The fifteen most important questions about the Act on the Modernisation of Partnership Law (MoPeG) – what you should know!
Fundamentally new rules will apply to partnerships from January 2024. The „Act on the Modernisation of Partnership Law“ (MoPeG) aims to consolidate and update existing law to better serve modern practice. The following highlights the fifteen most significant changes to partnership law set to go into effect on 1 January 2024, which you should be aware of.
1. What will change with regard to the legal capacity of a Civil law partnership (GbR)?
Previously, the external company (external GbR) was only able to bear rights and obligations due to the Federal Supreme Court’s case law. This has been updated under the MoPeG: Presently, as per Section 705 (2) of the German Civil Code (BGB) (new edition), if the associates intend to take part in legal transactions, a company with legal capacity is established (an external GbR with legal capacity). The creation of a company lacking legal capacity is feasible if the aim of the entity is to solely manage the legal ties among the partners (internal GbR without legal capacity).
2. Will the liability of the partners in a GbR change?
No. The liability of the partners of a GbR will now be explicitly regulated in Section 721 of the German Civil Code (BGB) (new version). Therefore, the similar application of Section 128 of the German Commercial Code (HGB) is no longer required. However, there will be no changes to the prior legal situation, as both legal provisions are congruent. The partners remain wholly liable as joint and several debtors without restraint for the debts of the company.
3. What exactly is the new company register?
According to the current law until 31 December 2023, the GbR cannot be registered, unlike commercial partnerships in form of the general partnership (OHG) or the limited partnership (KG). Therefore, a GbR cannot be added in any public register like the commercial register.
This is where the MoPeG brings a significant change where a company register for GbRs will be implemented in the future. This register will be publicly maintained by local courts and will resemble the commercial register. The new company register’s regulations are detailed in Sections 707 et seq. of the new version of the German Civil Code (BGB).
4. Does every GbR have to be entered in the company register?
In essence, the MoPeG does not impose a general obligation to register. However, registration will be a crucial prerequisite for various legal transactions. Accordingly, in selected circumstances, it is referred to as a „de facto obligation“.
As an example, this legal transactions include: the acquisition of real estate, due to the necessary entry in the land register; the acquisition of other rights entered in public registers (trade mark and patent rights) and the acquisition of shares in other companies (partnerships such as OHGs or KGs, but also GmbHs or AGs).
While voluntary registration remains an option, a GbR cannot be removed from the company register once entered. This is because, to safeguard legal transactions, the GbR is prohibited from reverting to an unregistered status as per Section 707a (4) of the new version of the German Civil Code (BGB).
5. What are the benefits of registering a GbR in the company register?
By registering, the GbR becomes a registered partnership under civil law (eGbR). This brings forth various benefits in transparency and legal surety for the business partners of the eGbR.
The content of the company register enjoys the protection of good faith with regard to the accuracy of its content (see Section 707a (3) of the German Civil Code (BGB), new version). The registration process initially confirms the existence and identity of the company to third parties. Additionally, simplified verification of shareholders‘ powers of representation is available. Another benefit is the flexibility to locate the registered office anywhere in Germany. This applies to all partnerships that are eligible for registration, including OHGs and KGs. A partnership established in Germany no longer requires having the same contractual and administrative registered office. This has been the legal situation for some time regarding the GmbH and the AG.
6. What disadvantages does an entry in the company register entail for a GbR?
The registration initially has the necessary disadvantage of disclosing certain internal company details. It should be noted that the GwG’s obligations under money laundering legislation are triggered upon registration of the GbR. Specifically, the eGbR is required to disclose its beneficial owner to the transparency register in compliance with Sections 19 et seq. GwG.
7. How does the entry in the company register work?
Registration requires a notarised registration of the company by all shareholders (Section 707 of the German Civil Code (BGB) new version). In any case, this must contain the name, registered office and address of the company. For the shareholders, the registration must contain their first and last names, dates of birth and place of residence. If a shareholder is a legal entity or a partnership with legal capacity, they must state the company name or name, legal form, registered office and, if required by law, the competent register and register number. Additionally, the registration must include information on the number of shareholders, their powers of representation, and an assurance that the company is not already entered in the commercial or partnership register.
8. What changes must be recorded in the company register?
Changes requiring registration include those relating to the registered office of the company, its name, its powers of representation and the entry or exit of shareholders.
9. What costs are associated with registration?
As with other registration procedures under register law, notarial costs are incurred in addition to the register fees.
10. What needs to be done when a small business grows into a commercial enterprise?
If a company`s growth necessitates a commercially organised business operation (Section 1 HGB), the GbR is legally transformed into an OHG. This means that the existing legal situation remains unchanged However, for an eGbR, the change in status to an OHG or KG must be reported to the registry court where the initial entry was made, as stated in Section 707c of the German Civil Code (BGB) new version.
11. How does an OHG become a GbR again?
Small businesses can still choose to register their company as an OHG with constitutive effect in the commercial register. However, unlike the past, due to MoPeG, it is no longer simple to revert to the GbR legal form by deleting the constitutively registered OHG from the register. This means that a change to the legal status of an eGbR is now necessary. The way towards forming a simple GbR is obstructed (refer to Section 107 (3) of the German Commercial Code (HGB) as amended).
12. What applies to conversions under the UmwG into other legal forms?
As the GbR experiences economic growth, the possibility of converting to a limited liability company (GmbH) in addition to changing to the legal form of an OHG becomes intriguing. The German Reorganisation Act (UmwG) allows for a reorganisation while preserving the identity and transferring the legal positions of the previous company to the new form via universal succession. However, it is worth noting that only a registered GbR qualifies as a legally convertible entity as defined by the UmwG. As a result, registration with the company registry is necessary (as per Section 3 (1) no. 1 of the amended UmwG).
13. Are there any changes in tax law?
According to the law`s explanatory memorandum, the MoPeG should not result in any changes to income tax law. Nevertheless, it is sometimes discussed in legal literature whether the abolition of the GbR’s joint assets could have an impact on income tax. As things stand, a solution has been found to the effect that, insofar as tax laws still refer to joint assets, the assets of the GbR with legal capacity are to be understood as distinct from those of its partners. Concrete adjustments to tax law are not yet foreseeable, but are likely to occur.
14. What is changing in the law on defective resolutions for partnerships?
In contrast to the preceding legal context, the MoPeG features a new law on defective resolutions for commercial partnerships in Sections 110 et seq. of the German Commercial Code (HGB). These regulations are mainly consistent with those governing defective resolutions in stock corporation law and differentiate between actions for cancellation and nullification. The new law on defective resolutions only applies directly to commercial partnerships in the form of OHGs or KGs.
An „opt-in“ clause in the articles of association is required for the GbR in order to apply Sections 110 et seq. of the German Commercial Code (HGB). The legislative material indicates that the avoidance model places minimum requirements for formalising the resolution process and demands a level of professionalism typically associated with commercial partnerships rather than GbRs.
15. What new opportunities are there for freelancers?
Under the previous legal situation, freelancers such as doctors, lawyers or tax advisors were unable to establish commercial companies as their activities did not meet the definition of a commercial business. Section 107 of the new version of the German Commercial Code HGB now explicitly allows freelancers to set up a general partnership or limited partnership (OHG or KG) by registering it in the commercial register, provided that the relevant professional and code of conduct laws allow registration. As a result, the legal structure of the GmbH & Co. KG, which is popular in practice, will also become available to freelancers under company law in the future.
Conclusion: Need to adapt the articles of association!
The amendments to partnership law effective 1 January 2024 entail numerous changes for partnerships, impacting the efficacy of particular provisions in the partnership agreement. Hence, it is recommended that each partnership seeks an expert’s scrutiny on their articles of association to ensure their future effectiveness.
The author of this article would be delighted to offer guidance on the alterations to partnership legislation scheduled to take effect on 1st January 2024.
Authors: Dr. Karl Brock and Constantin Dorschu
„MEYER-KÖRING ist besonders renommiert für die gesellschaftsrechtliche Beratung.“(JUVE Handbuch Wirtschaftskanzleien 2022)
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