Association (Law) – Wikipedia

A Association , in law, indicates an entity consisting of a set of natural or legal persons (the Associates ) linked by the pursuit of a common purpose.

In the Italian legal system, the association is one of the aggregative forms governed by law, which protects its constitutive freedom and forms of activity. The Association has a personal basis and consists of at least two people who pursue a legitimate common purpose, since the heritage is not an essential element.

The Committee, which is also a personal basis, is distinguished by the Association for the fact of being constituted for a single purpose limited over time, while the Foundation is characterized exclusively by the patrimonial element. With the associative contract (the articles of association), two or more subjects undertake, through a stable organization, to pursue a common non -economic purpose. The Italian Constitution (art. 18) recognizes citizens the right to associate freely, without authorization, for purposes that are not prohibited to individuals by criminal law. The same article prohibits secret associations and those that pursue, even indirectly, political purposes through military organizations.

The Association is the wider “social formation” but it is not the only social training present in our system. It stands out:

• from the “meeting” (art. 17 of the Constitution, in which the concept of stability is missing and a stable organization is missing that addresses the activity of the associated people),
• by the “family” (defined by art. 29 of the Constitution as a natural society, which is also a social nucleus but made up of people united by blood constraints, and therefore not autonomously protected, but through certain rights of the members of the nucleus itself also in the ‘hypothesis of the pursuit of superindanto family purposes),
• From the “organic representatives of the people” (art. 56-57 of the Constitution, which are an expression of popular sovereignty and are not social formations that operate within the community, but are institutional bodies).
• From the “communion” (art. 1100 of the Italian Civil Code that does not conceive communion as a group of people dynamically aimed at achieving certain super -individual purposes of any nature, but rather as an institution tending to the static conservation of the enjoyment of the assets between several people, which recalls the Romanistic prosecution of the integral multiple property).

The phenomenon of the spontaneous organization of several people in groups or community for the achievement of a common purpose is an ancient, almost primordial phenomenon, and has known ever increasing development.

Nonetheless, in the current system there is no definitive rule that describes the notion of association or legal person: the current system derives his indifference in part from the French legal system of the 19th century, where the social groupings were even opposed and yes The supremacy of the individual individual as the owner of subjective legal situations (unlike the German system, where recognized legal and even those not recognized) stated.

Only for a few decades have they been revaluing the social role of the associative phenomenon; In particular, solution was given to the problem of ownership of the heritage of unrecognized foundations, that of the recognition of political parties and trade union associations, as well as that of the real estate purchases of the committees.

The structural elements of the Association [ change | Modifica Wikitesto ]

Are general elements, common to any type of association:

1. subjective element, consisting of a community of natural persons who join more or less lastingly for the achievement of a certain end. The legal relationship that tightens the various individuals with each other and the common interest that pushes them to unite. Since art. 18 of the Constitution. Reports the right to associate Only to the “citizens”, an absolutely minority and dating part of the doctrine considered that the norm contained a limitation, recognizing the irrefigurability of the so -called. “Associations of associations” (numerous examples are to be found in the trade union field) and the impossibility of associating for foreigners and stateless people. The prevailing doctrine and the jurisprudence believe, by virtue of the principle of equality, that the associations of associations (so -called second degree associations) are eligible and are protected by art. 18 like any community made up of natural persons, and this also outside the trade union field, and that only foreign associations composed exclusively or mainly by foreigners are outside the constitutional protection (while it would be possible for the foreigner to join national associations) .
2. Teleological element, given by the existence of the common purpose (non -lucrative, cooperative or other for which a different form is required by law) to which all participants tend to tend. This is the fundamental element of the association, constituting the essential reason for its rising, the link that combines the various activities of the individuals, and the cause of the extinction (at the time of its achievement) of the association.
3. Objective element, given by the contribution (in nature, in cash, in work performance, etc.) that each individual provides for the achievement of the common purpose. A heritage is necessary only for the recognized association.
4. material element, represented by the organization (set by the agreements of the associates), that is, by the appointment of representative bodies and by the division of tasks between the associated subjects.
5. Voluntary element, given by the freedom to set up an association and to join you, and by the freedom to act in the order of the system to achieve one’s purposes.

Legal form [ change | Modifica Wikitesto ]

The Italian Constitution, in article 18, recognizes each individual the right to associate in collective bodies from the various purposes. “… citizens have the right to associate freely without authorization for purposes that are not prohibited by law” ^[first] .

The Italian system identifies two main categories in the civil code in which to bring the associations back:

1. Associations recognized as legal persons
2. associations not recognized as legal persons

The constitutive act [ change | Modifica Wikitesto ]

The civil code of 1942 speaks of recognized associations and foundations, dictating a single express rule: art. 14 cod. civ. which imposes the solemn formality of the public act (e.g. recorded by notary or public official) for both figures, since without the public deed the body cannot ask for recognition (v. infra ).

On the other hand, no form is provided for the constitutive act of an unrecognized association. The constitutive act of the Association is a negotiating act, or rather a contract of an associative nature, which arises from the will of multiple subjects virtually in conflict between them, and whose services are aimed at achieving a common purpose (however it is performance fees).

The progressive formation of the associative contract is not excluded, which occurs when some promoters prepare the program of the future association, to which other interested parties adhere (also with private writing). After the resolution of the Statute by the Assembly, the constitutive act in a solemn form is drawn up (if the association intends to request recognition or the tax code).

The Statute contains the rules relating to the life and functioning of the entity (art. 16 of the Italian Civil Code): it may also be missing, when these rules are included in the constitutive contract (of which it has the same legal negotiating nature), although in practice it is tended to tend to Distinguish the essential elements (denomination, purpose, heritage, seat, rights and obligations of the shareholders and criteria for disbursement of income) from the optional elements (rules relating to the adntration of the body, its transformation, to the devolution of the assets, etc.) .

Purposes [ change | Modifica Wikitesto ]

Associations may have cultural, welfare, recreational, social, environmental, sporting, sporting, and sporting purposes, etc. In general, we speak of an association by defining a unitary body, made up of at least 2 or more subjects, which is considered by the legal system subject of law, with its own ability and distinct by the same individuals who make it up.
In particular, cultural circles tend to spread culture, sciences or arts, religion in its various aspects, education, or specific elements of these or other disciplines ^[2] .

Property autonomy [ change | Modifica Wikitesto ]

The characterizing and most relevant element (from a socio-economic point of view) of the Association is given by the perfect asset autonomy for those recognized and imperfect for those unrecognized:

• Perfect property autonomy It means that the assets of the components is separated from that of the Body and that the obligations always and only responds the heritage of the entity and not that of the associates. Furthermore, members of the shareholders cannot attack the organization’s assets. Perfect property autonomy exists for legal persons, recognized associations and capital companies.
• Imperfect property autonomy It means that some associative figures provide for a responsibility of some or all participants for the association’s debts. The imperfect property autonomy is attributed to unrecognized associations (in which the subjects who acted in the name and on behalf of the Association respond in addition to the heritage of the body) and to the companies of people (where all or some of the shareholders respond) .

Subsidiary liability [ change | Modifica Wikitesto ]

Art. 6 paragraph 2 L. 383/2000 has established the principle that for the obligations of social promotion associations, the Association itself responds to its patrimony and only subsidiaryly those who acted in the name of the Association. Therefore, the rule valid for other associations of a solidarity responsibility is modified without the Benefit of excussionem .

Recognized associations [ change | Modifica Wikitesto ]

Are those associations with legal personality , that is to say those organisms with perfect property autonomy. The acquisition of the legal personality implies the acquisition of the full autonomy of the body with respect to the associates both against the shareholders themselves, and of third parties.

The recognized associations, together with the companies with legal personality, fall within the corporations, one of the two categories in which legal persons in the Civil Law systems are traditionally classified, being the other that of the foundations.

The application for recognition must be submitted to the competent authority (defined by the decree of the President of the Republic 10 February 2000, n.361, “Regulation containing rules for the simplification of the procedures for recognizing private legal persons and approval of the changes of the constitutive act and the statute “).

The Presidential Decree February 10, 2000 n. 361, modifying the current legislation of the Civil Code, established that the purchase of the legal personality obtained by the right to enroll in the register of legal persons established at the prefectures and held under the surveillance of the prefect. The registration, in this way, takes on the value of constitutive advertising. The legal person, therefore, can now be said to be constituted no longer following the recognition, but only from the moment of his registration in the register of legal persons, provided they are observed: the conditions provided for by law or regulation for the establishment of the body , the possibility and lawfulness of the purpose pursued and the adequacy of the heritage to the realization of the purpose.

Unrecognized associations [ change | Modifica Wikitesto ]

These are organisms that enjoy a full legal capacity today (in the past they could not buy for donation or succession) but which do not have perfect asset autonomy. That is to say that these are bodies without legal personality, whose liability in civil, administrative, criminal and economic-financial, fall on those who have acted in the name and on behalf of the association, even if not registered in it. The association not recognized qualifies different organizational phenomena, from the most modest recreational or cultural circles to complex and large bodies and with the management of considerable financial means: to date two of the most important social formations, i.e. the parties and the unions fall within the category of unrecognized associations.

However, they are subjects of law, autonomous with respect to the shareholders, equipped with assets (eventual) which takes the name of a common basis. The reference articles of the civil code are n. 36, n. 37 and n. 38, as well as the indications provided for by law 11 August 1991, n. 266 containing provisions for voluntary organizations, or the provisions of Legislative Decree 4 December 1997, n. 460 which introduces the category of non -profit organization of social utility (Onlus). To overcome the legal provision of regulatory provisions, the legislator attributes to the “agreements of the associates” the definition of the internal system. The unrecognized association can however register at the Revenue Agency in order to obtain administrative and tax advantages. Registration is not necessary for the request for the tax code.

Tax charges for association bodies [ change | Modifica Wikitesto ]

For the review of the regulation of the civil code on non -profit associations, article 1, paragraph 1 and paragraph 2, letter a) of the law 6 June 2016, n. 106 grant special delegation to the government: it is part of the reform of the third sector, of the social enterprise and for the discipline of the universal civil service ^[3] And the reorganization and harmonization will also result “of the relative tax discipline and the different forms of taxation” ^[4] .

• Massimo Eroli, Unrecognized associations , Jovene, Napoli, 1999, isbn 88-243-0869-4
• Pietro Semeraro, The exercise of a right , and. Giuffrè, Milan 2000.