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 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

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

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.

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