Principle of professional association
The principle of professional association is a fundamental organizational principle of German and many international legal systems that regulates the self-administration and representation of specific professional groups. It provides the legal basis for the establishment and functioning of professional associations, whose aim is to represent their members’ interests in matters directly related to professional practice. The principle of professional association carries particular weight in the context of coalition rights and in the organization of the liberal professions as well as representation in labor and social law structures.
Legal basis and definition
The principle of professional association is closely linked to the freedom of association protected by the Basic Law (Art. 9 para. 1 GG). According to this provision, everyone is free to form and join associations, particularly in the professional context. Legally, this principle is neither conclusively codified nor regulated in a single act but unfolds its effect through the interplay of various legal sources in public and private law.
Professional associations are established on the basis of the principle of professional association as voluntary unions of individuals belonging to a specific profession. Their purpose is the idealistic or economic promotion of their members as well as the representation of profession-related interests vis-à-vis third parties, including governmental and non-governmental bodies.
Historical development
Historically, the principle of professional association has its roots in the progressive development of association law and the legal regulation of collective interest representation since the 19th century. With industrialization and the emergence of new professions, organized representation of interests gained in importance. In German law, the period from the Weimar Republic onwards is particularly formative, during which professional associations became the link between the state, the world of work, and society.
Distinction from other principles
The principle of professional association must be distinguished from the chamber principle. While chambers are generally public-law corporations with mandatory membership, professional associations are privately organized, voluntary associations. There is also an important difference from the union principle, which emphasizes organization for labor disputes, whereas the principle of professional association focuses on the general representation of profession-related interests.
Legal framework
Freedom of association and coalition rights
The Basic Law protects the right to form associations to safeguard and promote working and economic conditions. Based on this, the coalition right (Art. 9 para. 3 GG) expressly guarantees both employees and employers the right to establish associations—including trade unions and professional associations. The principle of professional association ties into this protection by securing the formation and activity of professional associations within a legal framework.
Statutes and legal form
Professional associations are typically organized as registered associations (e.V.) in accordance with §§ 21 et seq. BGB. The statutes form the constitutional and organizational basis of the association. They contain provisions concerning purpose, duties, membership, bodies, rights and obligations, as well as regarding decision-making and external representation.
It is also possible to organize professional associations as other legal entities under private law, such as foundations or corporations, provided the purpose of the statutes and the membership structure justify this.
Areas of activity and tasks
The tasks of a professional association regularly include:
- Safeguarding and promoting the professional interests of its members,
- Consultation and information,
- Promotion of education and further training,
- Participation in the drafting of legal and profession-related regulations,
- Concluding agreements and cooperations with other associations and institutions,
- Public relations and representation of interests vis-à-vis politics, administration, and the public.
Rights and obligations of professional associations
Through their activities, professional associations acquire specific rights, such as the right to be heard in legislative procedures, the right of petition, and the right to participate in boards and committees. At the same time, they are subject to obligations, such as observing the general principle of equal treatment, maintaining charitable status, and complying with antitrust regulations, especially in connection with price setting or professional recommendations.
Membership rights
Membership in a professional association is generally open and voluntary. Members are entitled to information, participation in the association’s decision-making process, and protection and promotion of their profession-related interests. The statutes may provide for different forms of membership (ordinary, extraordinary, corporate, etc.) with corresponding rights and obligations.
Principle of professional association in different legal areas
Labor law
In labor law, the principle of professional association enables the collective representation of the interests of professional groups whose activities are subject to special requirements or regulations. Professional associations can act as social partners, participate in collective bargaining, or influence workplace co-determination structures. Unlike trade unions, their focus is not labor disputes, but rather the promotion and development of the profession.
Social law
Professional associations are also relevant in social law, for example, in shaping self-administration at social insurance institutions or in rights of participation in arbitration boards and committees. Especially the liberal professions—for example in healthcare—often organize themselves in professional associations in order to represent common interests towards social insurance providers or in the context of fee negotiations.
Competition law
Professional associations, as market participants, are subject to special competition law restrictions. They are not permitted to engage in antitrust price fixing or market foreclosure. The Act Against Restraints of Competition (GWB) and the Act Against Unfair Competition (UWG) contain specific provisions to prevent abuse of association power. At the same time, associations can, as qualified market participants, have standing to take legal action against competition violations by third parties (so-called association action).
Public law
In public law, the principle of professional association may manifest itself in the participation in the creation of professional regulatory laws and ordinances. The legislature and administration sometimes rely on the professional expertise and participation rights of professional associations when it comes to admission to the profession, initial and continuing training regulations, or rules for practicing the profession.
Termination and supervision
Dissolution of a professional association
Dissolution is governed by the regulations applicable to associations (§§ 41, 42 BGB) and may take place by resolution of the general assembly, whereby the majorities specified in the statutes must be observed. After dissolution, the association’s assets must be used in accordance with the statutory provisions.
Legal supervision and control
Although professional associations are generally not subject to state supervision, compliance with general laws—especially competition, data protection, and association law—may be subject to official control. In the event of violations of public order, dissolution may be ordered by a court.
Significance and assessment
The principle of professional association guarantees the free, self-determined, and autonomous representation of interests of professional groups on a private law basis. It ensures a high degree of self-regulation and democratic decision-making in the professional context. The open accessibility and diversity of associations strengthen pluralism and offer every professional group the opportunity to contribute their specific interests to societal and legal development.
Literature
- Röhl, Hans Christian: Handbuch des Vereins- und Verbandsrechts. 7th edition, 2018.
- Schmitt, Gerd: Die Stellung der Berufsverbände im deutschen Recht. NJW 1982, 1523 ff.
- Ladiges, Wolfgang: Vereine und Verbände im deutschen Recht. 3rd edition, 2015.
- Gitter, Wolfgang: Berufsverbände – Funktion und Rechtliche Stellung, ZfA 1987, 687 ff.
This entry has been designed for a legal encyclopedia and provides comprehensive information on the principle of professional association with particular attention to the legal framework and practical significance.
Frequently asked questions
What legal requirements must be met for the recognition of a professional association in the sense of the principle of professional association?
Strict legal requirements apply for the recognition of a professional association under the principle of professional association. First, the association must take the form of a legal entity as per § 21 et seq. BGB and pursue a profession-related, idealistic purpose aimed at safeguarding and promoting professional interests. Membership should in principle be open to all representatives of the relevant professional group to prevent arbitrary restrictions and to maintain the principle of representation. Furthermore, it is required that the association possesses sufficient representativeness through its actual number of members and their active professional practice so that it is legitimized to represent professional interests towards the state, collective bargaining partners, and third parties. The association must also be independent in its decision-making and, in particular, must not be directed by external parties such as employers or state bodies. Finally, specific statutory regulations are often required, for example to fulfill transparency requirements, to regulate admission and exclusion procedures, and to ensure democratic decision-making within the association.
To what extent is the principle of professional association enshrined in German law and what statutory foundations exist?
The principle of professional association is not directly codified in German law but derives from various statutory provisions and case law. Its central importance is rooted in the constitutionally guaranteed freedom of association and coalition, in particular pursuant to Art. 9(1) and (3) of the Basic Law (GG), according to which members of a profession may join together to safeguard and promote their working and economic conditions. Further statutory provisions are mainly found in the Collective Agreements Act (TVG), which expressly ties collective bargaining rights to recognized associations—typically professional associations. Special occupational laws, for instance in the chamber domain (e.g., Chambers of Crafts, Medical Associations), are also linked to the principle. The case law of the Federal Labor Court (BAG) and the Federal Constitutional Court (BVerfG) has clarified the requirements, functions, and boundaries of the principle of professional association, particularly with regard to collective bargaining capacity, representativeness, and democratic structures.
What legal differences exist between a professional association, a trade union, and a chamber with regard to the principle of professional association?
Professional associations, trade unions, and chambers are each organizations for representing professional interests, but there are significant legal differences in the context of the principle of professional association. Professional associations are generally voluntarily organized groups that represent specific professional fields or industries and usually do not have immediate compulsory powers. Trade unions, on the other hand, are associations that represent the general and social interests of employees, especially in collective bargaining and labor law matters. Regarding collective bargaining capacity, trade unions must meet the requirements specified in the Collective Agreements Act and case law. Chambers are public-law corporations and have compulsory memberships as well as sovereign tasks, for example in the healthcare professions or with the bar association. The principle of professional association applies to chambers only to the extent that they represent professional interests in a public-law organizational form, while professional associations and trade unions act as private-law organizations.
Under what circumstances may a professional association be entitled to negotiate collective agreements or bring legal action in the sense of the principle of professional association?
The ability of a professional association to negotiate collective agreements or take legal action is subject to various legal requirements. An association is eligible if it demonstrably represents the interests of a particular professional group independently and on its own responsibility (§ 2(1) TVG). This requires the statutes to expressly provide for this authority, the organization to cover the entire profession or a predominant part thereof, and decision-making to be democratic. It is also required that the association possesses sufficient power and representation within the profession (see e.g., BAG judgment of 5.11.1973 – GS 1/68). Legal standing includes, among other things, the ability to bring association claims in its own name, as provided for example in social law or in protection against discrimination (§ 23 AGG). For this, the ability to be listed in relevant public registers and proof of special expertise and affectedness are required.
What role does the principle of professional association play in the context of collective labor relations and collective bargaining?
The principle of professional association plays a central role in collective labor law and in collective bargaining. It states that only professional organizations established by free will, which actually represent the interests of a professional group, are entitled to negotiate and conclude collective legal norms, particularly collective agreements, on behalf of their members. The principle protects the autonomy of associations from state interference (collective bargaining autonomy, Art. 9(3) GG) and ensures that collective agreements are democratically legitimized and supported by a representative majority. This allocation of function ensures that collective labor relations can be structured in a lasting, low-conflict, and participative manner. Case law further emphasizes the association’s capacity to enforce collective bargaining policies, to maintain a balance between employer and employee sides.
To what extent is the principle of professional association subject to judicial review and what is the subject of such reviews?
The principle of professional association is subject to judicial review in several respects, in particular by labor courts and the Federal Constitutional Court. The main subjects of review are the legal and collective bargaining capacity of the association in question, its independence, the representativeness of its membership base, and the observance of democratic decision-making and compliance with its statutes. Courts may examine whether a professional association actually meets the requirements for collective bargaining autonomy, for example, if collective bargaining capacity is contested or if doubts arise regarding internal democracy. In the event of a dispute, courts also weigh freedom of association with the fundamental positions of competing organizations or outsiders (e.g., in cases of displacement of other representative bodies). State interventions—such as recognition, supervision, or supervisory measures—are also subject to compatibility checks with the principle of professional association.
What rights and obligations does a recognized professional association have under the principle of professional association vis-à-vis its members and third parties?
A recognized professional association possesses comprehensive rights and obligations that manifest both internally (towards its members) and externally (towards third parties). With respect to its members, the association is obliged to effectively represent their interests, properly manage membership dues, and ensure transparent decision-making. It must guarantee democratic elections and member participation, safeguard their rights, and protect them from arbitrary sanctions. Externally, the association is authorized to negotiate on behalf of its members, represent them in legal or social matters, conclude collective agreements, and issue statements to government authorities. Obligations also exist towards third parties, such as compliance with laws and agreements and the assurance of fair competition with other associations. When assuming public tasks (e.g., in professional accreditation), increased requirements regarding neutrality and transparency apply. In the event of breaches of duty, both members and third parties may assert legal remedies against the association.
