De facto associations in romanian legislation between legal establishment and inapplicability

• Author: Magdalena Catargiu
• Position: Faculty of Law, 'Alexandru Ioan Cuza' University of Iasi, Iasi, Romania
• Pages: 6-9

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 1 (2013), pp. 6-9

6

DE FACTO ASSOCIATIONS IN ROMANIAN LEGISLATION

BETWEEN LEGAL ESTABLISHMENT AND INAPPLICABILITY

M. Catargiu

Magdalena Catargiu

Faculty of Law

“Alexandru Ioan Cuza” University of Iai, Iai, Romania

*Correspondence: Magdalena Catargiu, 1

st

Golia Street, 2

nd

Floor, Iai, District of Iai,

Romania

E-mail: m_catargiu@yahoo.com

Abstract

In the context of the development and the diversification of the nonprofit sector in

Europe, private actors play an increasingly important role on the stage of social and legal

life. In Romanian legislation, along with associations and foundations, a residual category

can be identified under the name of unincorporated associations.

Throughout this article we intend to capture the legal framework and the judicial

treatment applicable in Italian law in order to understand the basic working mechanism of de

facto associations.

Keywords: association, legal capacity, Italian law.

Introduction

In the Romanian legal system, under the constitutional provisions, both individuals

and legal persons have the right to establish associations without legal personality. However,

due to the fact that they do not have limited legal capacity, de facto or unincorporated

associations are devoid of legal effects. As the legal texts have no practical effects, the

unincorporated associations` reason of being may seem uncertain.

In contemporary national legislation, the association was sanctioned by Law 21/1924

on legal entities (associations and foundations). Article 31 defines the association as a

“convention in which more people put together, permanently, their material contribution,

knowledge and their work to achieve a goal that does not seek personal benefits or property.”

The optics of the Romanian legislator was dependent on the natural-legal person dichotomy.

Thus, the Law only recognized association with legal capacity.

Law 21/1924 was repealed by Government Emergency Ordinance (G.E.O) 26/2000 on

associations and foundations, currently in force. Article 4 states that the association is “the

legal subject constituted by three or more persons who, according to an agreement, participate

to the establishment of a patrimony, which is not subject to refund, with material contribution,

knowledge and work in order to conduct activities in the public interest, that of the

community or, if appropriate, in the personal non-profit interests of the partners”. This legal

definition places, ab initio, the association among legal subjects. The unincorporated

association seems to have been excluded. As it does not benefit from legal personality, it

cannot be subject of law.

However, art. 5 par. (2) of the Ordinance provides that the association without a legal

capacity can be established if the aim permits so. However, the Romanian legislator does not

provide specific legal rights to collective entity, strictly limiting itself to indicating that the

source of this norm is the constitutional right of assembly. We believe that there is an obvious