Association law (Germany)
In German legal science is right of association , the right area that the club controls. The constitutional background is the freedom of association in accordance with Paragraph 1 of the Basic Law . The establishment, organization and liability of the association is regulated in §§ 21–79 of the German Civil Code (BGB). The Association Act , on the other hand, regulates the association's remuneration under public law. The association is the basic form of private corporations .
Old legal association
A legal peculiarity applies to all associations that already existed at the time the Civil Code came into force on January 1, 1900. According to BGB Introductory Act (EGBGB), BGB does not apply to these . This means that such associations do not obtain their legal capacity by being entered in the register of associations and are usually not entered in the register of associations. Rather, legal capacity was determined by state law at the time the Civil Code came into force . All other BGB regulations on association law apply equally to such associations. An old law association is z. B. the German Society for the Rescue of Shipwrecked People or the Berlin City Mission .
By entering in the register of associations of the competent local court according to BGB, a non-economic association (so-called ideal association) receives the status of a legal person and thus becomes a legal entity . In the statutes , the association largely determines its own constitution (association autonomy). The registered association is the most important form of the association.
According to Tax Code, a registered association can be recognized by the tax office as non-profit and thus tax-privileged if its goal is exclusively and directly pursued non-profit ( ), charitable ( ) or church purposes ( ). As a rule, only associations with at least seven members are registered ( BGB).
The economic association according to corporations , especially stock corporations and limited liability companies . The reason for this is that it is only permissible if the other bodies are unsuitable for the intended purposes.BGB is aimed at economic business operations. In practice, it hardly plays a role alongside
The stock corporation, company with limited liability and related legal forms such as the KGaA are also economic associations; they acquire full legal capacity through the Stock Corporation Act or the GmbH Act .
A mutual insurance association (VVaG) is a special legal form for insurers, namely an association that wants to insure its members according to the principle of mutuality. This special legal form of the VVaG, which is only permitted for insurers, is regulated in the third part of the VAG.
An association that has not acquired legal capacity in one of the above-mentioned ways is not a legal person . According to German Civil Code (“Associations with no legal capacity”), the general regulations for companies in the narrower sense (Section et seq. BGB) apply, but these are mostly to be regarded as invalid in the sense of being treated as a registered association. Nonetheless, an association with no legal capacity can also be recognized by the tax office as non-profit and thus tax-privileged under Fiscal Code if its goal is exclusively and directly pursued non-profit ( ), charitable ( ) or church purposes ( ).
The establishment of a legally competent, registered association happens as follows:
- Holding a founding meeting
- Resolution of a statute that must be signed by at least seven members
- Determination of a board of directors
- Drafting a founding protocol
- Written registration with signature certification of the registering board in the register of associations at the competent local court
The signature authentication is carried out by a notary , in Baden-Württemberg , Hesse and Rhineland-Palatinate also inexpensively by the other bodies responsible under state law (in particular council clerk or local court in Hesse ). The documents in accordance with Point 2 in original and copy, 4 and 5 and also a copy of the certificate on the appointment of the board of directors (possibly already contained in section 4). Appropriately, an (unauthorized) certificate issued by the board about the number of association members should be submitted, because the registry court does this according to BGB can (does not have to) demand and often also demanded.
The smallest possible majority of people, i.e. two people, is sufficient to found an association with no legal capacity.
The organs of an association are at least the general assembly and, in the case of registered associations, the general assembly and the board of directors. Other organs can be determined by the statutes and given competencies, such as advisory board, supervisory board, board of trustees or the presidium .
The highest body of the association is the general meeting ( BGB), in practice sometimes also referred to as the (annual) general meeting. It decides on all association matters that are not to be dealt with by the board or another body specified in the statutes. In particular, the general assembly appoints the board of the association and dismisses it ( BGB), unless the statutes assign this responsibility to another body.
The general meeting is called by the association's board. This is obliged to do so in the cases stipulated by the statutes and if the interests of the association dictate ( ordinary general meeting of a stock corporation - is not required. Of course, it is practically common that the statutes of associations provide for such a regular general meeting.BGB). In addition, unless otherwise stipulated in the statutes of an association, the law grants a minority of ten percent of the members the right to force the board of directors to convene ( BGB). An annual convocation - as is the case with the
For the course of the general assembly, the law only makes a few requirements, from which the statutes may also deviate (BGB). Decisions are generally made with a relative majority ( (1) sentence 3 BGB). A resolution that changes the statutes requires a majority of 75 percent of the votes cast, while a change in the purpose of the association even requires the consent of all members ( BGB). The members of an association can also pass a resolution without a meeting if they all declare their consent in writing (Section 32 (2) BGB). In addition, general meetings can also be held over the Internet, e.g. B. via chat or wiki, if this is provided for in the statutes.
In the case of clubs with a large number of members (e.g. at ADAC ), the high number of potential participants would go beyond the scope that can be organized. Therefore, the general assembly is usually replaced by a representative assembly (as regulated by law for the cooperative in GenG). At the ADAC, the regional general assemblies elect delegates, who then participate in the general assembly as members with voting rights. This right of delegates must result from the statutes.
In judicial and extrajudicial legal transactions , the association is legally represented by its board , the establishment of which is mandatory by law ( ). A managing director can be appointed as a special legal representative under the statutes ( ).
The statutes of an association can provide for further organs. Often there is a " council of elders " or an "advisory board", but also "cash auditors". These can also be assigned their own decision-making authority through purely advisory tasks.
Membership in the association is acquired either through participation as a founder or through joining. Joining is a contract between the association and the new member, so it requires their application and acceptance by the association, usually represented by the board. Unless otherwise stipulated in the statutes, membership rights are non-transferable and non-inheritable. Without a corresponding regulation in the statutes, the exercise of membership rights cannot be left to someone else. Membership ends through death (only for natural persons ), exclusion or resignation. The declaration of resignation is a declaration of intent that requires receipt . The articles of association can - as is customary in practice - stipulate that resignation is only possible at the end of a quarter or a calendar year.
Association or association courts, which have been assigned decision-making authority in certain areas regulated by the statutes in exercising the power of internal self-organization, are generally not arbitration courts within the meaning of the Code of Civil Procedure. Accordingly, decisions by association or association courts can in principle be reviewed with the action according to § ff. ZPO .
However, through the association's statutes, disputes related to the membership relationship can also be assigned to a real arbitration tribunal, for which, according toZPO, § ff. However, the court appointed in accordance with the statutes is only an arbitral tribunal within the meaning of §§ 1025 ff. ZPO if legal disputes are subject to a decision by an independent and impartial authority under exclusion of the ordinary legal process. The parties to the dispute must exert equal influence on the composition of such a court, and the statutes must ensure that the court is a neutral third party to the parties involved. In this case, the decision of the court is an arbitration award, which according to § , , ZPO is only subject to a limited review by state courts.
Voluntary and marginally remunerated association bodies and members are only liable to the association according to §§ 31a, 31b BGB for intent and gross negligence. In addition, a further limitation of liability can be made intentionally by the association's statutes.
Deprivation of legal capacity
The legal capacity of the association registered in the register of associations is withdrawn upon application or ex officio , if
- the common good is endangered by an illegal board or general meeting resolution,
- the association pursues economic purposes contrary to the statutes or
- the number of club members below three falls.
The association is dissolved by resolution of the general meeting or by opening insolvency proceedings . His assets then go to the persons specified in the statutes. If the statutes do not contain any provision on this, the assets fall to the treasury of the federal state in which the association has its seat .
In the law on associations the possibility of regulatory prohibition is regulated by associations.
- Bernhard Reichert: Manual of Association and Association Law . 14th edition, Cologne 2018, ISBN 978-3-472-08979-7 . contents
- Kurt Stöber: Handbook on association law. 11th edition, Cologne 2016, ISBN 978-3-504-40039-2 . contents
- Detlef Burhoff: Association law: A guide for associations and their members. 9th edition, Berlin 2014, ISBN 978-3-482-42989-7 .
- Eugen Sauter, Gerhard Schweyer, Wolfram Waldner: The registered association. 20th edition, Munich 2016, ISBN 978-3-406-67984-1 .
- Michael Röcken: Association statutes: Structures and patterns explained for association practice. 2nd edition, Berlin 2015, ISBN 978-3-503-16397-7 .
- Thomas Baumann, Markus Sikora: Manual and form book of association law. 1st edition, Munich 2015, ISBN 978-3-406-64276-0 .
- Peter Backhaus: The unregistered association in legal traffic. S. Roderer, Regensburg 2001, ISBN 3-89783-249-6 .
- BGH 85, 89.
- ECLI : DE: BGH : 2018: 090518BIZB53.17.0 with further evidence
- Decision of the Higher Regional Court of Nuremberg from November 13, 2015, 12 W 1845/15 Vereinsknowhow.de, December 10, 2015