Åke Green acquitted – follow up

As mentioned in an earlier post, the Supreme Court of Sweden has found the Swedish pentecostal minister Åke Green not guilty in spite of his sermon containing inflammatory and sick views on gays. Among other things he said:” The Bible clearly teaches about these abnormalities. Sexual abnormalities are a deep cancerous tumor in the entire society. The Lord knows that sexually twisted people will rape the animals. Not even animals can avoid the fiery passion of man's sexual lust.”

The Court’s reasoned as follows.

• Green is guilty under Swedish law unless the rules of freedom of speech or of religion in the Swedish constitution and/or in the European Convention on Human Rights prevent this.

• The court found that the Swedish constitution did not prevent the Court from finding Green guilty.

• The European Court of Human Rights has interpreted the rules of freedom of speech and of religion in the European Convention on Human Rights in such a way that a guilty verdict by the Supreme Court of Sweden would probably be overturned by the European Court. Consequently, the Court found Åke Green not guilty.

In my view the important conclusion to draw from the verdict by the Supreme Court of Sweden is that it has made it clear that the statements by Åke Green were fully within the criminalized area of the Swedish hate crime legislation and that, without of the cloak of religion, he would have been found guilty.

It is deplorable that a person like Green is allowed to make public his sick views. In my opinion it is a flagrant misuse of the freedom of religion. This freedom should only be interpreted to permit the exercise of any and all religion (including Islam) and not the condemnation of certain behaviour as contrary to the religious laws of some favourite god.

However, I feel that the verdict, although sending the wrong signals in a society as the Swedish where crimes against gays are on the rise (a 100 % increase in one year), will be of very little general importance. No one of sound mind will interpret the verdict of the Supreme Court of Sweden as a green light for similar attacks on gays. In addition, people like Åke Green are not taken seriously here.

Swedish Law Blog "Featured Feed" at blawg.org

I am happy to note and “to tell to the world" that Swedish Law Blog is today's Featured Feed at blawg.org “Your Source For Law & Legal Related Weblogs”.

Part VIII – Swedish Trading Partnership - Forms of Business Ventures in Sweden

Formation

• A Swedish Trading Partnership (“Handelsbolag”) is formed by two or more natural persons or legal entities.

• There must be at least two partners in a Trading Partnership. If the number of partners has dropped below two, the Trading Partnership is regarded as having gone into liquidation after six months.

Foreign Owners

• All partners of a Trading Partnership may be foreign nationals or companies and no special acquisition permit is required.

Legal Entity

• The Trading Partnership is a legal entity and is issued with a registration number (“organisationsnummer”). However, it should be noted that from a taxation point of view a Trading Partnership is not a legal entity and the partners of the Trading Partnership are taxed individually for the activities of the Trading Partnership.

Two Kinds of Trading Partnerships

• Swedish Trading Partnerships are divided into two categories, normal Trading Partnership and Limited Trading Partnerships (“Kommanditbolag”). The provisions of the Act on Partnerships and Non-registered Partnerships - (Lagen (1980:1102) om handelsbolag och enkla bolag) are applicable to normal Trading Partnership as well as Limited Partnership, but there is one major difference.

• In a normal Trading Partnership all partners have unlimited liability, jointly and severally, for the partnership's debts. A new partner who enters the Trading Partnership thereby becomes liable for all of the previous debts as well.

• In the Limited Partnership all partners save one may have a liability limited to the unpaid registered agreed contribution (which may be as small as SEK 1). At all times one partner must be fully liable for the partnership's debts.

Accounts

• A Trading Partnership is required to keep separate accounts. The income is declared in schedules attached to the partners’ personal tax returns as the Trading Partnership is not taxed itself.

Auditor

• Normally, a Trading Partnership does not need an auditor. However, independent auditors may be required in large Trading Partnerships.

Business name

• The registered business name of a Trading Partnership is protected in its county of registration.

Financial Year

• A Trading Partnership may have a split financial year only if there is no natural person as partner.

Åke Green acquitted

Åke Green was acquitted by the Supreme Court of Sweden today.

The Court found that Green’s inflammatory language against homosexuals contravened the Swedish hate crime legislation but under the circumstances a sentence against him would most likely be considered by the European Court of Human Rights as a breach of the European Convention on Human Rights.

The sentence can be read in Swedish at the site of the Swedish Supreme Court.

ÅKE GREEN SERMON

This short unbiased information on the case from BBC News gives you the background of this interesting case, which sets the freedom of speech and of religion up against the Swedish hate crime legislation. This legislation has been amended to cover also crimes against homosexuals.

Having found the sermon and read all 12 pages of it, I can really see the problems the Supreme Court of Sweden is facing.

On the one hand, it is a severe attack in homosexuality based on Åke Green’s reading of the bible and it falls well within the framework of the Swedish hate crime legislation.

On the other hand, the freedom of speech and of religion could as easily be said to prevent a conviction under the hate crime legislation.

The District Court convicted Green, but the Court of Appeals reversed that decision.

What I noted in the sermon was the tedious, repetitious and complicated (at least to a non-Christian) references to the bible. To Åke Green the bible contains the word of the Lord and cannot be disputed. The sermon does not seem to fit very well with the kind of language one would expect to see in a speech contrary to the hate crime legislation.

Neither does his closing statement in his sermon:” We must never think that some people, because of their sinful lives, would end up outside of grace. Paul says about himself that he was the foremost of all sinners, but he encountered an abundance of grace and mercy….. It is by showing all people grace and mercy that we can win them for Christ. We never win anyone by giving them the cold shoulder.”

Nothing about killing all gays at all; only a disgusting expression of assumed moral superiority over sinners (I am sure that I am among the sinners, even if I am not gay. I may have “entertained evil thoughts” when a nice blonde passed by).

If you read the sermon thoroughly (not recommended unless you want to fall to sleep) you would note that Green makes reference a number of times to his work on a hot-line for people with personal problems (“as a volunteer telephone counsellor”), where people told him about their urges to rape animals (?). Do they not screen people like that – I mean the counsellors. Imaging being in anguish over e g how your parents have reacted when you told that you were gay and get Green on the line telling that “you could be cleansed from these abnormalities”.

I await the decision by the Supreme Court with great interest. The hearing took place on November 9 and the sentence is awaited by the end of November.

Blogger Problems

If you think I have no control over headings and text sizes in my post, you are right! Blogger does not give me the chance to preview or even tag my posts the last days.

However, I post anyway, hoping that my readers value the contents more than the lay-out!

Part VII– European Company (Societas Europaea) - Forms of Business Ventures in Sweden

A European Company (Societas Europaea or SE) is a fairly new form of company based on an EU Regulation supplemented with regard to the involvement of employees by a Council Directive. In Sweden the European Company is regulated by an act on European companies, which entered into force on October 8, 2004.

The European Company is a European public limited company and it may be created by registration in any one of the Member States of the European Economic Area (EEA). The Member States are obliged to treat an SE as if it is a public limited company formed in accordance with the law of the Member State in which it has its registered office.

Legal Capacity
The European Company has full legal capacity comparable to a Swedish public limited company.

Formation
A European Company can be formed i.a. in the following ways:

1. by merger of two or more public limited companies in at least two Member States,


2. by two or more private or public companies establishing a holding company where at least two of the companies held fall under the legislation of different Member States,


3. by establishing a subsidiary the shares of which are held by at least two companies falling under the legislation of different Member States,


4. by transforming an already existing public limited company provided it has had a subsidiary in another Member State for at least two years,


5. by a European company establishing its own subsidiaries.

Registration
Registration of a European Company in Sweden shall be made at the Swedish Companies Registration Office, Bolagsverket

Company Name
The name of a European Company must be preceded or followed by the abbreviation SE. In addition the normal rules for names of Swedish limited companies apply.

Capital Requirements
The minimum share capital of a European company is € 120,000.

Management
There are two different systems to choose between as regards the managing and controlling a European Company. The statutes may, therefore, require either a one-tier or two-tier system of administration.

The Directive and the Swedish acts also make provisions for employees to be involved in the management of a European Company.

Accounts and Audit
The accounts and bookkeeping of a Swedish European Company shall be kept in accordance with the corresponding rules of limited companies and the same applies in respect of auditors.

Transfer of registration from one Member State to another
One of the explicit aims of the Regulation is that a European Company should be able to transfer its registered office to another Member State without being wound up. Consequently, a European Company registered in Sweden may transfer its registered office to another Member State and vice versa.

Supplementing Rules
To the extent the rules of the Regulation, the Directive or the Swedish acts directly applicable to European Companies does not contain anything to the contrary the general rules applicable to Swedish public limited companies will apply in principle to European Companies.

Part VI – European Economic Interest Grouping (EEIG)- Forms of Business Ventures in Sweden

An EEIG is a vehicle which allows companies or individuals of different EU countries to combine and register in any EU country a grouping which has a legal personality and can operate across national frontiers. The primary legal foundation is to be found in the EU Council Regulation (EEC) No 2137/85 of 25 July 1985

Legal Capacity
Each member state determines for itself whether the EEIG has legal capacity; this is the case in Sweden.

Formation and Registration
An EEIG is set up in the same way as a normal company. At least two companies or individuals of different EU countries must request its formation. These are members, who in turn must appoint managers to operate the EEIG on a day-to-day basis. Registration of an EEIG in Sweden shall be made at the Swedish Companies Registration Office, Bolagsverket on its form 908.

Members
The rules of membership of the EEIG are set out in Article 4 of the EU Regulation establishing EEIGs. The main requirement is that each potential member should have been engaged in an "economic activity" in the EU prior to becoming a member of the EEIG.


The members decide how the EEIG will carry on its activities in a contract of formation for the EEIG. Each member shall have at least one vote. The members are free to decide the voting procedures to be set down in the contract of formation except for certain fundamental decisions, for which unanimous decisions are required.

The members appoint and lay down the powers of the managers who run the EEIG and make normal daily decisions. The actions of the managers are binding on the EEIG and the members are jointly liable for those actions.

Capital Requirements and Liability
The members of the EEIG are not required to subscribe any capital. As there are no capital requirements for an EEIG, the members have unlimited joint and several liability. This means that there is no limit to the liability of any of the members for the activities of the EEIG, but also that each member can individually be held liable for those activities.

Activities
An EEIG's activities must relate to the economic activity of its members and must be ancillary to them, but the concept of "economic activity" can be interpreted widely. Unlike a company, an EEIG is not intended to make profits for itself.

An EEIG cannot hold shares in any of its members, be a member of another EEIG, employ more than 500 persons nor be used to make loans to a company director or any person connected with him where that would be restricted or controlled by national law.

Accounts
The accounts and bookkeeping of a Swedish EEIG shall be kept separate from the accounts of its members.
    

Part V – Swedish Branch - Forms of Business Ventures in Sweden

If a foreign company wishes to establish a business venture in Sweden without doing it in the form of a Swedish limited liability company, one alternative is to carry on its activities through a Swedish branch office (“filial”).

• According to the Act on Branches of Foreign Companies (Lag om utländska filialer), a branch office may normally be established without approval by the Swedish authorities. However, the branch office has to be registered in the branch register kept by the Bolagsverket.

• The branch is not a separate legal entity but a part of the foreign company and, thus, the foreign company establishing the branch is liable for the branch office’s debts and obligations with its own total assets. This is an important difference when compared with the Swedish limited liability company, where the shareholders will not ordinarily be liable for the company’s debts and obligations. The financial risk is limited to the share capital, SEK 100,000 or SEK 500,000 depending of whether it is a private or public company. Look at my previous post on the Swedish limited liability company here.

Registration

• A foreign company desiring to start a branch office in Sweden has to register it in the branch register. The foreign company must be registered as a legal entity according to the laws of its country of origin and must carry on business there.

• The application should preferably be made through the prescribed form. Further information about branch registration can be found in English at Bolagsverket’s site.

• An application for registration must be sent to Bolagsverket before starting any business activities in Sweden.

Name

• The activities of the branch office shall be carried on and registered under a name that includes the name of the foreign company with the addition of the word ”filial”, and clearly indicate the nationality of the foreign company. In addition, the name must be distinguishable from other registered names and trademarks.

Management of the branch office

• The branch office shall be lead by a managing director, who shall be legally competent, not in bankruptcy, resident in the European Economic Area, (EEA)


• and not subject to a prohibition to conduct business. However, Bolagsverket may grant an exemption from the residence requirement.

• If the managing director is not a resident of Sweden, the foreign company must appoint a Swedish resident to accept service on its behalf.

• The managing director shall be responsible for the branch office’s operations. The foreign company shall issue a power of attorney for the managing director. Such power of attorney shall authorize the managing director to act on behalf of the foreign company in all matters concerning its activities in Sweden, to accept service of process on behalf of the foreign company, and be the legally responsible representative of the foreign company.

Accounts

• The accounts and bookkeeping of a branch office shall be kept separate from the accounts of the foreign company.

• The managing director of the branch office shall annually submit to Bolagsverket certain accounts for the branch office and/or the foreign owning company, depeding on whether that company is within the European Economic Area, (EEA) or not. Detailed information is, again, to be found at Bolagsverket’s site.

Auditor

• A Swedish authorized (certified) public accountant or an approved accountant or a registered accounting firm shall audit the administration and accounts of the branch office.

Part IV – Swedish Limited Company - Forms of Business Ventures in Sweden

The most common way of establishing a business in Sweden is through a company limited by shares (“Aktiebolag”). This form of companies is regulated by the Swedish Companies Act

Formation

• It is formed by one or more natural persons or legal entities.

Foreign Owners

• All shares in the company may be owned by foreign nationals or companies and no special acquisition permit is required.

Legal Entity

• The company is a legal entity and is issued with a registration number (“organisationsnummer”).

Two Kinds of Limited Companies

• Swedish limited companies are divided into two categories, private companies and public companies. The provisions of the Swedish Companies Act are applicable to all limited companies, but there are some statutory rules that differ between the two kinds of limited companies. The main rules that differ are the following.

• Public limited companies shall have a share capital of not less than SEK500,000 while the minimum share capital of private companies is SEK 100,000.

• Only public limited companies may issue investment certificates to the public and thus only public limited companies can be listed on an exchange. A private company, or a shareholder of such company, may not attempt through advertising to distribute shares or subscription rights in the company or debentures or warrants issued by the company.

• The board of a public company shall consist of at least three members but a private company is allowed to have one or more.

• A managing director has to be appointed in a public company. In private companies it is allowed to have a managing director and most private companies has appointed one.

Auditor

• A limited company must appoint one o more approved or authorized public accountants to act as company auditor.

Business name

• The registered business name of a limited company is protected throughout the country.

Financial Year

• A limited company may have a split financial year, which can facilitate financial planning with regard to taxes, credits, salaries and interest.

Responsibility and risk

• A considerable capital investment is necessary when starting up a limited company, but apart from that, the owners have no personal responsibility for the company’s debts or other obligations.

• N. B.!! The board of directors and the managing director has extensive responsibility and in certain circumstances, these persons can become personally responsible for the company’s debts; especially unpaid taxes and social contributions.

Voting Rights

• The Swedish Companies Act sets out the general rule that each share has one vote, but the articles of association may provide for shares with differences in voting rights. However, no share may have a voting right exceeding more than ten times the voting right of another share.

Rights in dividend etc

• The main rule is that all shares carry equal rights in the company. However, the articles of association may provide for shares of different classes. Shares may carry different rights to dividend and/or in the assets in case of liquidation.

New Swedish Companies Act 2006

• It should be noted that a new Swedish Companies Act is proposed to enter into force on January 1, 2006.

Part III – Swedish Sole Trader (”Enskild firma”) - Forms of Business Ventures in Sweden

Sole Trader (“Enskild firma”)

• A sole trader is a natural person who runs a business and represents it her/himself. The business is not a legal entity and, thus, the sole trader is personally liable for the debts accumulated in the business, the performance of contracts etc.

• If a person not domiciled in Sweden wishes to trade as a sole trader in Sweden, he or she has to appoint a manager domiciled in Sweden, who will then be the person responsible for the business activities.

• If the activities carried on by the sole trader is such that he would have been obliged to keep accounting records according the otherwise obsolete Book-Keeping Act of 1929, he has to register the business with Bolagsverket (the Swedish Companies Registration Office) Registration is always necessary for businesses involving trade in goods, chattels, securities or real estate, legal practise, patent offices and theatres.

• Registration is made in the trade registry for the county in which the business is carried on and the business name is protected only in that county. However, it is allowed to apply for registration in the trade registry of more than one county.

• The identity of the business is tied to the Swedish social security number (“personnummer”) of the sole trader. The business registered is not assigned a separate identity number and, thus, several different businesses may be registered under the same number.

• The business name may be selected freely but may not be misleading or too general.