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Entities to which International Guarantees Apply

International Standards


      Council of Europe Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe

 

I. Basic principles

1. For the purpose of this recommendation, NGOs are voluntary self-governing bodies or organisations established to pursue the essentially non-profit-making objectives of their founders or members. They do not include political parties.

2. NGOs encompass bodies or organisations established both by individual persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based.

3. NGOs can be either informal bodies or organisations or ones which have legal personality.

Explanatory Memorandum

Paragraph 1

18. There is no universal definition of NGO, a term which can be used to cover a wide range of bodies operating within both states and intergovernmental organisations. The definition adopted for the purpose of this Recommendation emphasises certain qualities regarded as constituting the essential character of these bodies, namely, that their establishment and continued operation is a voluntary act (i.e., a matter of choice for those founding and belonging to them and, in the case of non-membership bodies, those entrusted with their direction), that they are self-governing rather than under the direction of public authorities and that their principal objective is not to generate profits from the activities that they undertake.

19. NGOs can go under various names such as associations, charities, foundations, non-profit corporations, societies and trusts but it is their actual nature rather than their formal designation that will bring them within the scope of this Recommendation. Thus the designation of a particular entity as “public” or “paraadministrative” should not prevent it from being treated as an NGO if that is an accurate reflection of its essential characteristics; See Chassagnou v. France, nos. 25088/94, 28331/95 and 28443/95, 29 April 1999.

20. Political parties are excluded from the definition as in many countries they are the subject of separate provisions from those applicable to NGOs generally. However, this exclusion does not preclude states from choosing to treat such parties as NGOs.

21. Moreover those professional bodies established by law to which members of a profession are required to belong for regulatory purposes are also likely to fall outside the definition on account of the failure to comply with the requirement of voluntariness and freedom from direction by public authorities – this has led the European Court to consider such bodies as falling outside the protection for freedom of association under Article 11 of the European Convention; see Le Compte, Van Leuven and De Meyere v. Belgium, nos. 6878/75 and 7238/75, 23 June 1981 - but again this exclusion does not prevent states from treating them as NGOs. Nonetheless the voluntary aspects of their activities could be sufficient to bring sub-entities that they establish within the definition; e.g., the human rights committee of a bar association.

Paragraph 2

22. The diversity of NGOs is reflected in the fact that they can be both membership and non-membershipbased bodies, echoing the distinction in the explanatory report on Convention No. 124 between “associations” (“a number of persons uniting together for some specific purpose”) and “foundations” (“an identified property devoted to a given purpose”). Furthermore the persons establishing NGOs can be natural or legal, including a combination of these, and NGOs themselves (uniting several such bodies to pursue aspects of their objectives collectively).

Paragraph 3

23. In many instances, as the European Court recognised in Sidiropoulos and Others v. Greece, no. 26695/95, 10 July 1998 and Gorzelik and Others v. Poland [GC], no. 44158/98, 17 February 2004, the right to act collectively would have no practical meaning without the possibility of creating a legal entity in order to pursue the objectives of an organisation. The absence of this possibility will thus result in a violation of Article 11 of the European Convention. Nonetheless those establishing NGOs may find that their objectives, particularly if they are relatively limited in scope or duration, can be achieved through a less formal structure and that there is, therefore, no need for them to have legal personality.

24. It should, therefore, be generally open to those forming NGOs (or their members if the decision is taken after they have been established) to choose whether they should become an entity which has legal
personality or they will be (or remain) one that has no formal legal status. However, this does not preclude the law of a member state from conferring legal personality as an automatic consequence of the establishment of an NGO, i.e., without the need for any formal approval before this status can be obtained.


      Fundamental Principles on the Status of Non-Governmental Organisations in Europe

1. NGOs are essentially voluntary self-governing bodies and are not therefore subject to direction by public authorities. The terms used to describe them in national law may vary, but they include associations, charities, foundations, funds, non-profit corporations, societies and trusts. They do not include bodies which act as political parties. (...)

3. NGOs are usually organisations which have a membership but this is not necessarily the case; (...)

5. NGOs can be either informal bodies or organisations which have legal personality. They may enjoy different statuses under national law in order to reflect differences in the financial or other benefits which they are accorded in addition to legal personality.

Explanatory Memorandum

13. There is no general definition of an NGO in international law and the term covers an extremely varied range of bodies within the member states. Reference should be to the different practices followed in each state, notably concerning the form that an NGO should adopt in order to be granted legal personality or receive various kinds of advantageous treatments. Some types of NGOs, trusts, for example, exist only in certain states. NGOs’ sphere of action also varies considerably, since they include both small local bodies with only a few members, for example a village chess club, and international associations known worldwide, for example certain organisations engaged in the defence and promotion of human rights.

14. Among these NGOs the text gives examples of certain forms, but the list is not exhaustive. This list does not include trade unions and religious congregations, but these certainly have a special place among NGOs. In some countries these bodies, or some of them, come within the ambit of legislation on associations, whereas in others they are covered by separate laws. Since Convention No. 124 did not expressly exclude these bodies from its scope, the participants decided to make no explicit mention of trade unions and religious congregations in the fundamental principles.

15. Political parties are expressly excluded from the ambit of the fundamental principles as, under most national laws, they are the subject of separate provisions from those applicable to NGOs in general.

16. Professional bodies, established by law, to which members of a profession are required to belong for regulatory purposes, are also not included in the fundamental principles’ definition of NGOs. However, as is recognised in paragraph 20, national law may treat them as NGOs and some aspects of their activity can be essentially the same as those carried out by voluntary bodies, for example, the human rights committee of a bar association. (...)

18. Apart from these common features, the distinction most frequently drawn in the case of NGOs is that between associations and foundations. As stated in the explanatory report on Convention No. 124, an association means “a number of persons uniting together for some specific purpose”. According to the same source, a foundation is “an identified property devoted to a given purpose”.



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