Act on the preliminary regulation of the law concerning Chambers of Industry and Commerce

Act on the preliminary regulation of the law concerning Chambers of Industry and Commerce

dated 18 December 1956 (Federal Law Gazette [BGBI] I p. 920) last amended by arti­cle 7 of the fourth law on the amendment of the provisions concerning administrative procedures dated 11 December 2008 (BGBI. I p. 2418 ).

§1

(1) The chambers of industry and commerce have the task of representing the general interests of businesses located in their district, and of making efforts to promote industry and trade, considering the economic interests of individual lines of business or enterprises in a deliberative and balanced way, insofar as no responsibility of craft organisations is given, pursuant to the act on the regulation of crafts [Handwerksordnung], dated 17 September 1953 (BGBI. I p. 1411). Their duties involve, in particular, supporting and advising authorities with proposals, expert opinions and reports, and making efforts to maintain the principles of decent and ethical business practice.

(2) The chambers of industry and commerce may establish, maintain and support facilities and institutions which serve the promotion of industry and trade and individual lines of business, as well as implementing measures for the promotion and carrying out of business and vocational qualification measures, taking into consideration the applicable legal regulations, in particular the law on vocational training [Berufsbildungsgesetz].

(3) The chambers of industry and commerce are responsible for issuing certificates of origin and other certificates benefiting trade, insofar as no legal provisions allocate these tasks to other institutions.

(3a) The Federal States may transfer by law to the chambers of industry and commerce the tasks of a uniform body in the sense of the Administrative Procedures Act. The Act regulates the fields of activity which are covered by said allocation. In this respect the Act can stipulate that the chambers of industry and commerce also act for the non-members of the chamber. The Act also regulates the supervision thereof.

(3b) By law, the Federal States can allow the chambers of industry and commerce to participate in institutions which fulfil the tasks of a uniform body in the sense of the Administrative Procedures Act.

(4) Further tasks may be assigned to the chambers of industry and commerce by law or ordinance.

(5) The tasks of the chambers of industry and commerce do not include the representation of interests that pertain to issues of social policy or labour law.

§2

(1) Chambers of industry and commerce include, insofar as they are assessed to trade tax, all natural persons, trading partnerships and companies, other bodies of persons and legal entities under private and public law which maintain permanent establishment in the chamber of industry and commerce’s district (members of the chamber).

(2) Paragraph 1 applies to natural persons and companies which exclusively practise a profession or conduct a business in agriculture or forestry, or in a related ancillary trade, only insofar as they are registered in the commercial register.

(3) Natural persons and legal entities and partnerships which are entered in the roll of craftsmen or in the register of non-licensable craft-like trades, or which are mem­bers of the chamber of crafts in accordance with §90 para. 3 of the crafts regulation act, belong to the chamber of industry and commerce with respect to the non-craft or non-craft-like parts of their business.

(4) Paragraph 1 does not apply to agricultural cooperatives; in the sense of this provision the following are deemed to be such:

a) rural credit cooperatives the members of which are mainly farmers;

b) cooperatives whose sole or main object lies in the joint use of agricultural operating equipment, or the supply of agriculture with equipment, or the distribution, storage, processing or treatment of agricultural produce, insofar as, by applying generally accepted standards, this treatment or processing remains agricultural in nature.

c) associations of cooperatives mentioned under letter b up to a limit to be determined according to the amount of their equity; such a limit is established by ordinance of the Federal Ministry for Economics and Technology, in consultation with the Federal Ministry for Food, Agriculture and Consumer Protection.

(5) Paragraph 1 does not apply to municipalities and associations of municipalities, which maintain their own businesses. They may however join the chamber of industry and commerce.

§3

(1) The chambers of industry and commerce constitute a corporation under public law.

(2) The funds for the costs of establishing chambers of industry and commerce and of their activities shall be raised, in accordance with the business plan, by means of contributions from the members of the chamber, pursuant to the contribution rules, insofar as these costs are not covered elsewhere. The business plan must be drawn up annually and implemented in accordance with the principles of economical and efficient financial management, taking into careful consideration the capacities of the members of the chamber.

(3) The chamber of industry and commerce collects contributions in the form of basic subscription fees and apportioned fees. The basic subscription fee can be scaled, taking into consideration in particular the type, scope and capacity of the business. Natural persons and partnerships not entered in the commercial register are exempt from contributions, if their trade income, pursuant to the trade tax act [Gewerbe­steuergesetz], does not exceed 5,200 euro, or, for those for whom no trade tax assessment basis has been established for the assessed year, if their profits from business ascertained pursuant to the income tax act [Einkommensteuergesetz], do not exceed this amount. The natural persons mentioned in clause 3 are exempt from the apportioned fees and the basic subscription fee for the financial year, as defined by a chamber of industry and commerce, in which the start-up of their business took place and for the following year, and they are exempt from the apportioned fees for the third and fourth year, as long as their trade income or their profits from business do not exceed 25,000 euro, insofar as they had no income from agriculture or forestry activities, from a trade or from independent work, and as long as they did not hold, directly or indirectly, a share of more than 10 % in a limited com­pany, in the five years prior to their start-up. In the event that, due to the assessment basis valid at the time of the passing of the business plan, the situation arises that the number of contributors paying contributions decreases to less than 55 % of the members of a chamber of industry and commerce as a result of the exemption regulations mentioned in clauses 3 and 4, the general assembly may pass a resolution to reduce correspondingly the limits on the trade income or the profits from business for the respective financial year. In the event that a trade tax assessment basis is established for the year to be assessed, the trade income in accordance with the trade tax law, or the profits from business ascertained in accordance with the income tax act or the corporation tax act [Körperschafts­steuer­gesetz], shall be the assessment basis for the apportioned fee. For ­natural persons and partnerships, the assessment basis must be reduced by an allowance of 15,340 euro. The members of the chamber are obliged to provide all information to the chamber which is necessary to establish the basis for contributions, insofar as this has not yet been ascertained according to §9; the chamber is entitled to inspect the relevant business documents. Companies limited by shares, the only and exclusive commercial activity of which is limited to function as personally liable partner in not more than one limited partnership, can be allowed to pay a reduced basic contribution, insofar as both, company and partnership belong to the same chamber. The same applies to companies with registered offices in the district of a chamber, if all shares of the company are held by a single business entity, registered in the commercial register, with its registered office in the district of the same chamber.

(4) Natural persons or legal entities and partnerships, entered in the roll of craftsmen or in the register in accordance with §19 of the Crafts Regulation, which, due to the type and scope of their enterprise require a business established under commercial aspects, shall be liable to pay contributions, if the turnover of the non-craft or non-craft-like parts of the business exceed 130,000 euro. Members of the chamber of commerce who are owners of a pharmacy are assessed with respect to the payment of the basic subscription fee and the apportioned fee on the basis of 25% of their trade income, or if no trade income assessment basis is established for the assessed year, in accordance with the profits from business ascertained pursuant to the income tax law or the corporation tax law. Clause 2 also applies to members of the chamber who mainly practise a profession, or whose partners all mainly practise a profession, or who do business in agriculture or forestry on a piece of land located in the chamber of industry and commerce’s district, or carry out fishing as a fresh water fishery company in waters located in the chamber of industry and commerce’s district and pay contributions to one or several other chambers, under the proviso that instead of 25%, 10% of the established assessment basis shall be taken as a basis for assessment.

(5) For costs in relation with the establishment, maintenance or support of facilities and institutions (§1 para. 2), the chamber of industry and commerce may charge special contributions from the members of the chamber of those lines of business which exclusively and to a particular extent benefit from such facilities and institutions. The parties involved must have the opportunity to make their comments prior to the establishment of such facilities and institutions.

(6) The chamber of industry and commerce may charge fees for the use of special facilities and institutions (§1 para. 2) or for activities, and claim the reimbursement of expenses.

(7) Special contributions in accordance with paragraph 5 are charged in line with the special contribution rules; fees and expenses in accordance with paragraph 6 are charged in line with the fee rules. The contribution rules, the special contribution rules and the fee rules must govern the remission or waiving of contributions, fees and expenses.

(7a) The generally accepted accounting principles, in accordance with the third book of the commercial code [Drittes Buch des Handelsgesetzbuches] as amended, shall be applied mutatis mutandis to the accounting of the chambers of industry and commerce, and in particular to the rendering of accounts, the drawing up and carrying out of the business plan and to the annual balance sheet including profit and loss statement. Details shall be governed by the chambers’-by-laws, taking into con­sideration the principles of State budgetary law.

(8) With respect to the limitation period of contributions, special contributions, fees and expenses, the regulations of the tax code [Abgabenordnung] concerning the limitation period of taxes on income and property shall apply, and with respect to collection and recovery, the provisions of the Federal States applicable to community charges shall apply respectively. Procedures and responsibility with respect to collection and recovery can be governed differently by the law of the Federal States.

§4

The general assembly decides on the matters of the chamber of industry and commerce, insofar as no other provisions are agreed in the chamber’s by-laws. Subject to the exclusive decision-making of the general assembly are

1. 1. the by-laws
2. 2. the election rules, the contribution rules, special contribution rules and fee rules
3. 3. the establishment of the business plan
4. 4. the establishment of the scale for contributions and special contributions
5. 5. the acceptance of the reports
6. 6. the assignment of tasks to other chambers of industry and commerce, the assumption of these tasks, the creation of unions under public law and the participation in these unions (§10) as well as the participation in institutions according to §1 para. 3b
7. 7. the procedure for public announcements, and
8. 8. the rules pursuant to §3 paragraph 7a (financial statute).

§79 of the vocational training law shall remain unaffected. Insofar as the electronic media-based announcement of amendments to the chamber’s by-laws and rules is prescribed in accordance with clause 2 No. 7, such announcement must be carried out in the electronic version of the Federal Gazette.

§5

(1) The members of the general assembly are elected by the members of the chamber.

(2) Eligible are all natural persons who are entitled to exercise the chamber voting right, who are of full age by the date of the election and who are either a member of the chamber themselves or are entitled to legally represent solely or with others a legal entity, trading partnership or company or body of persons which is a member of the chamber. Eligible are also specially appointed fully authorised representatives and holders of a special statutory authority [Prokurist] entered in the commercial register who represent a member of the chamber.

(3) Details about the exercising of active and passive voting rights, the carrying out of the election and the duration or early termination of membership in the general assembly are governed by the election rules. These rules must include provisions concerning the allocation of the members of the chamber to special voting groups and the number of seats allocated in the general assembly to such groups, taking into consideration the economic particularities of the chamber district and the overall economic significance of the trade groups.

§6

(1) The general assembly elects from among its members a president (Präses) and the further members of the board, the number of which is to be determined by the by-laws.

(2) The president (Präses) has the chair of the board. The president calls the general assembly and takes the chair.

§7

(1) The general assembly appoints the general managing director.

(2) The president (Präses) and the general managing director represent the chamber of industry and commerce in all legal transactions and before the court in accordance with the detailed provisions of the chamber’s by-laws.

§8

In the event that the chamber of industry and commerce forms committees for pur­poses other than those mentioned in §79 of the vocational training law, the chamber’s by-laws may establish that persons can also be appointed to these committees who are not eligible in accordance with §5 para. 2.

§9

(1) For the fulfilment of the tasks assigned to the chambers of industry and commerce according to this Act, the chambers of industry and commerce may collect data from their members in accordance with §14 para. 9 clause 1 No. 1 of the industry and trade act [Gewerbeordnung], insofar as said data have not been communicated to them by the competent authority. In addition, they may collect data from their members on goods and services offered as well as on the size category of the business entities. Those required to submit information are the owners or other persons authorised, alone or together with others, to legally represent a legal entity, trading partnership or company or body of persons which are members of the chamber. In addition, specially appointed authorised representatives and holders of a special statutory authority [Prokurist] from members, who are entered in the commercial register, are required to submit information.

(2) The chambers of industry and commerce and their common institutions, which constitute public authorities in the sense of §2 para. 2 of the federal data protection act [Bundesdatenschutzgesetz], are entitled to collect information from the financial authorities on trade tax assessments, as they are necessary in the sense of §2 para. 1, to ascertain whether membership of the chamber exists and to ascertain the contribution amount of the chamber members as well as the tax assessment bases required pursuant to §3 para. 3.

(3) The chambers of industry and commerce and their common institutions may use the data mentioned under paragraphs 1 and 2 only to the extent necessary for the fulfilment of their duties, as assigned to them by law. Data other than those indicated in clause 1, may be collected and used only to the extent that this is permissible or required under other legal provisions.

(3a) The chambers of industry and commerce may transmit the name, company name, address and line of business of their members, as well as the other data indicated in paragraph 1, to other chambers of industry and commerce upon a corresponding request or by means of automated recall, to the extent necessary for the fulfilment of their duties as assigned to them by law.

(4) The chambers of industry and commerce may transmit the name, company name, address and line of business of their members to non-public institutions for the promotion of business transactions and for other commercial purposes. Other data indicated in paragraph 1 may be transmitted to non-public institutions only for the?purposes indicated in clause 1, if the chamber member has not objected to this. The chamber members must be informed in writing of the possibility to object to the transmission of data to non-public institutions, prior to the first transmission. The chamber of industry and commerce must delete data concerning members of other chambers immediately following their transmission to non-public institutions, to the extent that said data are not required for the fulfilment of the duties assigned to the chambers by law. Data indicated in clause 1, concerning eligible voters, may be sent to candidates in the election to the general assembly about their respective election group in accordance with §5, for the purposes of election campaigning. The candidate must delete these data immediately following the completion of the election. Third parties which have received data may use these data only for the purpose for which they were transmitted.

(5) cancelled

(6) The data protection acts of the Federal States shall apply to changes to and the blocking and deletion of data collected in line with paragraphs 1 and 2, as well as to the transmission of data to non-public institutions in line with paragraph 1. Arti­cle 10 of the federal data protection act applies correspondingly to the transmission of data by way of automated recall to other chambers of industry and commerce in line with paragraph 3a.

§10 Assignment of tasks and unions under public law

(1) By mutual consent, the chambers of industry and commerce can transfer tasks they are responsible for by law or ordinance to other chambers of industry and commerce or to form unions under public law for the fulfilment of these tasks or to participate in these unions. §1 para. 3b, shall remain unaffected.

(2) The legal relationships of a union under public law are governed by by-laws. These by-laws must establish what tasks are assumed by the union under public law. The initial by-laws shall be subject to the approval of the general assemblies of the participating chambers of industry and commerce. They must publish the initial by-laws in the form required for their publications.

(3) The assignment of tasks to chambers of industry and commerce or to unions under public law which have their registered office in another Federal State, as well as the participation in such unions, shall be permissible, unless the special legal provisions valid for the participating chambers or unions exclude or restrict such an assignment.

(4) The provisions of this law under §1 para. 3a, §3 paras. 2, 6, 7a and 8, §4 clauses 1 and 2, nos. 1 to 5, 7 and 8 as well as §§6 and 7 shall be applied correspondingly to unions under public law.

§11

(1) The chambers of industry and commerce are subject to supervision by the corresponding Federal State as to whether, when carrying out their activities, they fulfil the applicable legal provisions (including the chamber’s by-laws, election rules, contribution rules, special contribution rules and fee rules). The regulatory authority of the Federal State in which the union has its registered office shall be responsible for the supervision of the union under public law. §1 para. 3a clause 4 shall remain unaffected.

(2) The resolutions of the general assembly on

1. 1. the by-laws pursuant to §3 para. 7a clause 2,
2. 2. the by-laws pursuant to §4 clause 2 no. 1,
3. 3. the election rules, contribution rules, special contribution rules and fee rules,
4. 4. the assignment of tasks to other chambers of industry and commerce and the assumption of these tasks,
5. 5. the formation of unions under public law or the participation in such unions (§10) as well as
6. 6. an apportionment rate exceeding 0.8 percent of the assessment basis according to §3 para. 3 clause 6

shall be subject to the approval of the regulatory authority of the Federal State.

(2a) The by-laws pursuant to §10 para. 2 as well as amendments of the by-laws shall be subject to the approval of the regulatory authority of the Federal State in which the union has its registered office, as well as of the regulatory authorities of?the participating chambers.

(2b) The assignment of tasks by a chamber of industry and commerce to other cham­bers of industry and commerce or to unions under public law which have their registered office in another Federal State, as well as the participation in such unions, shall be subject to the approval of the regulatory authorities of both the assigning and assuming chamber; in the event of an assignment to a union under public law, approval by the regulatory authority competent for this union is also required.

(3) Legal regulations which are contradictory to this law shall be cancelled; section I of the act on maintaining and increasing purchasing power [Gesetz zur Erhaltung und Hebung der Kaufkraft] of 24 March 1934 (Reich Law Gazette RGBl. I page 235) and the ordinance on accounting and accounting control [Verordnung über die Rech­n­ungslegung und Rechnungsprüfung] during War II of 5 July 1940 (RGBl. II, page 139) are not applicable to the chambers of industry and commerce.

§12

(1) Supplementary regulations may be passed in line with the law of the Federal States on:

1. 1. the establishment and closure of chambers of industry and commerce as well as of unions under public law
2. 2. the modification of districts of existing chambers of industry and commerce
3. 3. the public authorities competent for the exercising of competencies pursuant to §11 para. 1 and 2
4. 4. the means of supervision necessary to allow the exercising of competencies pursuant to §11 para. 1 and 2
5. 5. the obligation of the tax authorities to provide the chambers of industry and commerce with the documents necessary for the ascertainment of contributions
6. 6. the obligation of public authorities to render administrative assistance with respect to the collection and recovery of contributions (§3 para. 8)
7. 7. the auditing of the annual accounts of the chambers of industry and commerce
8. 8. the authority of the chambers of industry and commerce to use an official seal
9. 9. the competence and the procedure for the appointing of members to the committees pursuant to §8 para. 2 clause 2.

(2) The members of the chamber must be heard, pursuant to §2 para. 1, prior to a decision on the measures indicated in para. 1 Nos. 1 and 2.

§13

The chambers of industry and commerce of Bremen and Hamburg shall be entitled to continue to use their current denomination.

§13a

(1) Chamber members who were members of a chamber of industry and commerce on 31 December 1993 according to §2 para. 3 and §3 para 3. clause 2 in the version valid on 31 December 1993, may continue to be a member of the chamber of industry and commerce in accordance with these provisions.

(2) If the assessment year which forms the basis for the assessment of contributions lies before 1 January 1994, the contributions are established on the basis of the law in its version valid on 31 December 1993.

(3) The exemption of contributions in §3 para. 3 clause 4 may be applied only to those members of the chamber who filed their application for the registration of a trade or a business after 31 December 2003.

§14

Until 31 December 1997, the chambers of industry and commerce may establish the contributions of their members in the areas indicated in article 3 of the Unification Treaty, following the deadline indicated in annex 1, chapter V subject area B section III No. 4 of the Unification Treaty dated 31 August 1990, in connection with article 1 of the Act dated 23 September 1990 (BGBl. 1990 II page 885, 1000), deviating from the provisions of §3 para. 3 and 4. The contribution rules and the contribution scales are subject to the approval by the regulatory authority.

§15

This act shall come into force at the date of its promulgation.