather come back to the matter. I cannot give an undertaking here this evening that the Commission will now put its officers to work on this task. At this moment we have not the resources to do so.
Here I come to the more positive aspect of the Commission's opinion. All that does not mean that we cannot do anything here and now about these problems which Mrs Fontaine and the committee call to our attention. I should like to mention three importantaspects: First of all we have an excellent legal basis in Articles 52 to 66 of the Treaty on rights of establishment and free exchange of services, as well as in Article 7, which more generally prohibits any discrimination on grounds of nationality, because under the provisions of these articles it will be possible to counter restrictions in connexion with the position of foreign associations for instance. That is just one aspect we touch on, but an important one. It means that foreign associations which either fulfil the condition that their secondary aim is to carry on an economic activity for reward or whose purpose is in a wider sense to carry on an activity having an economic aim without receiving any reward for it, are covered by the safeguard contained in these provisions of the Treaty. This makes it possible for the Community to secure for these associations exactly the same status as national associations.
Secondly, as is rightly stated in the report, there is the Regulation on the European Economic Interest Grouping. Even if non-profit-making associations cannot be defined as being members of an interest grouping, they may come under the difinition, contained in that regulation, of other legal persons governed by public or private law pursuing long-term aims such as research and development. That means that there is another category of associations covered by Community protection. From 1 July 1989 this regulation will allow transfrontier cooperation between universities, research centres and undertakings and may even go further. So here too there is a legal basis already allowing the Commission and the Community to ensure protection against discrimination.
Finally there are Article 48 et seq. and Article 52 of the Treaty. I mention these two articles because they provide quite clearly that there can be no discrimination against associations consisting of workers or self-employed persons in other Member States wishing to pursue an activity in a Member State. Here we know well that in certain Member States there is national legislation which is actually perpetrating such discrimination. I should like to stress that in such cases the Community can and must intervene and I should like to appeal to all those who are exposed to such discrimination to seek the help of the Community in preventing it. (6)
4. It is appropriate to note that, by its the very nature as an "economic community", any EEC initiative must necessarily emphasize the economic dimension. Whilst scientific associations are, by extension, of importance to economic activity, the status of cultural, educational and other associations cannot be considered a matter of great concern.
5. The focus of this initiative is on recognition by Member States of the associations located in other Member States. The question of the legal status of Community-wide associations is a secondary matter. The question of the legal status of "international" associations (having members outside theCommunity and not necessarily having a specific European focus), and whether or not the principal secretariat is in a Member State, is not considered. This initiative is necessarily the consequence of moves to establish an internal Community market. Thus whilst it should improve the situation of Community associations, whether of a given State or Community-wide, it may lead to severe discrimination against non-Community associations, even those with offices within the Community.
1. European Communities, European Parliament. Report drawn up on behalf of the Committee on Legal Affairs and Citizens' Rights on non-profit making associations in the European Community (Rapporteur: Mrs N Fontaine). Working Documents, Series A, 8 January 1987, (Document A 2-196/86).
2. European Parliament. Texts adopted by the European Parliament, Vol. 3/87, March 1987, pp. 94-96
3. Official Journal of the European Communities, N° L 199 of 31.7.1985, p. 1 et seq. (back)
4. Official Journal of the European Communities, N° C 128 of 16.5.1983, p. 51 et seq. (back)
5. Debates of the European Parliament, 12.3.87, No 2-350/236-237 (back)
6. Debates of the European Parliament, 12.3.87, No 2-350/239-240 (back)