Changes from report parliamentary committee draft to plenary report

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ChangedRecital 41: (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 As the information kept in the register may become outdated, Member States should ensure that the ECBA notifies any changes concerning the information on ECBAs to the competent authority and that the information held in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. 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 until 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 Union42 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.dissolution Any national or European requirements concerning the authenticity, reliability and the appropriate legal form of docume…

Recital 44: (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 tran…

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ChangedRecital 45: (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.members. 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,resort. 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, where theor membersa offlagrant theand executiverepeated bodybreach of an ECBA have beenthe convictedvalues of a particularly serious criminal offence committed in the name, on behalf or for theUnion benefitenshrined ofin theArticle ECBA,2 orTEU thethrough ECBAits itselfactivities has been convicted of a particularly serious criminal offence,established ifunder nationalthe lawcondition allowsthat forthe thisdissolution possibility,is orpreceded whereby a member ofrisk theassessment, executivethat bodyit is convictedprescribed ofby alaw, particularappropriate seriousand criminalstrictly offencenecessary, committedand afterthat the creationdissolution of the ECBA, in the eventECBA thatis participationproportionate into the executive body by this person would be a threat to publicobjective order.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,time. Any decision for exampleinvoluntary bydissolution replacingshould thebe convictedduly membersreasoned concerne…and include a comprehensive written justification.

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RemovedRecital 45 a (new): (45a) The term ‘particularly serious criminal offence’ should be understood to mean one of the offences listed in Article 2 (2) of the Council Decision on a European Arrest Warrant*. This notion should be strictly interpreted by Member States and applied in a non-discriminatory way. It should be understood to 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, organised crime and participation in a criminal organisation. / * Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

AddedRecital 46: (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)47 which requires that the law applicable to insolvency proceedings and their effects should 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 an activity similar to one of the activities carried out by the dissolved ECBA or, transferred to a local authority which should utilise them for an activity or for the pursuit of an objective that is similar to one of the activities or objectives of the dissolved ECBA.

RemovedReplacing former recital 48.

AddedRecital 47: (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 the 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 Council48. 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.

RemovedRecital 46: (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)47 which requires that the law applicable to insolvency proceedings and their effects shall 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 an activity similar 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 by the dissolved ECBA.

RemovedRecital 47: (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 the association with the acronym 'ECBA' before or after that name, 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 Council48. 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.

Recital 48: deleted

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RemovedReplaced by new recital 45a.

AddedRecital 49 a (new): (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.

RemovedArticle 2 – paragraph 1 – point e a (new): ea) ‘particularly serious offence’ means one of the offences listed in Article 2(2) of Council Framework Decision 2002/584/JHA; this notion should be strictly interpreted by Member States and applied in a non-discriminatory way.

AddedRecital 49 b (new): (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.

RemovedArticle 3 – paragraph 3: 3. Member States shall ensure that an ECBA shall carry out or have in its statute the objective to carry out activities in at least two Member States and have founding members with links to at least two Member States, either: / (a) based on citizenship or legal residence in the case of natural persons, or / (b) based on the location of their registered office or on the citizenship or legal residence or the location of the registered office of their members, in the case of legal entities.

AddedRecital 49 c (new): (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.

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..

AddedArticle 2 – paragraph 1 – point c: (c) “non-profit purpose” means that, regardless of whether the association’s activities are of an economic nature or not, any profits generated are used only in pursuit of the objectives of the ECBA as defined in its statutes and not to be distributed among its members, including members of its governing bodies, nor among founders or other private parties, in a direct or indirect manner;

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. Such measures shall be appropriate and interpreted strictly by the Member State that applies them, and their application shall be based on a case-by-case assessment by the Member State's competent authorities.

AddedArticle 2 – paragraph 1 – point d: (d) “non-profit association” means a legal entity under national law that is membership-based, self-governed, has a non-profit purpose, and has legal personality;

RemovedArticle 4 – paragraph 4: 4. By ... [one year after the entry into force of this Directive] and following consultation of stakeholders in line with Article 31(1a) of this Directive, each Member State shall identify the 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. That notification shall be accompanied by a report following the consultation of stakeholders. 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.

AddedArticle 2 – paragraph 1 – point e: (e) “ECBA certificate” means a certificate issued by the competent authority of the home Member State, serving as evidence of the registration, legal personality and legal capacity of an ECBA.

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 or working conditions. In line with applicable collective agreements and Union and national law, the obligations regarding employees and creditors shall continue to be fulfilled and employees, volunteers, trade unions and workers’ representatives shall be duly informed of such obligations and consulted in relation to them. Collective agreements and workers’ board-level representation rights shall be respected and maintained.

AddedArticle 2 – paragraph 1 – point e a (new): (ea) ‘particularly serious criminal offence’ means one of the offences listed in Article 2(2) of Council Framework Decision 2002/584/JHA, to be strictly interpreted by Member States and applied in a non-discriminatory way.

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.

AddedArticle 3 – paragraph 1 – point a: (a) trade unions and political parties;

AddedArticle 3 – paragraph 2: 2. Member States shall ensure that an ECBA shall have a non-profit purpose in accordance with Article 2(1), point (c).

AddedArticle 3 – paragraph 3: 3. Member States shall ensure that an ECBA shall carry out or have in its statute the objective to carry out activities in at least two Member States and have founding members with links to at least two Member States, either:

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

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

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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).

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

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ChangedArticle 6 – paragraph 1 – point c: (c) appropriate for ensuring the attainment of the objective pursued, interpreteddo strictlynot bygo thebeyond Memberwhat Stateis concernedstrictly andnecessary doand notthe goimpact beyondof whatthe isrestricting necessaryrules inon orderan forECBA thatis objectiveproportionate to bethe attained.objective pursued.

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AddedArticle 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:

AddedArticle 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;

AddedArticle 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.

Article 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;

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

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

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.

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

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 specified in the statutes.

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

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ChangedArticle 117 – paragraph 1: Member States shall2: ensure2. thatThe allexecutive decisionsbody of competent authorities onan theirECBA territoryshall affectingbe thecomposed rightsof anda obligationsminimum of ECBAs, orthree thepersons, rightsof andwhich obligationsat ofleast othertwo persons in connectionare tonatural thepersons operationsthat ofare ECBAs,Union arecitizens subjector tolegally effectiveresident andin independentthe judicialUnion, review,or inlegal complianceentities with Articlea 47non-profit Charterpurpose ofestablished Fundamentalin Rightsthe ofUnion, thethrough Union.their representatives.

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AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

Article 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:

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

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ChangedArticle 12 – paragraph 2 – point c: (c) appropriate for ensuring the attainment of the objective pursued, interpreted strictly by the Member State concerned and do not go beyond what is strictly necessary inand orderthe forimpact thatof objectivethe requirements on an ECBA is proportionate to bethe attained.objective pursued.

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ChangedArticle 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 lawful source, except to the extent that such restrictions are:

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ChangedArticle 13 – paragraph 2 – point b: (b) justified by overriding reasons in the public interest;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

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ChangedArticle 13 – paragraph 2 – point c: (c) appropriate, interpreted strictly and necessaryappropriate for ensuring the attainment of the objective pursued andpursued, do not go beyond what is strictly necessary inand orderthe forimpact itof the restriction on an ECBA is proportionate to bethe attained.objective pursued.