Association (law)

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Associations are associations of persons of natural or legal persons as members who have come together voluntarily to pursue common interests and goals and who have a defined internal organizational structure based on private or public law statutes .

tasks

Associations often have the task of Terms uniform for their association members to write (about Terms of credit institutions and General Insurance Conditions ), sample contracts or delivery and payment terms to unify. The association policy and other common interests are represented uniformly for all members to the outside, thus it acts as a lobby group .

features

Kurt Schelter distinguishes between:

Regional subdivision

National parties, trade unions, clubs or other associations often have spatially structured organizational structures at different levels.

Bundesverband is a name for the generally top-level structure, i.e. H. at the federal level , which is customary for all parties and associations; comparable name before the establishment of the Federal Republic of Germany was Reichsverband . At the federal level, the regional association is spoken of, the district association refers to the level of the administrative districts ), the district association (traditionally called sub-district in the SPD ) and the community or local association . Occasionally, national associations are also central association (eg. Central Association of German craft ), the Federation (eg. Federation of the German Construction Industry ), an umbrella organization ( Association of Critical Shareholders ) or central association ( umbrella organization Specialists Germany called); they are exclusively legal persons.

Another type of association organization is the thematic hierarchy, which is typically formed from sectoral associations and umbrella organizations . One example of this is the German Fisheries Association as the umbrella organization for the divisions of deep-sea, coastal, inland and sport fishing as well as anglers.

Beyond national borders, associations also come together to form continental associations (e.g. UEFA , European Association of Small Animal Breeders ) or a world association (e.g. FIFA , World Association of Diamond Bourses ).

Social and political science aspects

Social and political science distinguish the various forms of appearance of the associations, such as specialist , umbrella , economic , professional and scientific associations , cultural , transport and sports associations , social and welfare associations , environmental protection organizations and protection associations . Political parties and trade unions, chambers ( professional bodies ) as well as student bodies , guilds and corporations as well as the (excluded in the legal sense) regional authorities of the sovereign administration are included. They are all interest groups of a social group.

The voluntary different clubs and similar organizations of the compulsory or forced organizations ( chambers of industry and the professions , in some places as trade unions ) in which a statutory compulsory membership is.

Furthermore, certain types of associations have special rights. Consumer and environmental protection associations enjoy the privilege of class action in consumer protection and environmental matters , trade unions and employers can negotiate binding collective agreements .

Associations often grow out of monopoly positions or they acquire them. In this respect, they are of high social importance. In the context of lobbying , special regulations then apply in order to avoid the formation of syndicates : from antitrust restrictions on commercial enterprises to regulations on the controversial compulsory membership to the desired sovereignty of the state and local authorities, which are also excluded from association law.

Legal issues

The establishment of associations is subject in Germany according to Art. 9 para. 1 GG the fundamental right of protection of freedom of association . A constitutive characteristic of an association is its members. These give themselves a statute that regulates the purpose of the association, the association assembly and the voting rights , if necessary membership fees . If they appear as an interest group of an interest group , they are to be assigned to lobbyism , in the context of which influence on legislation and public administration is exercised.

Associations are mostly associations because they pursue a common purpose under a uniform name and are existentially independent of changes in their members, as are trade unions , political parties and apartment owners' associations . The term association emerged as a name for a group of persons only in the middle of the 19th century and replaced the previously used word "association".

There is no legal definition for the legal term association, although it is mentioned in laws (e.g. in § 164 EGBGB ). The case law speaks of an association if it has special, qualifying characteristics (high number of members, associations) according to § 21 BGB , i.e. mass organizations with an important position in the economic, social, cultural or political area.

In many cases, associations are organized as registered associations (e.V.), but, like unregistered associations, are not obliged to join. According to the established case law of the Federal Court of Justice (BGH), this applies as long as an association does not represent a monopoly . According to § § 826 BGB, § 20 Abs. 5 GWB he can be obliged to admit if there is a substantial or fundamental interest in the individual membership . In the interest of its existence and its functionality, the association can restrict the compulsory membership, provided this is objectively justified.

The collective bargaining capacity of associations results from Section 2 (2) TVG , according to which associations of trade unions and associations of employers (umbrella association) can conclude collective agreements on behalf of their affiliated associations if they have the appropriate power of attorney . An association must also be independent and authorized accordingly by its members; Furthermore, it must be representative, so it must legitimately "speak for the industry [...]".

International

Austria

In Austria , too - analogous to the administrative structure - there is a subdivision into federal, state, district and municipal associations , also called sections for political parties (the term section can also include topic-related structures in addition to regional). In Switzerland , the cantonal section is the name of a sub-unit .

In Austria, the Association Act defines an association as an association in which associations usually come together to pursue common interests. Only in the area of the Federation liability for the Association Liability Act are in addition to clubs and joint stock companies , foundations , cooperatives , partnerships and acquisition company to the associations, or in the text of § 1  T.2 VbVG:

The associations themselves are also liable for crimes committed by their decision-makers and employees when duties affecting the association have been violated.

Switzerland

As in Austria, the association in Switzerland is covered by the association law of the civil code .

literature

  • Alexander Brehm: Are associations still up to date? A comparison between the Central Association of German Industrialists and the Federal Association of German Industry e. V. Polisphere Library, Berlin 2008, ISBN 978-3-938456-19-4 .
  • Christoph Meitz: Scope and relationship of legal remedies from environmental and nature conservation associations - the effects of the 2010 reform . In: Zeitschrift für Umweltrecht , No. 12/2010, pp. 563-570, zur.nomos.de (PDF; 148 kB).

Web links

Individual evidence

  1. ^ Kurt Schelter, Democratization of Associations? , 1976, p. 60 ff.
  2. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 425 f.
  3. ↑ RGZ 60, 94 , 99
  4. ↑ BGH, judgment of June 8, 2018, Az .: V ZR 125/17
  5. ↑ Anja Steinbeck: Association autonomy and third influence , 1999, p. 5
  6. ↑ BayObLGZ 1974, 299
  7. ^ Bernhard Reichert, in: Bernhard Reichert / Frank van Look (eds.), Handbuch des Vereins- und Verbandsrechts , 1995, Rn. 2662.
  8. ↑ BGHZ 101, 193
  9. ↑ BGHZ 63, 282
  10. ↑ BGH, judgment of September 15, 2016, Az .: I ZR 20/15
  11. ↑ Association Act 2002 § 1 para. 5
  12. ↑ BGBl I 151/2005 (VbVG, Corporate Criminal Law )
  13. ^ Ronald Escher: Loyalty to the company right up to the criminal . In: Salzburger Nachrichten . July 30, 2008, Court & Law, p. 12 .