It has been said actively and passively to the point that it has become a cliché that nevertheless remains in force: we are social animals and therefore we need others to be part of what we are. There are many ways to show that social component that concerns each of us directly and one of them is the association between a group of people for a specific purpose, political, social, sporting, cultural, artistic, gastronomic, educational or any other field except the illicit (of course!) beyond the pure profit motive, in which case we would be dealing with commercial law and not with the law of associations, although in both cases this association is manifested through the creation of an entity with its own legal personality, some of the issues could be complemented in particular with respect to associations with the law of companies, having had the former for more than obvious reasons, less legislative development than the law of companies.
There are many types of associations and different applicable legal regimes, but for the purposes of these lines we will base ourselves mainly on the more general Organic Law 1/2002 of March 22, 2002, regulating the Right of Association.
Since associating is an activity derived from a human need, it is evident that it is a fundamental right recognized as such in our constitution, as the Organic Law indicates in its explanatory memorandum, and given that this right is embedded in our society, one of its fundamental principles is the democratic principle of operation which, in turn, frames the other great associative principle: the capacity to freely regulate itself and determine its mode of operation and its associates.
How does the principle of self-regulation work then? Basically, within the limits of the Organic Law, the associates are free to regulate themselves as they see fit. For example, the management of an association can be carried out in different ways and with different bodies, but the law establishes that there must be at least two governing bodies, the assembly and the representative body (often called the governing board, board of directors, steering committee or other similar names).
All members must be represented at the meeting, and they may participate and vote on the resolutions submitted for their consideration. In this sense, mechanisms must be established to ensure the possibility of the associates to participate, the quorums necessary to approve certain matters, the frequency, duration, development and other matters in which the experience of the operation of capital companies can be very useful. At least one meeting (called an ordinary meeting) must be held each year, at which the accounts of the previous year, the management of the Board of Directors and the budget must be approved. The other meetings will be of an extraordinary nature and will be called according to the bylaws or at the request of a certain number of members as established by law.
Regarding the other governing body, the Board of Directors by its very nature cannot include all members but only a certain number of them (membership is only possible for those who have the category of partners) and will be responsible for representing the interests of the association in addition to managing its day to day. This body will be able to define its own internal rules of operation always respecting the democratic spirit.
It is important to reflect that the democratic spirit is not a principle of equality in the sense of treating everyone exactly the same. What is important is that differences, if any, should have objective reasons and rationales. That is to say, there may even be different categories of members as long as they are based on objective criteria of contribution, representativeness, size, geographic scope or any other criteria that may also be considered in terms of the aims and objectives of the association. In the same way, there may be partners and members who do not have this category but who by the fact of being members may enjoy some of the rights, including the weighting of their vote, their capacity of representation or similar, as well as some of their obligations.
As an association, the members must be able to voluntarily cease to be members easily and without unreasonable constraints and obligations. The separation of a member decided by the association must be stricter since it is a third party decision beyond the rights of this member.
All these types of things should be reflected in the Bylaws in a clear and, it is advisable, also in a sufficiently extensive manner to avoid ambiguities or undesired interpretations. However, this is not usually the case. Many times the haste to constitute (also the illusion and, why not to say it, the lack of “shooting” among the founding members) lead to not giving the statutes the value they should have and to use one of the various models that run in manuals or on the networks. From our point of view, these statutes are like a spare tire for a car, they get you out of trouble but they are not a permanent spare. Therefore, statutes that have a minimum of solidity are a sign, but not a guarantee, of the solidity with which the project has been set in motion. In short, this is what an association should be: a project with and for the future.
Even so, although it has been said that it is not the most advisable thing to do, resorting to “passing” bylaws may be understandable on some occasions, and when this happens, it is more than advisable that, after a period of time, following a debate, conclusions be drawn from the experience that includes the real expectations of one and all, the obstacles encountered, the actual functioning of the association, the fulfillment or not of goals and future options, to revise the bylaws, adapt them to the reality of the association and provide them with consistency that will allow it to face the challenges it will have to face.
There is no doubt that these challenges will be enormous because they cannot be separated from the challenges that our society is facing today, from pandemics, economic crisis, crisis of confidence and identity, rise of extremism on both sides, climate change, social inequalities and increasingly violent confrontations. The creation of associations that generate interests, vocations and missions that channel them with a social purpose can be a very useful mechanism to face these challenges and therefore, the importance of the associations grouped within the third sector declared of public utility in which there is an express recognition of their usefulness, allowing them in our system to enjoy certain tax benefits for those who contribute to the development of their activity. In this sense, a review of the purposes of the association to know if a declaration of public utility can be requested is something that must be taken into account. Although this, due to its relevance, deserves to be the subject of another paper.
Are you in the process of setting up an association or perhaps considering the opportunity to create one? Do you think the time has come to review your association’s statutes, modernize them, redefine its action plan, extend its territorial scope or redefine the categories of members? Has the association to which you belong been active for more than 2 years and do you think that its objectives could be considered as a public utility?
Do not hesitate to consult with the lighthouse keepers of The Lighthouse Team to solve any of these doubts and receive the best guidance. Contact us without obligation. We will be happy to accompany you throughout the evaluation and implementation process.
