IN THE NAME OF THE PEOPLE
File No. 16 K 3182/98
In the Administrative Legal Matter
Dianetic Stuttgart eV,
p; - plaintiff -
Represented by attorneys Wilhelm Bluemel and Coll.,
p; v e r s u s
The State of Baden-Württemberg, represented by the County
p; - defendant -
p; in r e :
Revocation of corporate status as an association
The 16th Section of the Administrative Court of Stuttgart upon the trial of 17th November 1999 by the attendant justices
Presiding Judge at the Administrative Court Prof. Schlotterbeck
has found to be lawful on 17th NOVEMBER 1999:
The order of the County Presidency Office of Stuttgart of 29 Aug 1994 as well as the order rejecting the protest procedure of 3rd Jan 1995 are canceled.
The Defendant bears the costs of the court proceeding.
SUMMARY OF FACTS:
The plaintiff, a sub-organization of the Church of Scientology, is an incorporated association with its seat in Stuttgart. According to its statutes the association pursues exclusively the forwarding of religious and educational purposes; a commercial business operation is not intended. The association was registered on 7 Dec 1972 as a non-profit making association with the name "Dianetic Stuttgart eV, College for Applied Philosophy" into the register of associations (Reg. No. 2858). Since 10 Jun 1976 the association bears its current name. The statutes were changed by decisions of the general assembly of members on 10 Oct 1974 <addition of 10 Oct 1975> and 19 Sept 1986. The change of statutes as adopted on 19 Sept 1986 was not registered in the register of associations. The plaintiff withdrew the application for registration on 3 Nov 1987.
The Presidency Office of the County of Stuttgart revoked the corporate status/legal capacity of the plaintiff by order of 29 Aug 1994 under art. 43, sect.2 of the Civil Code. As justification for this, the government in essence argued: Objectively the association would maintain a commercial business operation contrary to the wording of the association statutes. The point of main emphasis of its activities would have concentrated on the conduct of services for remuneration (courses, seminars, auditing) and the sale of literature. For essential parts of this offer of the association there would exist a market where services of this type would be demanded and where the association would compete with other similarly structured offers. The services would be offered to a market consisting of members on the one hand as well as nonmember on the other. That the association would provide idealistic/non-profit ideas according to its own understanding by way of the courses and especially the auditing offered by it would not exclude that these would constitute commercial services. Also, idealistic goods could become commercial goods by way of "marketing" them and thus by providing them to others they could become a commercial service. The argument of the association that auditing would constitute the central part of the religious teachings of Scientology would be immaterial as even a religious community would be subject to the same regulations as any other association upon filing an application for registration or being registered into the register of associations. There would be no "privilege for religions" in association law. The association would act with a profit intention. This would be an indicator for an entrepreneurial activity. The privilege for an ancillary business operation would not apply to the entrepreneurial activities of the association. If the conduct of services for remuneration and the sale of literature would fall away, a comprehensive and essential part of the elements characterizing the outward appearance of the association and its dynamic directed toward the outward would fall away. In the realm of the exercise of discretion the interests of the association in the maintenance of its legal capacity would have less weight than the protection of the general public, especially of potential creditors.
The plaintiff filed a timely protest on 4 Oct 1994. He argued: the protested order would anyhow be defective in the exercise of due discretion. The revocation of legal capacity would lead necessarily to its liquidation and thus would constitute a grave disadvantage despite the possibility to organize itself in some other legal form.
The County Presidency Office Stuttgart dismissed the protest by order of 3 Jan 1995.
On 3 Feb 1995 the plaintiff filed suit to the Administrative Court of Stuttgart. In essence he argued: The plaintiff would constitute a religious community in the meaning of Art. 4, 140 of the Constitution in connection with Art. 137 Weimar Constitution. Its main purpose would be the care for and dissemination of the religious teachings of Scientology with the goal of the spiritual salvation of the human spirit. The conduct of auditing and the providing of the teachings in courses and seminars would be the central concern of the practice of the religion. This main purpose would exclusively come to the advantage of members. For this main purpose, there would neither be promotion vis-á-vis nonmembers nor an "open internal market" for this. The members would practically all know each other. Not a single member would consider himself/herself to be an "anonymous customer" by reason of the size and structure of the organization. The plaintiff would become active vis-á-vis nonmembers only to a small extent. This activity would exclusively serve dissemination, i.e., the gaining of new members. The decision would be defective as to the proper exercise of discretion. The revocation of legal capacity would not serve anyone and the plaintiff would suffer grave as well as economical disadvantages.
Based on the joint application of the parties the Administrative Court had suspended the proceeding by decision of 23 Nov 1995. The decision of the Federal Supreme Administrative Court in the identical case ("Neue Brücke Mission Scientology" Stuttgart versus the State of Baden- Württemberg in re revocation of legal capacity, file no. FedAdminCrt 1 C 18.95) was to be awaited.
After application for resumption of the proceeding by the defendant on 2 July 1998 the plaintiff supplemented his argument: The only purpose of the association would be the care for and dissemination of the Scientology Religion as put down by its founder L. Ron Hubbard. Scientology would exist in the tradition of humanistic-gnostic salvation theories and religions that seek the salvation of Man through recognition of himself and his connectedness to God. Scientology would view itself as a direct continuation of the works of the Buddha. It would start out from the assumption that Man is an immortal spiritual being that has a mind and puts life into a body and inhabits it. Contrary to the Christian belief the person would not "have" a soul but in the Scientological understanding the person would be the immortal and immaterial spirit. From these thoughts would follow the belief in reincarnation of the spirit after the bodily death (being reborn). Scientology would have to be defined as an applied religious philosophy. In order to attain a higher level of beingness or spiritual perfection, the individual member would have to accomplish a series of successive salvation and awareness steps ( the "Bridge"). The subject of this Bridge to accomplish the religious mission for the individual member would be the individual spiritual counseling <"Auditing"> , the study of the Scientology teachings in seminars, the training for spiritual counselor <"Auditor"> , the general spiritual counseling and the missionary activities. The teachings of Scientology would constitute the common religious conviction of all members of the plaintiff. All members of the plaintiff would understand auditing as a religious service to attain to higher levels of beingness in the spiritual meaning of Scientology. The purchase of relevant literature as well as the completion of courses and seminars would exclusively serve the purpose of attaining advanced knowledge on the religious contents of the Scientology teachings. The membership in the religious community would be accomplished through all the services that the plaintiff provides to its members. Comparable services would not be offered by other external third parties with the exception of other Scientology Organizations. Nonmembers would not be offered services for a remuneration. To a small extent the plaintiff would provide introductory literature exclusively for purposes of disseminating new members. 90%of the activities of the plaintiff and thereby its main purpose would consist of the conduct of auditing and in the training of auditors.
The plaintiff would not give cause to any danger to creditors. The Mother Church would be obliged by reason of church internal directives to cover for potential debts that the plaintiff would not be able to cover by its own powers. The plaintiff would neither use the association status as a mere "shell" nor would association legal requirements be circumvented. Based on his membership under an international church hierarchy the plaintiff would however be subject to some additional regulations that would however merely concern the internal relationship. Finally, the order would be based on arbitrary considerations and would therefore be defective in its exercise of discretion.
The plaintiff applies to cancel the order of the County Presidency Office Stuttgart of 29 Aug 1994 and its order rejecting the protest procedure of 3 Jan 1995.
The defendant applies to dismiss the suit.
In essence the defendant argues: The plaintiff would be active as an entrepreneur and would pursue as its main purpose - contrary to its corporate regulations - commercial goals. He would use the character of the religious association as a cloak. This would lead to a misrepresentation in legal transactions. While the plaintiff would have adopted statutes, these would not play a role in the reality of the "association life". The assembly of members and the board of directors would be elements of a mere farce that would be nothing but a false pretense in relation to the Registration Court and other official places. The powers would follow the rules of the Scientology Concern and would be alien to the association law. The only purpose of the plaintiff would be to make money and transfer it to the mother organization. By means of pressure towards the subordinate association it would be attempted to accomplish the goal of "making money" of DM 100.000 per week via the sale of courses, auditing and books. The Flag Bank Officer who would have a position external to the association would deduct portions of money or leave amounts to the organization that would be required to cover the running expenses of the "Mission". In part the amounts left to the association would not have covered the running expenses so that telephones had been cut off and rents could not be paid in the past. A danger to creditors could therefore not be excluded. Compared to the pretended idealistic activity the entrepreneurial activity would play the dominating role.
In the court hearing the plaintiff and the defendant made motions for the admission of evidence as outlined in the minutes of the hearing. One witness underwent interrogation.
For further details the Court refers to the content of the pleadings exchanged between the parties including their extensive exhibits, the government files submitted to the court and the explicit minutes of the court hearing.
REASONS FOR DECISION:
The suit is successful.
It is admissible as an action to rescind a government order and is also well founded. The order of the Presidency Office of the county of Stuttgart of 29 Aug 1994 and its order of 3 Jan 1995 rejecting the protest procedure are illegal and violate the rights of the plaintiff which is why the protested orders had to be canceled (compare art. 113 sect. 1, sent. 1 of AdminCrtProcCode).
According to art. 43 sect. 2 of the Civil Code an association the purposes of which are not directed towards a commercial business operation according to its corporate statutes, may have its legal capacity revoked, if it does pursue such purposes.
According to the precedents of the Federal Supreme Court activities of an association constitute a commercial business operation, if they are conducted plan fully and permanently and directed outwards i.e. reaching beyond the internal association limits and are entrepreneurial in character that intend the procurement of a pecuniary benefit to the advantage of the association or its members. However, an idealistic association does not transform into a commercial association, if the entrepreneurial activities are developed in the accomplishment of its idealistic goals with these activities being attributable and subordinate to the non- commercial main purpose of the association and are nothing but an auxiliary means to accomplish that <so called privilege for an ancillary business operation> (compare SuprCrtCiv 85, 84 <92 f.> ). Complementing that precedent the Federal Supreme Admin Court decided that an association does not maintain a commercial business operation, if it offers services to its members in the realization of its idealistic purpose - in which case the overall apparent conduct of the association's intention is decisive - with these services ordinarily not being deliverable by other providers as well independently from membership relations (compare FedSuprAdmCrt, judgement of 6 Nov 1997 - 1 C 18.95 - NJW 1998, p. 1166 ff.).
Based on the arguments of the parties, the extensive contents of the
Court file and the witness testimony the Court reached the conviction that
the plaintiff does not maintain a commercial business operation in the
meaning of the precedents outlined above which this court does follow.
1. Based on the knowledge obtained in the court proceeding this Court starts out from the conclusion that the services offered by the plaintiff for a remuneration to his MEMBERS - Auditing, Seminars, Courses - to achieve a "higher state of being" are based on the common convictions of the members which they cannot be separated from without losing their value to the recipient (compare FedSuprAdmCrt, judgement of 6 Nov 1997 - 1 C 18.95, loc. cit.).
1.1. According to the argument of the plaintiff auditing - which shall provide "spiritual advice" or "individual spiritual counseling" - and the participation in introductory courses and seminars serve the attainment of higher levels of beingness in the spiritual meaning of Scientology. The members must attain successive levels of salvation and awareness (= the Bridge) that are built up on each other in order to achieve via the interim level "Clear" total freedom respectively complete salvation - the level "Operating Thetan". Based on the well founded arguments in the pleadings of the plaintiff and the declarations of the president of the association during the court hearing the Court gained the conviction that the members of the plaintiff have themselves audited, attend courses and seminars in order to achieve "salvation" based on the route outlined by L.Ron Hubbard.
The defendant was not able to prove the contrary with his arguments. In the final outcome he did not question that the members of the plaintiff factually attend services that are based on convictions they hold in common. The defendant's arguments in essence were rather limited to the view that only the intention of the plaintiff would be relevant. And the latter would only pursue the purpose of achieving a profit. The association status would constitute a mere shell. Whether the members themselves would have a main interest of achieving a profit would be irrelevant. This view, however, cannot be followed. The plaintiff as an association cannot be disconnected from its members and their convictions. The purpose of the association is expressed in these convictions and the activities of the members resulting from them, in other words, the convictions of the members form the association's intention and its activities born by these convictions form the overall decisive conduct. Thus the convictions of the members are material and not the intention of the plaintiff.
Also the member of Scientology presented by the defendant and interrogated by the court was not able to question the truth of the substantiated arguments of the plaintiff.
The credibility of the witness testimony is already subject to grave doubts. These are based on the observation that the witness was not even able to present in a way free from contradictions whether he was still a member of a Scientology Organization or not. He testified that he had become a member of Scientology in Munich in the year 1989, and in 1990 with the plaintiff in Stuttgart. Even today he would still be an official member in Stuttgart. But he would not practice the membership. Furthermore he would be a member of the IAS <International Association of Scientologists> . He would have signed a membership contract for the next billion of years. On the other hand the witness declared, he would be an "Ex- Scientologist". In a letter of 22 Mar 1989 addressed to the plaintiff he had informed the latter: "I have realized that the path that I have chosen for this lifetime in order to give something to other people and to help, lies outside of Scientology. That I was on staff here for a short time has helped me to clear the road of my problems. "
The Court is unable to understand why the witness is still a member of Scientology associations - even of the plaintiff - though he describes himself as an "Ex-Scientologist"; especially it remained unclear why he declared in 1989 that his path would lie outside of Scientology though he worked for Scientology in the USA in later years and became a member "for a billion of years" in a Scientology Organization. For example a member of the plaintiff is free to leave the association at any time per art. 3 fig. 2 of the corporate statutes. Indicators that a resignation is factually not possible are not available to the Court.
Moreover the witness completed a one year period of practical training according to his own declaration with the Evangelic Center for Philosophical Questions and had consulted persons in this period that had allegedly come into conflict with Scientology. Additionally the witness declared that he has a personal interest in the outcome of this court proceeding. He would intend to bring more light into the diffuse Scientology Organization and its procedures. These statements prove a certain partiality that question the credibility of the witness.
Aside from the above and in the final outcome the witness even confirmed the existence of a commonly conviction of members of Scientology Organizations - and in the end result also for the plaintiff - as has been proven otherwise by letters from numerous Scientology members (compare exhibits K 28 and K 29 of the plaintiff's pleading of 13 Jun 1995). On the one hand upon questioning the witness declared that he would have talked to members where "there was never a talk about the subject of religion". Auditing would have a function similar to a therapy. The auditor would awaken memories from childhood. The person in charge of selling should bring the other person to pay as much as possible. He was to be made into a real Scientologist who would disseminate so that even more money would be earned. The TO levels would be sold in a way that one would gain more influence on others on a supernatural level. On the other hand the witness answered the question whether he had signed a membership contract for the next billion years that he would have believed in reincarnation from a certain point of time. The members would be confronted with the belief of reincarnation from a certain level onwards. The members would all be seekers. He himself would have come to Scientology via a teacher for saxophone playing who himself would be a Scientologist and because he had been dissatisfied with his psyche.
Through the above statements the witness himself confirmed the arguments of the plaintiff according to which "seekers" would reach the belief in reincarnation via various levels of realization - just as is striven for by Scientology as an "applied religious philosophy" as its goal. As far as the defendant counters that this commonly held conviction would be present only starting from a certain level though not below, whereas one would find a diffuse concept of motives, the court is unable to follow that argument. This is already inconsistent with the fact that already the enrollment forms for participation in seminars and auditing point to the basics of Dianetics, Scientology and auditing, inter alia also to the goal of "regaining ability and awareness of oneself as an immortal being" (compare exhibit K 70 of the plaintiff's pleading of 5 Nov 1999). To the conviction of the court it would not accord to the facts of life, would one assume that persons become members of a Scientology Organization such as the plaintiff and remain it from there without considering the basics of Scientology, especially as Scientology is subject to rather critical reports in the public in Germany. In coming to this conclusion the Court does not overlook that there will also be persons that at first start out with an interest in the plaintiff or other Scientology Organizations because they have been "attracted" e.g. by means of "Communication Courses" or that hoped to obtain general therapeutic help. However, the Court is convinced that those persons that finally become a member of a Scientology Organization and remain it - and whose personal conviction is decisive in the final outcome - do also identify with the "philosophy" of Scientology. The association status is therefore not a mere shell. Moreover the association membership is realized through these services for a remuneration which exceeds the exchange of generally accessible goods and services without it being necessary that the commonly held convictions would have to constitute a religion in the legal meaning. The services offered for a remuneration internally by the plaintiff therefore do not justify the assumption of a commercial business operation in the meaning of art. 43, sect. 2 of the Civil Code (compare FedSuprAdmCrt judgement of 6 Nov 1997 - 1 C 18.95 - loc. cit.).
As far as the defendant claims that the essential part of the members of the plaintiff would not constitute members of an association in the meaning of the association law, because they would not possess a share in the decision making process in the final outcome and that they would therefore assume a position in relation to the plaintiff vis- á-vis third parties, this view cannot be followed. Per the current corporate statutes of the plaintiff the separation between "ordinary" and "extra-ordinary" members does not exist contrary to what the defendant assumes (compare articles 3 and 6 of the statutes, registered in the Register of Associations on 10 Jun 1976). An according change of the statutes was adopted by the general member assembly on 19 Sep 1986. The change was also filed for registration to the association register (compare p. 228 of the Registration File) at first. The application for registration was however withdrawn on 3 Nov 1987 (p. 274 of the Registration File) so that the registered regulations of the corporate statutes are still valid regardless (compare art. 71 sect. 1 of the Civil Code). The current statutes do comply to the requirements for membership rights per articles 32 ff of the Civil Code. The Court has no demonstrable indicators on record that the membership rights cannot be practiced in the manner as provided for in the corporate statutes. As far as the defendant argues that the text of the membership application form (compare exhibit K 65g to the letter of the plaintiff of 5 Nov 1999) talks about an "extraordinary" member, this obviously does not refer to the membership with the plaintiff but to the overall Church. Also the minutes submitted by the plaintiff on the general member assembly of 3 Dec 1995 give no occasion to presume - contrary to what the corporate statutes state - limited membership rights. Merely the circumstance that the postponement of the appointed time for the general member assembly meeting potentially failed to adhere to the formal requirements (compare Reichert/Dannecker/Kühr, Manual of Association and Union Law, 3rd edition annot. no. 526, 533) would at most lead to the result that the decisions adopted in this assembly are invalid (compare Reichert/Dannecker/Kühr, loc. cit., annot. no. 534). However, this does not allow for any conclusions to the effect that members were to be wilfully excluded from their participation in the assembly in order to quasi-factually deny them their voting right. Moreover the minutes of other assemblies - such as the annual general assembly of 19 Sept 1986 - show a correct invitation to the general assembly in alignment with the statutes (compare Registration File p. 229) so that the objection of the defendant is invalidated to this extent. This applies just the same as far as the defendant complains that art. 6, sect. 1 of the corporate statutes provides for the election of members with "voting rights". In the final outcome the only decisive point is that the corporate statutes of the plaintiff only provide for members with voting rights and that this voting right can also be executed in the general member assembly according to the records.
Also the alleged "foreign rule" of the plaintiff by the Mother Church in the USA does not lead to the assumption that the members of the plaintiff assume a vis-á-vis third party position in relation to the plaintiff for lack of a share in the decision making process. In its decision of 5 Feb 1991 - 2 BvR 263/86 - <Bahái> (FedConstCrt 83, 341-362; NJW 91, 2623 ff.) the Federal Constitutional Court fundamentally specified on the question of the autonomy of an association, that it is part of this autonomy to grant those bodies furnished with it the right of personally choosing an organizational form aligned to their purposes and to freely determine this, unless compelling legal regulations or fundamental principles arising from the nature of the institution are opposed to this. This autonomy could also be exercised in a way that the right of self- administration of an association is limited by its statutes. The principle of the autonomy of an association thereby protects the autonomy in the formation and organizational arrangement of the association according to the free choice of the members which may also comprise their adaptation into a hierarchically organized community. Thus it would be compatible with the autonomy of an association that graduated unions are created inside of which the subordinate unions - be it as associations with legal capacity or without - are dependant from the senior unions while they do not lose their nature as an association as long as they perform independent tasks.
If one follows this precedent, one cannot presume in the case of the plaintiff that he is subject to a foreign rule that would exclude the nature of an association. While the association is tightly coupled to the Mother Church (compare also art. 8 of the corporate statutes), it fulfills its independent tasks by disseminating members in its catchment area and bringing the teachings of Scientology close to its members through auditing, seminars and courses.
1.2. The services offered by the plaintiff to his members ordinarily cannot be provided independent from these membership relations also by other providers. This follows from the fact that - as outlined under 1.1. above - an association membership is realized through the services provided by the plaintiff to its members for remuneration which in view of the described reference to the "applied religious philosophy", that is to Scientology, goes beyond the exchange of generally accessible goods and services. The Federal Supreme Administrative Court in its decision of 6 Nov 1997 (loc.cit.) pointed out that from the mere conceptual summary of various techniques for the satisfaction of mental and spiritual needs to a so called "philosophic market" does not show that we are dealing here with services that - similar to a consumer cooperative association - are ordinarily provided also by others independent from the membership relation.
The services that the plaintiff offers to its members cannot be separated from the underlying personal convictions without losing their meaning. This connection to the teachings of Scientology is not offered by any of the other providers mentioned by the defendant as an alternative. In part there is even an explicit disassociation. The corporate statutes of the provider "Free Zone ev" provides under art. 2, fig.2 for example that the association takes an explicit distance from the Church of Scientology, the business practices of which and interpretation of the philosophy of L. Ron Hubbard that association and its members do not agree with. Apart from the fact that also this association thereby recognizes that there is a "philosophy" of L. Ron Hubbard which it only interprets differently, this disassociation clearly shows that specifically this provider can be no alternative to the plaintiff. The personal conviction pursued by the members of the plaintiff by adopting its services it [the Free Zone] does not want to reach with its offer.
But also other Scientology Organizations do not constitute a "competition" on a general "market" for the plaintiff. If the term of a market as used in the association law refers to the exchange of goods and services and not to the competition of disseminating religions and philosophies as such (compare FedSupAdmCrt judgement of 6 Nov 1997, loc. cit.), then - in the view of this Court Section - even more so it cannot refer to the "competition" within such a religion or philosophy. However, as Scientology is to be classified as a philosophy according to the arguments outlined under 1.1. above, then by definition there cannot even be a competition within this philosophy which is understood by its members as an "applied religious philosophy". "Under the roof" of Scientology the plaintiff therefore is not in competition with any other Scientology Organization.
1.3. That the plaintiff requires remunerations from its members for auditing, courses and seminars, viewed on its own does not constitute an indicator for a commercial business operation. For it is irrelevant in which form the members finance the activity of their association (compare FedSup AdmCrt judgement of 6 Nov 1997, loc. cit.). As far as the defendant argues that there can be substantial financial risks for the individual member, as the courses and seminars would be expensive and as the member would be quasi- compelled to attend more and more courses for the payment of which he may have to take bank loans, this cannot justify the assumption of a commercial business operation either. Dangers that may arise from the membership for the individual member such as the risk to get into economical difficulties do not justify the assumption of a commercial business operation of the association (compare FedSupAdmCrt judgement of 6 Nov 1997, loc. cit.). The objection of endangering creditors does not fit in this context. The members of the plaintiff do not constitute "creditors" in this meaning.
Finally the conclusion of the defendant is wrong that the plaintiff's
activities for remuneration are of equal import to the "care for and
of the religious teachings" and thereby are a main purpose and that the
purpose of the association would fall away, if the conduct of courses and
training would not exist in theory. The correct question is this one: whether
the purpose of the association would fall away, if the conduct of courses
and training would be done without remuneration. This would be correct
as the defendant intends that the purpose would fall away if no funds would
be received and therefore no profit could be achieved. In the view of this
Court Section the purpose of the association would not fall away in this
case, for the members - whose personal conviction is relevant here - view
the conduct of courses and auditing as decisive. If an additional remuneration
should not be charged for the courses, seminars and auditing, the financial
resources needed for this would have to be provided by the members in some
other form, for example by way of higher membership fees. As already shown
it is up to the association to decide in which form its members fund it.
2. To the extent that the plaintiff sells goods to NON- MEMBERS according to art. 2 fig. 4 of its corporate statutes such as scientological literature this is covered by the so called privilege for an ancillary business operation.
According to its own declarations the plaintiff sells introductory literature for the religion of Scientology to non- members. Through this the plaintiff conducts a entrepreneurial activities to accomplish its idealistic goals - i.e. forwarding the denomination of "Scientology" - which in view of this Court Section have to be attributed and subordinated to the main non- commercial purpose of the association and that are an auxiliary means to their accomplishment (compare FedSupCrtCiv 85, 84 <92 f.> ). This applies even then, if one would go with the defendant and presume that the plaintiff would sell more than the five book titles (compare pleading of 5 Nov 1999, p. 73) and booklets. The activities of the plaintiff vis-á-vis its members constitute the main portion in the realization of the overall purpose of the care for and dissemination of the Scientology teachings as outlined in the corporate statutes. This already follows from the fact that 90 % of the activities of the plaintiff consist of the conduct of auditing and training of auditors. This was not seriously contested by the defendant either. The figures submitted by the defendant on that aspect (compare pleading of 10 Nov 1999) according to which the income from book sales would have amounted to DM 28.075 e.g. in one week of April 1993 and the income from courses and auditing to DM 81.659,74 do not allow for any contrary conclusions.
As far as the plaintiff might have wanted to obtain a profit from these sales would that be irrelevant in the context of art. 43, sect. 2 of the Civil Code. At most could that be of import in a trade legal evaluation. Commercial activities that do not affect the civil legal qualification of an association as a so called idealistic association, may still constitute the practice of a trade in the meaning of the trade law, if the activity is directed for profit. This is the result of the protective purpose of the trade law that reaches farther than the civil legal provisions and which applies both in relation to activities vis- á-vis non-members as well as vis-á-vis members (compare FedSupAdmCrt decision of 3 Jul 1998 - 1 B 114.97 - Buchholz 451.20 art. 14 Trade Law, Fig. 7). The objection of the defendant that the plaintiff would mainly be interested in achieving a profit is therefore not relevant in this proceeding which solely concerns the revocation of legal capacity.
Whether the plaintiff is subject to an entrepreneurial risk through its outward directed activities vis-á-vis non-members may be left undecided as these activities are covered by the privilege for an ancillary business operation.
3. Whether the plaintiff constitutes a religious community in the legal
sense was irrelevant for this decision. On the basis of applying the correct
understanding on the prerequisites of a commercial business operation the
provisions of articles 21, 22, 43 sect. 2 of the Civil Code do not overburden
the participation of the religious communities in legal transactions
and in a way incompatible with the freedom of religious association guaranteed
per Art. 4 sect.1, 2 of the Constitution in connection with Art.
140 Constitution, Art. 137, sect. 2, 4 of the Weimar Constitution (compare
FedSupAdmCrt judgement of 6 Nov 1997, loc. cit.).
4. As therefore the legal elements of art. 43 sect. 2 of the Civil Code are not met, the question is no longer relevant whether the government is to exercise its discretion in the realm of art. 43 sect. 2 Civil Code and if so, whether the defendant exercised its discretion free from defects (compare also FedSupAdmCrt judgement of 6 Nov 1997, loc. cit.: exercise of discretion only in atypical cases).
All in all the suit was therefore well founded. The motions for admission of evidence by the plaintiff and the defendant during the court hearing were therefore unnecessary with the exception of one witness interrogation having to be conducted, as the alleged facts had no impact legally on the case due to the legal view of the court and they are therefore immaterial respectively could be deemed as true by the Court. The motions for evidence therefore had to be denied during trial.
The award of costs is based on art. 154 sect. 1 AdmCrtProcCode.
The parties may appeal against this judgement, if the State Administrative Court of Appeal of Baden-Württemberg admits it. The application for leave to appeal must be filed to the Administrative Court Stuttgart (Augustenstr. 5 and 7, 70178 Stuttgart) within one month after service of the judgement.
Prof. Schlotterbeck Wilke Dr. Frank
DECISION OF 17 NOVEMBER 1999
The case value is fixed per articles 25 sect. 2, 13 sect. 1 sent. 2 of the Law on Court Expenses to amount to
This decision can be objected per art. 25 sect. 3 of the Law on Court Expenses.
Prof. Schlotterbeck Wilke Dr. Frank
notarized: Stuttgart, 14 Dec 99