Albert Capell
CATALONIA LAW 4 / 2008, dated April 24, the Civil Code Book III of Catalonia on people
legal Publication: DOGC: 02/05/2008 BOE: 30/05/2008
Entry into force: 2 August (3 months DOGC; D. Final 5th)
Repeals: Law 7 / 1997 of 18 June, partnerships and Law 5 / 2001 of May 2, foundations
Object. Follow the process of drafting the Civil Code of Catalonia launched by Law 29/2002. This book is
intended to recast, systematize and harmonize Catalan associations and foundations. Its provisions apply only secondarily to the cooperatives, social security and mutual savings banks (D. Final 2 ª). However
formulated some general provisions that contain the basic status of legal personality.
Systematics. It consists of 3 titles: by 1 contains general provisions, the 2 nd the system of associations and the 3 rd the foundation.
Being an open source, will enable, in future, other types of legal entities.
I. - General provisions (Title I, Sec. 311-1 to 315-8) define:
1 .- SCOPE (see "Object.")
2 .- essential attributes of legal personality, sold at the intention expressed in the act of creation and enforcement, where appropriate, legal requirements (Art. 311-2).
Legal persons may be holders of rights, provided they are compatible with their nature, acquire and possess movable and immovable property, contract obligations, manage and dispose of any title (Art. 311-3).
should have a distinctive name, which must state the legal kind. You can not match the translation of the name of another legal person to another language official. Dependent records of the Government can allocate temporary reserves to a maximum term of 15 months.
The domicile of legal persons subject to CCCat must be located in Catalonia (Article 311-8)
3 .- STANDARDS OF ACTION AND REPRESENTATION, is based on the principle of organizational autonomy reducing to an absolute minimum the mandatory law.
bodies of legal persons may delegate their functions in some of its members or in other organs, without exempting them from liability. If the delegation is made in more than one person, their role should be jointly, unless it is established solidarity.
Collegial bodies are composed of at least 3 members, and must have at
Resolutions are adopted, unless expressly provided by a simple majority of those present. In case of tie, the chairman has a casting vote. It is understood that when there is a simple majority votes to outnumber the negative votes, excluding abstentions, blank votes and null. The ineffectiveness of the agreements does not affect the rights acquired by 3rd place in good faith (Art. 312-10-2).
must Minutes of every meeting of bodies, will be drafted and signed by the secretary with the approval of the president, and should be approved, if appropriate, at the same meeting or the next. The agreements are executives from adopting and registration if required, are, from which it fits.
A new feature includes a general rule (art. 312-9) conflict of interest, involving a duty of abstention and of information on the body (similar to articles 127 bis et seq LSA).
The representation of legal persons (Article 312-13) for the national government, is paid by the President and extends to all acts within its statutory purposes, within the limitations established by law or by themselves statutes, but statutes, even if subject to registration, they can not object to 3rd place in good faith.
The legal persons are liable for the damages that the governing body caused to 3rd place. The founders, promoters, members of the governing body or others responsible for promoting the registration of a legal person personally liable for the consequences of failure to register for any negligence or fault. (Article 312-15)
4 .- Records and accounting system, translates into a duty to keep proper accounts and books under the tax laws (Articles 313-1 et seq.) 5 .- ACTS
structural changes (merger, division and transformation), dissolution and liquidation proceedings, which shows a consolidated regulatory flow right Company, perfectly transferable to other types of legal entities. Concrete
documentary requirements and disclosure of the merger and division, with the consequent power to opposition from creditors. It
Fusion sunset of the merged entities and the establishment of a new legal person, or by absorption of one or more other legal entities. The equities of the merged entities are transferred or absorbed into the body block the merger or absorbent, who buy them by universal succession.
The merger can not be executed before 1 month of publication in the DOGC and in 2 newspapers maximum exposure in the province or region of domicile. During this period, holders of claims arising prior to publication that are not sufficiently guaranteed, may object to them in writing. The provisions of paragraphs 2 to 6 of Article 314-1 does not apply to associations and foundations subject to a simplified system of accounting.
The split is the division of property into 2 or more parties. It can be total, with the transfer en bloc of each of these parts to other legal persons benefiting, whether existing or newly established, and the extinction of the legal person spun. It is partial division block the transfer of one or more of these parts one or more legal persons receiving and maintaining the corporate split, which preserves the heritage that has not transferred (Article 314-2).
can become legal persons (Article 314-3)., Preserving the personality, if their rules and regulations allow the type of legal entity seeking to assume not forbid it. Must be satisfied the formal requirements of the adopted type of legal entity and registered in the appropriate register.
The dissolution of the legal person opens the settlement period, to whose order retains its legal personality (Article 314-4). Can be settled through realization of the assets of the entity or the assignment of assets and liabilities (ss 314-4-2 and 314-7).
The legal person must be settled within a maximum period of 3 years unless good cause for force majeure. Settlement functions are assumed by the governing body except the art 314-5.
6 .- Basic system features and functions ADVERTISING qualification, registration and certification of records on businesses dependent on the Generalitat, to develop the regulations. Each type of legal entity has its own registration.
must register (art. 315-1) entities subject to the right Catalan and the delegations of foreign associations and foundations established in Catalonia if they perform their activities mainly in Catalonia.
can not be refused to register any registrable event that meets the requirements of the law. (Art. 315-3). The body responsible for registering, if it considers that the act contains provisions contrary to law, must practice a partial listing, provided that the stipulation in question has merely optional or that the relevant legal provisions supplement their omission.
Public documents can be registered electronically submitted with the electronic signature or official authority which issued, authorized or participated or is responsible for the protocol. In relation to deeds, it is necessary that the person concerned has not objected. (Art. 315-4)
Articles 315 - 5 to 315-7 Principles Tract collected thereafter, Money, Advertising material (Fe public enforceability) and formal advertising, in terms similar to those of the arts. 7 to 12 of Regulation Registry.
NOT be advertising the Registrar of Associations if they are not updated registration data relating to government bodies and adaptation, if any, of the statutes of the law. (Art. 324-7)
II .- Associations (Title II, Sec. 321-1 to 324-7),
Heed the TC case, the RGs can legislate with the proviso that not contradict the basic rules issued by the State.
only contemplates his private legal regime, not the administrative arrangements that maintain part of its force (see D. Repealed)
1. Nature and constitution (Chapter I). Partnerships may be general or specific interest. Have a non-profit but allowing ancillary economic activities. It prohibits the estate be divided among the partners or given free to individuals or certain other legal entities for profit.
A minimum of 3 founders [arts. 321-1 and 324-4-d)-cause-release] are natural persons (over 14 years assisted by their legal representatives, art. 321-2) or legal persons, public and private.
The constitution should be in writing by the terms of art. 321-3 and statutes with those of art. 321-4. You must register only for the purposes of advertising (321-5).
2. As for the Organization and Functioning,
a. novelty is the possibility that GRAL ASSEMBLY. (Articles 322-1 et seq) to convene meetings, and the exercise of action for separation or government bodies although not included in the agenda. Among its functions and powers arts. 322-2 and 322-9 do not include agreements for disposal of assets (as opposed Art 12-d LO 1 / 2002 of 22 March on the Law of Association).
general meeting (art. 322-6) constitutes valid whatever the number of members present or represented (except statutory provision). Generally, resolutions are passed by simple majority (2 / 3 in the structural modifications of art 324-1 if attends less than ½ of the votes, whether that condition is more, too, a simple majority). Each partner has at least 1 vote (sometimes can be weighted, art. 322-7-3) with duty to refrain from conflict of interest, in which case is not counted in the quorum necessary for the adoption of the agreement, except this has the object the settlement of an infringement procedure, the removal of the affected person as a member of an organ or the exercise of an action for damages against her. B.
The governing body may be identified with the name of governing board or board of directors or the equivalent. Manages and represents the association and is empowered generally to do all the steps necessary to fulfill the aims of the association, except that, in accordance with the law or statute, must be agreed or approved by the general assembly.
is collegiate and its members should be partners and be able to exercise their social rights. No people can be disabled under the bankruptcy law (section 322-10). If neither has the capacity to act, there must be a "body attachment" that supplements such failure, consisting of at least 2 seniors, whether or not related. Members enter
functions once they have accepted the charge to be registered with the Registrar of Associations. The fee is free (art 322-16) and has a maximum of 5 years, without prejudice to the right for re-election if they do not exclude the statutes.
NOT be advertising the Registrar of Associations if they are not updated registration data relating to governing bodies. If within 4 years following the expiration of appointment the governing body, the renewal is not registered, you must start the procedure to officially declare it inactive, notwithstanding such failure is corrected or the award of the association. (Art. 324-7)
c. ASSOCIATES. A minimum of 3 [ss. 321-1 and 324-4-d)-cause-release]. Children with natural ability can resist long enough income on a partnership and unsubscribe at any time (ARTICLE 323-1).
The bylaws may provide that the partners must make contributions (may be refundable) when they join the same or, if there are needs that warrant funding at a later time. Arts. 323-3 et seq regulate the rights to participate, receive information on services offered by the association, and free voluntary withdrawal (Article 323-9). Associate
The condition can be transmitted only if the statutes provide (art. 323-8).
3. STRUCTURAL CHANGES (Article 324-1) requires a 2 / 3 of the vote if partners concur that represent less than ½, if attended by more than simple majority suffices.
The bylaw amendments must be registered (art. 324-2) along with the new items approved and the updated version of the statutes. One can only processing in non-profit legal person (Article 324-3).
Causes of the art solution includes 324-4 downward partners are reduced to less than 3. In any of the causes, surplus property can never be awarded to members or other individuals identified, or for-profit entities. FOUNDATIONS
III .- (Title III, Sec. 331-1 to 336-4),
1. CONCEPT. Nonprofit entities, formed by one or several founders, by affecting property or economic rights and the fate of their income or resources obtained by other means to accomplishing objectives of general interest.
foundations can not become the primary purpose of allocating benefits to the founders or employers, their spouses or persons related by similar affective, or their relatives to the 4 th grade or legal persons which are not for general purposes.
Foundations can be of indefinite duration or temporary should be sufficient for fulfilling the foundational purpose.
Foundations (art. 331-1) acquire legal personality definitive registration. Employers (art. 331-10) must apply and in the meantime, do everything necessary to preserve the assets of the initial capital and facilitate the future activities of the foundation. They can also apply the founders or persons responsible for implementing the last will of the deceased. The inscription on the foundation can only be performed attesting to the Protectorate who has accepted a number of employers charge enough to act. (Art. 331-10-2).
2. CONSTITUTION. Innovations included the establishment of a minimum of 60,000 euros (Article 331-5) for the initial allocation. The charter must be accompanied by a draft economic viability. For small foundations
be the successive budget, the temporary constitution or other special fund existing foundations, provided that their aims are compatible.
a. CAPACITY. Can be formed by natural and legal persons, public and private. Public legal persons may only act jointly with people privadas. Las personas físicas deben tener plena capacidad de obrar, si lo hacen entre vivos, o capacidad para testar, si lo hacen por causa de muerte. Los fundadores deben tener la libre disposición de los bienes que aportan a la fundación. (art. 331-2)
b. MODALIDADES de constitución.
i.- por acto entre vivos: la carta fundacional es irrevocable y debe formalizarse en escritura pública con el contenido del art. 331-4. Los ESTATUTOS deben incluir, al menos, los datos del art. 331-9. Si no puede constituirse la fundación, los bienes aportados revierten a los fundadores, salvo que estos hayan dispuesto que tengan otro destino (art. 331-12).
ii.- La constitución por causa de muerte requiere la manifestación of the foundational in a will or codicil and the designation of individuals or legal entities that must implement it and grant the charter, if necessary to complete the foundational, or otherwise apply for registration. If there are no persons designated by the deceased or are removed or position has become vacant, the performance of these acts for the Protectorate (art. 331-3-3).
If the persons designated by the deceased in breach of the duty to grant the charter on time by the will or codicil or, alternatively, on the 1 year since your death, the Protectorate can (art. 331-11 ) requiring them to do so and, if not check within 1 month, urging the judicial authorities authorizing him to grant the charter.
Notaries, to facilitate the tasks of substitution, to report to the Protectorate of granting charter that resulting from testamentary provisions of the constitution, by sending a single copy of the deed (art. 331-11).
If you can not become the foundation and the will or codicil prescribes otherwise, the Protectorate will be a destination for goods of general interest that corresponds as closely as possible with the foundational as to the purpose and the territory (art. 331-12). C.
Initial endowment. It can not be less than 60,000 euros, must paid in full before registration and be money or other property fruitful, suitable for the foundation's activities, and free of charges that significantly limit their usefulness to the foundation (Art. 331-5). Registration is required in the Register of Foundations, a project of the economic viability of the first 2 years of operation of the foundation and activities (Article 331-7).
Cash contributions must be deposited in a credit for the foundation in the constitution. If the income is before the charter will be recorded in it and notarize the certificate of deposit. Contributions in kind will be the subject of an audit report descriptive of the goods or rights, their registration data, your goods and other circumstances of art. 331-6.
subsequent allocation. Whether the requirement should be stated in enforceable provision (in the case of public legal persons simply an explicit statement). The initial outlay should be at least 50% and the rest furnished within 4 years.
staffing increases, if the contribution is not monetary, must be recorded in deed to the circumstances of art. D.
331-5 TEMPORARY FOUNDATION. The minimum is 30,000 euros and the maximum term of 5 years, according to the rules of art. 331-8. Can (by changing Statutes) become indefinite duration or extended once for a period equal to the original.
be settled within 6 months of its dissolution, after which it automatically cancel the relevant entries from the Register of Foundations. The Protectorate may carry outstanding.
3. New in the Organization and Functioning is the duty of separating the functions of government (patronage) and regular management by appointing one or more directors who are not employers. It also prohibits employers to provide paid professional services or labor.
A. - The Board (Art 332-1) is the governing body of the foundation and can not delegate: (...) e) The establishment or endowment of another person, and d) dispositions of assets whose value, together or individually, more than one twentieth of the foundation's activities, except for the sale of marketable securities at prices equal to or greater than your contribution official. However, they can be made to grant powers of attorney acts under conditions approved by the trustees.
i. - The board has a collegiate (Article 332-3) and free (art. 332-10). Its members must have full capacity to act. The bosses come into office with the acceptance, which can be recorded a) in the charter or other public document, b) a private document with the signature of the individual entitled to accept notarized, c) a certificate from the secretary, signed by a notary entitled, if accepted at a meeting of the board; d) for appearance before the protectorate of the secretary or the acceptor. Similarly the waiver must contain (Article 332-12), but only takes effect when you register to 3rd place in the registry.
ii .- If there is a conflict of interest between the foundation and someone integral to their bodies, it must proceed in accordance with Article 312-9 and, if adopted, the agreement or commit the act must be reported to protectorate within 30 days. (Article 332-9). Employers and persons who are particularly associated with them can not subscribe to the foundation, without permission after the protectorate, contracts of sale or lease of real or personal property of extraordinary value, loan money, or paid services.
B. - redefine the role of preventive control of the Protector.
i. - The transfer, encumbrance or any other acts of disposal of assets and rights that comprise the assets of the foundation (Art. 333-1) must be made for consideration and respecting the conditions of the founders or donors . In any case, the total amount generated must be reinvested in the acquisition of other assets and rights subrogate the place of the alienated or encumbered, or in improving the assets of the foundation.
ii .- If the statutes do not provide otherwise, the need and desirability of the provision or direct or indirect taxation should be duly documented. The trustees must notify the Protectorate acts of disposition or encumbrance within 30 working days.
iii .- The Protectorate permission to perform acts of arrangement, levy or special administration is subject to administrative silence 2 months from the application unless the applicant has requested the protectorate of certain documentation, and is required (art. 333 -1 to 3 º): 1. If the assets or rights that are available have been purchased with money from public subsidies. 2. If statutes or the donor has expressly required, or 3. if the proceeds of the transaction were not fully reinvested in the assets of the foundation.
a) If the property or rights (Disp Stand. 2 nd) are part of the foundation endowment or property or rights is singular value directly linked to compliance with the founding order, the economic impact transactions over 60,000 euros or 20% of foundation assets must be based on an economic report validated by independent experts as evidence that the transaction's financial and economic criteria and market. Communication in the protectorate must accompany documentary evidence of such circumstances.
b) It is understood that the assets and rights are directly linked to the foundation so if this link appears in a statement expressed will of the founder, the trustees or a contributor in respect of assets transferred, and the Protectorate reasoned decision or the judge.
c) divestitures and charges must be recorded in the inventory and the memory of the annual accounts, the Trustees must enroll in the Land Registry or the appropriate public register without delay to ensure their advertising.
iv .- Foundations (Article 333-2) to apply at least 70% of the income and other net annual gain to fulfill the purposes of the Foundation. The rest should be applied to the delayed implementation of these objectives or to increase equity.
v. - The board shall formulate the annual accounts (Article 333-7) to the closing day of the fiscal year. Its failure determines the closing registration EXCEPT for the acts of art. º 336-3-2.
4. Foundations and corporations. It relaxes the participation of foundations in society. If you are staff (members' liability for company debts, eg IEA) requires prior authorization of the Protectorate.
case of corporations, to take shares to give control, to protectorate enough communication within 30 days (Article 333-4). In return must the foundation present consolidated financial statements. Foundations can manage
economic exploitation (art. 333-5) if the exercise of the activity itself constitute compliance with the founding purpose or is an ancillary or subordinate to the same.
5. SPECIAL FUNDS (Chapter IV, arts. 334-1 and following), are affecting real estate destination for general purposes and passing a pre-existing foundation, which acquires the destination link. Avoid having to be a legal person and helps reduce administration costs, while preserving the individuality of the Fund which may have their name and establish application-specific rules of property or income to the purposes alleged, even with the intervention of the contributor if agreed.
If management is unsatisfactory, will be the extinction of the contributor, but the goods must be linked to another destination of interest.
6. The system of statutory modification, merger, division and dissolution of the foundation does not depart significantly from the force.
a. The change of status must be formalized in a public document, agreed by the trustees and approved by the Protectorate, the possibility to reject it is priced the legal grounds for art. 335-1, and is still entitled to drive change statutory circumstances if they occur to prevent reasonably fulfill the purpose. B.
Two or more foundations may be merged or split (Articles 335-2 and 335-3) where appropriate to better achieve the aims of the foundation and has not been banned by the founders. The agreement must be motivated, formalized in a public and approved by the protectorate. Once approved, to be published. Creditors can object to it in accordance with art. 314-1.5 and 6. In case of a merger of foundations subjected to different regulation should apply the rules of Catalonia if the domicile of the foundation were established in Catalonia. C.
The dissolution of a foundation involved in their settlement, which must carry out the trustees, liquidators, if any, or, alternatively, the Protectorate (art. 335-6). The remaining assets must be allocated to foundations, other nonprofit institutions for similar purposes, or public entities. The award or the fate of the remaining assets must be authorized by the protectorate before his execution.
IV. The law ends with 2 additions, 4 transitional, 2 Repeal and 5 final.
1. The second states DA1 direct application of Book III to youth associations, alumni, parents of students, consumers and users of cultural interest and neighbors, without prejudice to specific rules.
2. The DA 2 ª contains, FOUNDATIONS, rules, acts of disposition and reinvestment duty within the meaning of Article 333-1 (independent technical report demonstrating that economic criteria are addressed market for transactions over 60,000 euros or 20% of foundational asset for foundation endowment assets, property or rights of singular value that is directly linked to compliance with the founding purpose
Employers or parents involved in legal transactions of sale, disposition or encumbrance must enroll in the Registry Property or the appropriate public record by reason of the object, without delay, to ensure your advertising.
3. Transitory Provisions granting a period of 3 years to set up associations and foundations and to adapt its statutes.
4. As for the Final Provisions, the 1 st, fails to effect the statutory provisions and internal rules to oppose the provisions of Book III. The 2 nd set DF subsidiary application of the cooperatives, mutual welfare and savings.
