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Foreign Associations and NGOs

International Standards


      European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations

Preamble
The member States of the Council of Europe, signatories hereto, Considering that the aim of the Council of Europe is to achieve a greater unity between its members, in particular for the purpose of safeguarding and realising ideals and principles which are their common heritage;
Recognising that international non-governmental organisations carry out work of value to the international community, particularly in the scientific, cultural, charitable, philanthropic, health and education fields, and that they contribute to the achievement of the aims and principles of the United Nations Charter and the Statute of the Council of Europe;
Desiring to establish in their mutual relations rules laying down the conditions for recognition of the legal personality of these organisations in order to facilitate their activities at European level,
Have agreed as follows:
Article 1
This Convention shall apply to associations, foundations and other private institutions (hereinafter referred to as "NGOs") which satisfy the following conditions:
 a.have a non-profit-making aim of international utility;
 b.have been established by an instrument governed by the internal law of a Party;
 c.carry on their activities with effect in at least two States; and
 d.have their statutory office in the territory of a Party and the central management and control in the territory of that Party or of another Party.
Article 2
1.The legal personality and capacity, as acquired by an NGO in the Party in which it has its statutory office, shall be recognised as of right in the other Parties.
2.When they are required by essential public interest, restrictions, limitations or special procedures governing the exercise of the rights arising out of the legal capacity and provided for by the legislation of the Party where recognition takes place, shall be applicable to NGOs established in another Party.
Article 3
1.The proof of acquisition of legal personality and capacity shall be furnished by presenting the NGO's memorandum and articles of association or other basic constitutional instruments. Such instruments shall be accompanied by documents establishing administrative authorisation, registration or any other form of publicity in the Party which granted the legal personality and capacity. In a Party which has no publicity procedure, the instrument establishing the NGO shall be duly certified by a competent authority. At the time of signature or of the deposit of the instrument of ratification, acceptance, approval or accession, the State concerned shall inform the Secretary General of the Council of Europe of the identity of this authority.
2.In order to facilitate the application of paragraph 1, a Party may provide an optional system of publicity which shall dispense NGOs from furnishing the proof provided for in the preceding paragraph for each transaction that they carry out.
Article 4
In each Party the application of this Convention may only be excluded if the NGO invoking this Convention, by its object, its purpose or the activity which it actually exercises:
 a.contravenes national security, public safety, or is detrimental to the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others; or
 b.jeopardises relations with another State or the maintenance of international peace and security.
Article 5
1.This Convention shall be open for signature by the member States of the Council of Europe which may express their consent to be bound by:
 a.signature without reservation as to ratification, acceptance or approval, or
 b.signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
2.Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Article 6
1.This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three member States of the Council of Europe have expressed their consent to be bound by the Convention in accordance with the provisions of Article 5.
2.In respect of any member State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article 7
1.After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may invite any State not a member of the Council to accede to this Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.
2.In respect of any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 8
1.Any State may at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention may apply.
2.Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
3.Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
Article 9
No reservation may be made to this Convention.
Article 10
1.Any Party may at any time denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
2.Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
Article 11
The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Convention, of:
 a.any signature;
 b.the deposit of any instrument of ratification, acceptance, approval or accession;
 c.any date of entry into force of this Convention in accordance with Articles 6, 7 and 8;
 d.any other act, notification or communication relating to this Convention.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at Strasbourg, this 24th day of April 1986, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to any State invited to accede to this Convention.

      Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Paras. 45, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72 and 74

IV. Legal personality
 E. Foreign NGOs
  45. Without prejudice to applicability of the articles laid down in Convention No. 124 for those states that have ratified that convention, foreign NGOs can be required to obtain approval, in a manner consistent with the provisions of paragraphs 28 to 31 and 33 to 39 above, to operate in the host country. They should not have to establish a new and separate entity for this purpose. Approval to operate can only be withdrawn in the event of bankruptcy, prolonged inactivity or serious misconduct.
VII. Accountability
 A. Transparency
  (...)62. NGOs which have been granted any form of public support can be required each year to submit reports on their accounts and an overview of their activities to a designated supervising body.
63. NGOs which have been granted any form of public support can be required to make known the proportion of their funds used for fundraising and administration.
64. All reporting should be subject to a duty to respect the rights of donors, beneficiaries and staff, as well as the right to protect legitimate business confidentiality.
65. NGOs which have been granted any form of public support can be required to have their accounts audited by an institution or person independent of their management.
66. Foreign NGOs should be subject to the requirements in paragraphs 62 to 65 above only in respect  of their activities in the host country.
 B. Supervision
67. The activities of NGOs should be presumed to be lawful in the absence of contrary evidence.
68. NGOs can be required to submit their books, records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent.
69. NGOs should not be subject to search and seizure without objective grounds for taking such measures and appropriate judicial authorisation.
70. No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent.
71. NGOs should generally be able to request suspension of any administrative measure taken in respect of them. Refusal of a request for suspension should be subject to prompt judicial challenge.
72. In most instances, the appropriate sanction against NGOs for breach of the legal requirements applicable to them (including those concerning the acquisition of legal personality) should merely be the requirement to rectify their affairs and/or the imposition of an administrative, civil or criminal penalty on them and/or any individuals directly responsible. Penalties should be based on the law in  force and observe the principle of proportionality.
74. The termination of an NGO or, in the case of a foreign NGO, the withdrawal of its approval to operate should only be ordered by a court where there is compelling evidence that the grounds specified in paragraphs 44 and 45 above have been met. Such an order should be subject to prompt appeal.

Explanatory Memorandum

Paragraph 45
90. States that have not ratified Convention No. 124 may retain some discretion as to whether they recognise the legal personality of foreign NGOs and as to whether they allow them to operate within their territory but neither can be absolute on account of both the freedom of association guaranteed to those who are resident within them and the recognition by instruments such as the UN Declaration on Human Rights Defenders (Articles 5, 16 and 18) of the legitimacy of international human rights NGOs operating within individual countries. Certainly any process of prior approval to operate should be restricted and should not entail any requirement that NGOs first establish a new and separate entity under the law of the state in which they are seeking to operate. Furthermore the process of approval and its withdrawal should emulate, insofar as appropriate, the approach required for granting and terminating legal personality to NGOs set out in this Recommendation. (...)
Paragraph 62
114. Those NGOs receiving any form of public support should expect to account for the use made of it. It is not unreasonable for NGOs to be required to report each year on the activities that they have undertaken and the accounts for the income and expenditure concerned. However, such a reporting obligation should not be unduly burdensome and should not require the submission of excessive detail about either the activities or the accounts. This reporting obligation is without prejudice to any particular reporting requirement in respect of a grant or donation. This requirement is distinct from any generally applicable requirement regarding the keeping and inspection of financial records and the filing of accounts.
Paragraph 63
115. In order to allay any concern that NGOs might not be devoting as much of their resources as is practicable to the pursuit of their objectives, an obligation to require them to disclose the proportion in fundraising and administrative overheads can be imposed. This provision is not meant to set a particular limit for expenditure on fundraising and administrative overheads but to ensure transparency.
Paragraph 64
116. Obligations to report should be tempered by other obligations relating to the right to life and security of beneficiaries and to respect for private life and to confidentiality. In particular a donor’s desire to remain anonymous should be respected. However, the need to respect private life and for confidentiality are not absolute and should not be an obstacle to the investigation of criminal offences (e.g., in connection with money-laundering). Nonetheless any interference with respect for private life and confidentiality should observe the principles of necessity and proportionality.
Paragraph 65
117. In order to guarantee objectivity there can be a requirement that NGOs have their accounts audited by a person or institution independent of its management. The scope of any such requirement should take account of the size of the NGO concerned. In smaller ones the requirement of independence might be satisfied where the audit is carried out by a member who has no connection with the management. For those with substantial income and expenditure the use of the services of a professional auditor is likely to be considered more appropriate. It is recognised that there may also be a general legal obligation for all entities with legal personality (including NGOs) of meeting certain objective criteria, such as net value of assets or average number of employees, to have their accounts audited, which would be applicable even where NGOs do not receive any public support.
Paragraph 66
118. Although there is no reason to differentiate between foreign and other NGOs as regards the applicability of reporting and inspection requirements, it is only appropriate to subject foreign NGOs to them in respect of the activities that they actually carry out in the host country.
Paragraph 67
119. The best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation in this sector at the national and international level. Certainly responsible NGOs are conscious of the fact that their success depends to a large extent on public opinion concerning their efficiency and ethics. Nonetheless states have a legitimate interest in regulating NGOs so as to guarantee respect for the rights of third parties (whether donors, employees, members or the public) and to ensure the proper use of public resources and respect for the law.
120. In most instances the interests of third parties can be adequately protected by enabling them to bring the relevant matter before the courts; there should generally be no need for a public body to take any other action on their behalf.
121. Whatever the form of regulatory control employed, it is essential that it be governed by objective criteria and be subject to the principle of proportionality so that its exercise can be amenable to control by the courts. It is also vital that public authorities, in supervising the activities of NGOs, apply the same assumption that holds good for individuals, namely, that their activities are lawful unless the contrary is proved.
Paragraph 68
122. It should be possible to scrutinise the financial records and activities of NGOs where there are sufficient grounds for inquiry. In most instances this is only likely to be justified where an NGO has failed to comply with reporting requirements, whether because no report has been made or because what has been produced gives rise to genuine concerns, but it is possible that circumstances will warrant an inquiry even before a report is due. Mere suspicion should not be the basis for any such inquiry; there must always be reasonable basis for believing that impropriety has occurred or is imminent.
Paragraph 69
123. This provision requires that NGOs should have the benefit of the guarantees applicable to the search of persons and premises under Article 8 of the European Convention; see, e.g., Funke v France, no. 10828/84, 25 February 1993.
124. Judicial authorisation should normally be obtained prior to any such search taking place but this can be dispensed with where the power is subject to both very strict limits and subsequent judicial control, providing a sufficient guarantee against arbitrary interference with the right to respect for private life; see Camenzind v. Switzerland, no. 21353/93, 16 December 1997.
Paragraph 70
125. Intervention by an external body in the actual running of an NGO should be extremely rare. It should be based on the need to bring an end to a serious breach of legal requirements where either the NGO has failed to take advantage of an opportunity to bring itself into line with those requirements or an imminent breach of them should be prevented because of the serious consequences that would follow.
Paragraph 71
126. The possibility of seeking suspension of administrative action is something expected of all administrative law systems – see Recommendation Rec(2003)16 of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law – but it is especially important that this is available in respect of directions to an NGO to desist from particular activities as these are often tied to particular moments in time and so could not usefully be undertaken at a later date after a challenge to the directions has been successfully pursued.
127. Although there may be good reasons in a particular case for refusing suspension of an order to desist from certain activities or of any other measure taken in respect of an NGO, the significance of so doing is such that there should then be the possibility of this being subjected to a prompt judicial challenge.
Paragraph 72
128. NGOs, like everyone else, are subject to the law and sanctions may thus be imposed on them for failing to observe its requirements. However, it is essential that the principle of proportionality be respected in both framing and applying sanctions for non-compliance with a particular requirement. Moreover there should always be a clear legal basis for any sanctions that are imposed in a given case.
Paragraph 73
129. Although there is no reason to differentiate between foreign and other NGOs as regards the applicability of inspection requirements, it is only appropriate to subject foreign NGOs to them in respect of the activities that they actually carry out in the host country.
Paragraph 74
130. The need to respect the principle of proportionality should mean that resort to the sanction of enforced termination of an NGO for the reasons set out in Paragraph 44 of the Recommendation should be very rare. An extremely well-founded basis for such drastic action as enforced termination is essential; see United Communist Party of Turkey and Others v. Turkey, no. 19392/92, 30 January 1998, Socialist Party and Others v. Turkey [GC], no. 21237/93, 25 May 1998 and Refah Partisi (The Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, 13 February 2003.
131. Moreover in making any assessment about the need for enforced termination it will be important to be sure that the reprehensible activities of members and even office-holders of an NGO can justifiably be regarded as engaging the responsibility of the latter; see Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002.
132. Where enforced termination does appear to be justified, it is a measure that must be adopted by a court and should be subject to appeal. It should only be in the most exceptional case that the effect of a termination ruling would not be suspended until the outcome of an appeal; see the contribution of the absence of such a possibility to the measure being found to be disproportionate in the United Communist and Socialist Party cases.]


      Fundamental Principles on the Status of Non-Governmental Organisations in Europe, Principles 37, 38 and 65


37. Without prejudice to the applicability of the articles laid down in the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations for those states that have ratified that convention, foreign NGOs may be required to obtain approval to operate in the host country, but they should not have to establish a new and separate entity for this purpose. This would not preclude a requirement that a new and separate entity be formed where an NGO transfers its seat from one state to another.
38. The activities of NGOs at the international level should be facilitated by ratification of the European Convention on the Recognition of the Legal Personality of International Non-governmental Organisations. (...)
65. Foreign NGOs should be subject to these reporting and inspection requirements only in respect of their activities in the host country.

Explanatory Memorandum

49. In the states which have ratified Convention No. 124, the legal personality and capacity acquired by an NGO in one contracting party where it has its registered headquarters should be recognised, as of right, by the other contracting parties, subject to compliance with certain conditions. In other states, foreign NGOs may be required to obtain approval to operate in the host country.

      Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, Moscow, 3 October 1991, para. 43

(43) The participating States will recognize as NGOs those which declare themselves as such, according to existing national procedures, and will facilitate the ability of such organizations to conduct their national activities freely on their territories; to that effect they will
  (43.1) - endeavour to seek ways of further strengthening modalities for contacts and exchanges ofviews between NGOs and relevant national authorities and governmental institutions;
  (43.2) - endeavour to facilitate visits to their countries by NGOs from within any of the participating States in order to observe human dimension conditions;
  (43.3) - welcome NGO activities, including, inter alia, observing compliance with CSCE commitments in the field of the human dimension;
  (43.4) - allow NGOs, in view of their important function within the human dimension of the CSCE, to convey their views to their own governments and the governments of all the otherparticipating States during the future work of the CSCE on the human dimension.
  (43.5) During the future work of the CSCE on the human dimension, NGOs will have the opportunity to distribute written contributions on specific issues of the human dimension of the CSCE to all delegations.
  (43.6) The CSCE Secretariat will, within the framework of the resources at its disposal, respond favourably to requests by NGOs for non-restricted documents of the CSCE.
  (43.7) Guidelines for the participation of NGOs in the future work of the CSCE on the human dimension might, inter alia, include the following:
    (i) NGOs should be allotted common space at such meeting sites or in their immediate vicinity for their use as well as reasonable access, at their own expense, to technical facilities, including photocopying machines, telephones and fax machines;
    (ii) NGOs should be informed and briefed on openness and access procedures in a timely manner;
    (iii) delegations to CSCE meetings should be further encouraged to include or invite NGO members.
The participating States recommend that the Helsinki Follow-up Meeting consider establishing such guidelines.



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