Giulia Mauri and Andréa Petemba from Kadrant reflect what the current crisis means for the Association sector.
As a reaction to the war in Ukraine, governments and international organisations and institutions have adopted sanctions targeting Russia and Russian nationals. Moreover, several private companies have decided to stop dealing with Russia and to leave the country if they had operations there.
In this framework, a question that we are now receiving from some associations is whether they should take measures against their own Russian members or directors.
This article discusses the legal implications of this question but does not bring an answer as to the opportunity to take such measures. Indeed, unless the relevant association is active in sectors where specific sanctions or embargos are in force and target their members, there is no legal obligation (and sometimes no legal ground) to suspend or even revoke Russian members or directors.
Unless, as we will discuss below, the interests of the association, its members or the relevant sector of activity risk to be negatively impacted by the participation of Russian members to the activities of the association, the choice on whether or not to suspend them or revoke them is not a legal one, but one that sends to the rest of the not-for-profit sector a certain message as to the choices made by the association and the stand taken by the same.
As mentioned above, from a legal point of view, unless the relevant association is active in one of the sectors impacted by sanctions or legal measures adopted internationally, there is no obligation to act any differently with the Russian members.
However, should the association be active in sectors that are considered as strategic (for example aviation, oil and gas, airports, aircraft manufacturers and suppliers of parts or cybersecurity) and should the association consider that it is in its best interest or in the interest of its members to suspend or exclude Russian members, two main levels of analysis should be borne in mind : (1) the level of the members and (2) the level of the Board of directors.
Under Belgian law, the exclusion or suspension of a member of an association is surrounded by specific safeguards in order to avoid abuses and discriminatory behaviour towards members of the association. In particular, it is frequent that the articles of association contain specific list of cases when a member may be excluded or suspended. It is generally accepted that, even if this is not stated in the articles of association, a member may be excluded or suspended if it acts against the interests of the association. It is frequent that the suspension or exclusion of a member can only be approved by the general assembly and that the relevant member should be invited to defend its position and have its say before any measure could be taken against it.
Therefore, before deciding to suspend the rights of a Russian member or decide to exclude it, the association should carry out an analysis of its articles of association as well as assess whether that member represents a threat to the interests of the association and its members and whether such threat could be best addressed by suspending it or excluding it.
In as far as directors of associations are concerned, the protection usually granted under Belgian law is lower. Unless the articles of association provide otherwise, any director may be revoked without the need to give any explanation. The revocation of a director is usually decided by the general assembly of the association.
Even if the revocation of a director does not need to be justified, it is advisable before taking any decisions to assess what are the risks that the association wishes to avoid and the interests that it wishes to protect by revoking the relevant director and whether its suspension or revocation are an effective means to reach the association’s goals.
In both cases, before taking any measures we invite associations currently considering suspension or revocation of Russian members or directors to carry out an open discussion as to what the association wishes to achieve. A case-by-case analysis should be carried out taking into consideration the specific mission and sector of the relevant association and the role of the Russian member or director. Once an analysis of opportunity has been carried out, the articles of association and the law should be checked so as to avoid exposing the association to possible legal actions from the excluded members or directors.
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