Prohibited Associations – Legal Principles and Structure
Term and Definition
The term “prohibited associations” refers in German law to organizations, alliances, or groups whose activities and existence have been prohibited by the state. This usually occurs due to unconstitutional aims, criminal acts, or threats to public security. The central legal basis for this is found in the Basic Law (GG) and the Associations Act (VereinsG).
Legal Principles
Constitutional Basis
Pursuant to Article 9(1) GG, the Basic Law protects the freedom of association. However, Article 9(2) GG provides a significant limitation:
Associations whose purposes or activities are contrary to the penal laws or that are directed against the constitutional order or the concept of international understanding are prohibited.
This constitutional requirement forms the basis for statutory regulations regarding the prohibition of associations.
Associations Act (VereinsG)
The Associations Act specifies the prohibition of associations in detail. In particular, it distinguishes between:
- Prohibition due to unconstitutionality (§ 3 VereinsG): According to this, associations can be prohibited if their purposes or activities are unlawful, anti-constitutional, or directed against international understanding.
- Prohibition for reasons of public security or order (§ 3 VereinsG): Additionally, a prohibition can be issued if the association endangers public security or order.
Prerequisites and Procedure for Prohibiting Associations
Substantive Prerequisites
A prohibition can only take place if certain substantive prerequisites are met:
- Existence of an Association: There must be a permanent association of several persons with common goals.
- Unlawful Objectives or Activities: The purposes or the actual activities of the association must violate criminal laws, the constitutional order, or international understanding.
- Danger to Public Security or Order: Alternatively, a proven risk situation suffices.
Formal Procedure
The procedure for banning an association follows certain statutory requirements:
- Competent Authority: The authority to prohibit an association normally lies with the appropriate ministries of the interior at federal or state level.
- Formal Procedure: The prohibition is issued by a written administrative act stating the reasons.
- Hearing: The association must be heard unless this would thwart the purpose of the prohibition.
Judicial Review
The affected association has access to administrative courts to challenge the prohibition. The Federal Administrative Court is responsible for bans with nationwide significance. In court proceedings, both the lawfulness and the factual basis of the prohibition are reviewed.
Legal Consequences of a Ban on Associations
Prohibition of Activities
With the final and binding prohibition order, the affected association is dissolved. The following legal consequences apply:
- Continuation of the association or substitute organizations is prohibited.
- Assets: The assets of the association are confiscated; they are transferred to the state and utilized as stipulated in the Associations Act.
- Criminal Liability: Further involvement with the prohibited association is a criminal offense under § 20 VereinsG.
- Seizure and Search: According to § 4 VereinsG, objects can be seized, and association premises can be searched.
Publicity Measures
The prohibition is generally made public. This is intended to protect the public from further dangers and to interrupt any relevant activities.
Special Cases: Party Ban Proceedings and International Bans
Party Ban under the Basic Law
A specific application exists for political parties. According to Article 21(2) GG, unconstitutional parties may be banned by the Federal Constitutional Court. The procedure and requirements differ significantly from an ordinary association ban.
European and International Provisions
In the context of combating terrorism and international law, there are parallel regulations at the European Union level and by international organizations (e.g., UN sanctions lists) on restricting and banning certain organizations.
Distinctions and Special Protection Mechanisms
Distinction from Non-Prohibited Associations
There is a fundamental legal difference between expressly prohibited associations and those that are simply not registered or authorized. Only in cases of a formal ban do the specific legal consequences of the Associations Act apply.
Protection of State Organizational Freedom
The principle of proportionality must be observed in every association ban. In order to safeguard the basic right of freedom of association (Art. 9 GG), each individual case is carefully examined.
Practical Examples and Case Law
Historically Significant Cases
- Ban of the “Mutual Aid Association of Former Members of the Waffen-SS” (HIAG): The organization was banned on the grounds of its anti-constitutional objectives.
- Ban of Islamist Associations: Security authorities have repeatedly banned organizations due to activities in the area of extremism.
Landmark Decisions
The Federal Constitutional Court as well as the Federal Administrative Court have repeatedly emphasized that association bans in a free legal state may only take place in clear exceptional cases and are always subject to strict review.
References
- Durner, A.: Das Vereinsgesetz. Commentary.
- Sachs, M.: Basic Law. Commentary.
- Möstl, M.: Freedom of Association and Its Limitations.
This article provides a comprehensive and detailed overview of the topic prohibited associations and their legal treatment in Germany. All essential aspects—from the definition, legal bases, and prohibition procedure to the legal consequences and special features—are presented, enabling an in-depth insight into this legally relevant subject.
Frequently Asked Questions
Who decides on the ban of an association in Germany?
In Germany, the decision to ban an association is generally made by the authority responsible under state law if the association’s activities are limited to the territory of a single federal state (§ 3 Para. 2 VereinsG). However, if the association has supra-regional or nationwide significance or operates in several federal states, the authority to ban lies exclusively with the Federal Ministry of the Interior and Community (§ 3 Para. 1 VereinsG). The authority issues a so-called administrative act, in which it imposes the ban and, if necessary, also orders dissolution or an activity ban. Usually, investigations and securing of evidence are carried out in advance to legally document the requirements for the ban. Such a ban is a serious infringement of the freedom of association under Art. 9 GG and is therefore subject to strict legal requirements and intensive judicial control by the administrative courts, particularly by the Federal Administrative Court as the last instance.
What are the legal consequences of banning an association?
The ban of an association is linked to extensive legal consequences. First, the legal capacity of the association ceases; it is no longer allowed to engage in activities, especially holding meetings, managing assets, or admitting new members. The assets of the banned association may, pursuant to § 11 VereinsG, be confiscated and used for the benefit of the state, unless it is legally allocated to a social or charitable purpose. Furthermore, supporting, promoting, or continuing the aims or organization of the banned association is a criminal offense under § 20 VereinsG and can be punished with imprisonment or a fine. The use of the association’s symbols, such as emblems, flags, or uniforms, is also prohibited by § 9 VereinsG and subject to penalty (§ 20 Para. 1 No. 5 VereinsG). Finally, the police can take measures to secure or seize assets and documents to ensure enforcement of the ban.
What legal remedies does an affected association have against a ban?
Associations affected by a ban have the possibility to take legal action against it. After receiving the prohibition order, the association can file an action for annulment with the competent administrative court (§ 80 Para. 1 Sentence 1 VwGO in conjunction with § 11 VereinsG). The court then examines the lawfulness both in formal and material terms. Until the court makes a final decision, the association ban remains in force; however, an application to restore suspensive effect is possible under § 80 Para. 5 VwGO and may be granted in individual cases if there are serious doubts about legality. In special cases, the proceedings may reach the Federal Administrative Court, which decides as the final instance. Thus, the judicial proceedings provide effective legal protection against state interventions in the freedom of association.
What are the main statutory provisions for association bans in Germany?
The principal statutory regulation for the prohibition of associations in Germany is the Act on the Regulation of Public Association Law (Associations Act – VereinsG). It regulates, among other things, the prerequisites for a ban in § 3 and the potential consequences of a ban, such as the seizure of assets (§ 11), prohibition and confiscation of symbols (§ 9), and criminal offenses (§ 20 et seq.). Supplementary regulations of the Administrative Court Code (VwGO) must also be observed, particularly with regard to legal protection. Furthermore, constitutional rights, especially Art. 9 GG (freedom of association), and, in the case of religious associations, Art. 140 GG in conjunction with Art. 137 Para. 2 WRV, are significant. In cases involving international references, Germany’s obligations under international law may also serve as a benchmark.
What role does public danger play in the assessment of an association ban?
The public danger posed by an association is an essential criterion for prohibition under § 3 VereinsG. An association ban can be ordered in particular if the purpose or activity of the association contravenes criminal law or is directed against the constitutional order or the concept of international understanding (so-called unconstitutionality). In practice, this means that the association systematically promotes criminal acts, pursues unconstitutional aims, or incites hatred and violence. Mere harmfulness or public disapproval is not sufficient; instead, there must be concrete and provable indications of a serious threat to the public interest. Such circumstances are assessed on a case-by-case basis and must be substantiated by the authority imposing the ban.
Can individuals be prosecuted for membership in a prohibited association?
Yes, after an association has been banned, natural persons can also be prosecuted if they continue to be active or support its activities despite the ban. Under § 20 VereinsG, anyone who continues the banned association, supports its activities, promotes it, or uses its symbols is liable to prosecution. The range of penalties extends from a fine to imprisonment of up to three years. Previous membership alone, before the prohibition took effect, is not punishable; only continuing or renewed involvement after the ban is punishable. Liability does not extend to actions lawfully carried out before the prohibition of the association.
Are there differences between the prohibition of political and merely criminal associations?
Yes, the Associations Act does not explicitly distinguish between political and criminal associations in principle, yet differences arise from the objectives of the association and the legal consequences. Political associations, as parties within the meaning of the Parties Act, can only be banned by the Federal Constitutional Court (Art. 21 Para. 2 GG) and not under the Associations Act. However, organizations similar to parties or political groups without party status can be banned under the Associations Act if, for example, they threaten the constitutional order. Criminal associations that do not have an explicitly political character can generally also be banned if they consistently promote unlawful activities (e.g., organized crime, drug trafficking). In both cases, a precise assessment must be made on a case-by-case basis, and the Gravity of the interference with the freedom of association is weighed according to the significance of the fundamental right in each instance.
