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German law on associations – Horak Attorneys at Law, Hanover

From the establishing to the termination of the association there are always a lot of aspects to take into consideration. If you want to found an association or wish to be informed as a member or as committee, it would be a pleasure for us to advise you.

What is a non-profit association?

A non-profit association is the most common and typical form of corporation. A non-profit association is a merger,

  • Between several members under an association´s name;
  • Which is voluntary and has been created for a certain duration;
  • Which pursues a common ideal purpose,
  • Has an executive board,
  • This, as an association, does not depend on the change of members and is therefore corporately structured.

For non-commercial purposes, actually means that the main goal of the organization is not an economic activity, or the realization of profits. The possible non-profit purposes are various. This shows the colourful environment of associations in Germany: associations for the promotion of sport, culture, nature and the environment or charitable purposes are mainly organized as non-profit organizations. However, even those non-profit societies can be active economically, namely, if this activity is clearly subordinated to the main goal of the corporation.

Example: a sport club remains a non-profit association, even if it runs a restaurant in the clubhouse. In this case, the economic activity is only a secondary purpose – the main goal of the association is the promotion of the sport.

Creation of a non-profit association

Some information regarding the founding members, the protocol of foundation, the constitution and registration in the association register will be explained in the following list:

I. Preliminary consideration for the constitution of an association

A non-profit organization has to be entered into the register of association. If the association has been registered, this latter will be considered an incorporated association (§ 21 BGB- German Civil Code). If the association has not been registered, this will be considered an unincorporated association. Both the incorporated and unincorporated associations can be subjected to rights and obligations, can file sue or be sued and can also acquire properties. However, the differences between an incorporated association and an unincorporated association would be in liability law: neither the members of the former, nor the members of the latter are personally liable for the obligations of the association. In the case of unincorporated associations, the persons in charge for the liability of the associations shall also be the one responsible for the transactions that will be made under the name of the association (pursuant to § 54, Part 2 German Civil Code -BGB-).

Any person who acts directly in the name of the association and appears to be member of the association can be considered as a so-called “acting person”.

The registered association can acquire a property, a plot or even the rights to a property. The land registered capacity of the non-registered association is controversial. Unincorporated associations can not be entered into the land register, even after a prevailing view. The members of the unincorporated association must be registered with the addition “as a member of the non-registered association”. This kind of registration can create different problems in case of changes of members. More generally, the legal differences between the two forms of association are not so large; nonetheless, it is really important that you consider them before the creation of the organization.

Example: If a property is acquired at any time during the existence of the association and the association is open for accession to all interested persons, so that a lively change of membership is not excluded, a registered association in an advantageous position.

An association, which has not been registered into the register of associations, is, on the other hand, easier to establish as there are also no registration obligations. For the pursuit of short-term goals, this form of association can be more meaningful than a registered association.

II. Founding Members

At least two persons must be involved in the formation of an association. The law does not determine the number of founders. An association is created by agreement of the founders on the statutes wherefore two persons are necessary. However, a registration in the association register in only possible if the organization has at least seven members (§ 59 para.3 German Civil Code -BGB-).

It is therefore conceivable that the association is initially formed by two people, and further members are admitted until the formal registration of the association register, so that a statute can be signed and submitted by one of the seven members. Founding members may be all natural persons, but also, for example, limited liability companies, other legally binding associations, municipalities and administrative districts, and general partnerships and non-legal associations.

All founding members must be legally competent, as the founding act is basically a contract. Minors between seven and eighteen years old can found an association only with the consent of their legal representatives, usually their parents.

A person with an appointed supervisor/carer can become one of the founding members, if it is not considered incapable of acting in law. If one of the founding members has not been legally competent during the foundation of the association, the constitutive act would still be effective if only the necessary minimum number of founding members has been legally competent.

III. Founding protocol

In order to establish an association, the founders must agree on two important aspects: the establishment of the association and its statutes. This agreement forms the so-called “founding act”. The founders should determine whether the association is an unincorporated association or if it is legally registered. The first board of directors must also be elected. The Management Board may consist of one or more persons. The statutes are determined by the people that should constitute the executive board. These agreements must be incorporated in a Founding Protocol signed by all founding members.

An unincorporated association can be formed with the resolution, the constitution and the election of the Management Board. If the organization is intended to be registered in the association register, it is referred to the registration of the so-called “pre-association”.

IV. Constitution

Every organization needs to have a constitution, which is decided according to the drafting of the founding protocol.

1. Content

Associations generally have restrictive regulations in the statutes of associations that should be carefully considered.

2. Form

There are no formal requirements for the drafting of the statutes, but the registered association has to submit a signed constitution to the association register according to §59 para.2 no.1, para 3 German Civil Code - BGB-. Basically, also in case of a non-registered organization is always recommendable to present the written form. The constitution must be presented in German. In Saxony and Brandenburg, Sorbian constitutions with a German translation are still allowed.

V. Application for the registration in the association registers

For the registration of an organization in the association register, you firstly have to submit an application and a further documentation to the court of jurisdiction. Many association registers are consultable online.

1. Responsible Local Court

The responsible local jurisdiction is in principle the Local Court, in whose district the association in based.  The federal states can, however, assign the associations of several districts to a particular district court. Several federal states have benefited from this so-called concentration allowance, in German “Konzentrationsermächtigung”.

2. Registration

In accordance with §59(1) and (2) BGB-German Civil Code-, by registering an association, it is fundamental to submit:

  • a written application,
  • the original and a duplicate (a copy) of the constitution and a duplicate of the founding protocol,
  • a copy of the appointment of the Managing Board.
  • A written application

A written application shall include the followings:

  • The registration of the founded association for registration in the association register,
  • Names, dates of births and addresses of the elected members and,
  • The officially certified signatures of the members of the Management Board who are authorized to act as representatives:

The written statement should be signed by all members of the Management Board who are authorized to represent the company. Their signature must be officially certified (§59 para.1, 77 BGB-German Civil Code). At this stage, the member of the Board of Management shall find a notary, provide the passports or IDs and sign the application in front of the notary. This will then confirm the identity of the signing parties.

Note: In some federal states, those confirmations of signatures can also be carried out from other authorities, such as the so called “Ratsschreibern”in Baden-Württemberg (§32 of the Baden Württemberg Law on voluntary jurisdiction), or the principal of the local tribunal in Hessen (§ 13 of the German-Ostgerichtgesetz of Hesse), by the local mayors and local authorities, the municipal administrations, local governments, as well as municipalities of small and large cities in Rhineland-Palatinate (§§ 1, 2 of the German rheinland-pfälzischen Landesgesetzes über die Beglaubigungsbefugnis).

The application form can be created by the association itself. The notary can also create such a written letter and forward the application to the court. Additional costs are charged for the registration application.

Documents to attach

The application must be accompanied by the original and a duplicate of the constitution. The day of the establishment of the association has to be written on the statute (§ 59 para.3 BGB- German Civil Code). The original of the constitution must be signed by at least seven members. This means that the association now has to have seven members. In addition a copy of the appointment of the Management Boards must be attached (§59 (2) Nr.2 BGB-German Civil Code). If this is included in the Founding Protocol, please send a copy.

3. Costs

Court and notary will charge their costs according to their business value. The fees are calculated according to the amount of the business value according to the Scale of Costs (KostO). If there are insufficient indications for the determination of  the goodwill, the fair value of the goodwill is regularly to be assumed around € 3000, 00, in accordance with section 30 (2) of the German Stock Corporation Act. Depending on the case, this value may be lower or higher. After the business value of €3000, 00, the whole fees are around €26,00. The legal expenses for the registration of the association add up to the double the full fee, according to § 80 para.1 no.1 KostO, so that for the first registration of this sample calculation it would be € 52,00. The notarial costs are a quarter of the full fee for the authentication of a signature, for a minimum of € 10, 00 and a maximum of € 130,00 (§§140,33, 45 KostO).

VI. Registration of the organization in the association register

According to the § 64 BGB, the following can be entered in the association register:

  • The name of the association with the addition “registered association” or in different German statutes with the “e.V.”,
  • The location,
  • The formation of the constitution,
  • The Name, date of births of all members of the executive board,
  • Regulations of the constitution concerning the authorization of the executive board and the resolution.

The registration is released by the District Court (§ 66 (1) BGB-German Civil Code). The original of the constitution shall be returned to the association with a certificate of registration.

By the registering into the association register, the association acquires legal personality as corporate body (§ 79 (1) BGB-German Civil Code). The previous “pre-association” is now considered a corporate body. The previous “pre-association“becomes a registered association (e.V.). All rights and obligations of the pre-association shall be transferred to the registered association.

VII. Inspection in the register of associations

The association register and the documents submitted by the association to the District court, such as the statutes of the association, can be viewed or consulted at any time free of charge at the court (§79 para.1 BGB-Civil German Code). As far as the association registers will be managed by the Länder (German regions), the data from the association registers could also be accessed electronically via a common register portal of the Federal States for a modest charge in internet.

Continuing operation of the association

I. General Meeting of the Members

This concerns the tasks, the legal position, implementation and resolution of the general meetings in the associations.

II. Management Board

Each organization must have an executive board. This can consist of one or more persons. This chapter deals with the legal position, the tasks, appointments and activities of the Management Board.

III. Member rights and membership requirements

Association members have both rights and obligations. Membership is non-transferable, non-inheritable and non-pledgeable.

IV. Subsequent changes in the association

In the course of existence of an association the conditions of the organization can change and new requirements can be placed on the association. This may mean that the statutes of the association must also be subsequently adapted.

Termination of the association

Just like the foundation of a registered association as a legal subject with its own legal personality, its termination is regulated by the right of association. The termination of a registered association usually requires its dissolution and, in most cases, a subsequent liquidation. There are, however, cases in which the association is extinguished in a different way, such as a conversion.

The right of association comprises sufficient regulations for the termination of the association. These regulations are often mandatory, so that in this area, the design possibilities of the constitution are limited. The legal regulations allow an orderly termination of an association even without additional statutory provisions.

It would be therefore profitable to examine if at the time of the founding of the association, the extent of the legal regulation in regards of resolution and liquidation through the determination of constitution for the association, should have been changed, complemented, or completed. Especially in the case of organizations that are established only for a certain amount of time (in this case it is already established at the time of the foundation that they will have to be closed again in the foreseeable future), it should be carefully considered whether particular regulations for the termination of the association have to be taken or not.

I. Dissolution of the association

An association can be terminated for various reasons and in different ways. However, the legal consequences of the dissolution are broadly the same.

II. Liquidation of the association

If, after the dissolution of an association, its liquidation is necessary, the association shall continue until the end of the liquidation, in accordance with §49 (2) German Civil Code -BGB-. Once entered the liquidation phase, the association activities end. As an alternative to the previous association purpose a transaction process starts: that includes the termination of all on-going businesses, monetarization of the existing association assets, reimbursing of the creditors etc.

The liquidation association also has its members and its general assembly, which can continue to convene. During the liquidation, the general assembly has still the faculty to change the articles of the associations. Furthermore, this latter can in particular, appoint or dismiss liquidators.  As long as the association has not been terminated, and the reasons for liquidation have not been precluded, this can also decide on the continuation of the association. Such a resolution of continuation is generally always plausible, if the association has been dissolved by resolution of the Annual General Meeting or after the expiration of a deadline.   

1. Liquidation responsibility

For the liquidation of an association, the German law on associations provides with a particular association´s body. They replace the Executive Board with a statutory management and representation body. The so-called in German “Geborene Liquidatoren”, literally translated as “born liquidators”, are the members of the Management Board who are also responsible for liquidation pursuant to § 48 para.1 sentence 1 German Civil Code-BGB-.

When the association enters the liquidation stage, the members of the Management Boards become liquidators. If section § 48 para.1 sentence 1of the (BGB) German Civil Code is applicable or the task of liquidation is explicitly assigned to the Executive board, then the Board members are subjected to continuity of office. No special order is required to make the members of the Management Board liquidators. However, the association may also determine other persons as liquidators or the General meeting could also appoint other liquidators. If the constitution of the association does not establish any particular rule for the establishment of the liquidators, they will be nominated in accordance to the Management Board. In case a dissolved association has no liquidators and the General meeting can not provide them, because there is no convocation body without the liquidators, then will they be appointed by way of emergency order pursuant §48 para.2 of the German Civil Code (BGB) in conjunction with §29 BGB by the District Court.

2. Legal rights of the liquidators

According to § 48 para. 2 of the German Civil Code (BGB), the liquidators have particular legal rights in the Management Board. They are, therefore, the managing and representative body of the association. As well as the members of the management board, the General Meeting may also, at any time, recall liquidators pursuant to § 48 (2) in conjunction with § 27 (2) sentence 1 of the German Civil Code (BGB). The liquidators can also resign their office at any time without observing a deadline. The scope of the management authority is determined by the purpose of the settlement. If an association has several liquidators, these resolutions on the management of the association may only be adopted unanimously in accordance with § 49(3) of the German Civil Code (BGB) and the association may only be represented jointly.

Note: By means of the constitution, however, a different majority may be appointed for the resolution and other forms of representation; in particular also a majority or individual representation for the liquidators will be included.

3. Tasks of the liquidators

According to § 49 para.1 of the German Civil Code (BGB), the liquidators have to transact the association; they have to terminate the ongoing business of the association, to collect receivables of the association, to convert the remaining assets into money, to satisfy the creditors  and to pay the surplus to the persons entitled on devolution.

The liquidators of the General Meeting have to take account of their activities. As the constitution does not include any particular regulation, a final statement must be issued in accordance with §§ 48 (2) in conjunction with §27 (3), 666 of the German Civil Code (BGB) and, if necessary, a scheme of distribution for the association´s remaining assets is to set. If the liquidation takes a long time, the liquidators must also properly manage the existing assets, for instance, by investing existing capitals etc. The liquidators must also decide if the constitution does not contain a regulation as to whether and where books and documents of the association are to be kept after the termination of the organization. It is also possible to let the General Meeting to decide and successively execute their resolution.

According to §50 para. 1 of the German Civil Code (BGB), it is mandatory to make the dissolution of the association public. In the notice, the creditors of the association are asked to register their claims against the association. This notice should be published in the so-called “Bekanntmachungsblatt”, a sort of bulletin published by the association. If the association has not published any notice form in its constitution, the notice pursuant to §50a of the German Civil Code (BGB) shall be published in the notices of the district court according to §§ 66 of the German Civil Code (BGB).

Insofar as the liquidators are aware of the members of the association, they have to request this pursuant to § 50 para.2 of the German Civil Code (BGB) by means of a particular notification to file their claims. “Bekannte Gläubiger“, or known creditors are all creditors who are known by at least one of the liquidators. For the communication to the known creditors, the law provides no special form.

Note: It is, however, advisable to provide a written notification and to communicate it to the creditor so that their entry to the dispute could also be proven.

If the liquidators do not comply their notification obligations pursuant to § 50 of the German Civil Code (BGB), and if a creditor decide to suit a claim for damages against them, and they are considered to have acted culpably, the liquidators will be obliged to compensate them.

The liquidators may pay out the association assets pursuant to § 51 BGB at the earliest one year after publication of the dissolution (Sperrjahr-Blocking year). If a creditor does not present the known claim, the amount owed must be deposited. For claims that are not yet feasible or that are considered contentious, security should be provided to the creditor. If the creditors are satisfied or secured, the remaining association assets may be paid at the end of the so-called “Sperrjahr” or blocking year, pursuant of the § 51 of the German Civil Code –BGB-. If the remaining assets are disbursed before the end of the “Sperrjahr”, and a creditor declares that damage has occurred, the liquidators, if they have actually acted culpable, are obliged to compensate for this damage.

Note: It is therefore not recommendable for the liquidators to pay out their assets to the creditor before the end of the blocking year.

4. Conclusion of the liquidation

The liquidation is concluded with the distribution of the liquidation surplus to the creditors and the execution of other necessary resolution measures.

The conclusion of the liquidation is a prerequisite for the termination of the association. With the termination of the association, the office of the liquidators also ends. If the liquidation is terminated, the register of the association is closed in the association register according to § 4 (2) No.2 of the regarding Act (in German “Vereinsregisterverordnung”). The registry court may also close the register of a dissolved association in accordance with section 4(2) sentence 2 of the“Vereinsregisterverordnung”, if no further registration took place during one year after the registration of the dissolution and a written enquiry from the register court remained unanswered.

General Information on Taxation Law

Particular requirements for the formation of the association and the management of the business may result into the taxation law, for example if an association wants to obtain some tax-benefits.

Tax-benefits are granted to non-profit organizations. Those associations

  • Promote the general public in material, intellectual or moral areas (§ 52 AO), in a non-profit making way,
  • Assist people who are in need or,
  • Promote religious communities (§54 AO).

In order to be recognized as a non-profit by the financial administration, association and actions must meet specific requirements, which can not be described in detailed here.

For further information, please do not hesitate to contact us.

 

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© German lawyer Michael Horak 2002-2017

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