GERMANY: ATTAC ruling could affect a thousand organisations – Interview with Coalition for Legal certainty for political advocacy

In February, the German Federal Fiscal Court ruled that the German branch of association Taxation of Financial Transactions and for Citizens’ Action (Attac) should have its public benefit status withdrawn due to its “generally political activity”. The shocking sentence of Attac Germany exposes a grey zone of the German legislation on civil society as well as an outdated understanding of the role played by civic actors in German democracy and society.

We interviewed the spokesperson of the coalition “Rechtssicherheit für politische Willensbildung” (Translated: Legal certainty for political advocacy), Stefan Diefenbach-Trommer, to learn how the Attac case will affect the wider civic space in Germany. The coalition brings together over 100 associations and foundations to advocate for a change of the legislation for civil society and launched a petition condemning the ruling and calling to include new public benefit purposes in the tax law. The petition collected over 215.000 signatures in a few weeks.

What happened with the ruling of the Federal Court on the German Attac?

A few weeks ago, the Federal Court overturned a former sentence of the Hessian state court, which had confirmed the public benefit status of Attac before. The Federal court sent the case back to the Hessian Court, which now has to decide on the public benefit status based on the compulsory guidelines of the Federal Court.

Following the guidelines of the Federal court Attac may lose the status permanently. The judges said that there is not a proper purpose in the current legislation for the activities the association carries out. Currently, Attac is registered – among others – under the purpose of ‘education’ which – according to the Federal Court – does not allow an organisation to influence politics. This ruling affects Attacs directly, but also thousands more organisations.

At the moment Attac is in an unclear situation as there is no applicable sentence pro or against the public benefit status. We do not know what will happen if the court decides that Attac does not have the public benefit status. This is part of the problem. Maybe they will have to give all their funding to another organisation but it is unclear. At the moment – and for few years – all donations to Attac were not deductible from taxes.

Are other organisations affected by this ruling?

It is difficult to say but I think it is about a thousand organisations. In Germany, we have about 600.000 associations and most of them do not influence politics. But some of them do and often they are registered as charities with the purpose of education because the law lacks many purposes. For examples, human rights or anti-racism are not recognised among the public benefit purposes. Now the court ruled that the purpose of education does not allow public benefit organisations to influence politics.

Most of these organisations do not say they will be next because they fear this possibility. But for example, a few weeks ago Campact, a civic movement carrying out campaigns to drive social, environmental and democratic progress, said that it will stop to certify they are a public benefit organisation because after this judgement the local authority will probably stop their public benefit status. This creates a limitation in their ability to finance their work, but they decided to do so not to self-censor themselves.

My fear is that other associations will decide to stop some activities (e.g. fighting racism, taking part to demonstrations for human rights…) in a kind of self-censorship way because it doesn’t fit in the public benefit purposes. This is bad for democracy.

What are the purposes of civil society that are recognised as public benefit?

There are 25 purposes that are recognised as public benefit by law. These include sport, environmental protection, equal opportunities for men and women. But for example, this list does not include human rights, same rights for different sexual orientations or anti-racism.

It is said there are no political purposes in the fiscal code. But of course, human rights as environmental protection are political issues. However, “political” does not only mean longing for political power but also selfishlessly influencing the political debate. Civil society has a wide range of tools to influence politics: advocacy, campaigning, press releases, demonstrations … These actions become political when civil society points at societal problems, bringing these problems to the public attention.

In Germany, there is a thinking that politics is only realm of political parties and public benefit organisations should not be allowed to influence politics. But I also think there is a generational struggle within parties with younger people understanding civil society differently than older ones. Older generations tend to understand civil society as subcontractors of the state which provides financial support to solve problems. Younger generations understand that civil society must be self-organised. Regulations should enable civil society activities, not limit their possibilities.

Are there other organisations that have been threatened to lose their public benefit status due to the activities they carry out?

At the moment many organisations fear they will lose it, but no concrete step has been taken against other organisations. With the current legislation, the finance office reviews the public benefit status of organisations every three years. They look back at the activities of the last three years and then they check whether it was too political, whether the organisation was or not working for the public benefit. Of course, this generates fear in organisations.

We see another kind of attack against civil society organisations: one of the government parties, the Christian Democratic Party, CDU, attacked the organisation Deutsche Umwelthilfe, an environmental protection organisation that struggles against pollution in cities through legal actions to limit car traffic in cities. For the CDU this is a ‘fake’ association. During the party congress, they decided to take away the public benefit status and the public support of the government to the organisation. They also want to change the law so that environmental organisations cannot go to court to ask the government to follow environmental standards.

What is the Alliance advocating for?

In the long run, we would like to have a brand-new regulation for civil society organisations because what we have is outdated and does not work in modern societies. In the short term, we are aiming to include new public benefit purposes in the law, like human rights, to make the work of civil society safer. Also, we need to clarify that political actions are compatible with the public benefit status, as long as they do not support political parties.

Politicians need to understand that this ‘disturbing character’ of civil society is uncomfortable now, but in the long run is good for democracy. In Germany, we look at shrinking civic space as foreign issue because our standards for democracy are high. But we maybe have to learn from other European countries where the struggle of civil society is stronger that there is need to keep defending democracy and freedoms; it is a process, it never will stop.

Read the analysis of the court case by the coalition here (in English and German)

Featured image: Hannibal Hanschke/Reuters