The Gazette 1971

The subscription of a club member to his club is not a

tax, because it arises from contract, and because mem-

bership of the club is voluntary. If however a person is

required by law to join an association in order to carry

on a particular trade or profession and if the associa-

tion has power under its own rules to require subscrip-

tions from its members, it is difficult to see how the

power to levy a subscription can be constitutional. The

person concerned is compelled, although indirectly as

a result of a rule of law and not a privately-created

obligation, to pay a sum of money not fixed by, or under

a formula laid down by, the Dail. The fact that the

money is not payable to a State body is irrelevant; there

is no reason why the Constitution should allow private

bodies to be given the legal power to tax directly or

indirectly. The power to impose the subscription arises

from contract, but it is a contract which the person is

compelled by law to make if he wises to engage in the

trade or profession in question. The State has in effect

merely delegated to the association concerned the power

to lay down, by unanimity, majority vote, or otherwise,

the terms of a contract which is binding all of the per-

sons engaging in the trade or profession. The fact that

the taxpayer may have a voice in framing the contract

is irrelevant if it is ultimately binding on him without

his consent. The fact that the payment is confined to

participants in that trade or profession, and that par-

ticipants are not compelled to engage in that trade or

profession, is hardly relevant; a tax is a tax even if it is

not imposed on every potential taxpayer in the country,

and even if taxpayers can avoid it by altering the nature

of their activities. (Article 40.1 of the Constitution of

course would require there to be a rational basis for

singling out any class of taxpayers for special treatment,

favourable or otherwise). On the other hand, if the law

does not require the participants in a given profession

or trade to be members of a particular association, but

does authorise members of that association to be re-

quired to pay a variable subscription, this does not

appear to be a tax, since it is a payment undertaken as

the price of membership voluntarily undertaken : the

relationship is based on contract, though regulated by

law, just like any other contract.

This analysis seems important because it calls serious-

ly in question the validity under the Constitution of

the power to impose a levy which is given to ANCO

under the Industrial Training Act and the power of the

Incorporated Law Society to impose on solicitors an

annual contribution of the kind now charged.

[Mr. Temple Lang's article while raising interesting

questions is based on some challengeable assumptions.

The Constitution makes provision for subordinate

legislation and accordingly there is no objection to such

legislation by a Minister, a semi-state body or a profes-

sional association in the exercise of statutory powers.

The Constitution also states that a bill which contains

only provisions dealing with the imposition, repeal,

remission, alteration or regulation of taxation must be

initiated in the Dail. The author suggests that this

might prevent a professional society from levying a

contribution on its members.

The correctness of this argument depends on whether

the contribution is imposed by a bill and whether it is

a tax.

In construing the Constitution as in construing an

ordinary act of the Oireachtas words must be assigned

their ordinary and natural or primary meaning unless

the context indicates a different intention. The ordinary

and natural meaning of "bill' is draft legislation pre-

pared for consideration by either house of the Oireachtas.

It seems to be an undue extension of the meaning of the

word to say that it includes a regulation made by a

professional body. Similarly in its ordinary and natural

sense tax denotes a payment to the central fund. The

Oxford English Dictionary defines tax as a compulsory

contribution to the support of government and gives as

a secondary meaning local taxation. The fact that the

Constitution in Article 22 (3) explicitly excludes local

taxation seems to imply that the word is intended to be

used in its strict sense, that is payment to the central

fund. Editor.]

Anti-Trust Charges Against German

Copyright Body

The Commission has ordered the association controlling

all musical copyrights in Germany to cease discrimina-

tory trade practices. This is the first decision by the

Commission against an "abuse of a dominant position"

in the Common Market. The firm accused of restraining

trade, within and outside Germany, is the "Gesellschaft

fiir musikalische Auffuhrungs- und mechanische Ver-

vielfaltigungsrechte" (

GEMA

—Society for musical per-

forming and reproduction rights) of Berlin.

The Commission charged that

GEMA

, contrary to

Article 86 of the Rome Treaty, discriminated against

non-nationals : only Germans may become full voting

members, while non-nationals are limited to being affil-

iated members with no pensions or voting rights. It

also charged

GEMA

statutes with effectively tying mem-

bers to the organization for life, since it would involve

large financial losses to leave.

GEMA

, which handles nearly $48 million a year, is a

semi-public body which has been given jurisdiction by

the state over all copyrights of musical productions and

composition in Germany. A musical artist signs up with

GEMA

and receives a royalty every time any of his work

is played in public.

The Commission charged that in addition to dis-

criminating against non-nationals and tying its mem-

bers to the organisation,

GEMA

also :

• made it more difficult for German music publishers,

in particular, to operate in other member states, and for

publishers of the other member states to practise in

Germany;

• awarded fidelity bonuses for being a good customer

which discriminated against other members;

• sometimes levied fees for music which was already in

public domain or did not belong to

GEMA,S

repertoire;

• charged copyright fees twice on records imported

into Germany by independent dealers;

• demanded royalties on sales of tape recorders import-

ed into Germany which were higher than those demand-

ed on national production.

120