Freedom of Association in Germany

Leannan O’Grady

Scuola Superiore Sant’Anna

While the right to freedom of association (Vereinigungsfreiheit) as a fundamental right (Grundrecht) existed in the 1919 Weimarer Constitution, it was abolished by the Reichstag Fire Decree of 1933 and further undermined under National Socialist rule. After the capitulation and occupation of Germany by the victorious powers, the Western Allies began to restore it, whereby it was enshrined in Art. 9 of the Basic Law for the Federal Republic of Germany (Grundgesetz; hereinafter GG. For an English translation of the GG see here). The fundamental rights delineated in Art. 1 to Art. 19 GG hold superior status, requiring legislative alignment according to Art. 142 GG at a federal and state level; conflicting laws are void. Thus, these rights are intertwined with politics, sparking crucial debates over their implications. Understanding these rights, such as the right to freedom of association, necessitates studying landmark decisions, especially those of the Federal Constitutional Court (Bundesverfassungsgericht; hereinafter BVerfG), alongside ongoing discourses in literature on their interpretation.

Scope of Art. 9 GG

Art. 9 GG belongs together with Art. 5 and Art. 8 GG to the fundamental rights of communication, considered especially relevant for the formation of political will in a free, pluralistic and democratic state. Art. 9 contains two fundamental rights: Art. 9 para. 1 GG guarantees the so-called general freedom of association and Art. 9 para. 3 GG protects — much more specifically — the so-called coalitions (Koalitionen), associations with the special purpose to safeguard labour and economic conditions. This essentially refers to trade unions and employers’ organisations. The only change to Art. 9 was made within said para. 3 in the course of the emergency legislation of 1968, whereby the added third sentence expressly excluded certain crisis instruments from being used against industrial action and underlined the necessity of safeguarding and promoting working and economic conditions.

What is meant by an ‘association’ is determined on the basis of § 2 VereinsG (1) as an organisation where a majority of individuals or entities unite for a common purpose, with temporal stability and voluntarily, adhering to a uniform decision-making process over time. Voluntariness is essential for an association’s existence under Art. 9 para. 1 GG, as compulsory groups do not meet this criterion, and it is furthermore widely accepted that an association can be formed with only two persons. The key features of ‘permanence’ and ‘organised decision-making’ differentiate associations from gatherings under Art. 8 para. 1 GG, whereby the later also encompass temporary groups that assemble spontaneously. Notably, according to the BVerfG, political parties, parliamentary groups, churches, and religious bodies do not fall under the scope of this Act but under Art. 21 (political parties), Art. 4 para. 1 (freedom of faith and conscience) and Art. 140 GG (law of religious denominations).

Furthermore, a coalition, to qualify under para. 3, must be freely formed on a private law basis, its aim must be the protection and promotion of working and economic conditions, and it is required that its members do not include their social counterparts, ensuring legal and factual independence. The BVerfG views coalition freedom as essential for the orderly regulation of working life, with the state retracting its regulatory role to allow parties to manage their affairs independently.

Both the general freedom of association and the freedom of coalition are considered individual fundamental rights as well as collective fundamental rights. The individual general freedom of association guarantees the activities of current or future members, encompassing both the freedom to establish associations (Vereine) and the freedom to participate in their actions, allowing people to organise around common interests, pursue collective goals, and express their views collectively. Individual freedom of coalition especially protects collective bargaining autonomy, participation in company co-determination, advertisement, industrial action (strikes and lockouts) — as clarified in 1968 — and prevents sanctions for membership. The mirrored right to a so-called negative freedom of association, i.e. the freedom to leave associations under private law or not to join them in the first place, is a subject of debate, as it is not included in the wording of Art. 9. While this will be further explored in the extended version of this publication, there is a general consensus in contemporary literature that it exists under both para. 1 and para. 3.

As fundamental collective rights, they apply to the association or coalition themselves, guaranteeing the right to the establishment and existence of an organisation. This includes the formation, existence and functioning as well as self-determination over its own organisation, the process of decision-making and management. The extent to which the activities of the association, specifically its external impact, are protected is a matter of controversy; but as clarified by the BVerfG, the right of both association and coalition to make determinations about the admission and exclusion of members is included, because the association and participation of opposing members can be detrimental to the function of the organisation.

Beneficiaries

The Art. 9 para. 1 GG constitutes a fundamental right of Germans, including all Germans within the meaning of Art. 116 GG as natural persons. Pursuant to Art. 19 para. 3 GG, domestic legal persons who wish to form an association within the meaning of Art. 9 para. 1 GG may also be entitled to fundamental rights and non-Germans can invoke the general freedom of action under Art. 2 para. 1 GG. Unlike para. 1, the freedom of coalition under para. 3 is a fundamental right for everyone; this right is defined by its connection to dependent employment and protects all individuals in their professional roles, whether as employees or employers, without excluding any occupational groups.

Associations whose members or leaders are predominantly or entirely foreigners or who have no registered office in Germany are not protected under Art. 9, para. 1 GG. In such instances, as in the case of individual freedom of association, fundamental rights are protected solely in accordance with Art. 2, para. 1 GG.

Severe Interference

The limitations to Art. 9 para. 1 GG are contained within Art. 9 para. 2 GG, which defines a narrow qualified legal reservation for the freedom of association and reflects the GG’s commitment to a combative democracy. Hereby, it is controversial whether this barrier can also be applied to Art. 9 para. 3 GG. As delineated by the BVerfG in its 2018 decision, addressing constitutional complaints against three association bans, an association is prohibited under Art. 9 para. 2 GG if it incites or supports criminal actions, adopts an aggressive stance against constitutional principles, or actively promotes violence or terrorism, including through third-party support — whereby it is acknowledged that humanitarian aid in crisis regions can have an indirect effect on terrorism that does not necessarily constitute prohibition. As highlighted, the association must actively and aggressively oppose the constitutional order to lose its protection; merely having a critical stance is insufficient. Outside this scope, both the freedom of association and freedom of coalition can be restricted by conflicting constitutional law, i.e. the fundamental rights of third parties and other constitutional rights.

As declared in § 3 VereinsG, any prohibition does not occur automatically but must first be decreed by the competent state authority. Until the prohibition order takes effect, the association must not be treated as prohibited. The topic of prohibition of associations is one of the most intricate debates surrounding Art. 9 today, as it comes up in a variety of contexts; especially the recurring topic of far-right parties or organisations generates a lot of publicity, whereby it is interesting to further dissect the numerous clarifications by the BVerfG.

Leannan O’Grady is a PhD Candidate in Human Rights, Global Politics and Sustainability at Scuola Superiore Sant’Anna.

Suggested Citation: Leannan O’Grady, 'Freedom of Association in Germany' IACL-AIDC Blog (3 October 2024) Freedom of Association in Germany — IACL-IADC Blog (blog-iacl-aidc.org)