Lawful and determined purposes required for legal personality of sports structures in Romania.
Voicu, Alexandru Virgil
Context
It is well established that not every group of natural persons is
(or may become) a legal entity which would give it a distinct legal
personality. In order to acquire the status of a legal entity, a group
must fulfill three essential conditions, and according to Art. 26 (e) of
Decree no 31/1954, these conditions are: (1) an independent structure;
(2) a distinct patrimony of its own; and (3) a distinct and lawful
purpose. All these conditions have to be cumulatively observed, and the
non-fulfillment of any of these conditions may lead, in principle, to
the rejection of legal personality. The status of legal personality is
important for a multitude of reasons in Romania, such as to ensure that
sports activities are carried out only under the supervision of
qualified and competent sports structures. And due to Romania's
impending EU membership (in 2007 or 2008), the country's
integration within EU sports organizations will be substantially
dependent on well-functioning local sports structures.
Discussion
The main purposes underlying the existence of a legal person may be
economic, patrimonial, such as gaining profits, but may also be
non-patrimonial or charitable purposes (i.e., such as would be the case
with charitable associations, unions of artists, professional
associations, sport structures (with legal personality), trade unions,
associations and foundations, etc.). This purpose may correspond to the
general and public interests of society, of a particular social
category, or even to those of the members of the afore-mentioned
associations, of those constituting the legal person, provided that such
interests are lawful, i.e. do not contradict the imperative legal norms
and public order. The scopes of activities of the legal entity must be
specified and detailed within its by-laws or statutes for the sole
reason that legal entities in Romania do not enjoy the general civil law
capacity (as in case of natural persons), but they have a special legal
capacity, limited to concluding legal acts corresponding to their scopes
of activity. Therefore, the courts generally deny the existence of legal
personality where the scopes of activity are vaguely indicated and
imprecise so that such scopes could not indicate the limits of such
legal capacity, or in case of associations or foundations, their legal
existence is not recognized if the necessary correlation between the
respective patrimony and the scopes of activity which it will serve is
lacking.
In this context, we have to mention that, pursuant to Law no
69/2000 on Physical Education and Sports, physical education and sports
activities would have to fall within the detailed scopes of activities
of sports structures (and not within that of business associations in
general, except for joint stock (i.e., Inc., Corp., etc.) sports
companies). Until the enactment of the regulations regarding the
establishment of sports structures, some activities, such as physical
exercise practiced for the purposes of maintaining a proper physical
condition (fitness) fell within the scopes of activity of some types of
commercial companies as well--although, pursuant to the explanatory text
of the Romanian Classification of Economic Activities Code (CAEN), Class
9304 on Activities of physical condition maintenance referred to
something other than sports activities, i.e. "activities pertaining to a good physical condition, such as: services offered by public baths,
saunas, solariums, steam baths, spas, centers for weight loss and
massage".
This subterfuge relating to so-called sports activities, is
generally carried out solely to generate profits, ignoring the negative
consequences arising from sports activities improperly conducted or
administered by unqualified persons. This was (and still is) possible
because the law did not (and still does not) explicitly require the
competent authorities' approval for the functioning of such
business associations having a scope of activity connected to health
activities ... so that one of the essential conditions for acquiring
legal personality by business associations, i.e. the lawful character of
the scopes of activity was altered. Of course, for such reasons, there
are restrictions upon merchants to indicate their scopes of activity. To
this end, Article 287 of Law no 31/1990 on Commercial Companies provides
that "the activities that cannot form the scope of activity of a
commercial company are to be established by the state". Besides the
lists with activities which may not be carried out by such companies,
there are other restrictions stemming from certain normative acts, from
the relevant jurisprudence and not only from governmental decrees".
Implications
The carrying out of certain physical education and sports
activities by business associations other than so-called joint stock
sports companies results in numerous negative consequences because the
Romanian National Sports Agency cannot exercise its supervision
competence and obligations upon such business associations.
Nevertheless, the legality of excessive marketing of physical education
activities (obtained by tolerating their existence--undisturbed by those
who should ensure the maintenance of the legal order--and by applying
legal sanctions) received legal justification through the issuance of
Order no 601/26.11.2002 by the President of the National Commission for
Statistics regarding the updating of the classification of the
activities of the national economy-CAEN--, which entered into force
starting with 1 November 2003. Therefore, by invoking the fact that the
updating process took into account the provisions of EC Regulation no
29/2002 amending Regulation 3037/1990 regarding the classified list of
the activities within the EEC--NACE Rev. 1.1.(art. 2) Class 9304 on
Activities of physical condition maintenance included the additional
language: "centers for physical [body] maintenance (fitness)".
It is necessary to make the following specifications: 1. According
to the provisions of Law no 69/2000 on Physical Education and Sports in
Romania (specifically, Art. 2(3) and (5)), "Education and sports
comprise the following activities: physical education, sports for the
public-at-large, professional sports, fitness; 2. Practicing physical
education and sports is a right of each individual (right which must be
protected and guaranteed) which can be exercised without discrimination
and which is guaranteed by the state. The exercise of this right is free
and voluntary and is performed independently or within sports
associative structures. From these provisions it follows that fitness
activities have to fall solely within the scopes of activities of the
sports structures regulated in Title IV, "Sports Structures"
of Law no 69/2000--according to the principle of the specialty of
capacity of the legal persons.
Therefore, the afore-mentioned Order no 601/2002 issued by the
President of the National Commission of Statistics must be revised in
order to take into consideration the necessity of protecting natural
persons--persons practicing fitness--in light of the provisions of Law
no 24/2000 regarding the technical norms for the drafting of legal
statutes(as amended by Law no 189/2004), so that the rights of those
persons practicing fitness within a business association structure will
be protected and the effective management of these business associations
will be ensured.
References:
1. Muresan, M., Boar Ana, Diaconescu, S., Drept civil. Persoanele,
Editura Cordial Lex, Cluj-Napoca, 2000, p. 150.
2. Court's Decision no 32/1993, issued by the Commercial
Section, and published in the Romanian law review Dreptul no 4/1994, p.
91.
3. Popescu, T. R., In legatura cu legalitatea infiintarii si
functionarii fundatiilor universitare, in Dreptul magazine nr. 8/1993,
p. 10-15.
4. Marketing and Industry chamber of Romania, Clasificarea
Activitatilor din Economia Nationala, 1992.
5. Voicu, A. V., Managementul organizatiilor si activitatilor
sportive, Editura Risoprint, Cluj-Napoca, 1998; Voicu, A. V.,
Raspunderea civila delictuala cu privire speciala la activitatea
sportiva, Editura Lumina Lex, Bucuresti, 1999.
6. Capatana, O., Societatile comerciale, Editura Lumina Lex,
Bucuresti, 1996, p. 164.
7. Ibidem, p. 167.
8. Law no 69/2000.
9. Law no 552/2004 on the prevention and fight against doping in
sport.
10. Law no 143/2000 on fight against traffic and illegal use of
drugs.
11. Law no 300/2002 regarding the legal regime of the precursors
used in illicit manufacturing of drugs.
12. Order no 62/2004 issued by the President of the Sports National
Agency regarding the use of nutritional supplements by sportsmen.
13. Law no 551/2004 regarding the organization and functioning of
the National Commission of Sportive Discipline.
14. Law no 272/2004 regarding the protection and promovation of the
rights of the child.
Alexandru Virgil Voicu *
* Faculty of Physical Education and Sport, "Babes-Bolyai"
University (Cluj-Napoca, Romania).
