The Legal Situation Concerning Under-age Members in Governing Organs
(JUNAK/Praha) – On their way home from the recent World Scout Conference some leaders of Junák, the National Scout Organization in the Czech Republic, were discussing different aspects of youth empowerment within Scouting. Earlier this year a new civil code had been introduced in their country and considerations continued concerning the question of young, under-age members of non-governmental organisations (NGOs) being eligible to be elected, appointed or co-opted to sit in governing bodies (councils, committees, boards, etc.) of their association with full rights.
The current situation in the Czech Republic
The new civil code (introduced in 2014) states that only adults (i.e. 18+ years old) may by appointed/elected as members of any body (organ) in corporations (associations and other entities including NGOs). There are two exceptions to this rule: under-age persons may be (1) a member of the general assembly (the plenary organ) – usually with the parents in proxy, and (2) a member of any body (executive/control etc. organ) in legal entities involved mainly with children/youth (i.e. the Scout association). Unfortunately, the Czech government plans to initiate an amendment of Civil Code so the under-age persons will no longer be able to be appointed or elected to bodies.
How are other countries dealing with this matter?
Junák is now trying to argue that the most recent plan of the Czech government is the wrong approach, with the Scout association leading the lobbying activities to the benefit of all youth/children organisations in the country. This is why an informal enquiry was launched to find out how other European countries where dealing with this matter and to collect examples of countries whose legislation foresaw under-age persons to be members of executive bodies of (youth) associations.
Below, you will find replies received from a number of different countries. The information is quoted as received from the different contributors. While a thorough cross-check has not taken place for each of the countries listed, the information does give some interesting oversight. You are welcome to report on the situation in your own country (if it is not yet listed) or to rectify information if you feel your country’s situation is not properly reflected here. Please forward your comments and/or contributions to the European Scout Office.
Australia
In the Commonwealth of Australia, it depends on each state. For example, in New South Wales, members of committees must be over 18. In other states of Australia, the situation is probably the same. More information can be found on this website.
Belgium
In Belgium, people under 18 cannot be members of committees etc. However, they can vote etc. in these organisations. For more details, check this website (in particular point 1.4).
Czech Republic
The new civil code (introduced in 2014) states that only adults (i.e. 18+ years old) may by appointed/elected as members of any body (organ) in corporations (associations and other entities, including NGOs). There are two exceptions to this rule: under-age persons may be (1) a member of the general assembly (the plenary organ) – usually with the parents in proxy, and (2) a member of any body (executive/control etc. organ) in legal entities involved mainly with children/youth (i.e. the Scout association). Unfortunately, the Czech government plans to initiate an amendment of Civil Code so the under-age persons will no longer be able to be appointed or elected to bodies.
Denmark
In Denmark, it depends on the individual NGO. For example, within the Scout Association you are able to fully participate if you have someone who would be your legal guardian until you turn 18 – typically this would be a parent. You can also take a position in some body or committee, if you are under 18; but if the position involves economical responsibility, you need a legal guardian to do so.
Estonia
In Estonia to be a member of the management board of a legal entity, a person has to have active legal capacity. In order to have that, a person has to be 18 years old. It is possible to give active legal capacity to a younger person with a court ruling. There are no limitations as to whether or not an underage person can be part of a General Assembly. Young people from 15 to 18 do not have to have the legal signed consent from their guardian to join a youth organisation but children under 15 have to get a signed consent from their guardian. Young people from 15-18 still have to get their guardian’s consent, when joining any other NGO. The age-limit for members of regional youth councils (the youth advisory bodies to the regional and municipal governments) is 13. These bodies are separately defined by the law and not considered NGOs. There is also a reference, which says that minors can form NGOs, when they have a written consent from their guardian. But minors still cannot be part of the board of such a NGO either.
Finland
In Finland the chairperson of a registered NGO needs to be 18, but board members and voting members of the association can be below 18. A 15-year-old can form, join, leave and be a member of the board in a registered association. Also the law in Finland sets the age limit to 15 years for voting members in an association, but also allows an association to set its rules to allow voting rights age limit to anything they feel necessary. An association may therefore choose to lower its minimum voting age under the legal 15-year minimum.
France
In France, it is possible for children under 16 to be members of the board; young people over 16 have all rights, although before they are 18, they need their parents’ or tutors’ approval.
Greece
The Greek legislation does not give any decision-making right to persons under 18 years of age. They always need their parents or tutors to make decisions and sign for them. The parents and tutors are responsible by law for actions of minors (persons under 18). Although in our Scout methodology children and young people under 18 participate actively in all the age sections in the designation of their programme, this excludes legal responsibility; they cannot participate in decision-making bodies of the organization.
Hungary
In Hungary those elected by the general assembly of an association have to be adults (i.e. over 18 years old). The same applies to appointed members of the revision and disciplinary committees. Any other position can be held by anyone in theory (in Hungarian Scouting leaders can be as young as 14). There is a well-established system preparing young people for such roles: initial training, applied working, advanced training, etc.
Iceland
In Iceland, our national board has a youth member who has to be 25 or younger (and there does not appear to be a minimum age, like being over 18). Each member (local Scout Group) has a committee and the youth committee has members younger than 18. To be able to vote in the assembly it is necessary to be over 18, but persons below the age of 18 can be present and participate actively in the debate.
Lithuania
In Lithuania young person are 14-29 years old. Any youth organisation must have at least 2/3 of young people in their membership. In order to be chairperson/president/main leader one should be 18 years old or have decision by court that one is emancipated and can be responsible for actions. For Board or other governing bodies the age limit is not set unless by the individual choice of the YNGO.
Former Yugoslav Republic of Macedonia
In the FYRO Macedonia by law any person over 15 years can form its own organisation and be member of the decision-making bodies. But the membership of minors (under 18) in any organisation has to be approved by a parent or guardian (usually by a signed letter of consent). In the Scout Association of Macedonia, members can be part of the decision-making bodies when they have turned 18. This is defined in the Constitution of the Scout Association of Macedonia, and this does not defy with any laws in Macedonia.
Malta
In the Scout Association of Malta at the moment all Scout Leaders who are responsible for the care of young people are all above 18 and they have to undergo four levels of training to achieve their highest level of training. This year, we have established the National Scout Youth Council and Forum, which caters for young people and young adults from the age of 16 till 26. The NSYC is also a decision-making body. In the very near future the NSYC will have a representative in the National Scout Council. At the moment the National Government is discussing in opening up the right to vote for local government to young people up to the age of 16. As a result of this general debate, the National level of the Scout Association has already discussed, if the association was prepared to lower the age for leadership to the age of 16 (assisting in taking responsibility of young people in a particular section). This issue is still being discussed. Apart from these rules, all Sections – from Cubs (7-11), Scouts (11-14.5), to Ventures (15-18) – have in their Scout programme a system where small groups meet in their section and discuss and share ideas: Cubs have Sixers’ councils; Scouts have the Patrol system; and Ventures have the Unit executive.
Montenegro
Any decision-making position has to be covered by a person older than 18 years. However, members of the general assembly of an organisation can be under 18 and they have all the rights of those aged 18 and above.
Netherlands
There is no rule on age limitations to board members, but here is one on legal capacity to do anything. In short, under-age people (<18) have to get parental consent for any decision with legal implications outside the normal scope of their situation. So, buying candy is no problem, getting on the board of an association is. If getting on the board is not a legal action (which, in my view, it is), then at least becoming a member of any association is. So one has to perform at least one legal action to get there. A second (but bit more construed) problem is that almost all legal entities have a provision in their constitution that automatically terminates the position of a board member in case he or she loses free powers over his or her properties. Since under-age people are legally represented by their parents, one could argue that they by definition do not have free powers over their properties. So the under-age board member could be appointed and then immediately and automatically lose his or her position because he or she has no free powers over his or her properties. (For Dutch readers among you: articles 1:234 and 2:26-52 of the Dutch Civil Code and article 25 of the Constitution of Scouting Nederland).
Norway
In Norway, the two Scout associations give full democratic rights to all members. In theory, a 12-year old could become Chief Commissioner, if elected. We trust that the General Assembly will elect the most suitable candidate (usually someone with more experience than a 10-year old has, but no rules are blocking a child from holding the most trusted positions). More practically speaking, it means that all members perform their democratic right at the general assembly of their local unit (and of course in their patrol). Because we are a representative democracy, the local units elect people to the regional assembly, who in turn elect regional representatives to the national general assembly. Each region has to be represented by at least 1/3 young people (under 26 according to Norwegian law), but the number is usually a lot higher. In fact, this system within our Scout associations was formed partly due to the will of the Norwegian Parliament. The legislator wanted even greater youth involvement in NGOs, and created a four tier financial support system to provide incentives. Depending on how many criteria a NGO meets, it ends up in one of the four categories. One of the criteria is to provide full democratic rights for all members, regardless of age. If a NGO refuses to comply with any of the four criteria it’s fine but it will end up with less governmental financial support. One of the main obstacles of youth involvement is actually the current practice of banks. It is difficult for under-age persons to open a bank account on behalf of their local unit. This makes it more difficult to run a group if you’re under 18. It is legal to have under-age persons in charge of NGO money, and the Minister of Children and Equality has reaffirmed this several times, but it takes time for the banks to realize the rights of young people. In the YMCA-YWCA Guides and Scouts of Norway, all members aged 15 and above can become representatives in the decision-making bodies. But there is a rule that says all units must have a leader aged 18 or older.
Romania
Under-age people cannot – legally – represent any form of organisation; they can be part of one, like the National Council of High School Students for example: this entity acts like an NGO, the pupils are part of the board etc., but for any legal undertaking it depends on adult supporting teachers. Similarly, in Romanian Scouting, Scouts aged over 16 years old are fully participating at the general assemblies at local level where they have the right to vote and are part of the decision-making process, but they cannot legally represent the association and therefore not be elected to the board, membership of which is limited to adults.
Serbia
In Serbia, the Law on Associations tried to follow the provisions of the UN Convention on the Rights of the Child. Thus, all members of a scout group (even cub scouts) or any other Civil Society Organisation (CSO) MUST be members of the general assembly with full rights (including active and – in theory – passive voting rights). In practice, children and young people under 15 (which is the legal age of financial responsibility) are represented by with proxy (usually by their parents) WHEN decisions concern financial issues. Members older than 15 can vote and be elected without proxy. However, one must be at least 18 (legal age) to be considered an official representative of a CSO.
Slovakia
To be a delegate at the general assembly (to have a right to vote) or member of statutory bodies of an association it is necessary to be over 18 years old.
Slovenia
In Slovenia, the law states that in youth organisations (such as the Scout association ZTS) 70% of members in the decision-making bodies must be aged between 15 and 29. This means that under-age members between 15 and 18 are also meant to be included in decision-making by the law and this also appears to be the common practice, certainly it is true within ZTS. But there is one exception to the rule: under-age members (not yet 18) cannot be legal representatives of the youth organisation. For more details check this website.
Sweden
Sweden probably differs quite a bit from many other countries since non-profit organisations (volunteer associations, freely translated from Swedish) are not mentioned at all in the Swedish law. Hence there is no specific legislation for associations such as the Scouts, and no requirement for associations to be registered anywhere (but being registered gives you some benefits, such as being able to have a bank account). So, in fact, everyone in a decision-making body could be under 18 since there are no requirements in the law. It is however common for associations (on local, regional and national levels) to have provisions in their constitutions that either 1/2 of the board, the chairperson or at least 1 in the board be over 18, since this makes it easier to have contact with banks etc. but it’s more for practical reasons than legal.
Switzerland
In Switzerland, legal questions related to associations (NPOs, NGOs, CSOs) are dealt with in the Swiss Civil Code (Art 60 to 79). There is no reference to any age limit in these articles. So more general rules might be applicable (age of legal responsibility, age of active and passive voting rights, etc.).
United Kingdom
In decision-making bodies (national / local boards) of associations, members must be over 18 years old.