MODERNIZATION OF THE LAW ON PARTNERSHIPS: EVOLUTION FROM PRACTICAL EXPERIENCE – BUT STILL A NEED FOR ACTION

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The modernization of partnership law has been completed. The provisions of the Act on the Modernization of Partnership Law will come into force on 1 January 2024. It is true that the main purpose of the new provisions is to eliminate the current discrepancy between the regulatory concept currently in force and the needs of practice. However, the new regulatory framework also requires creative action.

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UPDATE ON THE SCOPE OF LIABILITY FOR IMMORAL DELAY IN FILING FOR INSOLVENCY

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In the event of insolvency or overindebtedness of a legal entity, the members of the representative body or the liquidators are obliged to file for insolvency. In the event that the application for commencement of insolvency proceedings is not filed or not filed in due time, the representative body risks not only criminal prosecution but also personal civil liability vis-à-vis the creditors of the insolvent company. In individual cases, also contractual partners of the insolvent company can be held responsible. In a recent decision, the Federal Court of Justice (BGH) has dealt with the scope of civil liability for immoral delay to file for insolvency. This decision is of considerable relevance for practice.

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BFH AFFIRMS LEGAL TAX STRUCTURING FOR PARTIAL “EVASION” OF SPECULATION TAX IN THE CASE OF REAL ESTATE SALES PURSUANT TO § 23 PARA. 1 SENTENCE 1 NO. 1 GERMAN INCOME TAX ACT (ESTG)

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In its ruling of 23 April 2021 – IX R 8/20 – the Federal Fiscal Court decided that the transfer of a rented residential property to children as a gift for subsequent sale does not constitute abusive tax planning. This decision means that tax-optimized property sales, particularly in the context of anticipated succession, can be structured in a legally secure manner in the future.

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THE PARTNERSHIP AS SUBSIDIARY COMPANY FOR VAT PURPOSES

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In its ruling of 15 April 2021, the ECJ has rejected the legal opinion of the tax authorities and the Fifth Senate of the German Federal Fiscal Court: contrary to their opinion, a national restriction of a taxable entity with regard to partnerships as subsidiary companies is not compatible with EU law.. This entails both opportunities and risks.

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COMMENCEMENT OF THE LIMITATION PERIOD FOR CLAIMS BY THE EMPLOYER BASED ON A BREACH OF COMPETITION RULES PURSUANT TO § 60 PARA. 1 GERMAN COMMERCIAL CODE

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In its ruling of 24 February 2021 – file no. 10 AZR 8/19 – the 10th Senate of the Federal Labor Court decided that the limitation period under § 61 para. 2 German Commercial Code in the case of anti-competitive conduct by an employee already begins with an employer’s knowledge or grossly negligent lack of knowledge of an employee’s Internet presence. The decision poses new challenges for employers.

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CHANGES IN THE LAW ON SALES AND NEW RULES FOR CONTRACTS FOR DIGITAL PRODUCTS

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In order to cope with the ongoing digitization and networking of the economy and society, the European Union wants to create the legal framework for a common digital single market. The Sale of Goods Directive and the Digital Content Directive are intended to contribute to this. Both directives were implemented in German law with effect from 1 January 2022. The result are, in particular, changes to the law on the sale of goods and newly created regulations for the purchase of digital products.

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