New Right of Association Law in Spain
- Spain
- 04/18/2002
New legislation – Organic Law 1/2002 – regulating the Right of Association in Spain, was published in Spain´s official legal bulleting (BOE) on March 26, 2002, and will enter into effect in May 2002. The aim of the legislation is to implement Article 22 of Spain´s Constitution, by establishing a legal regime and supportive measures for the exercise of the fundamental right of association. The new law also represents the implementation into Spanish law of the Report of the Economic and Social Committee of the European Union of January 28, 1998, recognizing the importance of freedom of association to the preservation of democracy. Following is a summary of the fundamental aspects of the new law.
GENERAL PROVISIONS:
Scope of application
In accordance with its legal and social objectives, the scope of the new law is limited to non-profit associations that are not currently subject to existing regulations. Accordingly, except in very limited circumstances, the scope of the new law does not extend to civil and commercial corporations, industrial and labor organizations, cooperatives and mutual benefit societies, economic interest groups, and property ownership associations.
Organizations, federations and associations that are currently subject to existing regulations, will continue to be subject to those legal regimes that regulate their activities. Similarly, associations with solely religious objectives will continue to be regulated by applicable international treaties and specific legislation, although the new legislation may have supplementary application.
Concept and principles
The conceptual starting point of the new law is the recognition that all Spanish citizens should enjoy the right to associate themselves freely in pursuit of whatever lawful objectives they may have. The new law also recognizes that the freedom to establish associations without first obtaining authorization forms an integral part of this right; and requires that their internal organization and administration be conducted in a democratic fashion, honoring the concept of pluralism.
Another fundamental aspect of the new law is that it provides for the participation of the Spanish government and government agencies in fostering and supporting the right of association, through measures taken amongst themselves, or with third parties, so long as non-discriminatory criteria are applied, and they avoid taking a dominant in the administration of associations receiving their support. Finally, the new law sets general parameters for the types of associations, which because of their objectives may not enjoy the constitutional right of association. Associations falling within this exclusion are those whose objectives are illegal, as well as secret or paramilitary associations.
Capacity
Associations may be established by legal persons as well as individuals. Individuals must be of legal working age, and not subject to any legal incapacity preventing or restricting them from acting on their own behalf. In the case of minors, they may associate under the new law with the documented consent of their parents or legal guardian, as well as under separate legislation applicable to associations of children, juveniles and students – Organic Law 1/1996 of January 15, 1996, regarding the Legal Protection of Minors. Similarly, specific capacity provisions apply to members of the Armed Forces or Armed Institutes, as well as to judges, magistrates and government attorneys. Finally, any lawfully formed association has the capacity to form federations, confederations or unions in accordance with the same requirements applicable to the formation of an association.
Interaction with the government
The new law sets general criteria according to which public authorities may support the establishment and development of associations, as well as the specific public-interest activities they carry out.
Assistance and financial support provided by the Spanish government are subject to conditions established on a case by case basis. In this regard, it should be pointed out that the Spanish government will not provide any type of support to associations who discriminate based on reasons of age, race, sex, religion, or personal or social preferences or circumstances. Similarly, the Spanish government will not sanction nor support any association that manifests hatred or violence against any legal person or individual, is involved in or supports terrorism, or engages in conduct which discredits, holds in contempt or humiliates victims of terrorism, or their families.
FORMATION AND REGISTRATION OF ASSOCIATIONS:
Formation contract
To form an association, it is required that at least three individuals or legal persons make a written agreement in which they undertake to contribute their knowledge, experience, resources and services to the attainment of the objective of the association, as well as approve the Articles of Association governing its administration. The contents of the formation contract can be set forth in either a public or private written document.
Formation minutes
The minutes of formation of the association must contain the following information: (1) The names of the promoters of the association, the name or trade name in the case of legal persons, and in both cases, the nationality and domicile of the association; (2) An expression of the willingness of the promoters to form the association; (3) The specific agreements made between the promoters; (4) Reference to and Incorporation of the Articles of Association; (5) The date and place of the execution of the minutes, signed by the promoters, or by their legal representatives in the case of legal persons; and (6) The designation of the members of the provisional governing bodies or counsels.
In the case of legal persons, adoption of the formation agreement must be certified by the competent authority, and must accompany the minutes of formation. In the case of individuals, or any individual representative of the makers of the minutes, their personal identities must be certified.
Articles of Association
Among the typical information required in articles of other civil or commercial entities, the Articles of Association must contain the following: (1) The objectives and authorized activities of the association; (2) The requirements and forms of admission and withdrawal or termination; (3) The various rights and obligations of associates; and (4) The criteria which guarantee the democratic administration of the association.
Domicile
The domicile of an association must be in Spain at the location established in the Articles of Association. In the case of foreign associations, a branch must be established in Spain.
Registration
The new law requires, solely for publication purposes, that associations register in the corresponding Registry of Associations. In this regard, it should be pointed out that promoters of unregistered associations are personally and jointly responsible for the obligations of the association.
National Registry of Associations
Associations that carry out their objectives in more than one Autonomous Community, or foreign associations with activities in Spain, are required to register in the National Registry of Associations. In the case of foreign associations, the National Registry will notify the Autonomous Communities where activities are performed of the registration of the foreign association.
Autonomous Registry of Associations
Each Autonomous Community is required to maintain an Autonomous Registry of Associations for the registration of associations with activities primarily carried out within its borders. Upon registration, the Autonomous Registry will notify the National Registry of the registration.
ADMINISTRATION OF ASSOCIATIONS:
Internal regulation of associations
The Articles of Association establish the internal regulation of associations, as long as they are consistent with the provisions of the new law and any of its implementing regulations. The General Assembly, the superior governing authority of associations, and whose members must be associates, is required to meet once a year. The members of the General Assembly are required to approve association actions based on the principle of majority or other internal democratic process. Under the direction of the General Assembly, a representational body must be formed, whose members must also be associates, and whose function is to assume responsibility for the ongoing management and representation of the interests of the association. Finally, it is important to note that record must be made in the Articles of Association, as well as in the annual accounting approved by the General Assembly, of any members of the organizational bodies of the association, who receive compensation for their services.
Internal administration
The new law establishes basic default rules for the internal administration of associations that apply in the absence of rules established in the Articles of Association of the association.
Administration of activities
Activities performed by an association must be consistent with its public-interest objectives, and no profit from the activities may be received by associates, their spouses, or other individuals or legal persons who reside with them or are otherwise natural recipients of their affection.
Documentation and accounting requirements
An association is required to maintain sufficient accounting records to verify, among other things, the accurate status of its capital, its financial status, and the results of performed activities. The accounts of the association must be approved annually by the General Assembly.
Liability of registered associations
With regard to liability, the new law establishes three basic rules. First, only associates of registered associations are protected from personal liability for the obligations of the association. Associates of unregistered associations remain personally exposed to the obligations of the association. Second, assuming the association is registered, the association alone will be liable for its debts to the extent of its assets. Third, representatives and other persons acting in the name of the association, are personally liable to the association, its associates, and third parties, for any damages caused by deceitful, culpable or negligent acts. Civil and administrative actions may be brought against the parties responsible for such acts, and the governing bodies of the association may also incur liability in the event liability cannot be imposed for whatever reason against the responsible parties. In such case, the members of the governing bodies may avoid liability by establishing that they did not participate in the approval or the performance of the unlawful acts.
ASSOCIATES:
Rights of associates
The fundamental rights of associates are: (1) To freely integrate themselves in the association; (2) To participate in association activities; (3) To be informed of the internal management and administration of the association; (4) To be heard upon prior notice regarding any sanctions brought against them; and (5) To protest association actions and activities inconsistent with applicable law or the Articles of Association. The status of an associate, and its corresponding rights, are not assignable unless established otherwise in the Articles of Association.
Voluntary withdrawal
Associates have the right to withdraw voluntarily from the association at any moment. In such case, if so established in the Articles of Association, the associate has the right to reimbursement of his or her share of the initial or subsequent capital contributions – excluding association dues paid – as long as the reduction in capital involved does not prejudice third parties.
MEANS OF SUPPORT:
Means of support
The Spanish government agencies may employ diverse measures within the scope of their authority to foster the development and activity of public-interest associations. The general function of the Spanish government is to provide assistance mechanisms and information services, as well as to support promotional and recognition campaigns of associations. The Spanish government ministries are the competent authorities for the provision of specific support and financial aid for association activities.
Associations of public benefit
Associations declared to be of public benefit will be entitled to receive the support and financial aid mentioned above. To obtain the public benefit designation, the following criteria must be met: (1) The objectives of the association tend to promote the public interest, (2) Association activities are not designed for the sole benefit of its associates, (3) Except under specific circumstances and on specific conditions, the members of the organizational bodies representing the association do not receive compensation paid from public funding obtained by the association, (4) The association has sufficient personnel, resources and adequate organizational structure to obtain the objectives of the association, (5) The association is duly formed and registered in the appropriate Registry.
Rights of public benefit associations
The public benefit designation carries with it the following rights: (1) The right to use the phrase Declared of Public Benefit in promotional material, (2) The right to take advantage of applicable financial incentives, (3) The right to take advantage of applicable economic benefits, and (4) The right to receive free legal assistance as provided by applicable law.
Obligations of public benefit associations
The public benefit status also carries with it the following two basic obligations: (1) To submit an annual accounting of activities and status of association capital, and (2) Upon request of the government agencies, to report on the results of association activities.
CONSTITUTIONAL PROTECTION THROUGH JUDICIARY ACCESS:
Judicial protection
The right of association is entitled to full judicial protection in all recognized legal proceedings, as well as the right of appeal proceedings to Spain´s Constitutional Court.
Judicial suspension and dissolution
Except in the case of voluntary dissolution, associations may only be suspended or dissolved by court order, and only based upon the following two grounds: (1) The association is determined to be unlawful under applicable criminal laws, or (2) Upon grounds established under the new law or other specific laws applicable to the association, or when the association is declared null or dissolved under applicable civil law.
Civil jurisdiction
The civil courts, in accordance with the Organic Law of Judicial Authority, have jurisdiction in legal proceedings involving private association matters and its internal administration. Specifically, civil courts have jurisdiction in matters involving claims brought by associates against the association to dispute association actions on the grounds that they are contrary to law or the Articles of Association. To dispute association actions on the grounds they are contrary to the Articles of Association, legal action must be commenced within 40 days of the date the actions were adopted.
Orders
Spain´s judges and courts have the authority to order the recording in the appropriate Registries of specific resolutions made respecting associations. Examples of such resolutions include: (1) The registration of the association, (2) The suspension or dissolution of a registered association, (3) The modification of any provision of the Articles of Association, (4) The closure of any of any establishment or facility of an association, and (4) Any other resolution affecting the registration of the association.
SECTOR COUNCILS OF ASSOCIATION:
Associations and government agencies may form Sector Councils of Association. The new law authorizes their formation to foster collaboration between government agencies and enhance the participation of citizens in matters of public interest.
CHARITABLE CONTRIBUTIONS AND SUBSCRIPTIONS:
Charitable contributions and subscriptions, and related initiatives are characteristic measures used to fund public interest public interest activities. In this regard, it should be pointed out that promoters of such measures are personally liable to contributors for the administration and investment of collections taken.
