Introduction: Modernizing the Civil Law Partnership (GbR)
The civil law partnership (GbR) is one of the most frequently used forms of company in Germany. Its popularity is mainly due to its flexibility and ease of establishment. Young game developers, esport teams and startups in particular appreciate these features and use the GbR as a springboard to bring their innovative ideas to market.
However, the GbR is not only prevalent in the dynamic world of startups. It is also found in more traditional industries such as construction. Here, large GbRs are often formed between corporations to make joint projects more efficient and to share risks.
Despite its popularity, the GbR has received criticism in the past due to its historical lack of legal certainty and transparency. The Act on the Modernization of the Law on Partnerships (MoPeG) now introduces significant changes designed to address these weaknesses. A central aspect is the introduction of a company register for GbRs. This register aims to increase the legal security and transparency of the GbR, thereby further enhancing its attractiveness as a corporate form.
The New Company Register for GbRs
The Act to Modernize the Law on Partnerships (MoPeG), which will come into force on January 1, 2024, introduces a new company register. This register, existing alongside the commercial and transparency registers, is intended to increase transparency and legal certainty for civil law partnerships (GbRs). It is expected that external GbRs, which act as independent legal entities and conclude contracts, will particularly benefit from registration in order to preserve their rights.
The external GbR can acquire property and other rights, and it is recognized as an independent entity in legal transactions. Without an entry in the new company register, external civil law partnerships could face significant delays in carrying out legal transactions. This is especially true if they hold registered rights or are involved in registered companies.
This contrasts with the internal GbR, which exists only in the internal relationship between the partners and has no legal personality. It does not appear externally and is often formed as silent partnerships, communities of heirs, or communities for the joint use of resources. Internal GbRs are not required to be registered in the new company register.
However, the distinction between external and internal GbR is not always clear and depends on the specific circumstances of the individual case. It is therefore advisable that GbRs and their partners prepare for the upcoming changes and assess whether a duty to register applies to them. If they hold registered rights, have an interest in registered companies, or wish to acquire such rights in 2024, they should take appropriate steps to avoid potential delays and complications.
This might include, for example, bringing forward acquisition transactions to 2023. Additionally, it is important to prepare for a large influx of registrations at the newly created Company Register in January 2024 and to anticipate possible delays. In cases of ambiguity, legal advice should always be sought to ensure all requirements are met and the rights of the GbR are preserved.
Voluntary Registration with Incentives
In principle, registration in the new company register is voluntary. However, the legislator relies on positive incentives to encourage as many GbRs as possible to register. One such incentive is the ability to register a seat.
Furthermore, registration in the company register offers additional advantages. It increases the transparency and legal certainty of the GbR by providing third parties with a clear overview of the partners and their power of representation. This can strengthen the trust of business partners, customers, and investors, making the GbR more attractive for business relationships.
After registration, the GbR is obliged to use the name suffix “eingetragene Gesellschaft bürgerlichen Rechts”, or “eGbR”. This enables outsiders to have confidence in the accuracy of the entries and to assess with certainty who is available to the company’s creditors as a general partner.
In addition, the law provides for the possibility of a change of status from the company register to the commercial register if a GbR wishes to change its legal form to another partnership. This concerns in particular registered, small commercial GbRs that wish to change their legal form to an OHG, or are already factually operating as such.
It is important to note that registration of the external GbR in the company register is not mandatory for its legal capacity. The GbR retains all its previous legal capacity and rights even after the introduction of the company register and remains registered in other registers, for example, in the land register.
However, the law stipulates that the registration of a GbR, for instance in the land register, may only proceed if it is also registered in the company register. Despite the advantages offered by registration, GbRs should weigh the decision carefully. Registration involves costs and administrative effort, requiring thorough knowledge of legal requirements. Therefore, it is advisable to seek legal advice before deciding to register.
Conclusion
The introduction of the company register for GbRs represents a significant step towards modernizing partnership law. It enhances legal certainty and transparency, offering GbRs new opportunities. Nevertheless, it remains to be seen how these new regulations will be adopted in practice.