Freedom of association was established in France by a 1901 law that was considered particularly liberal at the time. Nonetheless, in Alsace-Moselle, a French border region annexed by Germany between 1870 and 1918, the “law of 1901” did not apply. Associations in this region are regulated by the local civil code, stemming from a law dated 1908. The major tenets of this law are the same as for the law of 1901, but certain differences exist. Though within the same country, these laws may be seen in the context of France’s “pluralist centralism.”
In light of this minor example at the national level, it is easy to imagine the legislative disparities between the different countries of the European Union regarding freedom of association. Not to mention the “transition countries” about to join the EU. Various aspects are explicit: the number of members necessary to form a society are 3 in France, 7 in Germany, and 20 in Romania. The cost of forming a society is around 50 €, 500 zlotys (120 €) in Poland, and in Italy it consists of the cost to the client of a constitutive act by a solicitor. As for the United Kingdom, such legislation is, well, non-existent. Examples abound in terms of stipulated finances, categories, capacities and so on.
Faced with this landscape – chaotic perhaps, but typical of Europe’s diversity, and at least unified in the recognition of freedom of association – why create an association status at the European level?
On the one hand, the exercise of freedom of association differs greatly from country to country, rendering access to various forms of association more difficult. The creation of European status of association should actively facilitate the creation and development of associations. It should adhere European legislations to the most liberal standard possible, removing the barriers that currently exist: exorbitant establishment costs, limits on nationals of other countries taking up leadership positions (Greece, Luxembourg), extremely long preliminary registration procedures, and dissuasive finances.
Making the law reflect social reality
In promoting a liberal European status, the EU would provide national civil societies with an effective tool to shore up the clear inequalities in the not-for-profit sector, as pointed out by the Commission in its report on “promoting the role of associations and foundations in Europe.”
On the other hand, by creating a single European status of association, the EU would be reflecting a significant social reality – the existence of organisations leading activities across national borders – consistent with the positive nature of community law. Current national legislations barely recognise foreign associations and their activities on national territory. This legal instrument is, thus, essential for maintaining the energy and the dynamism of European civil society. If people, goods, and capital can move freely, why not associations? If the status of associations differ in Alsace and in Paris, does an Alsatian association still exist for the ministers in the capital? Is this consistent with the EU’s goal of an integrated legal framework?
What is the current legal status of associations in European law?
The Charter of Fundamental Rights of December 10th 2000 affirms in Article 12 that “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels” So much for a declaration of intentions.
More prosaically, a text, inspired by the “Fontaine Report,” was discussed by European institutions at the beginning of the 1990s. It was proposed by the Commission, amended by the Parliament, and has languished since 1993, waiting to get on the Council’s agenda to reach a common position. That means ten years of waiting for a text which only goes as far as promoting the creation of a status for European Associations (EA.)
An end to discrimination
It is a fairly minimalist proposal, providing in Article 3 that an EA consists of “either at least two legal entities established according to the law of a member state and having their statutory seat in at least one member state, or a minimum of 21 persons from two member states and residing in two member states.” Thus the SEA will not facilitate the creation of associations in countries where the legislation is restrictive. This is confirmed in Article 4, since an EA “must demonstrate the exercise of a real and effective trans-national activity.” The threshold of 21 people implies that only bigger structures would be able to establish an association of this type. It is nonetheless a first step, which café babel is actively campaigning for, in the absence of a better solution. The overall European decision-making process is so slow, it will invariably take at least another ten years to get another more innovative text. Political realism dictates the support of imperfect projects like this one on the grounds that they are at least moving in the right direction.
In the future, it must go a step further: instead of simply a Status for European Associations, there must be a European Status for Associations, i.e. an alternative to national status. This should notably abolish all discrimination on the basis of nationality, allow free circulation of associations within the EU, and enable free and easy exercise of freedom of association for all citizens of the EU. This is only logical if the EU claims, as it does, to have a structured civil society and free circulation of goods and people. And frankly, why should there be a more of a distinction for associations between Helsinki and Lisbon than between Strasbourg and Paris?