Term and Legal Nature of Accession
The Term Accession refers in law to a person’s declaration to join an existing legal relationship, contract, or proceeding. Accession is a constitutive legal act by which an additional party is included in an already existing legal situation. It may take various forms and have different legal effects, depending on the relevant area of law.
According to the general definition, accession differs from the original participation and subsequent assumption (e.g., contract assignment), as here an existing right or obligation is not assumed, but the parties are supplemented or expanded.
Accession in Contract Law
Fundamentals of Accession to Contracts
In contract law, accession is particularly characterized by the fact that an additional party joins an already concluded contract and acts as an independent contracting party. As a result, the joining party assumes the rights and obligations associated with the contract; he or she thus becomes an original member of the obligation.
Practical Examples in the Law of Obligations
In the law of obligations, accession can occur in various scenarios, such as in assumption of debt, suretyship, or in multilateral contracts with any number of participants (general partnership, typical dormant partnership, consortiums). Accession alters the original legal relationship between the initial parties and usually leads to joint liability or joint rights of the joining party.
- Accession to Suretyship: Another person may join a surety relationship as a guarantor (§ 765 et seq. BGB).
- Membership Accession: Accession to associations or companies takes place by declaration of accession and resolution of admission.
Formal Requirements and Special Features
Accession is generally subject to the same formal requirements as the principal transaction. If the principal transaction requires written form or notarization, this accordingly applies to the declaration of accession.
Accession in Civil Procedure Law
Accession as Third-Party Intervention
In the context of civil procedure, accession often refers to so-called third-party intervention pursuant to § 66 ZPO. In this case, a person joins the legal dispute as an intervening third party to support one side. The act of joining is a formal procedural action, which must be notified to the court and the parties.
- Legal Effect: The intervenor joins the lawsuit without having the right to file independent claims or to independently dispose of the subject matter of the dispute.
- Procedural Position: The intervenor is bound by the judgment in relation to the supported party, insofar as his or her support may affect the judgment.
Joinder of Parties and Accession
Another application is the accession to a joinder of parties in pending civil proceedings (§§ 59 et seq. ZPO). A newly joining codefendant may join the ongoing proceedings by submitting his or her own request.
Accession in Criminal Procedure Law
In criminal procedure, accession refers particularly to the participation of a private prosecutor (§ 395 et seq. StPO) or another private individual as a co-prosecutor in the proceedings. Accession is made by written declaration to the court, with the effect that the co-prosecutor acquires procedural rights, such as the right to make his or her own applications and file appeals.
Accession in Public Law
Accession to Administrative Proceedings
In administrative proceedings, a party may join an already ongoing process, for example as an interested third party (§§ 65 et seq. VwGO). The person joining is given the opportunity to participate in the proceedings and to assert their own rights.
Accession under International Law
The term accession is also of considerable significance in international law, for example regarding the accession of states to international treaties, organizations, or alliances. Accession takes place according to the relevant regulations through a formal declaration of accession and conclusion of the relevant legal act (ratification, acceptance, approval).
Legal Effects and Limits of Accession
As a rule, accession leads to the joining party assuming rights and obligations from the existing legal relationship. The specific arrangements may be established by law or contractual agreement. Limits to accession may arise, for example, from content or formal requirements, from the nature of the legal relationship, or from strictly personal legal positions.
Summary
Accession is a multifaceted legal concept that appears in many areas of law. Its essential function is to allow an additional person to participate in an existing legal relationship or proceeding. The legal prerequisites, effects, and limitations of accession are always determined by the relevant area of application and the applicable legal provisions. Due to its wide scope, accession forms a key instrument of legal structuring in private law, procedural law, and public law, particularly in the international context.
Frequently Asked Questions
What legal requirements must be met for joining an association?
For joining an association, the relevant provisions of the German Civil Code (BGB), particularly §§ 54 et seq. BGB, are decisive. Legally, a distinction is made between registered and unregistered associations. In principle, admission by the association is required for accession, which usually takes place through a written declaration of accession by the new member and acceptance by an authorized representative of the association (board, general meeting, or admissions committee). The association’s bylaws often regulate further details such as form, procedure, and possible restrictions on admission. Minors require the consent of their legal representatives for a valid accession (§ 107 BGB). For legal entities, their authorized representatives must submit the declaration of accession. Legally, membership begins either with the communicated admission decision to the member or, if provided by the bylaws, after a certain period following receipt of the accession declaration. There is generally no obligation to contract: the association may reject accessions, provided this does not violate the General Equal Treatment Act (AGG) or is arbitrary.
Can the association reject an application for admission without stating reasons?
The association may generally reject an application for admission without stating reasons, unless the bylaws provide otherwise regarding the rejection of accession. According to the principle of private autonomy, the association is free to decide about memberships within the scope of applicable law. An exception applies if the rejection is discriminatory or arbitrary and thus violates, for example, the AGG or breaches the principle of good faith (§ 242 BGB). The bylaws may stipulate if and under what circumstances the rejection must be substantiated, particularly for associations with social or public functions. In the absence of specific bylaw provisions, a rejection without further justification is legally permissible, provided it is objectively reasonable and not abusive.
What rights and obligations arise from joining an association?
By validly joining an association, a membership relationship is established, which is structured as an obligation under § 38 BGB. This gives the member both rights (e.g. participation in the general meeting, voting rights, rights to information and oversight, active and passive suffrage, use of association services) and obligations (including payment of contributions, compliance with charter rules, duty to cooperate). The specific regulations regarding rights and obligations are mainly determined by the bylaws and the relevant statutory principles of association law. In particular, a member can only assert his or her chartered rights after joining the association and is also bound by the established membership obligations.
What legal considerations apply to the declaration of accession?
The declaration of accession is a declaration of intent requiring receipt and, in case of doubt, should be made in writing unless the bylaws stipulate a special form. The accession only becomes effective once the association accepts the application. For minors, the declaration of accession is legally effective only with the consent of the legal guardians (§§ 1626, 1629, 107 BGB). If the declaration of accession is made subject to conditions or reservations, its effectiveness depends on whether the association agrees to the accession in this form. The bylaws may also contain specific regulations on the form and procedure of the declaration of accession (e.g. online form, association form, personal appearance).
From when is a member legally admitted to the association through accession?
A member is generally admitted to the association upon acceptance of the application for admission by the authorized association body. The bylaws regulate when membership begins, for example, upon receipt of the admission confirmation, upon the resolution by the board, or after a certain period following the application. In the absence of an explicit regulation, membership is deemed legally established upon receipt of the admission confirmation. Only from this point do the rights and obligations of the membership relationship arise.
Can the membership be revoked after accession?
A right of withdrawal exists in association law only in certain exceptional cases. If the declaration of accession is made by means of distance selling or outside business premises (e.g., over the internet, on the street), the new member may have a right of withdrawal pursuant to §§ 312g, 355 BGB. In general, however, once accession to the association has been validly declared and accepted, it can only be terminated in accordance with the withdrawal rules laid down in the bylaws. Special termination or withdrawal rights exist in case of mistaken acceptance (rescission under §§ 119 et seq. BGB) or specially regulated statutory situations; otherwise, the regular withdrawal procedure must be adhered to.
What are the legal consequences of a defective accession?
A defectively declared or effectively rejected accession (for example, without the approval of the legal guardians in the case of minor applicants) is legally invalid, so that no membership, and hence no rights and obligations, arise for either side. In the case of rescission (e.g., due to fraudulent misrepresentation or error), membership is considered not to have existed from the outset (ex tunc). There are then no obligations to pay contributions nor claims to association services. Claims for reimbursement of already paid contributions must be assessed on a case-by-case basis, particularly with regard to any expenditures incurred by the association.
Can joining an association be legally enforced?
There is generally no legal entitlement to admission to an association. As a private-law organization, the association is free to decide about its members and may reject applications without stating reasons, unless mandatory statutory provisions (e.g., the General Equal Treatment Act, certain charitable purposes, or obligations under funding regulations) provide otherwise. Exceptions may be established by law for certain public-law or monopoly-like associations, for example, where there is a compulsory joining requirement or if rejection of membership would violate competition law. As a rule, however, joining an association cannot be enforced in court.
