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The International Journal
of Not-for-Profit Law

Volume 9, Issue 2, April 2007

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

The Middle East: Senior Research Fellow Papers

Civil Society in the Arab Region: Its Necessary Role and the Obstacles to Fulfillment
Ziad Abdel Samad

Civil Society in the Arab World: The Missing Concept
Sa'ed Karajah

The Algerian Law on Associations Within Its Historical Context
Chafika Kahina Bouagache

Undermining Standards of Good Governance: Egypt's NGO Law and Its Impact on the Transparency and Accountability of CSOs
Mohamed Agati

Articles

Association Law in Finland
Matti Muukkonen

Social Change and the Connected Age
Allison H. Fine

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Download this issue (PDF) | Editorial Board

Association Law in Finland

By Matti Muukkonen 1

When an individual is weak, one can associate with others to accomplish the aim set collegially – Veli Merikoski (1935) 2

This free-form translation from the late Professor Merikoski's dissertation An Administrative Study of the Freedom of Association describes the true idea of the association activity. It also shows that research into Finnish association law dates back at least to the 1930s. Unfortunately, such research has not grown widespread; nowadays, it amounts to little more than a hobby for a few researchers. International discussions likewise neglect Finnish association law. This article aims to summarize Finnish association law, in the hope that it may receive greater attention in Finland and elsewhere.

1 Freedom of association as a basic right

Finland can truly be called a promised land of associations. There are more than 123,000 associations, and individuals often join several. Thus, in a country with 5 million inhabitants 3, the membership of all associations totals more than 15 million 4. Club activities concern almost every Finn, because civil society is involved in almost all fields of life. In addition, the trade unions, the student unions (ylioppilaskunta) 5, and many others handle public tasks given to them by law. Associations in that way serve as part of the intermediate public administration (välillinen julkishallinto).

Finnish association law is based on the freedom of association secured in international human rights agreements such as the United Nations’ International Covenant on Civil and Political Rights (CP Treaty) and the European Council’s Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), both ratified by Finland 6. Free association is also secured as a part of basic rights and freedoms. Under section 13(2) of the Constitution of Finland (No. 731/1999), everybody has the right to form an association, join or refuse to join one, and take part in activities organized by associations.

Freedom of association can so be seen as a fundamental or classic political right alongside, for example, the freedom of speech. It is also a basic concept for cooperation within civil society. The individual can better advance his or her aims, whether ideological or otherwise, by associating with likeminded others. Freedom of association and freedom of speech, in this way, are inextricably intertwined.

Finnish law views freedom of association as essentially a basic right of individuals. As mentioned, section 13(2) of the constitution guarantees the freedom to establish an association without permission. However, military-organized associations are forbidden 7, and firearm clubs, except hunting ones, are subject to license (Association Act, No. 503/1989, sections 3 and 4).

The constitutional provision also includes norms concerning membership in an association. Both positive and negative freedoms are guaranteed: the right to join and the right not to join. But these rights, too, have limitations. Nobody has a right to become a member of an association unless the right is secured in the association’s own code 8. In addition, lawmakers can make membership in some public associations obligatory. One example is the public student union prescribed in the University Act (No. 645/1997, section 40); membership is automatic and compulsory. Students studying for a degree cannot resign from the student union 9.

Finally, the constitution allows people to participate in activities organized by associations. This provision guarantees actual freedom of association. The rights to found an organization and sign up members are meaningless without the right to take action together 10. Section 13(3) of the Constitution also provides that freedom of association can be applied to particular circumstances by an act. “Act” here does not refer only to the Association Act: provisions concerning public associations are scattered throughout special laws, as with the student unions.

Freedom of association as a basic right is guaranteed to everybody. The system is based on equality between Finns and others. Here too, though, a small exception exists: section 10(2) of the Association Act provides that foreigners cannot be members of societies founded to influence state affairs. Otherwise the law does not distinguish between Finns and others.

2 Founding an association

Under section 1 of the Association Act, an association can be founded for a set of ideological or non-profit purposes 11. This purpose cannot be averse to the Finnish jurisprudential concept of "good manners," or collegially accepted good practices. The ideological purpose usually relates to either social events or occupations. For example, trade unions play a huge role in Finland. Labor organizations participate in, inter alia, the preparation of social welfare and labor legislation during negotiations over collective labor agreements. Commonly this is known as tripartite cooperation.

An association is founded in a constitutive meeting. According to section 7 of the Association Act, an agreement must be prepared, including the founding charter and the constitution of the society accepted in the meeting, and signed by at least three founding members. The signatories can be natural persons, societies, or foundations. (To form a foundation, the signatories must be over 15 years old, but this provision does not apply to associations.) After the association forms, its membership can fall below three qualified signatories 12. However, board members must be over 15 years old, and the chairperson must legally hold full powers to operate the organization.

Persons elected to positions of trust must operate within the limits set forth in the bylaws of the association. Under section 7 of the Association Act, bylaws must contain at least the following:

  1. the name of the association;
  2. the domicile municipality;
  3. the purpose of the association;
  4. the grounds for membership and fees;
  5. the minimum and maximum number of board members and auditors;
  6. the accounting period of the association;
  7. the times for electing the executive board and auditors, auditing, and discharging from liability for the accounts;
  8. the manner and the period in which the association shall meet; and
  9. the manner in which the assets of the society shall be used if the association is dissolved or terminated.

In addition, several other provisions specify the content of the bylaws. Section 9, for example, includes the language provisions. It should be remembered that not all pertinent regulations are in the Association Act. For example, the Auditing Act, No. 936/1994, defines the minimum number of auditors and their qualifications.

As seen, the Association Act does not significantly restrict the autonomy of association, which is considered part of the general doctrine of association law 13. The idea is that freedom of association includes a certain extent of sovereignty as a functional society. It can be stated that the autonomy of association does not belong as a fundamental right to the association, but to the members 14. This means that the freedom to organize an association almost always rises from the rights of individuals. Further, the autonomy of association is generally very wide in Finnish association law. For example, a court must accept an association's interpretation of its own bylaws 15.

After founding it is optional to register the association. Only registered associations, however, have legal personality under sections 58 and 59 of the Association Act. For unregistered associations, actions made in the name of the association are in fact legally actions of the members involved in the decision-making. Liability is thereby individual and shared. Registered ones, by contrast, have their own legal capacity.

Registration is made at the register office, from which the registration documents are delivered to the NBPR. Registration of a new association costs 60 euros, if the bylaws are not preliminarily checked for legality. Finally, the registration officer adds the listing if no grounds exist for dismissal. The association then appears in the association register, which is public (Association Act, section 47). After registration, an association is fully functioning.

3 Administration in associations and share of powers

The key institution in the association’s administration is the general meeting. This is where the members exercise their power (Association Act, section 17). The fundamental premise is that all power belongs to the members, under the democracy principle (section 16). Bylaws can, however, delegate powers to the association’s council (section 16 and 18). If this model is selected, the council shall be nominated either in the general meeting or in separate mail voting.

The Association Act regulates grounds for arranging meetings. If a general meeting is not called within the time limit set in the bylaws, every member has the right to seek the meeting (section 20). This right is not confined to these situations only. Under the law, a society must include legal remedies for its members in the bylaws, including the right to convene a meeting. According to the Association Act section 20(2), a meeting must be called if at least 10 percent of the members request it. If an extraordinary general meeting is requested, the claim shall be made in writing.

The Association Act lists certain actions that cannot be taken until they have been discussed at the general meeting (section 23):

  1. changing the bylaws;
  2. mortgaging or alienating real estate or property that is significant in relation to the association’s activities;
  3. voting and election orders cited in section 30 of the Association Act;
  4. nominating or dismissing executive board members or auditors;
  5. approving the financial statements and deciding on any release from responsibility; and
  6. dissolving the association.

The second requirement can be bypassed: bylaws can delegate selling, mortgaging, and alienating properties to the board.

In the general meeting, every member over 15 years old ordinarily has the right to vote (section 25). The default for the voting franchise, thus, is equal and singular. The bylaws, however, can prescribe otherwise. If the franchise can be suspended because of unpaid dues, for example, it must be mentioned in the bylaws. Indeed, without specific authorization in the bylaws, an association cannot require members to pay any fees, though voluntary payments are of course possible. This is a consequence of section 80 of the Constitution, which states that “the principles governing the rights and obligations of private individuals – shall be governed by Acts.” Statutory authority for associations is given in the Association Act. Certainly the requirement to include this provision in bylaws can be called into question: Does this provision compromise the principle of the autonomy of association? Obligations due from members should not involve public authorities. If the bylaws permit fees, the amount and form is decided by the general meeting.

Collection of the fees and other executive powers belong to the board selected either in the general or the council meeting as set forth in the bylaws. The executive board can be seen as the soul of the association. Its role is to organize activities as well as to handle administrative tasks. In political associations, board members can offer suggestions, even though it is common for the chairman of the board to have the right to reach decisions alone. Also, the board approves new members unless the bylaws stipulate otherwise (Association Act, section 12).

4 Public associations and the freedom of association

So-called public associations are unique. According to section 2(2) of the Association Act, the Act does not apply to an association organized by law for a special purpose 16. Such an organization is known as a public association 17. Autonomy of association can suffer in these organizations 18, particularly the freedom not to join the association as well as the proprietary right secured in section 15 of the Constitution.

When the constitutional basic rights and freedoms were reformed, it was stated that the rights and freedoms can be limited under particular conditions. According to the preliminary bill, several criteria must be met 19.

First, any restriction must be made by an act, not a decree or administrative order.

Second, the restriction must be strict, specific, and clear from the language of the act.

Third, any restrictions must be minimal as well as proportional to the objectives pursued. This means that restriction should be the last resort. Government officials’ duty to protect basic rights (Constitution, section 22) obligates legislators to seek alternatives wherever possible.

Fourth, the restrictions cannot conflict with international human rights agreements 20.

Finally, even if these conditions are met, the restriction cannot impinge upon the core of the basic right.

The last condition is troublesome, because the boundaries of the core remain unclear. For example, the freedom not to join an association – the negative form of freedom of association – can be restricted in public associations. From my point of view, this negative freedom should be recognized as central to freedom of association 21.

Public associations have five types of memberships. First, voluntary membership is comparable to membership in a private association. Second, some public associations use contract-based membership. Third is a type described by van Veen: de facto membership, such that even though membership is formally optional, other factors make it obligatory in practice 22. Fourth, automatic membership allows the member to resign. The final form, by contrast, automatic and compulsory membership, does not permit resignation 23.

The negative freedom of association is most restricted in the last two types of membership. Under section 6 of the Association of Forest Owners Act, for example, all forest owners belong to the society unless they are refused membership. They can resign from the association – yet resignation does not extinguish their duty to pay the forestry levy due under section 6(3).

In university student unions, membership is both automatic and obligatory. The European Court of Human Rights (ECtHR) in Association x. v. Sweden found a similar system with automatic and compulsory membership acceptable. The decision rests on the following grounds: 1) The societies are not private associations, but, given a university’s administration tasks, public institutions which the ECHR does not cover. 2) Student unions do have democratically organized organs, and they respect freedom of speech. 3) The students who appealed were not expelled 24. Later European Commission of Human Rights (ECmHR) have reaffirmed this interpretation 25.

When dissecting the prejudicial effect of these cases on Finnish Association law, one must remember the influence of the basic rights reformation. The negative freedom of association was for the first time written in the Constitution. My opinion is that these precedents no longer apply to the automatic-membership system. More suitable ECtHR cases are Chassagnou and others 26 and Köll 27. In Chassagnou, whose facts are analogous to those raised by the Finnish student unions, the court held that membership in an ideological public association could not be obligatory. The court also said that such terms as public association and institution have universal meanings, and a legislature cannot attempt to redefine them for its own purposes. Interpretation of ECHR is the duty of ECtHR, which means that a government cannot adopt domestic legislation that narrows the application of the articles 28. Under these circumstances, it is unclear what stand ECtHR would take on the matter of coverage with regard to Finnish student unions. The ideological dimension defends the stand expressed in Chassagnou and others, but the long-term view favors a less human-rights-based interpretation.

5 State of association law in Finland

Overall, freedom of association is well secured in Finland. The Constitution provides far more protection than international agreements do. For example, the Constitution explicitly recognizes the negative freedom of association.

However, the Finnish legal system has countenanced some exceptions to the negative freedom of association, including in the student unions in universities as well as the similar unions in high and vocational schools. In the future these errors may be fixed.

Beyond infringements of the negative freedom of association, I cannot see any problems in Finnish association law. Of course it is always possible to debate how much public authorities ought to intervene in civil society. When third sector organizations perform outsourced municipal tasks, regulation may be essential to ensure that the associations are functioning legally. Fortunately this is addressed by the good administration provisions in the Constitution (sections 21 and 124) and general administration law. For example, according to section 2(2) of the Administrative Act (434/2003), the Act applies to associations exercising public administrative tasks. Accountability, thus, remains even when government privatizes public tasks.

REFERENCES

(translations by the author)

Bill 309/1993: Reformation of the basic rights and freedoms in the constitutions.

Customers' magazine of the National Board of Patents and Registration of Finland (NBPR) 2004 no. 1

Halila, Heikki (1994). Yhdistysoikeus tutkimuksen kohteena (Association law as a target to research). Lakimies 1/1994 pp. 3–7.

Halila, Heikki (2004). Lainsäädäntötoimin järjestetyt yhdistykset (Associations organized by law). Juhlajulkaisu Pekka Hallberg. Suomalainen lakimiesyhdistys, Vammala pp. 36–48.

Halila, Heikki – Tarasti, Lauri (2006). Yhdistysoikeus (Association law). Talentum, Helsinki.

Hidén, Mikael – Saraviita, Ilkka (1994). Valtiosääntöoikeuden pääpiirteet (Basics of constitutional law). Lakimiesliiton kustannus, Jyväskylä.

Merikoski, Veli (1935). Hallinto-oikeudellinen tutkimus yhdistymisvapaudesta (An administrative study concerning freedom of association). Otava, Helsinki.

Muukkonen, Matti (2007). Ylioppilaskunta oikeusjärjestyksessä (The student union in the judicial system). Unpublished licentiate thesis. University of Joensuu.

Report of the Constitutional Committee 25/1994 concerning Bill 309/1993.

Toiviainen, Heikki (1982). Yhdenvertaisuus yhdistyksissä (Equality in associations). Lakimiesliiton kustannus, Vaasa.

Tuori, Kaarlo (2006). Yhdistymisvapaus (Freedom of association), in Hallberg et al. (eds.), Perusoikeudet (Basic rights and freedoms). WSOYpro, Helsinki, www.wsoypro.fi.

Viljanen, Veli-Pekka (2001). Perusoikeuksien rajoitusedellytykset (Restriction prerequisites of the basic rights and liberties). Werner Söderström, Vantaa.

Van Veen, Wino J.M. (2000). Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights. International Journal of Not-for-Profit Law, vol. 3, issue 1, September 2000

Notes

1 Matti Muukkonen is Senior Assistant (Professor) in the Department of Law, University of Joensuu, Finland.

2 Merikoski 1935 p. 1.

3 See National Board of Patents and Registration of Finland (NBPR) http://www.prh.fi/en/yhdistysrekisteri.html, and Halila – Tarasti 2006 p. 25.

4 Customers' magazine of the NBPR 2004 no. 1 p. 8, and Halila – Tarasti 2006 p. 27.

5 See Muukkonen 2007.

6 Ratified by acts in collection of treaties 7-8/1976 (CP Treaty) and 18-19/1990 (ECHR).

7 See Hämeenlinna’s Adminstrative Court decision 22.12.2004 04/0780/1, which states that Suomen Suojeluskunta ry (Finnish civil guard) cannot be registered because of its connections to the former civil guard organization that was part of the Finnish Army. The Administrative Court also states that provisions of the organization's bylaws violate the Association Act.

8 Toiviainen 1982 pp. 63–73.

9 See Muukkonen 2007 pp. 2 and 42–60.

10 Bill no. 309/1993 p. 60.

11 For examples of purposes and activities, see NBPR, http://www.prh.fi/en/yhdistysrekisteri/perustaminen/tarkoitus_toiminta.html.

12 Underage members might have to have permission from their caretakers; see Halila – Tarasti 2006 pp. 151–152.

13 Halila 1/1994 p. 7.

14 Ks. Hidén – Saraviita 1994 p. 276 and Tuori 2005/III/10.2.5.

15 Halila – Tarasti 2006 p. 18.

16 See also the presentation by Halila 2004 concerning associations organized by law.

17 Halila – Tarasti 2006 pp. 22–23 and 88–91.

18 Muukkonen 2007 p. 1.

19 See Report of the Constitutional Committee (RCC) 25/1994 p. 5 and Bill 309/1993 pp. 29–32. Also see Viljanen 2001.

20 See RCC 25/1994 p. 5.

21 Muukkonen 2007 p. 59.

22 Van Veen IJNL 2000 p. 3.

23 Muukkonen 2007 pp. 54-58.

24 See ECtHR 6094/73 Association x. v. Sweden 6.7.1977.

25 See ECmHR 16501/90 Halfton v. United Kingdom 12.4.1991 and ECmHR 32721/96 M.A. v. Sweden 14.1.1998.

26 S ee ECtHR 25088/94, 28331/95 and 28443/95 Chassagnou and others 29.4.1999.

27 See ECtHR 43311/98 Köll 4.7.2002.

28 Ibid.

 

 

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