Compulsory membership

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Compulsory membership is the constitutive membership of a natural or legal person in certain organizations, which is enforced by law or statutes , because the persons meet certain requirements that are connected with membership.

General

“Constitutive” here means that this association of persons could not exist without members , because the existence of an association of persons is only guaranteed by its members. Membership is the legal relationship between members and an association of persons. This legal relationship arises through a (written) declaration of membership and approval of membership by the association of persons (cf. § 15 GenG ). It is an admission contract that generally does not require admission; it can neither be derived from the requirement of intra-party democracy ( Art. 21.1 sentence 3 GG) nor from the catalog of fundamental rights as part of the civic status activus . Membership is associated with certain rights , for example participation in activities specially planned for members , but also with obligations , such as the payment of fixed membership fees . Membership of individuals can be voluntary or compulsory. There is voluntary membership in associations, for example . According to § 56 BGB, at least seven members are required . The compulsory membership represents an interference with the freedom of association (in the case of the closed shop rule of the freedom of association ) and is therefore only permitted in justified cases. It is only considered to be justified if the association performs legitimate public tasks and this is necessary and appropriate to achieve them.

In private-law companies there are no members, but partners or shareholders .

Legal issues

The compulsory membership is based on legal or statutory compulsion, which does not violate the basic rights of the free development of the personality ( Art. 2 GG), the principle of equality ( Art. 3 Abs. 1 GG), the freedom of expression ( Art. 5 Abs. 1 GG) or the freedom of association ( Art. 9 GG) violates. The judgment of the Federal Constitutional Court (BVerfG) concerned the chambers of industry and commerce . To them, according to include § 2 1 par. IHKG individuals, commercial companies , other bodies of persons and legal entities under private and public law, which in the district of the Chamber of Commerce a permanent establishment maintained ( chamber Related ) and trade tax are predisposed than mandatory members. A limited liability company subject to trade tax had defended itself against its obligation to contribute because it saw this as a violation of the freedom protected under Article 2, Paragraph 1 of the Basic Law and of the principle of democracy ( Article 20, Paragraph 1 and 2 of the Basic Law). The legal basis for the collection of membership fees is Section 3 Paragraph 3 IHKG in conjunction with the Fee Regulations to be issued in accordance with Section 3 Paragraph 2 Clause 1 IHKG. It is resolved by the general assembly in accordance with Section 4 (1) sentence 2 No. 2 IHKG and requires approval by the supervisory authority in accordance with Section 11 (2) No. 3 IHKG. The BVerfG considers the obligation to contribute according to Section 3 Paragraphs 2 and 3 IHKG to be justified because the underlying compulsory membership in the Chambers of Industry and Commerce according to Section 2 Paragraph 1 IHKG is based on a legitimate purpose. The chambers perform “legitimate public functions ”; the interference in the freedom of action of traders associated with the obligation to contribute according to § 3 Paragraphs 2 and 3 IHKG as well as membership in the Chamber of Industry and Commerce according to § 2 Paragraph 1 IHKG are proportionate . The judgment of the BVerfG applies accordingly to all other corporations under public law. An appeal to Article 11 of the ECHR and also to Article 20 of the ECHR (no one may be forced to belong to an association) is successful if non-membership does not endanger order. If, for example, a self-employed person works exclusively for a compulsory member or other compulsory members, this self-employed person does not have to be a compulsory member as well.

species

Compulsory memberships exist primarily in the following areas:

Organized organizations raise levies , the other organizations stipulate a contribution obligation in their statutes.

Discussion about mandatory IHK membership

There is a heated discussion in Germany about compulsory membership in the Chamber of Commerce and Industry (IHK). A large number of organizations and initiatives, led by the Federal Association for Free Chambers , are campaigning against compulsory membership. Your arguments:

  • The high membership fees would be disproportionate to the - not provided - services of the chamber.
  • The fiction of an overall economic interest is an empty illusion.
  • Not the work or even the right to exist of the IHK is up for grabs, but only compulsory membership.

The Chambers themselves argue:

  • Everyone benefits from the supply of public goods by the IHKs.
  • The abolition of compulsory membership leads to more bureaucracy.
  • Voluntary commitment by companies reduces costs, also for the economy.
  • IHKs strengthened the location and its companies.
  • IHKs are the platform for communication and collective action.
  • IHKs advise around 10,000 business start-ups every year, and around the same number of medium-sized entrepreneurs and business start-ups use the tax and legal advice services.

In its resolution of April 1, 1998, the German Bundestag considers chambers in the form of public corporations with compulsory membership as self-governing institutions of the economy to be still necessary and appropriate. With a non-acceptance decision of December 7, 2001, the BVerfG did not accept the constitutional complaint against compulsory membership for a decision. According to the constitutional judges, compulsory membership in a Chamber of Commerce and Industry is compatible with the Basic Law (para. 26). Nonetheless, the BVerfG has stated: "The change in the economic and social framework, for example the change in the structure of the companies grouped together in the chambers and the development of associations in the relevant area, requires the legislature to constantly check whether the requirements for a compulsory corporation under public law still exist ”(para. 38). Later legal proceedings against compulsory membership were also unsuccessful; Most recently, the First Senate of the Federal Constitutional Court dismissed two constitutional complaints on this subject by decision of July 12, 2017.

GEMA and VG Wort

Music authors and music publishers are not subject to any obligation to contract and no compulsory membership at GEMA . You can decide autonomously whether or not to conclude an authorization contract with GEMA to exercise your rights and thereby become a GEMA member. Only GEMA itself is obliged to enter into a contract because it is obliged to accept the authorization contracts offered to it ( Section 9 VGG ).

According to its statutes , VG Wort , which is also subject to the VGG, has no compulsory membership, but authors and publishers can apply for admission , stating the professional group to which they want to belong as a member. To do this, they must be authorized persons on the basis of a management contract who can apply for membership under certain conditions (Section 3 of the VG Wort).

Invalid compulsory membership

An obligation of the employees of a company to join a trade union ( closed shop ) is inadmissible in the opinion of the European Court of Human Rights as a violation of the freedom of association .

In the opinion of the same court, the obligation for hunters in France to join hunting associations is also inadmissible. In contrast, the Federal Administrative Court (BVerwG) regards the obligation of German landowners (not hunters !) To be members of hunting associations as permissible. In the ruling, the BVerwG confirmed that owners of private hunting districts are not compulsory members of a hunting association.

International

In Austria , the collection of contributions by compulsory members has been anchored in Article 120c (2) of the Federal Constitutional Act since January 2008 . The institutions are called chambers, without which there would be no compulsory membership. Especially useful as legal representative of Commerce Austria ( employer ), the Chamber of Workers and Employees ( workers ), the Austrian Chamber of Pharmacists , Agricultural Workers , Chamber of Notaries or the Chamber of Agriculture to mention. According to Section 122 (1) of the Chamber of Commerce Act, chamber members can levy an allocation based on the principle of proportionality of use. Here against a constitutional complaint has Constitutional Court in November 2009 rejected.

The chambers of industry and commerce in Switzerland are based on voluntary membership.

The chambers in France ( French chambres ) are corporations under public law ( French collectivité de droit public ) with compulsory membership ( French affilation obligatoire ). The compulsory contributions ( French contribution obligatoire ) of the member companies are collected by the state and forwarded to the chambers. They also keep the commercial register ; the regional chambers also operate infrastructure facilities such as the overseas port in Calais, the inland port in Colmar, the airport in Nice and trade fair companies.

Individual evidence

  1. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 271
  2. ↑ BGHZ 101, 193
  3. ↑ BVerfGE 38, 281 , 302
  4. ↑ BVerfG, decision of July 12, 2017, Az .: 1 BvR 2222/12
  5. ↑ BVerfG, decision of July 12, 2017, Az .: 1 BvR 2222/12 and 1 BvR 1106/13 = BVerfG NJW 2017, 2744
  6. ↑ judgment Bsw. 20161/06 (PDF) ris.bka.gv.at. Retrieved October 23, 2019.
  7. ↑ Gunther Schwerdtfeger, Individual and Collective Freedom of Coalition , 1981, p. 54
  8. ↑ Thorsten Franz, Introduction to Administrative Science , 2013, p. 47
  9. ↑ Most hunting license holders are now organized in the German Hunting Association (DJV). The Reichsjagdgesetz (Reichsjagdgesetz) stipulated in section 56 that the hunting license holders were united in the Reichsbund "Deutsche Jägerschaft".
  10. ↑ BVerfGE 97, 271 , 286
  11. ↑ Alexander Weichbrodt, Das Semesterticket , 2001, p. 64
  12. ^ Cooperation partner of the Federal Association for Free Chambers
  13. ↑ Dirk Bisping, board member of the professional association of self-employed in computer science (BVSI e.V.), quoted from: More and more voices against compulsory membership in the chamber . In: Die Welt , May 28, 2003.
  14. ↑ Professional association of independent craftspeople ( online )
  15. ↑ FDP Bremen ( online ( Memento of the original dated May 7, 2006 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note. ) @1@ 2Template: Webachiv / IABot / www.fdp-bremen.de
  16. ↑ IHK Rhein-Neckar ( online ( memento of the original from March 23, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this note. ) @1@ 2Template: Webachiv / IABot / www.rhein-neckar.ihk24.de
  17. ↑ BT-Drs. 13/9378 of December 9, 1997, draft of a law amending the law on the provisional regulation of the law of chambers of industry and commerce (IHKGÄndG) , p. 1 ff.
  18. ↑ Decision of December 7, 2001 - Az. 1 BvR 1806/98
  19. ↑ Press release 67/2017 of the Federal Constitutional Court
  20. ↑ Rolf Schwartmann (Ed.), Practical Guide to Media, IT and Copyright Law , 2018, p. 1664
  21. ↑ European Court of Human Rights, judgment of January 11, 2006, Az .: 52562/99 and 52620/99 "Sorensen and Rasmussen v. Denmark" = EGMR BB 2006, 378
  22. ↑ European Court of Human Rights, judgment of April 29, 1999, Az .: 25088/94, 28331/95, 28443/95 = EGMR NJW 1999, 3695
  23. ↑ BVerwG, judgment of April 14, 2005, Az .: 3 C 31.04 = BVerwG NVwZ 2006, 92
  24. ↑ VfGH, decision of November 30, 2009, Az .: Zl. B 1034/09