Part 1 on the law of associations: How to found an association?

As announced, today is the first part of a series of articles on the question of how an association can be founded and how it could also obtain non-profit status if the purpose of the statutes is, for example, the promotion of esports. The series of articles is intended to help interested parties if they plan to start their own esport clubs. These are explicitly not commercial teams that have a commercial claim to esports. These should resort to other legal forms and would not be able to take advantage of a non-profit status anyway.

However, the first thing I would like to point out is the basics. How do you found an association in the first place? And does this necessarily have to be non-profit? The latter is not mandatory. Perhaps the best-known example of this is ADAC, which – in the meantime – has been split into non-profit shares and commercial companies.

Although the majority of the approximately 600,000 associations in Germany are non-profit, this is not a mandatory requirement.

By registration in the register of associations of the competent local court in accordance with § 21 of the German Civil Code (BGB), a non-profit association acquires the status of a legal entity and thus becomes a corporate body with legal capacity. Further regulations then exist in the Law on Associations.

Depending on the statutes of the association, in which the most diverse things can be regulated, an association, compared to a GmbH or other legal forms, sometimes offers advantages

Thus, an association is tax-privileged or, under certain circumstances, completely tax-exempt. The management is usually elected democratically and all decisions are made by the general meeting by majority vote. It is also important, especially in the case of smaller units, that the bureaucratic effort is considerably less for an association than for a commercial enterprise. In addition, depending on the region or city, public resources can often be used at reduced or no cost, and there is often public aid and support for non-profits, as well as state funding, federal funding, or even EU funding.

So how do you start an association?

This requires seven members of the association (two members if the association is not to be entered in the register of associations), who must come together to jointly pursue a non-profit purpose. These members of the association must then hold a founding meeting and adopt the association’s articles of association and elect a board of directors. Of course, the statutes of the association should be drawn up beforehand.

In legal terms, the association is not only the basic form of the corporation, but has also otherwise long been classified in the structure of all other laws. Thus, in the articles of association and foundation, naming rights must of course be observed, as well as copyright, trademark law and the like. In the broader context, labor law, tenancy law or simple civil law applies to all activities that the association, as its own legal entity, performs. The latter can, of course, sue and be sued itself and is represented by its elected bodies.

The board of directors is the only mandatory body of an association besides the general meeting. The board of directors manages the association and represents it externally in management and representation. More details can and must

The composition of the Executive Board can and must, of course, be regulated in the Articles of Association. Other offices, such as a secretary or a treasurer (gender-neutral of course) can have an association, but this does not have to. Only the members of the board of directors are initially entered in the register of associations. Details of the internal power of representation must then of course also be regulated in the Articles of Association.

In addition to the name of the association, it should also specify the registered office of the association and – very important for the question of non-profit status – the purpose of the association. In addition, there are rules for the departure and entry of members, the agreed membership fees (in particular the amount thereof), rules for the certification of resolutions, rules for the determination of the board of directors and
to convene the general meeting. Further regulations are possible, but not mandatory. Since the law of associations is one of the oldest areas of law in the German Civil Code, large parts of it have already been shaped by case law.

If the association then exists, it can be entered in the register of associations. Upon registration of an association in the register of associations, the association acquires unrestricted legal capacity. The main difference with the unincorporated association is that its assets are completely separate from the assets of its members. For a registration a public certification is necessary, usually costs for a notary are added, as well as costs for the registration of currently e.g. 75,00 Euro in Berlin. Therefore, registration should not be waived, because the risk for the members involved – especially financially – can be very high.

An association should of course have a bank account and must be registered with the relevant tax office.

After registration, the responsible tax office may examine the non-profit status if the articles of association provide for a non-profit or social purpose. The non-profit status and thus the eligibility for tax exemption is first checked by the responsible tax office upon application, the result is correctly determined according to the regulations from § 52 of the tax code.

In order to save costs and possibly still decide on changes to the articles of association, the articles of association can be submitted to the tax office for examination before registration. Here, the involvement of a lawyer is of course not mandatory, but may be advisable under certain circumstances, especially with regard to the complicated issues surrounding § 52 AO.

If the non-profit status cannot be achieved (which is currently threatened by some tax offices for the esport sector), the association is subject to special tax regulations.

Thus, the taxation limit of € 35,000 does not apply to the latter (as it applies to the business operations of a non-profit association for corporate income tax and trade tax, more on this in the further articles), but the latter must pay corporate income tax as soon as its profit exceeds € 5,000 per fiscal year. However, when determining the profit of a non-profit association, it should be noted that not all income is included, e.g. NOT the real membership fees (from the articles of association) and donations, and that the income and expenses are not allocated to the typical four areas to be distinguished (non-material area, asset management, special-purpose operation and commercial business operation)…

Further details on § 52 AO and the alternatives in the design of a statute or in the tax law design of the association (separation of non-material and economic part) can be found in the following articles.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.