Changes from plenary report to adopted text

RemovedArticle 3 – paragraph 3 – point a (new): (a) based on citizenship or legal residence in the case of natural persons; or

Added(35) In order to establish a genuine internal market for non-profit associations, it is necessary to abolish certain restrictions on the freedom of establishment, the free movement of services and the free movement of capital that still apply in the laws of certain Member States. Therefore, Member States should not impose any discriminatory requirements based on the nationality of members of an ECBA or its executive body, except as provided for by this Directive. Nor should Member States provide for any requirement on physical presence of members for the validity of a meeting. To enable ECBAs to enjoy the full benefits of the internal market, Member States should not require the registered office of an ECBA to be in the same Member State as its central administration or the principal place of operations. Member States should also not impose general prohibitions on ECBAs carrying out economic activities, nor only allow them to engage in economic activities if they are linked to an objective set out in an ECBA’s statutes.

RemovedArticle 3 – paragraph 3 – point b (new): (b) based on the location of their registered office in the case of legal entities.

Added(35a) In line with the right to freedom of expression and freedom of association, it is important to ensure that Member States do not limit the right to participation of associations in public life and public or political debate, which could concern for example the organisation of or participation in public interest advocacy or peaceful assembly. Such participation in the public or political debate should however not be meant to benefit any single particular political party or political candidate. [Am. 30]

RemovedArticle 4 – paragraph 2: 2. For further matters that concern the establishment or operation of ECBAs, each Member State shall ensure that the national rules applicable to the most similar or most commonly used legal form of non-profit association in national law apply to ECBAs.

Added(36) The registration of an ECBA should be constitutive of the ECBA. In order to register, an ECBA should have a minimum of three founding members. Both legal entities with a non-profit purpose established in the Union and natural persons who are Union citizens or legally residing in the territory of the Union should be able to be founding members of an ECBA. It should also be possible for non-profit associations to convert into an ECBA within the same Member State.

RemovedArticle 4 – paragraph 3: 3. The rules applicable to ECBAs under this Directive shall not affect the measures adopted by Member States on grounds of public policy and public security to prevent the risk of misuse of non-profit associations and to ensure transparency of certain capital movements when required by Union law or national law in compliance with Union law, where such measures are prescribed by law, are appropriate for the attainment of the objective pursued, do not go beyond what is strictly necessary and the impact of the measure on the ECBA is proportionate to the objective pursued. The application of these measures shall be based on a case-by-case assessment by the Member State's competent authorities.

Added(36a) The possibilities offered by the digitalization should be fully exploited by Member States in order to facilitate the exercise of the freedom of association and establishment as well as in order to reduce the administrative burdens and compliance costs. To facilitate the registration process, including in the case of mergers and conversions, Member States should ensure that the application for registration may be submitted online. That should also apply to the requests for transfer of the registered office and notification for a change of information part of the ECBA certificate. Digital means should be encouraged also to facilitate and speed up, where possible, administrative procedures and cooperation. [Am. 31]

RemovedArticle 4 – paragraph 4: 4. By ... [one year after the entry into force of this Directive] and following consultation of stakeholders, including non-profit associations, each Member State shall identify the single most similar or most commonly used legal form of non-profit association in its domestic legal order as referred to in paragraph 2 and notify the Commission and the ECBA Committee referred to in Article 30, thereof and of the national rules that apply to that legal form. Member States shall notify the Commission and ECBA Committee without delay of any changes regarding the legal forms identified and of any changes to the rules applicable to them. Member States and the Commission shall make the notified information referred to in this paragraph publicly available.

Added(37) To ensure that ECBAs are able to operate across borders and in compliance with the principle of proportionality, they should be required to register only once, in the home Member State, in order to acquire their legal personality and legal capacity. To ensure automatic recognition of this registration throughout the Union, it is necessary to harmonise the registration procedure. This concerns in particular the documents and information required for an application to register an ECBA, as well as the checks to be carried out.

RemovedArticle 4 – paragraph 4 a (new): 4a. The constitution of an ECBA, including through conversions or mergers, as well as the transfer of an office shall not be used to undermine workers’ or trade union rights, representation, consultation or working conditions nor creditors rights, in accordance with applicable Union and national law as well as collective agreements.

Added(38) Member States should be entitled to require a registered ECBA to make a declaration, provide information, request or obtain authorisations for engaging in particular activities only where such requirements are (i) applied in a general and non-discriminatory way, (ii) prescribed by law, (iii) justified by overriding reasons in the public interest, (iv) appropriate for ensuring the attainment ofand limited to what is strictly necessary, and the impact of the measure on the ECBA should proportionate to the objective pursued and do not go beyond what is necessary in order for it to be attained. Such requirements may be connected, for example, to the specificities of certain sectors, like healthcare. Where Member States provide for such additional procedures, this information should be made publicly available in a clear, easily accessible and comprehensible way, in order to ensure that an ECBA is able to comply with these requirements. [Am. 32]

RemovedArticle 5 – paragraph 1: 1. Member States shall ensure that an ECBA acquires legal personality and legal capacity upon registration in accordance with Article 19. Member States shall recognise the legal personality and legal capacity of ECBAs registered in another Member State, without any further procedures or assessment or requiring any further registration.

Added(39) To prevent fraud and to ensure the reliability of the relevant register, it is important that Member States verify the identity of the founding members and the legal representatives of the ECBA. The verification of identity is particularly important, especially if the application for registration is conducted electronically. Due to the variety of different practices in Member States, the specific methods of verifying identity should remain in the prerogative of the Member State concerned. This approach provides the necessary flexibility to take account of the specific traditions, specificities and procedures of each Member State, while ensuring that security and authenticity standards are respected at Union level. [Am. 33]

RemovedArticle 5 – paragraph 2: 2. Member States shall ensure that an ECBA has the right to at least conclude contracts and perform legal acts, be a party to legal proceedings, own movable and immovable property, carry out economic activities, employ staff, receive, solicit and dispose of donations and other funds in line with Article 13, participate in public tenders, and apply for public funding. The ECBA shall be allowed to do so in accordance with this Directive and without the need to register in any Member State other than the home Member State or to fulfil additional administrative requirements other than those required of the legal form identified in accordance with Article 4(4).

Added(40) While respecting the freedom of establishment and association, the registration of an ECBA should be denied in cases of failure to comply with the formal requirements for the registration, as laid down in this Directive, where the application is not complete or if the objectives described in the statutes contravene Union law or national law compliant with Union law. Furthermore, the registration must be rejected, if the application fails to comply with the basic requirements set out in this Directive to constitute an ECBA, namely the non-profit purpose, the minimum number of founding members and the cross-border element in terms of carrying out or having the objective of carrying out activities in at least two Member States and founding members with links with at least two Member States. Any refusal to register an ECBA should be made in writing and duly reasoned by the competent authority. [Am. 34]

RemovedArticle 6 – paragraph 1 – point b: (b) justified by overriding reasons in the public interest; and

Added(41) Member States should be required to establish a register or make use of an existing national register for the purposes of the registration and for maintaining and publishing information on ECBAs. This register should contain information about ECBAs and the submitted documents. As the information kept in the register may become outdated, Member States should ensure that the ECBA notifies any changes concerning the information on ECBAs to the competent authority and that the information held in the register is updated. Member States should be allowed to make use of their existing national registers for the purpose of this Directive. In order to ensure transparency especially for members of an ECBA and its creditors, if applicable, the ECBA certificate, the liquidation and the dissolution of an ECBA are pieces of information that should be made publicly available for a maximum of 6 months afteruntil the end of the financial year following the dissolution of an ECBA. The interoperability solutions developed as part of the implementation of the Proposal for a Regulation of the European Parliament and of the Council laying down measures for a high level of public sector interoperability across the Union can further support Member States to move towards cross-border interoperability of their registers. To ensure that information about the existence of an ECBA is still available even after its dissolution, all data retained and stored in the register should be kept for 2at least 5 years after dissolution Any national or European requirements concerning the authenticity, reliability and the appropriate legal form of documents or information that are to be submitted in case of online registration of the single most similar or most commonly used legal form, should also apply to the ECBA. [Am. 35]

RemovedArticle 6 – paragraph 1 – point c: (c) appropriate for the attainment of the objective pursued, do not go beyond what is strictly necessary and the impact of the restricting rules on an ECBA is proportionate to the objective pursued.

Added(42) Regulations (EU) 2016/679 and (EU) 2018/1725 of the European Parliament and of the Council apply to the processing of personal data carried out in the context of this Directive, including the processing of personal data to maintain the national register or registers on ECBAs and their legal representatives, to access personal data in such registers and to exchange personal data in the context of administrative cooperation and mutual assistance between Member States under this Directive, where applicable via the Internal Market Information System (IMI) established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council, and the keeping of records in accordance with this Directive..

RemovedArticle 6 – paragraph 2 – introductory part: 2. Member States shall ensure that the statutes of an ECBA are provided in writing, submitted in compliance with formal requirements applicable to the legal entity identified in accordance with Article 4(4), and include the following information:

Added(43) In order to enable ECBAs to reap the full benefits of the internal market and given that mobility rights are directly related and necessary to the functioning of the internal market, ECBAs should be able to transfer their registered office from one Member State to another. Such a transfer of registered office should not result in the dissolution of an ECBA in the home Member State or the creation of a new legal entity in the new home Member State, or affect any of the assets or liabilities, including any terms contained in contracts, or credits, rights or obligations of an ECBA existing before the transfer. In the case of mobility, Member States should ensure the protection of the interests of the ECBA’s creditors if any. To ensure protection of employees of ECBAs, ECBAs should be required to inform them of any proposed transfer in good time and allow them to examine the draft terms of such transfer. Other provisions of Union and national law concerning the protection of employees, such as Directive 2002/14/EC of the European Parliament and of the Council, may also be applicable.

RemovedArticle 6 – paragraph 2 – point b: (b) a detailed description of its objectives, a statement of its non-profit purpose and a description of its cross-border dimension;

Added(44) To harmonise the procedure of transfer of registered office of an ECBA, Member States should ensure that a transfer of registered office is decided by the decision-making body of the ECBA concerned. The ECBA should submit the request with the relevant documents to the competent authority of the Member State to which the transfer is to be made and inform in parallel the competent authority of its home Member State when submitting the request for transfer. One of the relevant documents in the event of a transfer would be a report explaining the safeguards for creditors and employees, if applicable under Union or national law. Member States should ensure that the preparation of such a report does not impose an excessive administrative burden. Where applicable, the proposed statutes of the ECBA should be amended according to the requirements of the national law of the Member State to which the ECBA requests the transfer. Upon transfer of the registered office, the ECBA becomes an ECBA under the national law of the new home Member State. This change of applicable law ensuing from the transfer of the registered office should not lead, in order to avoid duplications, the competent authority of the new home Member State to verify any element already verified during the registration in the previous Member State and harmonised by this Directive. The competent authority of the Member State to which the ECBA intends to transfer the registered office should reject the request of transfer only where the requirements laid down in national law transposing this Directive are not met and should not refuse it on other grounds. In particular, the competent authority should not reject the request on the ground of non-compliance with requirements under its national law that could not have been a ground to reject the registration in accordance with Article 19. In order to facilitate the transfer of registered office of an ECBA in the internal market, the competent authority of the new home Member State should issue an updated certificate in accordance with paragraph 2 of Article 21, adapting the unique registration number and the two-letter country code of the Member State where the ECBA’s office is transferred and the postal address of the registered office, as well as any other elements, if applicable.. [Am. 36]

RemovedArticle 6 – paragraph 2 – point b a (new): (ba) a declaration that the ECBA will respect the values of the Union enshrined in Article 2 TEU in its objectives and in the pursuit of its activities.

Added(45) In compliance with the freedom of assembly and of association, an ECBA should be dissolved only by decision of its members or by a decision of the competent authority of the home Member State. Where the dissolution of an ECBA is the result of a decision of its members, it should be taken by two-thirds of the votes representing at least half of the total of the members during an extraordinary meeting. The dissolution of an ECBA may be involuntary by decision of the competent authority of the home Member State of the ECBA, as a last resort, only. Therefore involuntary dissolution should only happen where an ECBA does not respect its non-profit purpose, or where its activities constitute a threat to public order, or where the membersa flagrant and repeated breach of the executive body of an ECBA have been convicted of a particularly serious criminal offence or the ECBA itselfvalues of the Union enshrined in Article 2 TEU through its activities has been convicted of a criminal offence, if national law allows for this possibilityestablished under the condition that the dissolution is preceded by a risk assessment, that it is prescribed by law, appropriate and strictly necessary, and that the dissolution of the ECBA is proportionate to the objective pursued. In this case, the competent authority should communicate to the ECBA a formal comprehensively reasoned notice of its concerns and hear the ECBA in order to give the ECBA the opportunity to reply or rectify the situation within a reasonable period of time. Any decision for involuntary dissolution should be duly reasoned and include a comprehensive written justification. [Am. 37]

RemovedArticle 6 – paragraph 2 – point d: (d) where a founding member is a legal entity, a detailed description or copy of its statutes and a detailed description of its non-profit purpose;

Added(46) The dissolution of the ECBA should lead to its liquidation. The liquidation of ECBAs should be compliant with Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (EIR 2105) which requires that the law applicable to insolvency proceedings and their effects shallshould be that of the Member State within the territory of which such proceedings are opened. In line with the non-profit purpose of ECBAs, any assets of a dissolved ECBA should be transferred to a non-profit entity carrying out a similaran activity as the onesimilar to one of the activities carried out by the dissolved ECBA or, transferred to a local authority which should utilise them for an activity like that pursued byor for the pursuit of an objective that is similar to one of the activities or objectives of the dissolved ECBA. [Am. 38]

RemovedArticle 6 – paragraph 2 – point j: (j) provisions governing the number, appointment, removal, powers and responsibilities of the members of the executive body;

Added(47) To enable an ECBA to prove that it has registered within a Member State and to further facilitate cross-border procedures and simplify and reduce formalities, the competent authorities should, as the final step of the registration process, issue a certificate (’ECBA certificate’) which contains the essential registration information, including the name of an ECBAthe association followed or preceded by the acronym 'ECBA', the address of its registered office, and the names of the legal representatives. To facilitate the use of this certificate in various Member States without additional adaptations or compliance costs, the Commission should establish a standardised template available in all languages of the Union. Therefore, in order to ensure uniform conditions for the implementation of this act, implementing powers should be conferred on the Commission to produce a standardised template including in relation to the technical specifications of the template. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. Those implementing acts should be adopted in accordance with the examination procedure referred to in Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council. [Am. 39]

RemovedArticle 6 – paragraph 2 – point n: (n) the method of disposition of the ECBA’s assets in the event of dissolution; and

Added(48) The notion of ‘particularly serious crime’ should be defined by Member States and may include terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. [Am. 40]

RemovedArticle 6 – paragraph 2 – point n a (new): (na) the date of adoption of the statutes.

Added(49) In order to allow Member States to efficiently implement legal provisions of this Directive on administrative cooperation and facilitate cooperation, Member States should use the Internal Market Information System (IMI). In particular, the competent authorities should use IMI to notify the competent authorities of the other Member States when a new ECBA is constituted, including when a non-profit association converts into an ECBA. Where a competent authority receives an application for registration, it should communicate through IMI with the competent authorities of the Member State(s) in which these documents have been issued to verify, for instance, their lawfulness. In the case of a transfer of the registered office of an ECBA, the competent authority of the new home Member State should notify the competent authorities of the other Member States of this transfer and update IMI with the relevant information. In the case of a dissolution, both voluntary or involuntary, the competent authority should also notify the competent authorities of the other Member States to inform them about the dissolution and to update IMI with the relevant information.

RemovedArticle 7 – paragraph 2: 2. The executive body of an ECBA shall be composed of a minimum of three persons, of which at least two persons are natural persons that are Union citizens or legally resident in the Union, or legal entities with a non-profit purpose established in the Union, through their representatives.

Added(49a) In accordance with the right to good administration and the principles of efficiency and effectiveness of the public administrations, the transposition of this Directive should foster the simplification of administrative rules and the reduction of administrative costs and burdens. Member States should therefore ensure that the administrative procedures and obligations of ECBAs can be submitted online and that such procedures are easily accessible. Member States should make all the necessary information available and provide support for the administrative processes related to ECBAs. [Am. 41]

RemovedArticle 7 – paragraph 3: 3. Member States shall ensure that natural persons who have been convicted of a particularly serious criminal offence are not to be members of the executive body or representatives of a legal entity that is a member of the executive body, in case participation in the executive body by this person would constitute a threat to the public order.

Added(49b) In view of monitoring the implementation of this directive, the Commission should be assisted by the ECBA committee composed of representatives of the Member States. In line with the Union principles and article 2 TEU in particular, the composition of the committee should be balanced. The Committee should involve, as appropriate, other relevant Union bodies and committees and stakeholders in its work, such as the European Union Agency for Fundamental Rights and non-profit organisations. Public access to information on committee proceedings should be ensured in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. [Am. 42]

RemovedArticle 8 – paragraph -1 (new): -1. Notwithstanding the criteria for the constitution of an ECBA laid down in Article 3(1), the membership criteria of an ECBA shall be regulated by its statutes.

Added(49c) This Directive takes an important step in completing the single market and opening it up further to the non-profit sector. In light of this, the Commission is invited to assess in addition to this Directive the possible benefits and the feasibility of complementing this Directive by measures to support a regular, meaningful and structured dialogue with civil society and representative organisations, of a similar European regulatory framework with regards to foundations. [Am. 43]

RemovedArticle 8 – paragraph 1: 1. Member States shall ensure that each member of an ECBA has one vote, unless the ECBA decides to allow a differentiation including by making a distinction between full members who can vote and associate members who cannot vote. In all cases, any differentiation in voting rights shall be set out in the statutes.

Added(50) Since the objectives of this Directive, namely improving the functioning of the internal market by removing legal and administrative barriers for non-profit associations operating in more than one Member State, cannot be sufficiently achieved by the Member States alone and can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

RemovedArticle 10 – paragraph 1: Member States shall ensure that, within the ambit of application of this Directive, ECBAs are not discriminated nor that national laws, regulations or administrative acts regulating ECBAs discriminate against any group or individual on any grounds, such as birth, age, colour, sex and gender, sexual orientation, gender identity, health conditions, immigration or residency status, genetic features, language, national, ethnic or social origin, political or any other opinion, physical or mental disability, membership of a national minority, property, race, religion or belief, or other status.

Added(51) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 27 June 2023,

RemovedArticle 11 – paragraph 1: Member States shall ensure access to effective complaint mechanisms in accordance with national law and shall ensure that all decisions of competent authorities on their territory affecting the rights and obligations of ECBAs, or the rights and obligations of other persons in connection to the operations of ECBAs, are subject to effective remedies, in compliance with Article 47 of the Charter.

AddedHAVE ADOPTED THIS DIRECTIVE:

RemovedArticle 12 – paragraph 2 – introductory part: 2. Without prejudice to Articles 9 to 11, Member States shall not require registered ECBAs to make a declaration, provide information, or request or obtain authorisations for engaging in particular activities, unless such requirements are:

AddedChapter 1 General provisions

RemovedArticle 12 – paragraph 2 – point b: (b) justified by overriding reasons in the public interest; and

AddedArticle 1 Subject matter

RemovedArticle 12 – paragraph 2 – point c: (c) appropriate for the attainment of the objective pursued, do not go beyond what is strictly necessary and the impact of the requirements on an ECBA is proportionate to the objective pursued.

AddedThis Directive lays down measures coordinating the conditions for establishing and operating ‘European cross-border associations’ (ECBAs), in order to facilitate the effective exercise by non-profit associations of their rights related to the freedom of establishment, free movement of capital, freedom to provide and receive services and free movement of goods in the internal market.

RemovedArticle 13 – paragraph 2 – introductory part: 2. Without prejudice to Articles 9 to 11, Member States shall not impose any restrictions on an ECBA’s ability to provide or receive funding, including donations, from any source, except to the extent that such restrictions are:

AddedArticle 2 Definitions

RemovedArticle 13 – paragraph 2 – point b: (b) justified by overriding reasons in the public interest or where the Member State can prove that the ECBA flagrantly and repeatedly breaches the values of the Union enshrined in Article 2 TEU through its activities; and

AddedFor the purpose of this Directive, the following definitions apply:

RemovedArticle 13 – paragraph 2 – point c: (c) appropriate for the attainment of the objective pursued, do not go beyond what is strictly necessary and the impact of the restriction on an ECBA is proportionate to the objective pursued.

Added(a) “home Member State” means the Member State in which the ECBA establishes or transfers its registered office;

RemovedArticle 14 – paragraph 2 – introductory part: 2. Without prejudice to provisions of other acts of Union law as well as Articles 9 to 11 of this Directive, Member States shall not impose any restrictions on the activities referred to in paragraph 1, unless such restrictions are:

Added(b) “host Member State” means a Member State other than the home Member State in which the ECBA operates;