| Re: [open-regulatory-compliance] FAQ - do legal persons include natural persos |
Regarding No. 1
Benjamin Bögel has told me explicitly that "legal person" is meant
"either-or" (continental, not british), so you are either a legal or a
natural person. We were using our mother tongue, so I don't think there
was a misunderstanding. Please clarify who in the EC has said
differently and let's approach this person together during FOSDEM.
The words are used with "or" in Art. 4 GDPR but more importantly also in
Art. 263 TFEU ("Any natural or legal person may ..."). I think TFEU
should be definite. But national law might still interfere (as refered
to in some EU court decisions), so it would be useful to have a
collection what the 27 national laws have to say about it.
Regarding No. 2
> 2) Groups of people acting in concert are generally seen as a legal
person as well - even if they did not bother to create a society, trust,
foundation or company."
This is not true in its generality. If we talk about legal concepts in a
FAQ we need to be sure. National law might consider groups of persons as
a partnership if they fulfill certain requirements which might differ
from country to country. This partnership might then be regarded a legal
person. Or not.
End result: We cannot say more than "might". But guesswork is not
helpful. I can't even vouch for my national law because "it depends". To
be sure these persons need to get legal advice.
> The group affected are those open source developers that go beyond
contributing code; i.e. are providing code; are doing this in the course
of a commercial activity which they are not modernising and whose open
source is not intended to be used in commercial activities.
I do not understand this paragraph, its more confusing than claryfying.
Whoever is involved in commercial activities needs to either get legal
advice on how to get out or fulfill CRA requirements.
The person from https://github.com/corpusops/croniter/issues/144 (who
says to be a self-employed commercial developer) took the smart way out
by archiving. It's not what we want, but it's the reality. We should not
try to whitewash the situation. It's dire for people like them.
Kind regards
Ilu
Am 20.12.24 um 17:00 schrieb Dirk-Willem van Gulik via
open-regulatory-compliance:
> So to isolate that issue / question - as can be a very key backstop for lone developers another attempt at a possible answer for others to shoot at (thanks Simon) below.
>
> Dw.
>
>
> FAQ QUESTION: What is a legal Person
>
> EU regulation generally distinguishes natural persons (i.e. humans, which you can put in prison; and who can die) and legal persons (i.e companies, foundations, trusts, societies). I.e it is an either/or situation. So in these cases you are either a Natural person. Or it concerns a legal person which cannot also be a natural person.
>
> However there are two issues that muddle a straightforward answer.
>
> 1) The EC has repeatedly clarified in private meetings that, in the context of the CRA, it sees legal persons as a superset; of which natural persons are a special class.
>
> Note that depending on the language you read the CRA in - it refers natural and legal persons pretty much everywhere; expect in 2 places.
>
> First - when it defines a consumer; this has to be a natural person (3.18, page 20) And secondly in recital 19, page 5 - where it refers to a legal person in the context of the definition of open source stewards.
>
> (references against https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202402847)
>
> 2) Groups of people acting in concert are generally seen as a legal person as well - even if they did not bother to create a society, trust, foundation or company.
>
> So in general - it is fair to assume that one natural person teaming up with another natural person - who then work together towards a common goal is to be seen as a legal person.
>
> So this will need clarification. The group affected are those open source developers that go beyond contributing code; i.e. are providing code; are doing this in the course of a commercial activity which they are not modernising and whose open source is not intended to be used in commercial activities.
>
>
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