Karlsruhe Administrative Court decision of October 28, 1996

VG Karlsruhe - 12 K 1760 / 95

Scientology Church Karlsruhe Mission  - complainant
vs.
State of Baden-Wuerttemberg - accused

Also inludeded was a "Representative of the Public Interest"

concerningwithdrawal of legal capacity

The decision of the Karlsruhe Executive Presidium of November 10, 1994 in the form of the appeal decision of the same agency of May 10, 1995 is overturned.

The accused bears the costs of the proceedings with the exception of the out of court costs of the Representative of the Public Interest, who bears his own costs.

In the opinion of the finding court, the provisions of PP. 43 sect. 2 BGB are present (following number 1.)  The contested decisions are, however, lacking in discretion and therefore violate the rights of the complainant (following number 2.).

According to the complainant's charter, the complainant is a non commercial association in the sense of PP. 21 BGB.  In reality, the association, this chamber is convinced after viewing the total picture of its actual transaction, runs a predominantly commercial business operation in the sense of PP. 43 sect. 2, 22 BGB.

1. In spite of the ideal goals in its legal charter, when the entire picture of the practices of the association are taken into account, the association is actually engaged in activities which are predominantly commercial

2. The illicitness of the contested decision is a result of the Executive Presidium not having made its decision in accordance with P. 43 sect. 2 BGB.

The Executive Presidium did not determine in either its conclusions or its appeal decision whether the complainant was regarded as a religious community, but just let that assertion by the complainant remain an open question.  In doing that it assumed the complainant's characterization of self as a religious community.  The court is bound by this assumption. It may not decide whether the complainant is a religious community or not.

The risks which could be associated with non-religious activities by such associations are not in a restricting definition in the facts of Basic Law, but in the method of administering general laws applied to the relevant activity besides that of Basic Law, and that includes those up to the dissolution of the association.

Protection by Art. 4 of Basic Law remains in effect only up to the point that it demands collision with other legal rights (BVerwG, decsion of March 27, 1992, NJW 192, 2496)