I. The GbR as a basic form of legally capable partnerships

Providing a company constituted under civil law (Gesellschaft bürgerlichen Rechts – GbR) with legal capacity, i.e. the ability to acquire rights and enter into liabilities itself, has always been considered a practical need. Corresponding demands and a practical legal need have so far been met at least in part by the Federal Court of Justice with its much cited case law on the “ARGE Weißes Ross” (Federal Court of Justice, judgment of 29 February 2001 – II ZR 331/00) and by the legislature with the recognition of the GbR’s ability to be entered in the land register. The amendments of the MoPeG now establish the legal capacity of the GbR in principle and cast it in a legislative framework. In the practically important case that the GbR operates a business under a joint name, legal capacity is even expressly presumed (§ 705 para. 3 German Civil Code (Bürgerliches Gesetzbuch – BGB (new version))).
During the transitional period until the end of 2023, existing GbRs can adjust to the new legal situation (if necessary by adapting their partnership agreements). The law will come into force on 1 January 2024. The standard future case of a GbR with legal capacity will thus increasingly converge with the regime applicable to commercial partnerships in terms of both internal and external organization.
Significant changes to the law governing GbRs and also the law governing commercial partnerships have already been the subject of our newsletter article on the MoPeG government draft. The government draft essentially corresponds to the final version of the MoPeG promulgated on 17.8.2021 in the Federal Law Gazette (BGBI. I, p. 3436). Nonetheless, individual innovations of the MoPeG should be revisited and specific recommendations for action identified.

II. Need for action due to the company register

Until now, the GbR did not have its own public register with publicity effect. For the purpose of reliably verifying the existence, identity of the partners and proper representation of the GbR, the MoPeG creates a new company register (§§ 707-707d BGB (new version)), which is based on the commercial register in terms of its effect and functioning. Although an obligation to register is not expressly provided for, the aim of the MoPeG to create as much publicity as possible for the GbR is clearly discernible. In addition to positive incentives to register in the new company register, there is also a de facto obligation to register if the GbR is to be entered in (public) registers.
Such a pre-registration requirement exists in particular if the GbR

• is itself entered in the commercial register as a partner (e.g. limited partner of a KG (limited partnership) (§ 707a para. 1 sentence 2 BGB (new version)),
• holds rights to real property (§ 47 (2) Land Register Code (Grundbuchordnung – GBO, new version) or
• is in a list of shareholders of a GmbH (limited liability company) (§ 40, para. 3, sentence 1, Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG, new version)) or
• wishes to be included in the share register (§ 67 para. 1 sentence 3 Stock Corporation Act (Aktiengesetz – AktG, new version).

If the GbR is to be entered in the company register on the basis of these pre-registration requirements, it is obliged to use the name suffix “eingetragene Gesellschaft bürgerlichen Rechts“ (registered company constituted under civil law) or “eGbR” (§ 707a para. 2 sentence 1 BGB (new version)). As a consequence of the entry in the company register, the eGbR will in future also participate in the public domain of the transparency register under money laundering law. Accordingly, the eGbR will in future have to obtain information on its beneficial owners and transmit such information to the transparency register.

1. Need for action for family-owned GbRs

The de facto obligation to register in the company register frequently arises from the fact that an asset-managing GbR holds or acquires real estate or other rights (e.g. GmbH shares, etc.) to the extent that one of the above pre-registration requirements is met. In this case, restructuring may be indicated if, on the one hand, registration is desired or required due to part of the activities of the GbR, but, on the other hand, part of the activities should not participate in the new publicity. If, on the other hand, discretion is to be maintained with regard to internal matters of a family-owned GbR or a comparable merger, a restriction of publicity by means of organizational separations of the individual business areas is to be considered.

2. Need for action for voting rights GbRs

Subject to deviating arrangements in individual cases, pure voting right GbRs (Stimmbindungs-GbR) will not participate in the publicity of the company register and the publicity of the transparency register in the future either. These arrangements for bundling shareholder rights, which are often motivated by inheritance tax considerations, do not themselves regularly hold the bundled shareholder rights. These rights remain instead in the assets of the individual shareholders. Therefore, a pre-registration requirement of the voting trust is generally not triggered. However, this does not apply if the GbR also serves to manage assets that are subject to registration (e.g. real estate).

III. Need for action due to new regulations on voting power and profit participation

The adaptation of the statutory provisions on the GbR to legal practice is also evident from the innovations of the MoPeG on the voting power and profit participation of the partners. In the future, the voting power and the share in the profits and losses of the partnership will be based on the agreed participation ratios (§ 709 para. 3 BGB (new version)). This new statutory rule thus corresponds to the provisions of the articles of association, which are already widespread in practice. However, if a deviation from this new statutory standard is desired in the future, for example because all shareholders are to be granted an equal voting weight and/or an equal share in profits irrespective of their shareholding, a corresponding provision in the articles of association will be required.

IV. Need for action due to new law on defects in resolutions

As a further significant innovation, the MoPeG reforms the law on defective resolutions for commercial partnerships. In a shift from the previous and hardly practicable declaratory model, the new provisions of the Commercial Code (Handelsgesetzbuch – HGB) are now based on the so-called rescission model, which is already familiar from stock corporation law and is also applied in the law governing limited liability companies (GmbH). The invalidity of shareholder resolutions can thus no longer be asserted in principle for an unlimited period by way of a declaratory action. The MoPeG now creates regulations for a time-limited action to challenge and assert the invalidity of shareholder resolutions. The time limit is three months from the date of notification of the resolution to a shareholder with the appropriate legal standing. The period may be reduced to one month under the articles of association.
In future, the new law on defects in resolutions will also make a fundamental distinction between the contestability and nullity of shareholder resolutions. Accordingly, any resolution that violates legal provisions is voidable. A resolution is null and void if its content violates legal provisions which the shareholders cannot waive. However, in contrast to stock corporation law (cf. § 241 AktG), there are no rules on what these are. The legislator thus leaves the further specification of the concept of indispensable rights to case law and science.
In contrast, the MoPeG does not regulate the law on defective resolutions of the GbR and the partnership company. In this respect, the legal normal case with regard to these companies remains the above-described, not very practical declaratory model. However, the partners of GbRs and partnership companies are free to opt for the avoidance model by drafting the partnership agreement accordingly. Such an arrangement is particularly recommended for GbRs with a large group of partners, since the process of forming wills and passing resolutions in such structured companies has an increased risk of being subject to dispute. Conversely, the shareholders of a general partnership (offene Handelsgesellschaft – OHG) or KG can deviate from the new statutory rule of the avoidance model by means of an appropriate arrangement in the partnership agreement.

V. The (new) partnership in tax law

The MoPeG expressly does not intend to make any changes with regard to the income tax treatment of the partners of a partnership as so-called co-entrepreneurs. In addition, however, the law leaves open whether and, if so, how the shift from the joint ownership principle (Gesamthandsprinzip) to the legal entity principle (Rechtsträgerprinzip) will affect partnerships for tax purposes. Particularly with regard to those provisions which link tax consequences to the joint ownership principle (Gesamthandsprinzip) (in particular §§ 5, 6 Real Estate Transfer Tax Act (Grunderwerbsteuergesetz – GrEStG) and § 6 para. 5 sentence 3 nos. 1 and 2 Income Tax Act (Einkommensteuergesetz – EStG), it is currently still unclear whether the tax authorities and tax courts will continue to qualify partnerships as joint ownership. In this respect, clarifications in the urgently needed accompanying tax laws to the MoPeG must be awaited.

VI. Conclusion

Even though the amendments to the MoPeG will not come into force until 1 January 2024 – and therefore one year later than envisaged in the government draft – there is already cause for early and consequently timely planning. The new regulations bring partnership law closer to existing legal practice. However, the de facto obligation to register legally capable GbRs and an option for the avoidance model in the resolution defects regime may make restructuring and adjustments to the articles of association necessary in individual cases.