[foundation-board] Vote on Communia membership

Thu Aug 11 12:53:22 UTC 2011

I'm also +1 (while noting Jordan's point about keeping an eye on this
going forward). COMMUNIA was good, we're not being asked for any
specific resource and there does not seem to be any obvious legal
downside other than the possible legal hassle.

Rufus

On 10 August 2011 20:05, Jordan S Hatcher <jordan.hatcher at okfn.org> wrote:
> Hi Board
> Have been getting some emails that we need to sign this documentation tout
> suite. Details below.
> I can't see us doing this without a formal board vote as it involves our
> company becoming a member of another company.
> The proposal is from Jonathan and sponsored by Rufus (correct me if I'm
> wrong) to be a founding member of the a new international association based
> in Brussels for Communia. This is the new organisation founded after the EU
> funding ended for the Communia project.
> As I see it, Communia at this point may be on a trajectory towards becoming
> a lobbying organisation -- to me that's not a show stopper, but is something
> we'll have to keep under review as we sign up to contracts such as Omidyar
> and look at our funding sources moving forward.
> I vote yes.
> Thanks
> Jordan
> Begin forwarded message:
>
> From: Anne-Catherine Lorrain <aclorrain at gmail.com>
> Date: 9 August 2011 20:41:41 GMT+01:00
> To: Jordan S Hatcher <jordan.hatcher at okfn.org>, Prodromos Tsiavos
> <p.tsiavos at lse.ac.uk>, "Square One Dr Peter Troxler (KvK 24480536)"
> <peter at square-1.eu>, Giancarlo.Frosio at law.duke.edu, Primavera de Filippi
> <pdefilippi at gmail.com>, Ignasi Labastida i Juan <ilabastida at ub.edu>, Maja
> Bogataj <maja.bogataj at ipi.si>, Frank Kresin <frank at waag.org>, Justyna
> Hofmokl <justyna.hofmokl at gmail.com>, Alek Tarkowski
> <alek at creativecommons.pl>, d kd <dalitkd at gmail.com>, Federico Morando
> <federico.morando at polito.it>, Marcello Mustilli <m.mustilli at blmius.com>,
> Maarten Brinkerink <mbrinkerink at beeldengeluid.nl>, Philippe Aigrain
> <philippe.aigrain at sopinspace.com>, Bourcier
> <daniele.bourcier at cersa.cnrs.fr>, Jonathan Gray <jonathan.gray at okfn.org>,
> filip at metamorphosis.org.mk, Diane Peters <diane at creativecommons.org>, Diane
> Cabell <dc at icommons.org>, Paul Keller <pk at kl.nl>,
> juancarlos.demartin at polito.it, Davide Piazzoni
> <dott.piazzoni at studioruo.com>, John Hendrik Weitzmann
> <jhweitzmann at mx.uni-saarland.de>
> Cc: melanie dulong <melanie.ddr at gmail.com>, Julien Ciarniello
> <avocat at ciarniello.net>
> Subject: (Communia Intl Association) - some useful reminders/explanations
>
> Dear All,
>
> Following the previous Email conversations, and notably following the Email
> from our Attorney, some of you have had questions about the next steps for
> the legal establishment of the Association and about the role of our
> Attorney. It seems that a few reminders and further explanations won't hurt
> :)
>
> Regarding the context of the legal constitution of Communia Intl Association
> in Brussels:
>
> The remaining budget from the former Communia network - that had to be spent
> before end 2010 - has been allocated to the legal constitution of a Communia
> Intl Association in Brussels. The role of Julien Ciarniello as our Attorney
> is to help us in this task under Belgian law. Therefore, the to-be-formed
> association is Julien's client (but only regarding these early steps of
> establishment). Julien needs documents from each founding member and
> administrator ONLY for the establishement of the association, so that he can
> legally represent each of us to the notary and to the governmental
> authorities.
> The required Power of Attorney (original document to be sent by post) is
> needed for the legal constitution of the Association until it is
> acknowledged by the government, not beyond. The notarization is the first
> step. If there are any further steps, they are limited to the representation
> of founding members to the administration during the establishment of the
> association. The Power of Attorney has thus a limited scope.
> The POA also provides that our Attorney names the first board of directors
> and is entitled to attend our GAs.
> It is thus quite similar to the US/UK "incorporator".
>
> Regarding the statutes of the Association:
>
> The final version of the statutes (in French) has been communicated to you.
> However, we agree that an English translation is necessary so that everybody
> knows what she/he exactly signs for.
> The English translation of the final version of the statutes is not yet
> ready. In some previous exchanges of Emails, Mélanie and i tried to sum up
> the most important provisions of the statutes. We first had to agree (in
> English) amongst members about the main legal provisions, and we then had to
> discuss with our Attorney on the provisions in French, which took more time
> than expected.
> You will find below an earlier Email detailing the main provisions of the
> statutes of the Association in English.
> You can also find the information on the wiki page
> (https://private.communia-project.eu/wiki). However, this version does not
> exactly correspond to the final one. In the draft on the wiki, you will find
> many question marks that have been answered since then.
> This already gives a quite accurate view on what an Association means under
> Belgian law in terms of liabilities for its members, i.e. not much: Article
> 20 of the statutes states that they don't have any personal
> obligation and are only responsible for the execution of their mandate.
> Please also note that we have managed to introduce provisions allowing us to
> organize meetings (GAs and CAs) by telecommunication means with minimal
> requirements.
> We have to update the wiki with the final draft of the statutes translated
> in English. We'll try to take care of this as soon as we can.
> i hope this has been helpful for you to have the information you need for
> the moment.
> Most of all, we hope that you'll be able to send the POAs and all required
> documents to Julien shortly, as we need to move on.
> Sorry for this long Email, and thank you for your input.
> Best regards,
> --
> Anne-Catherine Lorrain
>
>> ---------- Forwarded message ----------
>> From: Anne-Catherine Lorrain <aclorrain at gmail.com>
>> Date: 2011/2/17
>> Subject: COMMUNIA AISBL - Proposal for draft Statutes
>> To: communia-members at lists.communia-project.eu
>> Cc: Mélanie Dulong de Rosnay <melanie.ddr at gmail.com>, Julien Ciarniello
>> <avocat at ciarniello.net>
>>
>>
>> Dear All,
>>
>> Good news. Our Belgian Attorney, Julien Ciarniello (here in cc), has been
>> able to provide us with a first draft of the Statutes in English.
>>
>> The legal regime for the constitution of an International Association
>> (AISBL) in Belgium is very liberal. The basic principle is: what is not
>> expressly forbidden by the law shall be allowed.
>>
>> Please find below a 'skeleton' for a first draft of the Statutes,
>> including the essential clauses, which need to be discussed amongst
>> members.
>> The rules for the functioning of the Association, particularly regarding
>> the General Assembly and the Administrative Council, are entirely left to
>> the freedom of choice of the drafters/members. Most of the following drafted
>> paragraphs are only examples.
>>
>> I will put all this on the wiki shortly, so that you can comment and
>> complete the draft.
>>
>> Shall we set a deadline for comments? Is it reasonable to hope that the
>> Statutes can be submitted to the notary, let's say by early April?
>> Thank you all for your contribution.
>> Looking forward to reading your comments.
>> All the best,
>> Anne-Catherine
>>
>> --
>> Anne-Catherine Lorrain
>> aclorrain at gmail.com
>> Mob.: +32 473 99 97 92
>> www.aclorrain.fr
>>
>> ------------------------------------------------------
>>
>> COMMUNIA AISBL - Proposal for draft Statutes
>>
>> TITLE I. APPELLATION - ASSOCIATION HEADQUARTERS
>>
>> Appellation
>> The International Non Profit making Association has the appellation:
>> "COMMUNIA, The International Association on the Digital Public Domain",
>> also called "Communia", hereafter referred to as "the Association".
>>
>> Headquarters
>> The headquarters of the Association are established in Belgium in
>> Brussels, in the Brussels-Capital region.
>>
>> TITLE II. ASSOCIATION OBJECTIVE - DURATION
>> Objective:
>> The non profit making aim of the Association’s international interest is
>> to:
>> a)
>> b)
>> c)
>> d)
>> ...
>>
>> Duration:
>> The Association is constituted for an unlimited duration.
>>
>> TITLE III. MEMBERS - CONTRIBUTIONS - EXIT
>>
>> - Members:
>> The Association is composed of participative (full) members and members.
>> The minimum number of participative members may not be less than three
>> (3).
>> The number of members is not limited.
>> Only participative members have all the rights attached to membership
>> [vote].
>>
>> Membership is decided by [the General Assembly / the Administration
>> Council (or "Board")?].
>>
>> [Specific to Communia: conditions of membership for Research Centres?
>> other specific rules regarding members?]
>>
>> Participative members:
>> [specific rules on "participative members" is not mandatory]
>> Participative members have the right to vote.
>> [other specific rules?]
>>
>> Right to vote - Rights of members: [non mandatory article]
>> [e.g.: The General Assembly includes a representative from each
>> (participative member, participant centre? other?). Each representative only
>> has one vote.]
>>
>> Contributions:
>> The resources of the Association include (...).
>> Equally, the General Assembly may determine the amount of the annual
>> contribution.
>>
>> - Voluntary retirement - resignation - suspension - exclusion
>> Any member of the Association is free to withdraw from it at any time,
>> notifying the resignation to the Administration Council in writing.
>>
>> The exclusion of a participative member can only be imposed by the General
>> Assembly deciding by two-thirds majority of its votes present or
>> represented. The exclusion of an associate member may be ordered by the
>> Board of Directors deciding with majority.
>>
>>
>> TITLE IV. ORGANISATION
>>
>> [note: the organisation of the Association is free. The existence of a
>> General Assembly and of an Administration Council are not mandatory, but is
>> generally provided by the Statutes to facilitate the management of the
>> Association]
>>
>> Bodies of the Association
>> The bodies of the Association are:
>> - the General Assembly;
>> - the Administration Council
>>
>> Section I. The General Assembly
>>
>> Competence:
>> The general assembly possesses plenary powers that permit the execution of
>> the objective and the activities of the Association.
>> The general assembly has complete authority. More generally, the general
>> assembly determines the general policy of the Association.
>>
>> Reserved exclusively to its powers, duties and functions are:
>> - amendment of statutes;
>> - appointment and removal of administrators;
>> - appointment and dismissal of auditors/commissioners if it so happens and
>> fixing their compensation where compensation is awarded;
>> - discharging of grants to administrators and commissioners
>> - approval of budgets and annual accounts;
>> - voluntary dissolution of the Association ;
>> - exclusion of a member;
>> - adoption of an internal rule of order;
>> - all cases where statutes require it.
>>
>> Composition:
>> The general assembly is composed of all associate members.
>> It is chaired by [the Chairman of the Administration Council / or by a
>> president elected by the general assembly under a proposal from the
>> administration council].
>> The general assembly is presided over by a president elected by it under a
>> proposal from the administration council.
>>
>> The general assembly may establish, if necessary, subsidiary bodies, of a
>> temporary or a permanent nature. It determines the general composition, the
>> authority and the duration of the mandate of these bodies.
>>
>> Convocation:
>> A meeting of the general assembly must be held at least (once each year?).
>> Modes of convocation (by E-mail or any other means of communication, at
>> least X days before the meeting...)
>> Ordinary meetings
>> Extraordinary meetings
>>
>> Mode of decision:
>> Quorum? Such quorum must be validated by the Administration Council.
>> Voting rules: each participative member has one vote.
>>
>> Conditions for amendments to statutes [non mandatory]
>> Statutes may only be amended by a deed drawn up by a notary.
>> Any proposal having for its aim an amendment of the statutes or the
>> dissolution of the Association must proceed from the administration council
>> or from at least one-third (1/3) of the members of the Association.
>>
>> Section II. The Administration Council
>>
>> Competence - Representation:
>> The Administration Council is invested with powers to act in the name of
>> the Association and to carry out all acts of management, administration, and
>> settlement that are in the interests of the Association, with the reserve of
>> the competence of the general assembly.
>> The Administration Council has the broadest powers for the administration
>> and management of the Association. Its powers notably consist in:
>> - taking decisions, between meetings of the general assembly, within the
>> framework of the global policy determined by the general assembly;
>> - analyse decisions concerning the budget of the Association.
>> - (...)
>>
>> The international secretariat [there will probably be one] consists of
>> (...)
>> The international secretariat is responsible for the implementation of
>> decisions taken by the general assembly and the administration council.
>>
>> Administrators not specifically invested by the general assembly with
>> specific functions and missions exercise their power through boardroom
>> participation in administration council meetings.
>>
>> The administration council elects a president (...)
>>
>> The administration council may delegate daily management, or give
>> specially elected powers to one or more persons, whether administrators or
>> not, members or not, who exercise their intercessions in an individual
>> manner and whose powers it shall set.
>>
>> All actions undertaken by the Association are, without special
>> procurations, signed by (X) administrators [or by the executive director]
>> (...)
>>
>> Judicial actions, either as plaintiff or defendant, are pursued by the
>> administration council, represented by the president, the executive director
>> or an administrator appointed to this effect by it.
>>
>> Each year, and at the latest, six month after the closing date of the
>> Association’s financial year, the administration council presents to the
>> general assembly for approval the budget for the following financial year,
>> and the annual accounts for the financial year just past, in conformity with
>> article 53 of the law.
>>
>>
>> Composition:
>> The Association is administered by a council composed of a president and X
>> other members, being physical persons.
>>
>> Have been appointed as members of the Administration Council:
>> - Administrators:
>> - President:
>> - Vice-President:
>> - Secretary General:
>>
>> The administrators are called by the general assembly for a mandate of
>> three [less?] years.
>>
>> The administration council may invite observers, consultants, members, or
>> not, with a consultative vote.
>>
>> The functions of administrators come to an end with death, resignation,
>> civil incapacity or placement under temporary administration, removal, or
>> expiry of mandate. Any administrator is free to retire at any moment from
>> his functions by addressing the administration council of his/her
>> resignation in writing, which acts on it and acknowledges it at the next
>> meeting of the general assembly.
>>
>> The mandate of the administrator is not remunerated, expect by a decision
>> to the contrary by the general assembly.
>>
>> Meetings and convocations:
>> The administration council convenes when called by the president or, in
>> its absence, by an administrator.
>> The convocation is transmitted by letter, fax, electronic mail or any
>> other means of communication.
>>
>> The administration council forms a board and may only make a ruling if at
>> least a quarter of its members are present or represented.
>> Its decisions are made with a simple majority of votes. In case of a
>> divided vote, that of the president or his/her replacement is decisive.
>>
>> Mode of decision:
>> Quorum?
>> Decisions are documented recorded in the form of minutes. These minutes
>> are signed by the person who presided over the sitting or by an
>> administrator and are documented in a special register. The extracts or
>> copies that must be produced are signed by an administrator.
>>
>> TITLE V. Miscellaneous
>>
>> Association financial year
>> The Association's financial year begins on the First of January and ends
>> on the Thirty-First of December each year.
>> Exceptionally, the first financial year will end on XX/XX/2011.
>> Audit?
>>
>> Dissolution and liquidation
>> The general assembly adjudicates on the dissolution of the Association
>> (...).
>>
>>
>
> ____
> Mr. Jordan S Hatcher, JD, LLM
> More at: <http://www.jordanhatcher.com>
> Co-founder:  <http://www.opendatacommons.org>
> Open Knowledge: <http://www.okfn.org/>
>
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