General definition: Exclusion of association members
Der Exclusion of association members refers to the legally regulated process by which a member’s membership in an association is revoked. Reasons and procedures for exclusion, as well as the legal framework, are set out in the German Civil Code (BGB) and the relevant association’s statutes. Exclusion constitutes a significant intervention in membership rights and is therefore subject to special legal requirements.
Legal basis of exclusion
Association law under the BGB
Association law is regulated in §§ 21 ff. BGB. Specifically, § 34 BGB governs the right to be heard for the exclusion of a member. According to § 40 BGB, the statute is decisive for questions of exclusion. If the statute contains no provisions or only insufficient provisions, general principles of association law and general private law are applied.
Statutory autonomy and statutory regulation
The statute of an association typically determines the requirements, procedure, and jurisdiction for the exclusion of a member. Typically, it defines grounds for exclusion, the procedure, the required majority for resolutions, and legal remedies. In the absence of corresponding statutory provisions, the general provisions of the BGB apply.
Grounds for exclusion
Typical grounds for exclusion
Frequently listed reasons for exclusion in statutes are:
- Serious violation of membership duties: e.g., by significant violations of the statutes
- Harming the association’s purpose or reputation
- Arrears in membership contributions
- Violations of the association’s rules or resolutions of association bodies
- Conduct detrimental to the association inside or outside the association
According to prevailing opinion, only serious reasons can justify revoking a member’s membership, as this constitutes a significant intervention.
Exclusion without statutory regulation
If there are no or incomplete statutory provisions, according to general legal opinion, the board decides (§ 27 para. 3 BGB) and there must be serious grounds.
Procedure for exclusion
Formal requirements
As a rule, an exclusion procedure must observe the principle of the right to be heard (§ 34 BGB). The affected member must be informed in good time of the intended exclusion and given the opportunity to respond to the accusation.
Procedure sequence
Typical sequence in exclusion procedures:
- Notification of the intended exclusion to the member stating the reasons
- Hearing of the member: Opportunity to comment and defend
- Resolution by the responsible association body (often the board or general assembly)
- Delivery of the exclusion decision to the affected member with the reasoning and, if applicable, information on legal remedies
Requirements for resolutions
The statute determines which body is responsible and with which majority the resolution is to be passed. If there are no corresponding provisions, the decision of the board pursuant to § 27 para. 3 BGB applies. The resolution must be documented and should state the decisive reasons.
Legal protection and contesting exclusion
Internal association legal remedies
Many statutes provide an internal association appeal or objection procedure against exclusion, such as by appealing to the general assembly or to an arbitration tribunal.
State judicial system
After exhausting the internal association legal process, the excluded member may take the ordinary legal route (local court, association register court). The court will review whether the exclusion was procedurally and materially proper and in compliance with association law and general principles of freedom from arbitrariness and proportionality.
Consequences of a flawed exclusion procedure
An unlawful exclusion procedure (e.g., if the right to be heard is violated or an important reason is lacking) is void and has no effect on the member. The excluded member remains a member of the association until effective termination of their membership, including all associated rights and obligations.
Practical notes and summary
The exclusion of association members is a significant and potentially contentious event in association life. Exclusion procedures require clear and legally secure statutory provisions, as well as careful compliance with the relevant formal and substantive requirements. Careful documentation of the procedure, comprehensible reasoning, and observance of the right to be heard are essential to avoid subsequent challenges before state courts and ensure legal certainty.
Associations are advised to regularly review their statutory provisions on exclusion for timeliness and legal sustainability to meet the diverse requirements of association law.
Frequently asked questions
What legal requirements must be met to exclude a member from an association?
Exclusion of a member from an association generally requires a statutory basis. The statute must contain provisions on exclusion, in particular regarding the grounds for exclusion and the procedure. If such a provision is missing, exclusion is only possible under strict legal requirements (§ 38 BGB for members not appointed for life). Typical grounds for exclusion are serious violations of the statute, harm to the association or its reputation, disregard of association resolutions, or arrears in contributions. The grounds for exclusion must be specified and documented. An exclusion without legal basis in the statute or in violation of the legal framework can be challenged and may render the exclusion invalid.
What procedural steps must be observed in exclusion proceedings?
The exclusion procedure must be fair, transparent, and follow the statute. Usually, the board or a specific association body is responsible for the exclusion. The affected member must be heard before any decision (right to be heard). The hearing is usually in writing, but sufficient opportunity to comment must be provided. The decision must be communicated to the affected member in text form (usually in writing), specifying the reasons in detail. If the right to be heard is neglected or procedural rules are not observed, this can render the exclusion invalid.
Must the affected member be granted an opportunity to object?
As a rule, the association’s statute provides for an internal legal remedy, such as an objection to the exclusion resolution or an appeal to the general assembly. This possibility must comply with the principles of association law and enable effective review of the decision by the member. The deadlines for lodging an objection or appeal should be specified in the statute. If no express provision exists, case law may require that at least a reasonable review period is granted.
What formal requirements apply to the exclusion resolution?
As a rule, no notarized or special form is required for the exclusion resolution unless otherwise provided by the statute. It should be documented in the association’s minutes or protocol and communicated in writing to the excluded member. The notification must specify the supporting reasons for the exclusion in detail to enable the member to pursue their legal rights appropriately. An oral notification is generally not sufficient.
What legal options does the excluded member have against exclusion?
The member can use internal association remedies provided for (e.g., an appeal to the general assembly). After exhausting the internal appellate process or if there is no statutory review possibility, legal action through the ordinary courts is possible. The member may file an action for a declaration of invalidity of the exclusion (§ 40 BGB). The court then examines whether the exclusion was in accordance with the statute and in compliance with association principles and minimum rule-of-law requirements (hearing, reasoning). If a violation is found, the exclusion is invalid.
What are the consequences of a legally invalid exclusion?
An invalid exclusion has no legal effect. The member remains a member with all rights and obligations. Any previous deletions from the membership register must be corrected and the member reinstated to their original status. Any refusal of benefits by the association to the member on account of an invalid exclusion may give rise to claims for damages.
Are there special legal requirements when excluding board members?
When excluding board members, higher requirements must be met, as this affects not only the membership but also the office-holding relationship. In addition to the general requirements for exclusion under association law, the provisions of § 27 para. 2 BGB (removal at any time unless otherwise stipulated) apply to dismissal as a board member. However, withdrawal of membership will generally also result in automatic termination of the board office, provided the statute stipulates this. The procedure must be conducted with particular care and comprehensive hearing to avoid legal disputes.
