“Unity is strength” goes the adage, which is why a group of people will often form a union to achieve a common goal. And with a formal union, club or society come democratic procedures, elections and ballots. But a union, or association, also needs rules.
The Charter – the constitution of the association
Every association requires a charter, which must be drawn up and agreed on at the founding meeting of the association. The charter is the equivalent of a constitution. It complies with the few regulations pertaining to association law as stipulated in the Civil Code (BGB) and sets out the structures and functions of the association.
The charter of any association operating under private law is an expression of the group’s private autonomy; it does not have the character of a law on a country’s statute books.
Things that the charter must state, should specify and may include
There are clauses that an association charter must contain, clauses that it should contain and clauses that it may contain.
§ 57 BGB stipulates that an association charter must contain the following items of information:
- the purpose of the association
- the name of the association
- the address/location of the association
- the words that the association is to be registered as such.
§ 58 BGB stipulates that an association charter should contain stipulations on the following subjects:
- how individuals may join and leave the association
- membership fees
- the formation and make-up of the committee
- the rules relating to the convening of the general meeting and the documentation of decisions reached at the meeting
As an expression of its autonomy an association may also insert provisions regulating its internal workings. The §§ 21 ff. BGB set out rules governing the internal workings of an association in the absence of explicit provisions within its charter. These rules can be considered a kind of standard legal constitution governing associations, a set of provisions aiming to weigh up all interests and achieve a measure of harmony between members. Legal rules on a given matter can be supplanted by an association’s own provisions.
Taking legal advice
Even though the law allows associations a considerable amount of leeway in many areas, there is a limit to the extent to which a charter can dictate the terms of membership. For instance, a charter cannot confer arbitrary powers on an office or officer. It is therefore important to take legal advice, particularly where the desired provisions differ markedly from the rules laid down by law.
Enshrining electronic voting procedures in the charter
If online voting procedures are to be adopted, the relevant provisions must be added to the charter. More information on this subject will be available next week here in the blog.
Important notice: Please note that the above mentioned information refer to German law. The law in other countries may differ from that. All information given in this article are for information purposes only and no legal advice. No guarantee of completeness and legal correctness. Please contact a legal advisor in your country for legal advice.