The claimant, a company planning and constructing wind power plants, is a compulsory member of the defendant chamber of industry and commerce and demands that the latter be ordered to leave the German Association of Chambers of Commerce and Industry (DIHK e.V., Deutscher Industrie- und Handelskammertag). The DIHK is a private-law umbrella association of German chambers of industry and commerce. Pursuant to section 1 (1) of its association statute one of the goals the DIHK pursues is to represent a common point of view of German chambers of industry and commerce in relation to all questions touching the overall interest of business enterprises covered by the DIHK on a national, European and international level vis-à-vis politicians, authorities, courts and the public. Pursuant to section 1 (3) of its association statute the treatment of questions of general political interest and in particular party policy is not part of the DIHK’s responsibility.

In its letter of 9 February 2007 the claimant demanded of the defendant to declare its withdrawal from the DIHK. The claimant argued that the defendant may undertake only activities within the framework of tasks legally assigned to it and not be a member of any associations active beyond this field of responsibility. It claimed that the DIHK had made statements of general political interest covering climate policy in its press release of 10 January 2007 as well as in other public statements. It claimed further that in these statements the DIHK had made one-sided remarks against any further increase of the market share of renewable energy sources as well as against the ending of nuclear energy and the implementation of the Kyoto Protocol. This meant that it had exceeded the tasks assigned to it by its association statute and the competence of its member chambers. The claimant argued that, being a compulsory member of the defendant it had the right - pursuant to article 2 (1) of the Basic Law (GG, Grundgesetz) - to defend itself against any transgression of competence, and therefore, had the right to demand that the defendant withdraw from the DIHK.

With letter of 28 February 2007 the defendant refused a withdrawal.

On 6 July 2007 the claimant had brought an action against the defendant claiming that the defendant be ordered to declare its withdrawal from the DIHK and to refrain from repeating the statements complained about. The Administrative Court had dismissed the action in its judgment of 20 May 2009.

In its judgment of 16 May 2014 the Higher Administrative Court dismissed the claimant’s appeal on points of fact and law. According to the judgment the claimant, being a compulsory member of the defendant, is entitled to claim a violation of its rights pursuant to article 2 (1) in conjunction with article 19 (3) GG if and when chamber competence is exceeded. However in this case the claimant was not entitled to demand the defendant’s withdrawal from the umbrella association. For reasons of proportionality it would only be the last resort for the court to impose on the chamber the obligation to withdraw from the umbrella association, the Court found. As a priority the chamber’s member business had to insist that its chamber demand of the umbrella association not to exceed its competence framework. Only after such an intern procedure against the umbrella organisation, which if necessary has to be enforced by the courts, had failed or was not successful in the long term the member business might be entitled to claim its chamber’s withdrawal from the umbrella association.

11 The claimant’s appeal on points of law is well-founded. The judgment appealed against is based on an incorrect application of article 2 (1) GG and section 1 (1) of the Law on the Provisional Legislative Regulation of Chambers of Industry and Commerce (IHKG, Gesetz zur vorläufigen Regelung des Rechts der Industrie- und Handelskammern) (…) and is not correct for other reasons either (section 137 (1), section 144 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). As the factual findings made by the court below do not provide a basis for a final ruling, the judgment appealed against was to be repealed and the case was to be referred back to the Higher Administrative Court (section 144 (3) first sentence no. 2 VwGO).

12 1. The Higher Administrative Court was right in assuming that the claimant, being a compulsory member of the defendant chamber, is entitled pursuant to article 2 (1) GG in conjunction with article 19 (3) GG to defend itself against any transgression of competence of its chamber (see point a) below). The Court was also right in drawing the conclusion that the claimant may be entitled to demand of the defendant to terminate membership in a private-law umbrella association if the latter exceeds the framework of chamber competence (see point b) below). However, in contrast to the contested judgment, the entitlement for termination of membership in such cases cannot only be the last resort for reasons of proportionality. Specifically the claimant is not only entitled to demand of its chamber the termination of membership in the umbrella association after having first insisted that the chamber internally demand of the umbrella association not to exceed the framework of competence of member chambers and that such an insistence has failed or has not had any sustainable success. On the contrary the claimant is already entitled to demand the termination of membership of its chamber in the umbrella association if the latter’s transgression of competence is not an atypical isolated incident, but there is a concrete danger that the exceeding of chamber competence will happen again (see point c) below).

13 a) The general freedom of action pursuant to article 2 (1) GG provides for the right to defend oneself against ″unnecessary″ compulsory membership in an association. The reasons for a compulsory membership in such an association and which elements such a compulsory membership includes are aspects that have to be covered by formal law and be proportionate. This also applies to the compulsory membership in the chamber of industry and commerce.

14 Pursuant to section 1 (1) IHKG the chambers have the legitimate duty pursuant to constitutional law to represent the general interest of its member businesses in its district, to work for the promotion of the industrial economy and in doing so to consider the economic interests of individual branches of industry and trade and individual businesses in a balanced and compensating manner. In their role as consultants to authorities they are expected to integrate the expertise and interests of their member businesses into the forming of the political will and decision-making processes of the state in a combined, well-structured and well-balanced manner. Furthermore the chambers fulfil tasks in economic administration on behalf of the state – and thereby relieving the state of these tasks - in a decentralised and participative manner. As such, chambers of industry and commerce have been assigned these two different areas of responsibility and are therefore entitled to make use of their compulsory members in order to ensure their activity of representative self-administration which is bound to the general interest and common welfare. This activity is different from a pure representation of interests which has to be organised with voluntary membership and on a private law basis (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), chamber decision of 7 December 2001 - 1 BvR 1806/98 - (…)). If the chamber exceeds the competence assigned to it in accordance with the constitution, it violates the general freedom of action of its compulsory members without a legal basis. Pursuant to article 2 (1) GG the latter are entitled to defend themselves against transgressions of competence by the chamber. This applies irrespectively of the fact whether they experience any additional legal or factual disadvantage from the transgression of competence (BVerfG, chamber decision of 7 December 2001 – 1 BvR 1806/98 (…); Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 19 September 2000 - 1 C 29.99 - BVerwGE 112, 69 <72> and of 23 June 2010 - 8 C 20.09 (…)).

15 b) The chambers are unconditionally obliged to respect the legal competence assigned to them and the limits legally imposed on them even if they make use of a private-law umbrella association in order to jointly fulfil their tasks. It is true that the tasks of such an association - in contrast to those of its member chambers - are not regulated and limited by section 1 (1) IHKG. However, the chambers obliged to comply with the regulations of competence are only authorised to be a member of the association if the latter’s activity remains within the framework of competence legally assigned to the chambers.

16 The chambers have the legal right to self-administration (sections 1, 4 IHKG). In order to jointly pursue the overall interest of their member businesses they are thus entitled to found a private-law umbrella association and become a member of such an association if the legal limits imposed on the activity of chambers are complied with. Section 10 IHKG does not contradict this. Pursuant to section 10 IHKG the chambers are entitled to cooperate in order to fulfil state duties and in parallel are entitled to found a private-law association in order to fulfil other tasks. However, such an association does not extend the competence of individual member chambers. The latter are not entitled to jointly fulfil tasks other than those legally assigned to them individually. They are not entitled to transfer their own tasks to the umbrella association because the law does not provide for a delegation of tasks. They themselves remain responsible for fulfilling their tasks and for ensuring that the activity of the association remains within the limits of chamber competence.

17 (…) Chambers are bound by article 2 (1) GG as well as by the regulations of competence pursuant to section 1 (1) IHKG and cannot escape from this obligation even if they found an association which is an independent legal entity. Therefore they are not entitled to be a member of a private-law legal entity which according to its association statute pursues tasks beyond the competence of chambers. In the same way they are not entitled to be a member of an association which according to its association statute fulfils tasks within chamber competence, but nonetheless performs activities beyond the framework of chamber competence. This case would be a factual restriction to the general freedom of action of compulsory member businesses of chambers being a member of the association. This restriction does not have any legal basis and would not be justifiable in terms of constitutional law. Therefore the basis of assessment whether the activity of an association is still within the competence of its member chambers cannot only be the association’s tasks according to its association statute, but also have to be the activities the association actually performs (see BVerwG, judgments of 17 December 1981 – 5 C 56.79 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 64, 298 <307> and of 10 June 1986 – 1 C 9.86 (…); Higher Administrative Court (OVG, Oberverwaltungsgericht) Hamburg, judgment of 5 March 1974 – OVG Bf. III 9/72 (…); OVG Lüneburg, judgment of 13 December 1978 – X OVG A 97/77 (…); OVG Münster, judgment of 9 December 1999 – 8 A 395/97 - (…); OVG Berlin, decision of 15 January 2004 – 8 S 133/03 (…); Higher Administrative Court Kassel, judgment of 29 July 2004 – 11 UE 4505/98 (…); OVG Berlin-Brandenburg, judgment of 14 December 2006 7 B 4.05 (…)).

18 c) If the umbrella association performs activities factually exceeding its tasks and at the same time the framework of competence of its member chambers, each member business of any of the chambers is entitled pursuant to article 2 (1) GG to demand of its chamber a termination of membership in the umbrella association unless the latter’s activity beyond chamber competence is an atypical and isolated incident. There has to be a concrete risk that the umbrella association will repeat its activity beyond chamber competence. As is the case with any right to a prohibitory injunction according to basic law, the only condition for the member business’s right to demand termination of membership of its chamber in the umbrella association is that the party concerned is concretely threatened by an unlawful interference with its basic right (see BVerwG, judgments of 23 May 1989 – 7 C 2.87 - BVerwGE 82, 76 <77 f.> and of 20 November 2014 – 3 C 27.13 - (…)). This condition is fulfilled if there is a concrete probability that the umbrella association will perform another activity exceeding chamber competence. (…)

21 The Senate does not follow either the appeal judgment in that the right of the chamber’s member business to demand its chamber’s termination of membership in the umbrella association pursuant to article 2 (1) GG is being limited by the principle of proportionality and that the member business can only have this right if it has unsuccessfully insisted towards its chamber to make the umbrella association comply with chamber competence. The requirement of proportionality regarding basic rights is not applicable because the chamber is not entitled to invoke its own basic rights when fulfilling its tasks pursuant to section 1 (1) IHKG. (…).

23 Equally the right to demand membership termination not only has to be granted if the umbrella association’s transgression of tasks is repetitive, persistent and serious (see OVG Hamburg, judgment of 5 March 1974 - OVG Bf. III 9/72 (…); OVG Münster, judgment of 9 December 1999 8 A 395/97 (…); Higher Administrative Court Kassel, judgment of 29 July 2004 11 UE 4505/98 – juris para. 27; OVG Berlin-Brandenburg, judgment of 14 December 2006 – 7 B 4.05 (…)). Based on their basic rights pursuant to article 2 (1) GG member businesses of chambers are protected not only against qualified infringements, but against any illegal claim. Such infringements are not necessary either to provide reasons for the risk of a repetition which in turn would be the basis for the right to demand membership termination. A concrete probability of future transgressions of tasks does not have to be based solely on permanent and serious competence violations, but also on simple transgressions of competence which are more than rare incidents atypical for the association’s activities. The risk of a repetition does not only exist if there is a risk of a future completely identical transgression of tasks. Otherwise the effective protection of basic rights could be undermined by continuously varying the type of transgression of competence. The only relevant criterion is whether one has to expect a renewed violation of competence limits or else one has to assume that no new excesses will take place, for example because they are being reliably prevented by internal processes within the association.

24 This requires a forecast by a court responsible for establishing facts (Tatgericht) assessing all evidence in favour of and against the probability of a renewed violation of basic rights. (…)

25 2. According to the factual findings of the court of lower instance to which the Senate is bound due to a lack of procedural objections pursuant to section 137 (2) VwGO, the claimant does not already have a withdrawal right if tasks have been impermissibly delegated or if tasks beyond chamber competence have been assigned to the DIHK based on its association statute.

26 a) There has been no delegation of tasks. The defendant and the other member chambers of the DIHK continue to be responsible for all tasks legally assigned to chambers. They only use the umbrella association in order to jointly pursue the overall interest of their member businesses in cases concerning more than one chamber district on a national and supranational level. (…)

27 b) According to its association statute the DIHK does not have to fulfil tasks exceeding the framework of competence of its member chambers. (…)

33 3. Based on the determination of facts made by the previous instance no final decision can be made whether the continued membership of the defendant in the DIHK violates competence and therefore basic rights because the association has factually exceeded its tasks in a manner based on which a concrete risk can be assumed that the DIHK will again perform activities beyond chamber competence. Indeed the conclusion can be drawn that the DIHK’s statements of the past more than once and not only in isolated and exceptional cases atypical of the association’s practice exceeded the legal chamber competence to pursue the overall interest of members. However, in order to be able to assess the risk of a repetition, it is necessary to have a forecast which the court of appeal did not make, a fact which was only consistent with its interpretation of the law. However, the Federal Administrative Court as the court to decide on appeals on points of law cannot make this forecast itself due to a lack of sufficient findings on the relevant evidence. (…)

41 (…) The question whether there is a concrete danger that the DIHK will again perform an activity exceeding chamber competence can only be decided assessing all relevant evidence in favour of and against such a risk of repetition. Such a decision cannot be based on the factual findings of the court of appeal. It is true that, as shown above, one can conclude from these findings various violations of the prohibition of general political statements and several incidences of non-compliance with the obligation to act objectively, factually and in a reserved fashion as well as several one-sided statements. However, there are no findings on the umbrella association’s reaction (not only the defendant’s reaction) to the criticism related to its statements. In particular it has not been clarified up to now whether and how an effective protection can be guaranteed within the umbrella association to the chambers’ compulsory members against such excesses of tasks contrary to basic rights. It is not possible to conclude that there is indeed no sufficient protection based only on the facts that the association statute does not include any provisions explicitly referring to this matter and that there are no corresponding findings of the court of appeal. Such a conclusion cannot be drawn because the Higher Administrative Court, following its interpretation of the law, had no reason to make any corresponding investigations considering the above requirements for the necessary level of protection. (…)