Association under mining law (bergrechtliche Gewerkschaft) – Definition, Legal Foundations, and Significance
Die association under mining law is a central concept in German mining law. It refers to a legal entity under private law established in the 19th century for the exploitation of mineral resources. In its classical form, it enabled capital participation in companies for the extraction of mineral resources and differs significantly in its legal structure and function from the modern labor union. The association under mining law has largely been displaced by the current legal system, but its regulations remain important for understanding historical and substantive mining law relationships.
Term and Historical Development
According to the General Mining Act for the Prussian States of 1865 (ABG, § 166 ff.), the association under mining law was a special form of company for the joint management of mineral resources. Unlike civil law companies, the association under mining law could, as a legal entity, acquire rights and incur obligations. Its establishment required the granting of mining property as well as registration in the land register and the mining registry. With the entry into force of the Federal Mining Act (BBergG) in 1982, the association under mining law became practically obsolete, although in some old holdings and companies it still retains legal significance.
Legal Foundations
1. Historical Legal Sources
The most important normative foundations were:
- General Mining Act for the Prussian States of 1865 (ABG)
- Mining laws of other German states of the 19th and early 20th centuries
- Provisions in the German Civil Code (BGB), insofar as the mining law did not provide for special regulations
In current law, there are hardly any direct statutory provisions concerning the association under mining law. However, its rules have retained transitional relevance within the Federal Mining Act and through transitional provisions.
2. Displacement by the Federal Mining Act
Das Federal Mining Act (BBergG) of 1980 prescribes alternative corporate structures for the operation of mines and contains no specific regulations regarding the association under mining law. The continuation of existing former associations is regulated through transitional provisions (§ 151 BBergG).
Legal Nature and Legal Capacity
The association under mining law is a corporate entity with legal capacity for the exploitation of mineral resources. It is a special form of company, but due to historical developments is closely related to a stock corporation. From the outset, it is oriented towards the acquisition, ownership, and operation of mining rights and mining facilities. As a corporation with its own legal personality, it can raise capital, acquire property, sue and be sued in court.
Organization and Constitution
1. Share Structure (Kuxe/Kuxen)
The essential structural feature of the association under mining law is its company capital divided into so-called Kuxe (Kuxen; singular: Kux) . A Kux represents a fraction of the total company. The distribution of voting rights and profits was determined according to the number of Kuxe held; these were structured as securities and could be transferred.
2. Organs of the Association
The organizational structure typically consisted of:
- General meeting of Kux holders (basis for major resolutions, often majority principle)
- Mining board (management board), which assumed management and external representation
- Accountants/committees to oversee management and audit the accounts
The internal order of the association was governed by a statute (association charter).
Rights and Duties
Rights of the Association
The association could in particular:
- Extract and sell mineral resources (ores, coal, salts, etc.)
- Acquire, own, and encumber real estate
- Operate mining facilities
- Distribute profit shares (dividends) to Kux holders
- Enter into contracts in its own name
Duties
Duties particularly included:
- Proper conduct of mining operations in accordance with statutory and regulatory requirements
- Accounting and financial reporting
- Compliance with the statute/association charter
Liability and Legal Status of Kux Holders
The Kux holders, as members of the association, were generally excluded from personal liability for the liabilities. Liability was limited to the contributed capital (Kuxe); the principle of limited liability applied.
Dissolution and Liquidation
An association under mining law could be dissolved in the following ways:
- By revocation of mining rights (e.g., by reversion to the state or forfeiture)
- By resolution of the general meeting for dissolution
- Upon completion of the liquidation following the settlement procedure
After liquidation and satisfaction of debts, any remaining assets were distributed according to Kux shares.
Significance in Current Law
The establishment of new associations under mining law is no longer provided for under the BBergG. Existing associations established before 1980 are protected by grandfathering, but are required to be continued in line with general corporate law principles. Most associations under mining law have since been converted to other corporate forms (mainly stock corporations and limited liability companies).
Literature and Further References
- Roth, Der Kuxenbesitz und die bergrechtliche Gewerkschaft (Monograph)
- Schulte, Mining Law – Compendium for Study and Practice
- Federal Mining Act with introduction and commentary
- Statutes and constitutions of historical associations
Summary
Die association under mining law was one of the most important legal entities for the joint exploitation of mineral resources in historical German mining law. As a corporate entity on the basis of Kux shareholding, it offered members limited liability and participation rights. With the entry into force of the Federal Mining Act, this form of company was essentially abolished, but its legal regulations remain central to old companies and for the historical understanding of German mining law.
Frequently Asked Questions
Which legal provisions govern the association under mining law?
The association under mining law is governed in German law in particular by the General Mining Act for the Prussian States (ABG) of 24 June 1865, which was significant for many regions of Germany and remains relevant today for legacy cases and remaining assets. In addition, provisions of the German Civil Code (BGB) concerning the rights and obligations of legal entities or companies apply, provided the mining law does not contain more specific rules. The Federal Mining Act (BBergG) may also be relevant for existing associations due to transitional provisions. For cooperative aspects, besides the specific mining law provisions, the regulations of the Cooperative Societies Act are also decisive. Corporate law provisions apply supplementarily in cases where mining law does not offer a conclusive regulation.
Which bodies and competences does the law provide for the association under mining law?
The legal framework of the association under mining law typically provides for a meeting of the members (shareholders), often referred to as the ‘meeting of the Gewerken’, as the central decision-making body. In practice, there is usually also a management body, mostly called the ‘board of directors’ or ‘executive board’, responsible for ongoing management and legal representation both in and out of court. Its powers and composition are defined by the founding constitution and the special mining law provisions. The register court exercises an oversight role, for example, in changes to the membership or to the constitution. Rights, duties, and special voting procedures are set out in the ABG, as well as the respective constitution, and are supplemented by general corporate law provisions.
How is the legal position of the members (Gewerken) structured?
From a legal perspective, the members (Gewerken) hold shares in the association, granting them, via the constitution and by law, certain management and control rights as well as obligations. The shareholding typically confers both property rights (e.g., profit share, right to proceeds from mining) and management rights (voting rights in the meeting). The transferability of these rights, inheritance options, or restrictions are determined by the statute and are also subject to specific mining law formalities, such as registration in the mining registry. Members are generally not personally liable for the association’s obligations, but only up to the amount of their capital contribution. An obligation for further capital contributions usually exists only if expressly agreed.
What legal requirements exist for the formation of an association under mining law?
Forming an association under mining law requires, at a minimum, determining a concession area (mine building), drafting a constitution (statute), and registering it with the competent mining authority or register court. The constitution must at least cover purpose, registered office, management, representation, and the rights/duties of the members. Under the classical ABG, the concession right to a mining site is prerequisite for forming the corporation, whereby the number of members and share capital must be determined. Registration is supplemented by publication (notification) and becomes legally effective upon entry in the special mining registry. Special requirements exist for shaft plants and their extraction and processing facilities to which the association extends its sphere of activity.
How is the transfer of Kuxe (shares) managed under current law?
The transfer of shares, referred to as Kuxe, is subject to special requirements as to form. Under traditional law, this requires a written assignment, which must be entered into the so-called Kux book. Entry in the mining registry or Kux book is constitutive, meaning the transfer becomes effective only then. Usually, a notification or registration with the association’s management is also required. The statute may include additional requirements for approval or rights of first refusal that regulate the trading of Kuxe. Certain forms of transfer, especially upon succession, are subject to special rules of company law and inheritance law, such as the co-ownership of heirs.
How is liability regulated for the association under mining law and its members?
The association under mining law, as a legal entity, is principally independent and liable with its own assets. Members generally are not personally liable for the association’s obligations, but only up to the amount of their contributed capital or share (Kux). Further capital contribution obligations (Nachschusspflichten), i.e., the duty to make additional payments in case of a loss, exist only if expressly stipulated in the constitution. In exceptional cases, a statutory obligation to make additional contributions may arise—such as in the event of imminent insolvency, to ensure proper completion.
What special considerations apply to the dissolution and winding up of an association under mining law?
The dissolution of the association under mining law is subject in particular to the applicable mining law and the respective constitution. Typically, a resolution of the members’ meeting as well as certain grounds for dissolution (e.g., cessation of purpose, exhaustion of deposit, expiration of term, unanimous resolution) are required. Liquidation takes place following the resolution to dissolve, with all assets and liabilities to be settled properly. The legal requirement is that distribution of remaining assets is made proportionally to the Kuxe. The dissolution is only legally effective upon deletion of the company in the mining register or commercial register. For ongoing litigation and any post-dissolution liabilities, the general rules of company law apply accordingly.
