Abstract

Few provisions of German private law have been reported dead as frequently, yet at the same time debated as intensely, as Sec. 22 of the German Civil Code (BGB). This provision enables state agencies to confer legal capacity onto associations established to conduct business, as an exception to the registration required for both charitable associations and business corporations. Since 1900, when the German Civil Code came into force, many authors suggested repealing or reforming Sec. 22, Lawmakers tried to do so at least four times during the last thirty years, yet Sec. 22 has remained untouched since over 120 years. Is this provision merely dead letter law on the books, or are business associations really a widespread legal form? No one knows exactly, as the last empirical study dates back fourty years. The present study seeks to fill that gap. It elicited such data from 65 state and communal agencies over the course of 14 months to compile the first comprehensive list of business associations. 1,033 such entities were found to exist, with several hundred more assumed to remain undetected. This makes business associations more prevalent than all of Societas Europaea (SE), European Economic Interest Groupings (EEIG), and Partnerships Limited by Shares (KGaA) combined. By analysing the temporal and regional distribution of business associations as well as their main business objectives, we finally obtain reliable evidence required for the long-demanded political reassessment of Sec. 22. Doubts are in order about the historically convenient option to grant civil legal capacity by concession, and under the supervision, of communal agencies.472