ARTE
Association Relative à la Télévision Européenne
European Economic Interest Group (E.E.I.G)
Registered Office:
4 Quai du Chanoine Winterer, 67000 STRASBOURG, FRANCE.
Group governed by European Regulation No. 2137-85 of 25 July 1985
and by Law No. 89-377 of 13 June 1989,
registered with the Strasbourg Register of Companies and Businesses (RCS)
under No. C 382 865 624.
ESTABLISHMENT AGREEMENT
of 30 April 1991
_____________
– Updated to 22 June 2011 –
by the following:
the amendments adopted by the Extraordinary General Assembly of 20 January 1993;
the amendments adopted by the written procedure by the Extraordinary General
Assembly of 15 February 1995;
the amendments adopted by the Extraordinary General Assembly of 29 March 1995;
the amendments adopted by the Extraordinary General Assembly of 9 October 1996;
Resolution No. 4 adopted by the Extraordinary General Assembly of 8 October 1997;
Resolution No. 3 (3.1, 3.2, 3.3) adopted by the Extraordinary General Assembly of 17
October 2001;
Resolution No. 3 adopted by the Extraordinary General Assembly of 9 July 2003;
Resolution No. 3 adopted by the Extraordinary General Assembly of 29 March 2006;
Resolution No. 3 adopted by the Extraordinary General Assembly of 21 June 2006;
Resolution No. 4 adopted by the Extraordinary General Assembly of 9 December 2009;
Resolution No. 4 adopted by the Extraordinary General Assembly of 22 June 2011.
SECTION 1 -ESTABLISHMENT, PURPOSE, NAME, LANGUAGE, TERM
Art. 1 – Establishment
A European Economic Interest Group is
and all who may become members in
Regulation No. 2137-85 of 25 July 1985
related and subsequent provisions, as
internal rules that supplement it.
hereby established between the undersigned
any capacity, to be governed by European
and Law No. 89-377 of 13 June 1989 and all
well as by the present agreement and the
Art. 2 – Purpose of the Group
2.1
The purpose of the Group is to design, make and broadcast, or have
broadcast by satellite or any other means, and to have distributed,
including by on-demand audiovisual media services, television
programmes as well as content for the services offered electronically by
the broadcasting media, having a cultural and international nature in the
broad sense, and conducive to understanding and rapprochement
among the peoples of Europe. The area to be served shall be the
territories of the States of the members of the Group, subject to specific
agreements for other countries.
2.2
The Group's members, or the Group itself, shall acquire, produce,
coproduce or procure in any other manner programmes and other
content.
2.3
The Group may undertake any commercial, industrial, financial,
moveable or real property transactions directly or indirectly related to its
specified purpose or likely to facilitate the achievement or development
of the purpose of the Group.
2.4
The Group shall pursue its purpose in conformity with the terms of the
inter-State treaty on the European Cultural Channel, concluded between
the French Republic and the Länder of the Federal Republic of Germany
on 2 October 1990, annexed hereto.
Art. 3 – Name, Language
3.1
The name of the Group shall be
ARTE G.E.I.E.
Association Relative à la Télévision Européenne
3.2
In all documents, invoices, notices, publications or other instruments issued
by the Group the name shall be shown with the addition of G.E.I.E.
3.3
The Group shall indicate the seat of the court with whose clerk’s office it is
registered and the registration number it has been given at the top of its invoices,
purchase orders, price lists and advertising documents, as well as upon all
correspondence and receipts concerning its activities and signed in its name.
3.4
The business and working languages shall be French and/or German. The
Management Board shall determine, as needed, which documents must be produced
in both languages. The employees of the Group shall be free to express themselves,
orally or in writing, in French or German. The Group undertakes to procure the
necessary training for the employees to understand both languages; this shall also
apply to the members of the Group and their employees.
Art. 4 - Registered Office
4.1
The Registered Office of the Group shall be located at 4 Quai du Chanoine
Winterer, 67000 STRASBOURG.
4.2
The Management Board may, with the prior consent of the Ordinary General
Assembly, transfer the registered office to any other location in the city of Strasbourg.
Art. 5 - Term
The Group is established for a term of 99 years from the date of its registration in the
Register of Companies and Businesses. It may be dissolved by the unanimous
decision of its members, at the end of a financial year, upon one year’s notice.
SECTION II - CAPITAL, RIGHTS AND OBLIGATIONS OF MEMBERS, FUNDING
Art.6 - Capital
The Group is established without any capital.
Art 7 - Rights and Obligations of Members, Funding
7.1
The following number of votes shall be allocated to the members:
ARTE France
ARTE Deutschland TV
6 votes
6 votes
7.2
The members undertake to make available to the Group, in the same
proportion as their number of votes, the financial means, television programmes and
such other resources as are necessary for it to fulfil its terms of reference and
obligations, based on the budget and the various decisions of the General Assembly.
7.3
The Group may also have recourse to any other source of finance not
excluded by the inter-State treaty referred to in Article 2.4, the internal rules or the
Ordinary General Assembly.
Art. 8 - Liability of the Members
8.1
The members of the Group are liable to pay its debts from their own assets.
Liability is joint and several, except in the case of express agreement to the contrary
with a third party.
8.2
The creditors of the Group may not attempt to collect a debt from a member
until they have unsuccessfully served notice of default on the Group through an acte
extrajudiciaire [legal instrument issued by a court officer outside of a legal proceeding].
8.3
The members may in the internal rules or by special agreement agree to
allocate between them all or some of the joint liabilities, in accordance with whatever
calculation methods they deem appropriate; such agreed provisions on joint and
several liability shall not be binding on third parties.
Art. 9 - Other rights and obligations of the members
9.1
Each member is bound to comply with this agreement and the Group's
internal rules.
9.2
It shall be entitled to a vote at the meetings of members.
9.3
Each member shall have the right to call upon the Group's services for any
operation falling within its purpose.
9.4
Each member shall have the right, in the month that precedes the Ordinary
General Assembly that approves the annual accounts, to consult the books and
records of the Group on the conditions set forth in the internal rules.
ART. 10 - ADMISSION OF NEW MEMBERS AND COOPERATION WITH OTHER PARTNERS
10.1
The Group, during the term of its existence, may accept new members.
To be eligible for admission, new members must have either their registered office or
management headquarters in a Member State of the European Union.
10.2
The Group may accept other organisations or third parties as associate
members with the right to participate in an advisory capacity. Their rights and
obligations shall be set forth in an association agreement. Associate member(s) shall
not have the status of members within the meaning of European Regulation No. 213785 of 25 July 1985, Law No. 89-377 of 13 June 1989, this establishment agreement or
any of the provisions forming part of it or subsequently added to it.
10.3
The Group may enter into cooperation agreements with other broadcasting
organisations or other third parties.
10.4
Decisions on the admission of a new member and the necessary
amendments to this agreement, or on an association agreement or any cooperation,
shall be taken by unanimous vote of the members in Extraordinary General Assembly.
10.5
After admission of a new member, the decisions of the Ordinary and
Extraordinary General Assembly shall require the unanimous vote of the founder
members.
Art. 11 - Withdrawal and expulsion of members
11.1
A member may withdraw from the Group only on particularly serious grounds.
The main grounds might include, but are not limited to, cases where:
- the inter-State treaty mentioned in Article 2.4 is not or is no longer in force,
- a member does not receive, or no longer receives, the revenue it needs
from television set tax,
- the cooperation between members suffers severe long-term disruption,
-
the pursuit of the Group's purpose is seriously threatened.
Any intention to withdraw must be communicated to the Chairman of the General
Assembly prior to the declaration of withdrawal. An agreement should be sought in
Extraordinary General Assembly. If no agreement has been reached within three
months the withdrawal may be declared. It shall take effect at the close of the then
current financial year, provided that the member has satisfied its obligations to the
Group.
11.2
The expulsion of a member may take place by decision of the Extraordinary
General Assembly in the event such member has not complied with its obligations to
pay its contributions within fifteen days of notice of default by registered letter (lettre
recommandée avec accusé de réception) or if it has breached the terms of this
establishment agreement.
The Extraordinary General Assembly shall set the date on which the expulsion shall
take effect.
11.3
The member whose expulsion is requested shall be notified by registered
letter (lettre recommandée avec accusé de réception), one month prior to the date of
the Extraordinary General Assembly that is to rule on the expulsion. It may at that
Assembly present any explanations it deems appropriate.
11.4
A member that has resigned or been expelled shall remain jointly and
severally liable for commitments undertaken by the Group to third parties, until the
obligations it has itself contracted with the Group prior to the effective date of its
resignation or expulsion have been performed in full.
The rights of a member that has resigned or been expelled shall, in the absence of
any contrary stipulation, be evaluated by an expert designated by the members, or in
the event they disagree, by the President of the Commercial Chamber of the Civil
Court of Strasbourg, without any possibility of appeal.
11.5
If, after the resignation or expulsion of a member, two or more members
remain in the Group, it shall continue to exist between such members, the number of
their votes being increased proportionally.
11.6
If only one member remains after a resignation or expulsion, the Group shall
be dissolved.
SECTION Ill - MANAGEMENT
Art. 12- Management Board
12.1
The Group shall be managed by a Management Board composed of four
directors:
- a Chairman
- a Vice-Chairman
- a Programme Director
- an Administrative Director
However, at the time of the election of the Management Board the Extraordinary
General Assembly reserves the right to amend the composition of such Board and the
allocation of responsibilities between its members.
12.2
The members of the Management Board shall assume their offices as their
primary function. The Chairman and the Vice-Chairman may, however simultaneously
exercise a secondary function for a member or an affiliate of a member.
The Extraordinary General Assembly shall be kept informed of such secondary
function. The compensation received from the secondary function shall be partially or
totally deducted from the compensation paid by the E.E.I.G.
The Extraordinary General Assembly shall establish a compensation committee
responsible for making changes to the compensation of the members of the
Management Board and the senior executives of the E.E.I.G.
12.3
The members of the Management Board shall be elected by the
Extraordinary General Assembly for a term of four years, unless, as an exception, it
decides on another period in a specific case.
The Chairman and Vice-Chairman shall be elected upon the proposal of a member in
accordance with the following procedures: the right to propose the Chairman shall
pass to each member in turn, according to the number of votes held by the members
under Article 7.1. In the event two or more members possess the same number of
votes, lots shall be drawn to decide which shall have the first right of proposal if the
members concerned cannot reach agreement. The right to propose the Vice-Chairman
shall pass to the member having the next largest number of votes, or in the event of
two or more members having the same number of votes, to the one who did not
propose the Chairman. The Chairman shall have the right to propose the other
members of the Management Board.
12.4
The members of the Management Board may only be removed from office by
the Extraordinary General Assembly.
12.5
The employment contracts of the members of the Management Board shall
be concluded through the Ordinary General Assembly. The said employment contracts
may be terminated only by decision of the Extraordinary General Assembly.
Art. 13 - Powers of the Management Board
13.1
The Chairman shall manage the Group within the limits of its statutory
purpose and within the framework of the inter-State treaty referred to in Article 2.4,
subject also to the powers granted to the Group's General Assemblies by the laws and
the present agreement. The Chairman shall take all major decisions in consultation
with the Vice-Chairman. The Chairman and Vice-Chairman may decide to establish
areas of competence; each shall substitute for the other. The Chairman and ViceChairman shall be bound by the decisions of the General Assembly within the
framework of this agreement.
13.2
The Chairman shall have the authority to represent the Group in its relations
with third parties and to institute legal proceedings in its name; in the event of
unavailability of the Chairman, the Vice-Chairman shall represent the Group.
13.3
The other members of the Management Board shall be subordinate to the
Chairman and, within the scope of the tasks assigned to him, to the Vice-Chairman, in
accordance with Article 13.1; in principle, however, they shall each manage their
sector of activity in an autonomous manner and shall continuously represent the
Chairman and Vice-Chairman, within their sector of activity, both internally and
externally.
If in the sector of activity of a member of the Management Board, a dispute of a
fundamental nature occurs with the Chairman, the manager may call upon the
Ordinary General Assembly to resolve it. The present provisions shall not affect the
competence of the other members of the Management Board with respect to decisions
and the continuity of action of the Management Board as a whole.
13.4
The Chairman shall have the authority to appoint in writing a person
employed by the Group to represent the Group in a given sector pursuant to the
internal financial rules.
SECTION IV- GENERAL ASSEMBLIES, PROGRAMME ADVISORY
COMMITTEE
1.
Art. 14 - General Assembly
14.1
The General Assembly shall be composed of all members making up the
Group. It may be either ordinary or extraordinary. Each member of the Group shall
have the right to participate in all Assemblies.
14.2
The number of representatives of the founding members shall be equal to the
number of votes they have pursuant to Article 7.1. The number of representatives of
members joining subsequently shall be equal to the number of votes attributed to
them. The votes held by a member may only be voted as a block.
14.3
The Chairman and Vice-Chairman of the General Assembly are elected for
the same term as the Chairman of the Management Board. The right to propose the
Chairman of the General Assembly is granted to the founder member not having the
right to propose the Chairman of the Management Board for the same period; the right
to propose the Vice-Chairman of the General Assembly shall belong to the other
founder member.
Each member shall decide on the composition of its representation at the General
Assembly.
Each member shall inform the Chairman and Vice-Chairman of the General Assembly
as soon as possible in writing of the composition of its representation and of any
changes that occur during the term of office.
The Chairman and Vice-Chairman shall respectively be elected on the proposal of a
founding member.
The member proposing the Chairman or Vice-Chairman shall send its proposal for
candidature to the other members not later than twenty days before the session of the
General Assembly at which the election is to be held.
The functions of the Chairman and Vice-Chairman shall come to an end when the
following events occur:
a) expiry of the term of office;
b) removal by the General Assembly in session or by the written procedure;
c) incapacity or death of the Chairman or Vice-Chairman;
d) voluntary resignation of the Chairman or Vice-Chairman; in this event, the
Chairman or Vice-Chairman shall inform the members of the E.E.I.G. by letter;
e) withdrawal of the capacity of representative by the member concerned.
In the latter three cases (c, d and e), the General Assembly shall take formal note of
the event bringing to an end the functions of the Chairman or Vice-Chairman.
In the last case (e) mentioned above, the member wishing to withdraw the capacity of
one of its representatives designated by the General Assembly as Chairman or ViceChairman, shall give written notice to the Chairman or Vice-Chairman of the General
Assembly as the case may be, and shall so inform the other members.
The Chairman or Vice-Chairman shall then convene an Extraordinary General
Assembly, which shall within 3 weeks deliberate under the written procedure on the
end of the term of office concerned.
At the end of the said written procedure, the member may change its representation.
The new Chairman or Vice-Chairman shall be designated not later than the following
Extraordinary General Assembly.
For any member joining subsequently, the right of proposal shall be governed by the
membership agreement provided this does not involve any modification of this
establishment agreement.
14.4
Insofar as they have not been designated to represent the members at the
General Assembly, the members of the Management Board have the right to
participate in all assemblies in an advisory capacity. The members and the
Management Board may invite other persons in the capacity of advisers, if none of the
representatives of the members present objects.
14.5
Decisions may be taken by the written procedure, provided all the members
state their approval of such procedure or take part in it.
Art.15 - Extraordinary General Assembly
15.1
Aside from the cases provided for elsewhere in this agreement, the
Extraordinary General Assembly is competent in matters of:
-
election of the Chairman and Vice-Chairman of the General Assembly
-
amendment to the establishment agreement of the Group
-
dissolution of the Group
-
expulsion of members
-
transfer of the votes of a member to third parties (transfer of membership
to third parties)
-
admission of new members and the determination of the number of their
votes
-
cooperation agreements with other partners
-
agreements pursuant to Article 2.1
-
appointment and removal of the members of the Management Board
-
approval of the organisation plan drawn up by the Chairman
-
definition of the programming principles, including versions in other
languages, on the basis of the proposals presented by the Chairman after
consultation with the Programme Advisory Committee
-
adoption of the programme schedule presented by the Chairman. However,
the Management Board shall be authorised to make, in specific cases,
exceptions to the programming schedule within the limits of the budget
allocated and consistent with the quotas of the members as well as the
balance between the various types of programmes.
15.2
The Extraordinary General Assembly may not deliberate unless 2/3 of the
members of the Group are present. A majority of 3/4 of the votes cast shall be required
for the adoption of any decision not requiring unanimity under Article 17 of European
Regulation No. 2137-85 of 25 July 1985 or any other mandatory legislative provision.
Art. 16 - Ordinary General Assembly
16.1
The Ordinary General Assembly shall receive the report on activities of the
Management Board as well as the report of the financial controller(s) and auditors it has
previously appointed.
16.2
The Ordinary General Assembly shall, in accordance with European Regulation
No. 2137-85 of 25 July 1985, French Law No. 89-377 of 13 June 1989 and this
establishment agreement, determine the principles by which the Management Board
shall manage the Group, and shall ensure compliance with the internal rules.
The Ordinary General Assembly shall be competent for all matters that are not expressly
reserved to the Extraordinary General Assembly, that is to say above all in matters of:
-
approval of the budget,
-
conclusion of employment contracts with the members of the Management
Board,
-
representation of the Group vis-à-vis members of the Group,
-
agreements between the Group and one of its members, provided they do
not relate to the fulfilment or performance of the obligations deriving from
their membership status,
-
appointment of employees, upon proposal by the Chairman, where these
are heads of departments and editors, or personnel senior to them in rank,
-
acquisition, disposal or mortgaging of land,
-
acquisition and disposal of investments,
-
commitments through bills of exchange, guarantees, loans and borrowings
outside of the normal course of business,
-
entering into legal acts of any nature the value of which exceeds the ceiling
laid down in the financial rules for acts not requiring approval.
Approval is not required to enter into employment contracts or production agreements
within the scope of the annual budget adopted.
16.3
The Ordinary General Assembly may not deliberate unless 2/3 of the members
of the Group are present. Decisions shall be made by majority of the votes cast.
Art. 17 - Convening and conduct of Assemblies
17.1
The Chairman of the General Assembly shall be responsible for convening the
Assemblies.
17.2
The financial controller(s) (Art. 21) and, in the event of an emergency, the
Chairman of the Management Board or the auditor(s) (Art.22) may also
convene an Assembly.
17.3
The Ordinary Assembly shall be convened at least once each calendar year.
A quarter at least of the members may require the Chairman of the General
Assembly to convene an Assembly with the agenda they propose. The request
shall be made by registered letter (lettre recommandée avec accusé de
réception) and shall indicate the matters to be included in the agenda.
17.4
Where no convocation is issued within one month after the request, the
interested parties may require the appointment of a legal administrator with the
task of convening the Assembly with the agenda set forth in the decision
appointing the legal administrator.
17.5
Any member of the Group as well as the Chairman of the Management Board
or the financial controller(s) may forward proposals for resolutions to the
Chairman of the General Assembly.
17.6
The Chairman of the General Assembly is obliged to include such proposals in
the agenda of the next Assembly, provided they are received by him at least
twenty days prior to the Assembly.
17.7
Assemblies shall be convened by registered letter (lettre recommandée avec
accusé de réception), mailed at least fifteen days in advance and including the
agenda, the draft resolutions, and, if applicable, the report of the members of
the Management Board.
17.8
An Assembly may validly deliberate only on matters placed on its agenda. If the
Assembly decides by a 2/3 majority of the votes of the members present and
more than half of the total members’ votes that a matter is urgent, it may be
considered, even if it was not on the agenda sent pursuant to paragraph 7 and
was placed on the agenda only during the Assembly.
17.9
The decisions shall be recorded in minutes to be signed by a representative of
the members present at the Assembly. Furthermore, a report of each General
Assembly shall be prepared and submitted to the General Assembly for
approval.
Art. 18 - Programme Advisory Committee
18.1
Each of the founding members of the Group shall appoint eight members of the
cultural community of the country of their registered office as members of the
Programme Advisory Committee. In the event other members are admitted, they
shall send to the Advisory Committee the number of country representatives that
corresponds to the number of their votes.
18.2
The Programme Advisory Committee shall advise the Management Board and
the General Assembly on matters of programming.
18.3
The members of the Programme Advisory Committee shall be appointed for
terms of 3 years.
SECTION V - PROGRAMME DEVELOPMENT
Art. 19 – Principles, production of and responsibility for programmes
19.1 The Group’s programmes shall comply with the following general principles:
19.2
-
independence, pluralism and balance in the programmes offered. The
programmes broadcast must not support, among other things, any
government, party or any other player in social, business or political life;
-
respect for the principles of understanding among peoples, human dignity
and moral, philosophical and religious convictions;
-
conformity of news programmes to recognised journalistic principles, in
particular fairness, objectivity and separation of news from comment;
-
a right of reply in conformity with the rules laid down in Article 8 of the
Council of Europe Convention on Transfrontier Television (DHMM 891.F
March 1989);
-
conformity with the principles laid down in Article 7 of the Council of Europe
Convention on Transfrontier Television;
-
programmes likely to
harm the
physical, psychological or moral
development of children or adolescents are to be broadcast at times when
they should not normally be found in front of the set;
-
absence of commercials and/or breaking up of programmes by advertising;
The Group's programmes shall respect the following commitments:
-
within the framework of what is financially possible, it shall attempt to show
as many works as possible that are broadcast premieres;
-
a majority of the television programmes and films broadcast each year shall
be of European origin;
-
no full-length films shall be broadcast on Fridays before 10:30 p.m., or at
any lime on a Saturday or on a Sunday before 8:30 p.m.
-
the Group shall take care not to broadcast films outside the time limits
agreed in the contracts with the rights holders.
-
sponsored broadcasts may not serve as advertising for the merchandise
or services produced or distributed by the sponsor.
19.3
The Group shall develop its programming in cooperation with the members as
follows:
19.3.1 Programmes shall be provided by the members without transfer of ownership,
except for programmes supplied directly by the Group or programmes made by
broadcasting organisations with which the Group has entered into a cooperation
agreement.
19.3.2 The German member is entitled, within the framework of its share of the
programming, to supply the programmes of a European Music Channel, which has not
yet been founded, for which a broadcasting slot of two hours, which may be increased,
has been set aside in the programming schedule. The programmes of the European
Music Channel shall be musical productions of high quality, produced by European
broadcasting organisations, and shall always be introduced by a distinct trailer.
19.3.3 A Programming Conference shall be established, which shall be composed of
the following members, each with the right to vote:
-
the Group's Programme Director as Chairman
-
the Deputy Programme Director
-
the Programme Directors of the members and their Deputies.
The Extraordinary General Assembly may decide to modify its composition and the
provisions concerning voting rights, without the need to amend the establishment
agreement.
The Conference shall meet at the Group's headquarters according to need, but at least
once a month, and
-
shall establish the programming principles as well as the schedule
presented by the Chairman to the General Assembly;
-
shall decide, as and when needed, on the allocation of programme slots
between members; the allocation between members shall reflect the shares
held by the members – in general and for the different programming units –
unless exceptions have been made on a case by case basis by unanimous
decision. As long as the Group consists solely of the founding members,
each of them shall, consequently, be required to furnish half the
programmes for all the programming units;
-
shall decide, on the basis of an initial recommendation by those in charge of
the Group's and the member's programming units, if the various
programming proposals from the members should be produced.
The Programming Conference shall take its decisions by a majority of 2/3 of those
present.
19.3.4 The members shall draw up specific programming proposals for the
broadcasting slots assigned to them. Such proposals shall be forwarded to the Group's
Programme Director and to the members, who may make complementary or alternative
proposals. For each proposed production, the definitive technical and editorial
characteristics, the schedule and terms of delivery, the scope of the rights and the
linguistic treatment must be stated (See the specifications: Rules for Cooperation in
Programming). For European Music Channel programmes, that Channel, represented
by the German member, shall have the exclusive right to make proposals. Once the
decision of the Programming Conference is taken, the members shall produce the
programmes in complete independence, consistently with the Rules for Cooperation in
Programming. The members must devote a global amount, to be established annually,
to their programming contributions.
19.3.5 The Management Board shall be responsible for the programmes broadcast.
The Programme Director may refuse a broadcast when it does not comply with the
specifications established for that programme by the Programming Conference for such
programme. The member must be given an adequate time period to make the
necessary improvements. In the event of definitive refusal of a broadcast the
Programme Director shall be obliged to justify his decision to the Programming
Conference. The liability of members for programmes supplied by them shall not be
affected by the present provisions.
SECTION VI - PERSONNEL
Art. 20 - Origin of personnel, employment status of employees of the Group
20.1
The Group's personnel shall, to the extent possible, originate from the
members' countries in proportion to their number of votes. Positions available must be
notified to members in good time.
20.2
All the employees of the Group, whatever their nationality, shall be subject to a
common status approved by the Extraordinary General Assembly, which guarantees
them equal treatment, in particular as to pay and, as far as possible, benefits coverage
and retirement.
SECTION VIII - FINANCIAL CONTROL AND ACCOUNTING
Art. 21 - Financial Control
21.1
Financial control shall be entrusted to one or more individuals chosen from
among the personnel of the members.
21.2
The controllers referred to in paragraph 21.1 shall be appointed by the Ordinary
General Assembly which shall also establish their term of office, which may not be less
than one year. The controllers shall submit a written report on the management of the
Group each year to the Ordinary General Assembly. The function of controller is
incompatible with those of a member of the Management Board or auditor.
21.3
The financial controller(s) may only be removed on serious grounds and upon
the decision of the Extraordinary General Assembly.
21.4
The controller shall have all investigative powers necessary to carry out his
terms of reference. However, he may not himself perform acts of management or
interfere with the activities of a member of the Management Board.
21.5
He shall receive an annual compensation set by the Ordinary General
Assembly.
2.
Art. 22 - Appointment of an auditor
22.1
The auditing of the accounts shall be entrusted to one or more auditors
appointed by the Ordinary General Assembly for the term set forth in the applicable
laws.
22.2
The auditor or auditors may only be removed during their term of office on
serious grounds and upon the decision of the Extraordinary General Assembly.
3.
Art. 23 – Terms of reference of the auditor
23.1
The auditor shall audit and certify the compliance and accuracy of the inventory
of assets and the annual accounts.
23.2
Therefore his task, to the exclusion of all involvement in management, is to
audit the Group's books and assets and to ensure the conformity and accuracy of the
accounts. He shall also audit the accuracy of the information given in the Management
Board's activity report on the Group's financial situation and accounts.
23.3
He may, at any time, instigate any inspections or controls he deems
appropriate, and he shall have access in situ to all documents useful to the performance
of his task, including all contracts, books, accounting documents and minute books. The
Ordinary General Assembly shall establish the amount of his fees.
SECTION VIII- FINANCIAL YEAR, BUDGET, ACCOUNTS, RESULTS, PAYMENTS
AND METHODS OF FINANCIAL PRESENTATION TO THE MEMBERS
Art 24 - Financial Year, budget
24.1
The financial year of the Group shall commence on 1 January and terminate on
31 December of the same year. However, the first financial year will commence on the
signing of this agreement and run until 31 December of the same year.
24.2
The Management Board shall work on the basis of a budget, which must be
prepared for each financial year and be approved in advance by the Ordinary General
Assembly. The staffing table attached to the budget shall be binding on the Management
Board.
Art 25 - Accounts
25.1
Regular accounts shall be kept of all operations carried out by the Group, in
conformity with the laws and commercial practice. At the end of each financial year, the
Management Board shall draw up a balance sheet of assets and liabilities and prepare
the annual accounts in the light of the accounting records and the inventory. The report
shall be forwarded to the Ordinary General Assembly within 4 months of the close of the
financial year.
25.2
The provisions of the general accounting plan and those of the business
accounting plan, in the sector in which the Group’s activity is included, shall be applied.
25.3
In the event the Group has 100 employees or more at the close of a financial
year, or if its turnover is equal, or superior, to 120 million Francs, the Management Board
shall be obliged to prepare a schedule of realisable and available assets, excluding
inventories, and current liabilities, a projected income statement and a funding table at
the same time as the annual balance sheet.
The Group shall no longer be required to prepare such documents once it has not
fulfilled any of the abovementioned conditions for two financial years.
Art. 26 - Distribution of earnings
If at the end of a financial year a net surplus remains after deduction of operating
expenses and other charges, including depreciation and provisions and after deduction of
losses that may have been recorded in previous financial years, such profit shall be
credited to each member that belonged to the Group during such financial year, in
proportion to the number of votes set forth in Article 7.1. The same shall apply in the
event of any deficits.
Art. 27 – Payments, budgets and presentation of accounts by the members
27.1
Each member shall pay into the Group's account the amount of funds fixed in
the budget. The other details shall be governed by the internal rules.
27.2
The budgets and the annual accounts of the members shall be presented in a
comparable manner. The members shall send each other their budgets, their annual
accounts and their independent auditor's reports and furnish upon request any other
information concerning such documents.
SECTION IX - DISSOLUTION AND LIQUIDATION
Art. 28 - Dissolution
The Group shall be dissolved upon:
-
the expiry of the term of this agreement,
-
extinguishment of the purpose of the Group,
-
decision of an Extraordinary General Assembly
-
decision of a court on serious grounds
-
withdrawal or expulsion of a member, if only one member remains
thereafter.
It shall not be dissolved by the dissolution of a legal entity that is a member of the Group,
unless only one member remains.
Art. 29 - Liquidation
29.1
The dissolution of the Group shall result in its liquidation.
29.2
The Group shall continue to have legal capacity for the purposes of its
liquidation. However, the powers of attorney shall expire on the date of the Group's
dissolution.
29.3
During the course of the liquidation, the financial controller and the auditor
shall continue to perform their functions until the completion of the liquidation.
29.4
The liquidation shall be carried out by one or more liquidators appointed by
the Extraordinary General Assembly that records the grounds for the Group's dissolution
or decides on its early dissolution. If the Assembly is not able to make such an
appointment, the liquidator shall be appointed by decision of a court.
29.5
The liquidator(s) shall have the broadest possible powers to conclude all
transactions entered into in the name of the Group, as well as to realise the assets and
discharge the liabilities.
29.6
The members of the Group shall be convened at the completion of the
liquidation to approve the accounts, discharge the liquidator(s) and declare the
liquidation closed. The excess assets, if any, shall be divided between the members in
proportion to the number of votes set forth in Article 7.1.
29.7
If the assets are not sufficient to settle the liabilities and charges, the
members shall be obliged to make the necessary contributions, in proportion to the
number of votes allocated to them under Article 7.1.
SECTION X INTERNAL RULES, BROADCAST LAUNCH, ACTS PRIOR TO
THE REGISTRATION OF THE GROUP, ARBITRATION CLAUSE
Art. 30 - Internal rules
30.1
The provisions of this agreement shall, for the purposes of their application, be
supplemented by internal rules (including financial rules). Such rules shall define the
terms of the cooperation between the institutions of the Group and the members in the
following sectors: programmes / law, personnel, fees and copyright / finance / technical
and communications; joint committees shall be established for each of these sectors.
30.2
The internal rules shall be established by the Management Board without delay,
on the advisory opinion of the controller(s), and shall be submitted for approval of the
Extraordinary General Assembly by the Chairman of the Management Board.
Art 31 - Launch of programme broadcasting
The Group shall begin broadcasting as soon as possible after its specific status under
broadcasting law has been guaranteed by the entry into force of the inter-State treaty
referred to in Article 2.4 or by a declaration of dispensation by the body ordinarily
responsible for broadcasting in France.
Art. 32 - Assumption of commitments predating the signature of the Articles
("statuts") and the registration of the Group - Acquisition of legal capacity as
a legal entity
32.1 The Group shall not enjoy legal personality until after its registration in the
Register of Companies and Businesses.
32.2
Furthermore, the undersigned members hereby give absolute and irrevocable
authority to Mr. Jérôme Clément and Mr. Winfried Enz to immediately undertake,
together or separately, on the Group's behalf and in the common interest, all actions
necessary for the establishment of the Group.
32.3
For the purposes of establishment, publication, deposit of the agreement and
registration in the Register of Companies and Businesses all powers are hereby given to
Mr. Winfried Enz and to the holder of an original of this contract.
32.4
All expenses and fees incurred for this agreement shall be included as expenses
in the first statement of accounts.
Article 33 - Arbitration clause
All disputes arising out of the present agreement or relating thereto, including those that
relate to its validity, shall be settled as a last resort in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce (seat: Paris), by
an arbitral tribunal specifically established for such purpose and composed of one
arbitrator respectively designated by each member of the Group and one other arbitrator
designated by those arbitrators, who will be the Chairman; if the total number of
arbitrators so obtained is an even number, the arbitrators designated by the members of
the Group must designate an additional arbitrator. If, within four weeks from their own
appointment, the arbitrators designated by the Group's members have not reached
agreement on the person to be the other arbitrator(s), the latter shall be appointed by the
Court of Arbitration. The choice of language for the arbitration proceedings shall be made
in conformity with Article 3.4 of this establishment agreement. The place of arbitration
shall be Strasbourg.
The Rules of Arbitration and Conciliation of the International Chamber of Commerce
shall, in each respective version, be an integral part of this agreement.
Reference shall be made to the French and German versions for the interpretation of this
agreement. The arbitration commission shall rule in the event of divergence between the
two versions.