Concept and significance of the association’s articles of association
Die Articles of Association refers to the fundamental regulatory framework of a registered association (§ 21 et seq. BGB). It defines the formal and substantive foundations of the organization, its purpose, structure, as well as the rights and obligations of members and governing bodies. The articles of association constitute the binding internal constitution of the association and are a key prerequisite for obtaining legal capacity through registration in the register of associations.
Legal framework of the articles of association
Statutory requirements
According to § 57 paragraph 1 BGB, the articles of association must be drawn up in writing. They are not only specific rules for the association but also an indispensable prerequisite for recognition as a legally capable association. The provisions laid out in the German Civil Code (BGB) define the minimum content and binding effects of the articles.
Minimum content pursuant to § 57 BGB
The articles of association must in particular clearly regulate the following points:
- Name of the association
Specification of a name under which the association operates. This must be sufficiently distinguishable from already registered association names.
- Registered office
Determination of the registered office, which is also decisive for legal association.
- Purpose of the association
Concrete formulation of the purpose to which the activities are structurally subordinated.
Further regulations provided by the legislator particularly include rules on the admission and departure of members, membership dues, formation of the executive board, and prerequisites for amendments of the articles.
Additional required contents of the articles
For proper management of the association and to safeguard the interests of its members, it is recommended to additionally stipulate, for example, forms of membership, voting rights, convening and procedure of the general assembly, bodies of the association and their tasks, as well as the procedure for dissolution of the association.
Function and contents of the articles of association
Internal binding effect
The articles of association constitute the essential regulatory framework for all internal affairs. They are binding for members as well as for officers and specifically regulate:
- Admission and exclusion of members,
- Rights and obligations of members,
- Structure and duties of the association’s bodies (e.g. executive board, general assembly, possibly additional committees),
- Amendments to the articles of association,
- Dissolution and allocation of assets.
External significance
The articles of association inform third parties about management and representation, for example through provisions regarding the executive board’s power of representation. In legal transactions, they are relevant insofar as third parties can verify how the association is represented (§ 26 BGB).
Procedure and formal requirements of the articles
Establishment of the articles of association
To found a registered association, adoption of written articles of association by a founding assembly is required. They must be signed by at least seven members (§ 56 BGB).
Registration in the register of associations
Registration requires, among other things, submission of the articles of association to the local court (register of associations). The articles thus also acquire publicity effect (§ 66 BGB).
Amendments to the articles
Amendments to the articles of association require a special resolution by the general assembly, whereby the BGB stipulates a qualified majority unless the articles provide otherwise (§ 33 BGB). Amendments to the association’s purpose always require approval from all members, unless otherwise stated in the articles.
Registration requirement for amendments
Amendments to the articles only become effective upon entry in the register of associations. Changes to the name or registered office must be notified to the registration court for entry (§ 71 BGB).
Limits and control of the articles of association
Statutory limitations
The articles of association may not conflict with mandatory provisions of the German Civil Code or other laws. In particular, provisions are void if they violate the binding protection of members’ rights or offend common decency.
Review by the registration court
The registration court examines, upon registration and in the event of amendments, whether the articles of association comply with the legal requirements (§ 59 BGB). Deficiencies found result in refusal of registration.
Significance in the event of dissolution
The articles of association may contain specific provisions on formal dissolution and the use of association assets after dissolution. In the absence of such provisions, the statutory regulations of the BGB apply (§ 73 et seq.).
Articles of association in the context of tax law
Non-profit associations must comply with the fiscal requirements of the Fiscal Code of Germany (Abgabenordnung) in their articles (§§ 51-68 AO). In particular, it must be clearly stated that the association exclusively and directly uses its funds for charitable purposes, and the allocation of assets in the event of dissolution must be regulated.
Conclusion
The articles of association form the essential foundation of every registered association and are significant for both internal organization and legal external representation. They regulate fundamental issues regarding the association’s identity, structure, and purpose, and are subject to strict legal requirements and register oversight. Changes and arrangements in the articles must be made carefully and in accordance with applicable legal norms to ensure both formal and substantive effectiveness.
Frequently Asked Questions
How can articles of association be amended?
The amendment of articles of association is strictly regulated and must comply with the requirements of the German Civil Code (BGB), in particular §§ 33 et seq. BGB. As a rule, any amendment to the articles requires a resolution of the general assembly. The articles themselves may provide particular provisions regarding the procedure and the required majority. If no such provision exists, the law requires a three-quarters majority of votes cast. The invitation to the general assembly must expressly list the agenda item “amendment to the articles of association,” and the proposed amendments to be voted on must be communicated to the members in advance. Furthermore, adopted amendments to the articles only become effective upon registration in the register of associations. Only upon this registration do they have legal effect vis-à-vis third parties. Special attention must be paid to fundamental changes, such as the association’s purpose, which according to § 33 para. 1 sentence 2 BGB, require the consent of all members; absent members must be requested in writing to give their consent.
What are the statutory minimum contents that articles of association must contain?
The statutory minimum contents for articles of association are precisely prescribed in § 57 BGB. They must include the name of the association, its registered office, and its purpose without exception. The name must be distinct from other existing associations at the same location and may, upon registration, include the suffix “eingetragener Verein” or the abbreviation “e.V.” The registered office specifies the place where the association is legally situated, which is relevant in particular for the jurisdiction of courts and authorities. The purpose describes the fundamental task and orientation of the association. In addition to these compulsory details, it is recommended to include further regulations, e.g., concerning membership, bodies of the association, convening and procedure of the general assembly, representation of the association, and contribution regulations, even if these are not strictly required.
What happens if the articles of association do not meet legal requirements?
If the articles of association are incomplete or conflict with mandatory statutory provisions, this may have various legal consequences. If a deficiency is detected prior to registration, particularly with regard to the minimum contents under § 57 BGB, the register of associations will refuse registration. As a result, the association does not attain legal capacity. If a deficiency is discovered after registration or arises as a result of later amendments, the registration court can demand rectification and set deadlines (§ 73 BGB). If the deficiency is not remedied, the association may, in extreme cases, be deleted from the register. Violations of mandatory legal provisions may also render certain provisions of the articles void or ineffective, so that the law applies in their place in case of doubt.
What formal requirements apply to the formation of an association and the preparation of the articles of association?
The formation of an association and the preparation of the articles of association are subject to certain formal requirements. According to § 56 BGB, at least seven persons are required for the formation. The articles of association must be set out in writing and signed by the founding members. These signatures are essential to document the intention to establish the association by all parties involved. When applying for registration in the register of associations, the articles of association must be submitted both in original and in copy (§ 59 BGB). In addition, both the application for registration and the declarations for the appointment of the executive board must be notarized. Entry in the register and the ensuing public announcement confer legal capacity on the association.
May an association deviate from the statutory provisions for the articles of association?
In principle, it is permissible to deviate from the non-mandatory provisions of the BGB by way of regulations in the articles, insofar as the law allows this. This concerns, for example, rules on convening and conducting the general assembly, the term of office of the executive board, or membership contribution regulations. Mandatory details such as the name, registered office, and purpose of the association as well as mandatory protection provisions (e.g. requirement for consent from all members in case of a change of purpose) are indispensable and cannot be excluded or amended by the articles. Where the law contains no mandatory provisions, it grants associations considerable flexibility in structuring their articles. Nevertheless, it is advisable to adhere to established models and relevant case law to avoid later legal uncertainties or disputes.
What role do the articles of association play in the legal representation of the association?
The articles of association are decisive in determining by whom and to what extent the association may be legally represented. § 26 BGB stipulates that the executive board represents the association in and out of court, but the scope and composition of the board, the power of representation of individual board members, and any restrictions may be specified in the articles. If no divergent regulation exists, the statutory power of representation under § 26 BGB applies. Third parties may generally rely on the representation rules entered in the register of associations, meaning that internal restrictions not entered are ineffective against them (§ 68 BGB). The articles of association should therefore be carefully drafted to provide clarity with regard to external relations and avoid misunderstandings.
What legal requirements apply to a change of purpose of the association?
A change to the purpose of the association as registered and set out in the articles is strictly regulated. According to § 33 para. 1 sentence 2 BGB, approval from all members is required; members not present must be asked to submit their votes in writing. This high threshold serves to protect the association’s identity, as a change of purpose often entails a fundamental reorientation. Such a change becomes legally effective only after all members’ approval and the subsequent registration of the change of purpose in the register of associations. In the absence of formal requirements, the change of purpose is invalid. An exception applies to the dissolution of the association, which also requires a qualified majority but follows special rules.
