Term and Meaning of Solidarity Communities
In German law, solidarity communities refer to associations of natural or legal persons characterized by mutual support and shared responsibility in pursuing certain objectives or managing common risks. At the core is the principle of solidarity, which applies when individual members are either supported, protected, or collectively burdened by the community. Solidarity communities arise in various areas of law such as social law, insurance law, tax law, and liability law.
Legal Foundations and Types of Solidarity Communities
Solidarity Communities in Social Law
Social law is largely based on the concept of solidarity. Statutory social insurances – particularly health insurance, pension insurance, long-term care insurance, accident insurance, and unemployment insurance – are classic forms of solidarity communities. Insured individuals contribute through payments to finance collective risks such as illness, need for care, or unemployment. The legal framework is primarily set out in the Social Security Code (SGB).
Statutory Health Insurance
The statutory health insurance (GKV) forms a central solidarity community within the healthcare system. According to the principle of solidarity, all members pay income-based contributions to ensure financial protection in the event of illness (§ 1 SGB V). Entitlement to benefits is largely independent of the individual’s contributions.
Pension and Unemployment Insurance
Pension and unemployment insurance are also based on solidarity principles (see § 1 SGB VI and § 1 SGB III): The contributions of all those in gainful employment fund benefits such as retirement pensions or unemployment payments for those in need.
Solidarity Communities in Insurance Law
In insurance law, the solidarity community concept emerges primarily in the distribution of risks and claims settlement in private insurance. Policyholders pay premiums into a joint “risk equalization fund” to receive benefits in the event of a claim (§§ 1 ff. VVG). Private insurances may form voluntary solidarity communities, which are governed internally by the terms and conditions of insurance.
Solidarity Communities in Tax Law
Tax law recognizes solidarity communities mainly within the framework of joint and several liability (§ 44 AO). Multiple tax debtors may be jointly liable for a tax debt, allowing the tax authorities to collect the full debt from any individual debtor. This mechanism of joint liability serves to secure tax revenue.
Solidarity Communities in Liability Law
In liability law, the term ‘solidarity community’ often refers to joint debtors under § 421 BGB. Several debtors are jointly and severally liable (“solidarisch”) for the same obligation, so that the creditor may demand the complete performance from any single debtor. Internal adjustment among the debtors follows § 426 BGB.
Characteristics and Distinction
Essential Characteristics
Solidarity communities are characterized by:
- Mutual support or sharing of burdens
- Distribution and balancing of risks or burdens
- Legal and economic binding of the parties involved
- Pursuit of common goals or risk prevention
Distinction from Other Legal Institutions
Solidarity communities differ from other forms of association by the prevailing presence of structures for liability, protection, or support based on solidarity. While, for example, partnerships focus on profit distribution, solidarity communities prioritize the collective bearing of risks or burdens.
Liability and Legal Consequences
External Liability
In relations with third parties, the principle of solidarity often results in joint and several liability. This means that a creditor may demand complete performance from any involved party under § 421 BGB if there are multiple obligors. This typically serves to simplify the enforcement of claims.
Internal Adjustment
Within the solidarity community, members must reimburse the expended performance according to the agreed upon allocation key [§ 426 BGB for debts; contribution regulations for social insurances]. The exact structure is governed by statutory provisions or individual agreements.
Purpose and Societal Significance
In law, solidarity communities primarily serve social or economic equalization: stronger members contribute to supporting weaker ones, enabling society to manage risks such as illness, old age, unemployment, or accidents collectively. As a result, individual risks are borne collectively to promote societal stability and fairness.
Examples of Solidarity Communities in Practice
- Statutory health, long-term care, and pension insurance (SGB)
- Liability of multiple partners as joint debtors (§ 128 HGB)
- Mutual insurance associations (§ 15 VAG)
- Community of heirs in case of liability (§§ 2058, 2059 BGB)
Critique and Legal Policy Discussion
As a legal institution, the solidarity community is the subject of intensive legal policy debate. Discussions often focus critically on the burden on individual members versus the community, the design of fair balancing mechanisms, and the sustainability of solidarity systems in the context of demographic and economic shifts.
Literature and Further Legal Provisions
- German Civil Code (BGB), especially §§ 421-426 BGB
- General Act on Equal Treatment (AGG)
- Social Security Codes (SGB I-XII)
- Insurance Contract Act (VVG)
- Fiscal Code (AO)
Weblinks
Notice: This article provides a comprehensive legal presentation of the term “solidarity communities” focusing on legal foundations, distinctions, liability, social significance, and practical examples.
Frequently Asked Questions
What legal forms may solidarity communities take in Germany?
Solidarity communities in Germany may adopt different legal forms depending on the purpose, size, and structure of the community. They often choose the registered association (e.V.), as it offers a recognized organizational structure with clear statutory requirements. Alternative forms include unincorporated associations, civil law partnerships (GbR), or, in certain cases, cooperatives (eG). The choice of legal form significantly affects issues of liability, representation, and tax treatment. Particularly for initiatives in the healthcare sector, such as solidarity communities covering costs under § 193 para. 3 VVG, the association structure is common because it ensures transparency in management and use of funds. However, each chosen legal form is subject to the respective civil law provisions, especially §§ 21 ff. BGB for associations and §§ 705 ff. BGB for partnerships. Before founding, a legal examination should be made to determine which form best suits the intended aims.
Are solidarity communities legally recognized as a substitute for statutory health insurance?
According to German law, solidarity communities are explicitly not substitute funds in the sense of statutory or private health insurance, but rather operate as an alternative model. § 5 para. 1 no. 13 SGB V allows members of such communities, under certain conditions, to be exempted from compulsory statutory health insurance, provided the community fulfills specific requirements regarding the scope of benefits, public interest orientation, and sustainable performance capability. Case law and administrative practice, however, require independent examination and regular proof of long-term assurance of health protection. Membership in a solidarity community does not automatically exempt from all legal consequences stipulated by the SGB; it requires regular and verifiable information about status. According to § 193 para. 3 sentence 2 VVG, solidarity communities are also recognized within private insurance, provided they demonstrably provide existential benefits. The concrete requirements and substantiation vary by federal state and competent authority.
To what extent is there an insurance obligation for members of a solidarity community?
In principle, members of a solidarity community remain subject to compulsory statutory insurance under SGB V unless they fulfill the requirements for exemption or the solidarity community is recognized as equivalent. Exemption from the insurance obligation must be applied for at the respective health insurance fund and requires that the solidarity community demonstrate a comparable range of benefits, ongoing payment security, and a clear charter concerning the duties of provision. In the absence of sufficient proof, membership in a solidarity community cannot be considered a replacement for statutory compulsory health insurance, which may result in retroactive insurance obligations or additional contributions. The legal situation is regularly detailed through legislative changes or official directives and should be reviewed on a case-by-case basis with legal advice.
How is the liability of members and organs of a solidarity community regulated?
Liability within a solidarity community mainly depends on the chosen legal form. In a registered association, members are generally not personally liable for the association’s obligations, while association organs (e.g., the board) may be held personally liable for negligent breaches of duty towards the community or third parties (§§ 26, 31 BGB). In a GbR, all partners are generally jointly and severally liable, including with their private assets, unless otherwise agreed. Clear bylaws regulating the extent of liability are therefore highly advisable. For long-term benefit promises, sufficient risk balancing and reserves should also be ensured; otherwise, the existence of the community and its members can be jeopardized.
What bookkeeping and documentation obligations apply to solidarity communities?
Solidarity communities are subject to extensive bookkeeping and documentation duties to ensure transparency and accountability both internally for members and externally for authorities. Associations must keep proper records pursuant to § 259 BGB, continuously document income and expenditure, and prepare at least one annual financial statement. If charitable status is claimed under § 52 AO, further tax-related recordkeeping requirements arise. If benefits are provided in the health sector, they must provide evidence of financial capacity and proper use of contributions. For exemption from statutory health insurance obligation, solidarity communities are often required, upon request, to provide detailed insight into their financial status and benefit plans. Violations of these obligations can result in tax or regulatory action, up to and including criminal prosecution.
Are solidarity communities subject to state financial supervision?
Solidarity communities are generally exempt from supervision by the Federal Financial Supervisory Authority (BaFin) as long as they do not conduct insurance business as defined by the Insurance Supervision Act (VAG). This means they must not engage in profit-oriented business or commercial risk assumption. Rather, they must operate on the solidarity principle, i.e., be dedicated to the common good and not organized for commerce or profit, as stated in § 1 para. 1 sentence 1 VAG and related federal court decisions. However, if there are indications of a regulatable insurance business – such as permanent benefit promises without a genuine solidarity element – supervisory obligations may arise on a case-by-case basis. Accordingly, solidarity communities must carefully ensure their statutes, business models, and procedures are designed so as not to inadvertently fall under regulatory supervision.
What special tax considerations apply to solidarity communities?
Solidarity communities may be recognized as charitable for tax purposes under certain conditions (§§ 51 ff. AO), provided they pursue benevolent, charitable, or religious purposes and use their funds exclusively and directly for these ends. Charitable status must be applied for at the responsible tax office and demonstrated by an appropriate charter. If charitable status is granted, they benefit from tax advantages such as exemption from corporate income tax and reduced VAT. If not recognized as charitable, the general tax rules for associations or other legal forms apply. Distinction from taxable activities (e.g., commercial operations) must also be observed, as this may trigger corporate income tax, trade tax, and VAT obligations. The tax requirements are complex and should be clarified early on with specialized advisors.
