Explanation of the term and legal classification of exclusion
The term “exclusion” refers in a legal context to the legally significant denial or revocation of certain rights, powers, memberships, or claims. Exclusions occur in numerous areas of German law, particularly in civil law, labor law, company law, and administrative law. They regularly aim to terminate legal relationships, restrict rights, or exclude certain individuals (or groups) from claims or participation rights.
Exclusion in civil law
Grounds and effects of exclusion
In civil law, an exclusion can occur contractually (by agreement) or by statute (by operation of law). Common cases include the exclusion of claims, denial of rights, limitation by statute of limitations, as well as exclusion from legally capable associations such as clubs or companies.
Exclusion of claims
Exclusion of claims is particularly relevant in so-called exclusion clauses. These can be found in contracts (e.g., exclusion of liability) or may be legally stipulated, for example in the case of missed deadlines (e.g., under the statute of limitations in §§ 194 ff. BGB). In the context of damages law, a claim may be excluded in cases of own responsibility (§ 254 BGB) or by statutory limitation of liability, such as in cases of force majeure or gratuitous acts.
Exclusion from associations and companies
Associations and companies may exclude members if this is provided for in the articles of association or if there is an important reason. According to § 34 BGB, a member may only be excluded from an association according to the terms of its articles; this often occurs in cases of gross breach of duty or conduct harmful to the association. In corporate law as well, for example in a partnership under civil law (GbR) or in a general partnership (OHG), exclusion is possible in cases of serious breaches of duty (§ 737 BGB, § 140 HGB).
Exclusion in labor law
Exclusion periods
In labor law, exclusion plays a particularly central role regarding so-called exclusion periods (forfeiture periods). These are deadlines after which certain claims from the employment relationship can no longer be asserted. Such collective and individual contractual exclusion periods serve legal certainty and industrial peace (e.g., § 70 BAT, § 15 TV-L). In order to be effective, they must meet certain requirements, notably transparency and reasonableness. After expiry of the period, the claim is generally completely excluded.
Exclusion from the employment relationship or works council
Another case involves the exclusion of an employee from the company or of a works council member from the works council. The latter is governed by § 23 (1) BetrVG (exclusion from the works council in the case of gross breach of duty).
Exclusion in corporate law
Exclusion of shareholders
In corporate law, a shareholder may be excluded from a company for important reasons. The regulations vary depending on the legal form:
- GbR: According to § 737 BGB, a shareholder can be excluded if an important reason exists in the person of the concerned party.
- OHG: According to § 140 HGB, an exclusion for significant reasons is permissible if a shareholder grossly violates their duties.
- GmbH: The requirements for exclusion are set out in §§ 34, 38 GmbHG and in the case law. Exclusion occurs by court decision and in special cases (such as serious breaches of duty).
Exclusion of shareholders (Aktiengesellschaft)
In stock corporation law, the exclusion of minority shareholders by means of a so-called squeeze-out is possible (§§ 327a ff. AktG). Here, majority shareholders (with at least 95% of the share capital) can exclude the remaining shareholders from the company against cash compensation.
Exclusion in administrative law
Exclusion from administrative procedures
In administrative law, the exclusion of an authority or a person from participation in an administrative procedure is legally provided for in certain situations, for example, due to concerns of bias (§ 20 VwVfG).
Exclusion of certain groups or persons
In public law, exclusions can apply in various fields, e.g., in immigration law (exclusion of certain residence permits in case of reasons for expulsion), in election law (exclusion from voting according to Art. 38 (2) GG, §§ 13 ff. BWahlG), or in social law (exclusion of certain benefit entitlements where there is no need).
Exclusion in criminal law and criminal procedure law
Exclusion of persons
In the criminal context, “exclusion” generally refers to the forced removal or barring of persons from specific situations or institutions. Criminal procedure law also recognizes the exclusion of judges and lay judges in cases of bias (§§ 22-24 StPO).
Exclusion from participation in proceedings
Witnesses or other participants in the proceedings may also be excluded under certain circumstances (e.g., where witness privileges exist pursuant to § 52 StPO).
Procedural aspects
Right to be heard and rights of objection
Exclusion has far-reaching procedural significance, especially with regard to the right to a fair hearing (Art. 103 (1) GG). Before someone is excluded from associations or offices, they must regularly be given an opportunity to comment. The formal requirements are set out in the relevant procedural rules and statutes. Defects in the exclusion procedure can render the exclusion ineffective.
Significance of exclusion clauses and deadlines
Exclusion clauses (also known as forfeiture clauses) regulate the exclusion of claims and are common in many types of contracts. They serve to avoid uncertainties and to clarify legal relationships swiftly. Statutory limits arise, in particular, from the law on general terms and conditions (§§ 305 ff. BGB) as well as from the requirements of transparency and the prohibition of surprising clauses (§ 307 BGB).
Legal remedies against exclusion
In principle, legal recourse is available against an exclusion, such as filing a legal challenge in court (e.g., for exclusion from an association, company, or works council). The prerequisite is that the exclusion violates the articles of association, statutory provisions, or the principle of proportionality.
Summary
Exclusion is a central concept in German law that applies across numerous legal areas. Exclusions provide protection, clarification, and limitation of rights, but can also mean significant interference with existing legal positions. They are subject to clear requirements, formalities, and must be tied to purpose and justification. Effective legal protection against unlawful exclusions is a fundamental principle of the rule of law.
References
- Bürgerliches Gesetzbuch (BGB)
- Handelsgesetzbuch (HGB)
- Aktiengesetz (AktG)
- Betriebsverfassungsgesetz (BetrVG)
- Verwaltungsverfahrensgesetz (VwVfG)
- Bundeswahlgesetz (BWahlG)
- Staudinger, Commentary on the BGB
- Münchener Commentary on the HGB
- Fischer, Commentary on the Penal Code
Note: This encyclopedia article does not claim to be exhaustive with respect to every form of the term “exclusion,” but it does provide a structured and comprehensive overview of its occurrences and legal consequences within the German legal system.
Frequently asked questions
What are the legal requirements for excluding a member from an association?
In principle, the German Civil Code (BGB) in § 38 ff. regulates membership and exclusion from associations. An exclusion must be based on effective reasons in compliance with the law, which as a rule should be clearly specified in the articles of association. It must be ensured that exclusion is not arbitrary or for improper reasons, but based on factual and proportionate grounds, such as repeated significant violations of the articles, persistent damage to the reputation or interests of the association, delayed payment despite reminder, or serious breaches of loyalty. In addition, the affected member is usually to be granted the right to be heard, meaning that they must be informed of the reasons for exclusion and given an opportunity to respond. If the exclusion process is improper, e.g., without a hearing or for impermissible reasons, it can be invalid and, if necessary, challenged in court.
What legal steps can a person affected by exclusion from an association take?
A member affected by exclusion has the option to have the exclusion legally reviewed. Many association statutes provide for an internal legal remedy, such as appeal to the membership assembly. If this has been exhausted or is not provided for, recourse to ordinary courts is possible. The member can file a declaratory action (§ 256 ZPO) with the competent district court in order to establish that the exclusion is invalid. During the legal proceedings, the court will particularly review whether the statutory procedure was followed and whether there was an objectively justified reason for exclusion. Until the court’s decision, the member generally remains excluded, unless the statute or the court allows provisional membership.
What role does the right to be heard play in legal exclusion proceedings?
The right to be heard is a central element of due process in exclusion proceedings. Before a decision on exclusion is made, the member concerned must be given the opportunity to respond to the allegations against him or her. This results from general principles of the rule of law as well as from § 242 BGB (principle of good faith). If the hearing is not conducted, or done inadequately, this constitutes a procedural defect that may render the exclusion invalid. The hearing may take place orally, in writing, or in a general meeting, whereby the method is determined either by law, by the articles of association, or usual association practice.
What formal requirements under law must be observed for exclusion?
There are statutory as well as statutory requirements for exclusion. First, it must be checked whether the association’s articles prescribe specific requirements, such as providing the exclusion notice in writing or adherence to certain deadlines. In the absence of such provisions, general rules apply: The decision on exclusion is generally to be made by the competent body (e.g., board, general meeting). The affected member must be clearly informed of the exclusion decision and the underlying reasons (ideally in writing). Failure to observe such formal requirements makes the exclusion legally contestable.
Can minors or persons in need of protection be legally excluded from an association?
Minors and persons in need of protection are also subject to the principles of association law. In general, they may be excluded; however, in the case of minors, the relevant provisions of minors’ law must be observed, in particular representation by legal guardians (§ 1629 BGB). For persons in need of protection, such as members under guardianship, care must be taken that their statutory representatives also participate properly in the procedure. Both groups are entitled to enhanced safeguards regarding information, hearing, and the protection of their rights in the proceedings.
Can exclusion from a community or corporation be reversed?
An exclusion that has become effective can under certain circumstances be corrected. There are two possibilities: On one hand, the excluding community can, by majority decision, resolve to readmit the excluded member, provided this is allowed by the statutes. On the other hand, a court can, in the context of a legal challenge, declare the exclusion invalid if procedural defects or lack of reasons for exclusion are established. If such a court decision is rendered, the member is generally considered never to have been excluded and is entitled to reinstatement of all membership rights.
What is the significance of the obligation to provide reasons in legal exclusion procedures?
The exclusion decision must be accompanied by a comprehensible and individualized statement of reasons so that the affected member can understand the factual basis for the exclusion. This is necessary both to allow the member to properly defend themselves against exclusion and to ensure judicial review. A missing or formulaic justification is insufficient and may render the exclusion invalid. The reasons must also correspond to the actual and legal circumstances and must not be general or unsubstantiated.
