Tobias Oliver Gehrlein Der Idealverein zwischen Gemeinwohl und Geschäftsmodell

About this book

How much economic activity is compatible with the legal form of the non-commercial association (Idealverein)? Since the 2017 “Kindertagesstätten” rulings of the German Federal Court of Justice (Bundesgerichtshof), non-commercial associations may engage in economic activity on a large scale.

Taking these rulings as its starting point, the thesis examines whether German non-profit tax law (Gemeinnützigkeitssteuerrecht) can offset the deficits of association law (Vereinsrecht). It analyzes the statutory distinction between non-commercial and commercial associations under Sections 21 and 22 of the German Civil Code (BGB), combining legal doctrine with approaches from the economic analysis of law. A comparison with the stock corporation (Aktiengesellschaft), the limited liability company (Gesellschaft mit beschränkter Haftung), and the registered cooperative (eingetragene Genossenschaft) shows that the decisive problem is not the absence of a statutory minimum capital. The deficits lie elsewhere: in capital maintenance, in insolvency law, and in accounting and disclosure. On the view taken here, non-profit tax law also fails to provide an equivalent substitute: its non-distribution constraint (Ausschüttungssperre) applies only once funds have been generated and does nothing to prevent risky economic activity. Although membership grants independent legal positions, numerous protective provisions are non-mandatory under Section 40 BGB. In addition, the limited financial value of membership reduces members' incentives for active monitoring, which may indirectly increase the risks borne by creditors.

The rulings have created legal certainty, but have not solved the underlying problems of creditor and member protection. Drawing on the deficits identified, the thesis outlines a reform proposal for Section 21 BGB.