Das Politische der Gemeinnützigkeit: Das Vereinsrecht zwischen Steuerrecht, Gefahrenabwehr und Antidiskriminierung

Abstract

Private associations (Vereine) have recently become the object of increasing regulation in Germany from very different directions. The grounds for prohibiting extremist associations were expanded following the September 11, 2001 attacks, which caused a rise in prohibitions. Still more associations are today subject to surveillance by the offices for the protection of the constitution. In addition, the Federal Fiscal Court tightened the limitations for political engagement by charitable organizations in recent years. They clarified that charitable bodies may not get involved in political action beyond the scope of their official purpose as defined in their bylaws. Also, several courts denied privileged tax status to associations who do not allow women full access to their activities, or simply forced them to open all activities to all sexes. In the wake of these rulings, many NGOs, associations and other bodies fear for the many, often vital, tax advantages that come with their charitable status.

This article analyzes these developments from a constitutional point of view and contrasts them with the jurisprudence on the freedom of association of the European Court of Human Rights and the German Constitutional Court. Arguably, the strict dichotomy which especially the fiscal courts establish between political parties and charitable associations does not stand up to scrutiny under constitutional law. European and German constitutional provisions view associations as necessary participants in the public discourse of a pluralist democratic order. These constitutional regimes appropriately acknowledge the important role associations, NGOs, corporations, and charitable foundations play in articulating, aggregating, and channeling the public will.