Activities of Jiří POSPÍŠIL related to 2023/0315(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on European cross-border associations
Amendments (42)
Amendment 93 #
Proposal for a directive
Recital 21
Recital 21
(21) The cross-border element of an ECBA is central. Therefore, an ECBA should carry out or have in its statutes the objective to carry out or have in its statutes the objective to carry out at least part of its activities across borders at least part of its activities across borders in the Union, in at least two Member States, and have founding members with links to at least two Member States, either based on citizenship or residence in the case of natural persons, or based on the location of their registered office in the case of legal entities.
Amendment 101 #
Proposal for a directive
Recital 27
Recital 27
(27) Articles 52, 62 and 65 TFEU and relevant case law also apply to ECBAs. These TFEU Articles provide for the justification of measures restricting the freedom of establishment, freedom to provide services and free movement of capital on grounds including public policy, public security and public health. Furthermore, the concept of ‘overriding reasons in the public interest’ to which reference is made in certain provisions of this Directive has been developed by the Court of Justice in its case law. Measures by Member States that are liable to hinder or make less attractive the exercise of those Treaty freedoms should be permitted only where they can be justified by objectives listed in the Treaty or by overriding reasons in the public interest recognised by Union law. While no exhaustive definition exists, the Court of Justice has recognised that justifications are possible on various grounds such as public policy, public security and public health, the maintenance of order in society, social policy objectives, the protection of the recipients of services, consumer protection, the protection of creditors, the protection of workers, provided that the other conditions are met. Such measures need, in any event, to be approprinecessary and proportionate for ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective.
Amendment 112 #
Proposal for a directive
Recital 39
Recital 39
(39) To prevent fraud, 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 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.
Amendment 114 #
Proposal for a directive
Recital 45
Recital 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. 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 where an ECBA does not respect its non- profit purpose, where its activities constitute a threat to public order, or where the members of the executive body of an ECBA have been convicted of a particularly serious criminal offence or the ECBA itself has been convicted of a criminal offence, if national law allows for this possibility. Such a decision should be preceded by a risk assessment in line with standards of necessity and proportionality. In this case, the competent authority should communicate to the ECBA a formal notice of its concerns and hear the ECBA in order to give the ECBA the opportunity to reply. The decision should be subject to an independent judicial review pending finalisation.
Amendment 131 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) justified by overriding reasons in the public interest; and
Amendment 133 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) approprinecessary and proportionate for ensuring the attainment of the objective pursued and do not go beyond what is necessary in order for it to be attained.
Amendment 135 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. Member States shall ensure that the statutes of an ECBA are in writing, subject to formal requirements of the applicable national law and include the following information:
Amendment 136 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) a detailed description of its objectives and a statement of its non-profit purposethat must be in line with the values of the Union as enshrined in Article 2 TEU, a statement of its non-profit purpose and the description of the cross- border element;
Amendment 137 #
Proposal for a directive
Article 6 – paragraph 2 – point j
Article 6 – paragraph 2 – point j
(j) provisions governing number, appointment, removal, powers and responsibilities of the members of the executive body;
Amendment 138 #
Proposal for a directive
Article 6 – paragraph 2 – point l
Article 6 – paragraph 2 – point l
(l) the date of adoption of the statutes and the procedure tofor amending the statutesm;
Amendment 140 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 145 #
Proposal for a directive
Article 12 – paragraph 2 – point b
Article 12 – paragraph 2 – point b
(b) justified by overriding reasons in the public interest; and
Amendment 147 #
Proposal for a directive
Article 12 – paragraph 2 – point c
Article 12 – paragraph 2 – point c
(c) approprinecessary and proportionate for ensuring the attainment of the objective pursued and do not go beyond what is necessary in order for it to be attained.
Amendment 151 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) justified by overriding reasons in the public interest; and
Amendment 153 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) approprinecessary and proportionate for ensuring the attainment of the objective pursued and do not go beyond what is necessary in order for it to be attained.
Amendment 154 #
Proposal for a directive
Article 14 – paragraph 2 – point b
Article 14 – paragraph 2 – point b
(b) justified by overriding reasons in the public interest; and
Amendment 156 #
Proposal for a directive
Article 14 – paragraph 2 – point c
Article 14 – paragraph 2 – point c
(c) approprinecessary and proportionate for ensuring the attainment of the objective pursued and do not go beyond what is necessary in order for it to be attained.
Amendment 160 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Member States shall ensure that the founding members express their intention to constitute an ECBA eitherrmation of a European Association shall be executed by a written agreement between them or by an agreement at the constitutive meeting of the ECBA that is recorded in the written minutes; to that end, such an agreement or minutes shall be duly signed by the founding memberall of the founding members or by written minutes documenting the constitutive meeting signed by all founding members and duly verified if the national law provides it for the formation of associations.
Amendment 161 #
Proposal for a directive
Article 17 – title
Article 17 – title
Conversion of non-profit associationentities into an ECBA
Amendment 164 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Member States shall ensure that existing non-profit associations established in the Unionentity legally established in a Member State which has its registered office within the Union and which operates across borders or has another cross-border element may convert into an ECBA within the same Member State.
Amendment 170 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Article17a Merger of non profit entities into an ECBA Member States shall ensure that non profit entities legally established in one or more member states, can merge into an ECBA, provided that at least two of them are governed by the law of different Member States.
Amendment 172 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1 – point c
Article 18 – paragraph 1 – subparagraph 1 – point c
(c) the postal address of the intended registered office and an electronic mail address;
Amendment 177 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Each Member State shall destablish aignate the register, the authority responsible for the management of the register for the purposes of registration of ECBAuropean associations pursuant to Article 19 and the authority responsible for supervision, and shall inform the Commission accordingly.
Amendment 179 #
Proposal for a directive
Article 20 – paragraph 2 – point a a (new)
Article 20 – paragraph 2 – point a a (new)
(aa) Annual activity reports, which shall contain at least: 1) information on the activities of the European Association; 2) a description of how the public benefit purpose, if granted to the European Association, was promoted during the financial year; 3) a list of gifts received and given.
Amendment 180 #
Proposal for a directive
Article 20 – paragraph 5
Article 20 – paragraph 5
Amendment 181 #
Proposal for a directive
Article 20 – paragraph 6
Article 20 – paragraph 6
6. Member States shall ensure that personal data are not retained in the register after the dissolution of an ECBA for longer than 210 years.
Amendment 182 #
Proposal for a directive
Article 22 – paragraph 4 – point c
Article 22 – paragraph 4 – point c
(c) wthen ECBA is insolvency are pendingt;
Amendment 183 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
1. Without prejudice to any provisions in force more favourable to employees based on national or Union law, Member States shall ensure that the employeecreditors of an ECBA willing toare informed of the possible transfer itsof the registered office are informed of the potential transfer and entitled, in good time and at least one month be, in particular through the obligation of the ECBA to publish the application fore the extraordinary meetingnsfer of the registered office referred to in paragraph 23, to examine the draft of the decision approving the transfer of registered officand that they have the right to have that application reviewed in accordance with the procedure referred to in paragraph 2Article 23a.
Amendment 184 #
Proposal for a directive
Article 23 – paragraph 1 a (new)
Article 23 – paragraph 1 a (new)
1a. Member States shall ensure that the employees of the ECBA are informed of the possible transfer of the registered office and have the opportunity to comment on it well in advance, at least one month before the planned decision pursuant to paragraph 2.
Amendment 185 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. Member States shall ensure that the transfer of the registered office needs to be adopted by the decision-making body of the ECBA in an extraordinary meeting. That decision shall be taken by two thirds of the votes, representing at least half of all members.
Amendment 186 #
Proposal for a directive
Article 23 – paragraph 3 – point f
Article 23 – paragraph 3 – point f
(f) a report explainingsetting out the safeguards for creditors and employees, if applicable under Union or national law.;
Amendment 187 #
Proposal for a directive
Article 23 – paragraph 3 – point f a (new)
Article 23 – paragraph 3 – point f a (new)
(fa) a report explaining whether and to what extent, if any, the rights of employees will be affected by the transfer:
Amendment 188 #
Proposal for a directive
Article 23 a (new)
Article 23 a (new)
Article 23a Protection of creditors 1. Member States shall provide for an adequate system of protection of the interests of creditors whose claims antedate the application for the transfer of the registered office and have not fallen due at the time of such disclosure. Member States shall ensure that creditors who are not satisfied with the safeguards contained in the application for transfer of the registered office referred to in Article 23(3)(f) may, within three months of the publication of the application for transfer of the registered office, apply to the competent administrative or judicial authority for adequate safeguards if they can reliably demonstrate that the satisfaction of their claims will be jeopardised as a result of the transfer of the registered office and that they have not received any adequate safeguards from the company. Member States shall ensure that the safeguards are conditional upon the relocation taking effect. 2. Member States may require that the administrative or management body of the company provide a declaration that accurately reflects its current financial status at a date no earlier than one month before the disclosure of that declaration. The declaration shall state that, on the basis of the information available to the administrative or management body of the company at the date of that declaration, and after having made reasonable enquiries, that administrative or management body is unaware of any reason why the company would, after the conversion takes effect, be unable to meet its liabilities when those liabilities fall due. The declaration shall be published together with the application for transfer. 3. Paragraphs 1 and 2 shall be without prejudice to the application of the law of the departure Member State concerning the satisfaction or securing of pecuniary or non-pecuniary obligations due to public bodies. 4. Member States shall ensure that creditors whose claims antedate the publication of the application for the transfer of the registered office are able to institute proceedings against the company also in the departure Member State within two years of the date the transfer has taken effect, without prejudice to the jurisdiction rules arising from Union or national law or from a contractual agreement. The option of instituting such proceedings shall be in addition to other rules on the choice of jurisdiction that are applicable pursuant to Union law.
Amendment 189 #
Proposal for a directive
Article 24 – paragraph 1 – introductory part
Article 24 – paragraph 1 – introductory part
1. Member States shall ensure that an ECBA shall only be dissolved by decision of its members and only in the following casin accordance with its statutes:.
Amendment 190 #
Proposal for a directive
Article 24 – paragraph 1 – point a
Article 24 – paragraph 1 – point a
Amendment 191 #
Proposal for a directive
Article 24 – paragraph 1 – point b
Article 24 – paragraph 1 – point b
Amendment 192 #
Proposal for a directive
Article 24 – paragraph 1 – point c
Article 24 – paragraph 1 – point c
Amendment 193 #
Proposal for a directive
Article 25 – paragraph 2 – point b
Article 25 – paragraph 2 – point b
(b) a serious threat to public order or public security caused by the activities of the ECBAs provided that it is preceded by a risk assessment in line with standards of necessity and proportionality;
Amendment 194 #
Proposal for a directive
Article 25 – paragraph 2 – point c
Article 25 – paragraph 2 – point c
Amendment 197 #
Proposal for a directive
Article 25 – paragraph 5
Article 25 – paragraph 5
5. Member States shall ensure that the decision referred to in paragraph 4 of this Article is reasoned, subject to effectiveindependent judicial review, and does not take effect while judicial review is pending.
Amendment 198 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. Member States shall ensure that any assets of the dissolved ECBA remaining after financial interests of possible creditors are discounted are transferred to a non-profit entity carrying out a similar activity as the dissolved ECBA or that the assets are transferred to a local authority, which is obliged to utilise them for an activity that is similar to the one pursued by the dissolved ECBA.
Amendment 207 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
1. Member States shall adopt and publish the laws, regulations, and administrative provisions necessary to comply with this Directive by [23 years from the entry into force of this Directive]. They shall immediately communicate the text of those measures to the Commission.