The power of its members is exercised collegially
Even if the presence of an office is not mandatory, it is common that associations, especially the largest of them, to be withAccording to the wishes of the founders and the drafting of the articles of association, the office may have a specific role in the implementation of the decisions of the board of directors and of the general assembly and in the decision-making of management, and even in the exercise of its disciplinary power. But many of the articles simply mention the office, as a generic designation of the members who compose it. The office then has no true power: only its members have powers of its own. In practice, contrary to the board of directors can only meet intermittently, the office, which includes a number of members less important than the council, and which is therefore easier to meet, is often the true executive of the association. It is then to ensure the implementation of the deliberations of both the board of directors and of the general assembly, to assume the management running of the association in the framework of the guidelines adopted, or to ensure the proper functioning statutory, and regulatory compliance. It is appropriate that the statutes or the internal regulations, specify without ambiguity the allocation of duties between the board and the bureau, in order to prevent any conflict of powers. In a case recently tried, a person, engaged in the capacity of deputy director of the two associations, had been the subject of a dismissal for gross misconduct by letter of the twenty-five January, signed by the presidents of the two associations. The layoffs charged have been judged without cause real and serious. On the one hand, according to the statutes of each association, their office is invested with all the powers which are not reserved by statute to the general assembly to manage, direct and administer the association and it ensures the current management of the latter. On the other hand, the articles of association gave no jurisdiction neither the general assembly nor the president in matters of personnel management. What it is necessary to infer that the dismissal of the employee could not be decided only by the office of each of the associations, and that the failure to comply with this rule, rendering the dismissal without cause real and serious. The office is composed in general of the president of the association, a treasurer and a secretary, even if according to the importance of the association, one or more vice-presidents, one or more assistant treasurers, one or more assistant secretaries may be members of the bureau. The office is most often an offshoot of the board of directors elected by him, and among its members. For this reason, the terms within the office and the board of directors are often set in the same way. The cessation of the functions within the office as a result of the same causes, and is the same procedure as the termination of the duties of the board of directors. The existence of an office is not mandatory, except if the association is subject to a legal statute or a specific regulatory imposes its presence. In small associations, the members of the bureau are often the same as that of the board of directors. Generally, the president is empowered to represent the association in all acts of civil life. In this capacity, the president can therefore sign contracts on behalf of the association.
But this does not mean that it may decide only to commit the association, because, contrary to popular belief, it is not the legal representative, but simply the agent.
For the most important acts (example: disposition - an Act which committed the minor's patrimony, both for the present and the future, by a significant change in its content, it must be previously authorised to act, either by the board of directors, or by the general assembly. The president authorizes expenditures The articles of association may also grant permission to open and operate the accounts of the association. It is to him, also, that it is the responsibility of ensuring compliance with the legal requirements (safety rules, for example). Thus, it is considered to be the employer of the employees of the association vis-à-vis the social security institutions. Nevertheless, the appointment of a president in an association is not a legal obligation. It also happens that associations are not equipped. In addition, even if the articles of association require the appointment of a president, he is not considered the legal representative of the association. It derives its powers from statute and therefore cannot act in the name and for the account of the association that if they give him power to that effect. It is important, for the protection of the association, the articles define more precisely possible the powers of the president. In a case recently tried, a professional player of basketball had been hired by an association manager, a club playing in third division amateur. More specifically, a convention was concluded between this player and the association represented by a member of the steering committee, who signed the contract with a-quality - all in all false -"the president of the Union, duly authorised". The judges have pronounced the nullity of the convention, because the person who had signed had in reality no power to do so, since the statutes of the association provided that only the president can hire.
The question arises as to whether, given the silence of the law on this point, if the president of the association has the power to bring an action in court on behalf of the association.
The answer to this question, all in all subtle, was provided by the case law.
It all depends on the size of the association
It is important, for the protection of the association, which the statutes define as precisely as possible the powers of the president. If the statutes confer upon the president the power to represent the foundation in all acts of civil life, including to represent them in court, it has powers to commence any such action, provided that this power is not reserved to another body.
But when the statutes are silent on the powers of the president of the association to represent the latter vis-à-vis third parties, it may not in any case represent the latter in court, except special mandate to do so.
The designation by the court (specifically by the president of the tribunal de grande instance of the headquarters of the association, acting on the request or, in cases of urgency, interim measures) of a provisional administrator to take the place of the president may be considered when the normal operation of the association has become impossible or irregular to the point of endangering its interests.
However, if this crisis must be severe, accomplished or imminent, it does not need to threaten the very existence of the association. The powers of the provisional administrator are various and are defined by the judge in the particular circumstances of each association: it can be, for example, a simple surveillance mission for the management or operations of any organ (the general assembly) to the contrary, the provisional administrator may be entrusted with the mission to manage and represent the association vis-à-vis third parties. In any case, the task entrusted to him must be proportionate to what is strictly necessary to resolve the crisis, under penalty of violating the freedom of association. Finally, the remuneration of the provisional administrator is set by the judge. Its support is in principle the association In the absence of statutory provision giving the president the exercise of the action and of the representation in court or giving very specifically the power to represent the association in all acts of civil life, the president can only act in righteousness on the authorization expressly granted by the general assembly, of an ad-hoc basis or a permanent basis. The treasurer often shares with the president the burden of all that relates to the management of the association. It makes payments, collects revenue, and, in this respect. It operates the accounts of the association and is responsible for their outfit. Thus, if the association has excess cash, and that he place the money on his own initiative, his liability would be due in the event of a loss related to an investment to be risky (Com.
Nevertheless, the when, the treasurer, and, hence, the association which he represents, cannot be considered to be sophisticated investors, so the bank that offers financial products cannot be exempt from its duty to provide information and vigilance against them (Com. may, n°.) The treasurer of an association that decided to invest the excess cash in a financial placement in the name of the latter must ensure that the law and the statutes give it that power.
The bank, for its part, must conduct the same audit.
Failing that, in the event of placement unfortunate, the Court of cassation finds that there is a sharing of responsibility. Curiously, there is no reference to the possible negligence of the association, for lack of supervision of the treasurer. The secretary is mainly responsible for the maintenance of the various registers of the association, the drafting of the minutes of the assemblies and boards of directors that he will sign to certify. It also goes to the secretary to make the compulsory declarations to the prefecture, and sometimes even to summon the different bodies of the association. More generally, it ensures the proper functioning material, administrative and legal status of the association. Article bis of the act of allows a minor of years of age to access the functions of executive directorates of the association: president, treasurer, secretary. Each of the legal representatives of a minor who is at least years of age who wishes to participate in the application of this article, the constitution of an association or to be responsible for its administration, is informed by one of the members responsible for the administration of it, by registered letter with request for acknowledgement of receipt. To this end, the minor communicates the identity and the address of each of its legal representatives.
We do not recommend, however, to assign such functions to a minor who is not immune to a lack of management may incur personal liability, financial, and even that of his parents.
Remember to report changes of office members to your banker. In the event of a problem, they could see their liability.
