I. Introduction

Even before the MoPeG came into force, it was generally recognized that the GbR itself can be the bearer of rights and obligations. However, there was no legal basis and no separate subject publicity for the GbR. Special regulations therefore existed for certain property registers, such as for the entry of the GbR in the land register as the owner of a property (§ 899a German Civil Code (BGB) old version in conjunction with § 47 para. 2 German Land register Act (GBO) old version).
The legislator took the amendment to the law as an opportunity to adapt the outdated provisions of the BGB in this respect and to give the GbR its own subject register publicity for the first time by introducing a company register in which the GbR with legal capacity can be entered. The intention was to eliminate the GbR’s publicity deficit and create transparency and legal certainty regarding its existence, identity and proper representation. In addition, the company register is intended to make changes to the GbR’s shareholder structure traceable.

II. Entry in the company register

Registration of the GbR in the company register is generally voluntary. However, only the GbR with legal capacity can be registered, not the GbR without legal capacity (the so-called internal company), whereby entry in the company register is not a prerequisite for obtaining legal capacity.
The participation of all shareholders is required for registration in the company register. It must be made electronically in a publicly notarized form. The local court in whose district the GbR has its registered office is responsible for the entry. The details to be entered in the company register are the name, registered office and address of the company, details of the partners (for natural persons: surname, first name, date of birth and place of residence) and the shareholders’ power of representation. Subsequent changes to the facts relevant to the register must also be submitted for registration.
Upon entry in the company register, the identity of the GbR is determined by the name and registered office of the company. The name must satisfy the company law requirements of § 18 HGB, i.e. it must be suitable for identification, have sufficient distinctive character and must not be misleading for legal transactions. In addition, the registered GbR must carry the name affix “eingetragene Gesellschaft bürgerlichen Rechts” (registered civil law partnership) or “eGbR”. If no natural person is liable as a general partner in the GbR, the name must also include an indication of the limitation of liability, such as “GmbH & Co. eGbR”. The registration of the GbR in the company register also provides protection in terms of the powers of representation in the GbR. This means that a third party can invoke an incorrectly entered and published fact unless they are aware of its incorrectness.

III. Pre-registration requirements of the GbR

With the MoPeG, the legislator has also introduced a so-called pre-registration requirement for certain property registers. This means that a GbR can only be registered in respect of a right registered in the relevant property registers if the GbR itself is entered in the company register, otherwise it cannot be registered.
Such pre-registration requirements exist in particular for the land register, the commercial register, the company register, the list of shareholders of a limited liability company, the share register, the shipping register and the register of liens on aircraft. A pre-registration requirement has not been introduced for every register. For example, there is no such requirement for GbR entries in the trademark and patent register.
The pre-registration obligation generally has no direct substantive legal effect, but is in itself only a prerequisite for the respective execution of the disposal of the relevant rights of the GbR under register law. This means that the GbR can effectively dispose of the right in question irrespective of the prior entry in the company register. However, the situation is different if the material disposal also requires a constitutive entry in the relevant property register under substantive law, e.g. entry in the land register in the case of disposals of land. With the pre-registration obligation, the previous requirement to enter the partners of the GbR in the individual property registers has consequently been dropped. These can now only be found in the company register.

1. Entries in the land register

The most important pre-registration requirement in practice is in land register transactions. According to § 47 para. 2 GBO (or the transitional provision of Art. 229 § 21 para. 1 Introduction Act to the Civil Code (EGBGB)), any entry or removal of a GbR in the land register requires its prior entry in the company register. Before the GbR is entered in the company register, the GbR cannot be entered in the land register. This applies to the acquisition, sale and other dispositions of a land register right by the GbR.
As the GbR has legal capacity even without being entered in the company register, it can already conclude the underlying legal transaction. For example, if the property of a GbR is sold, the purchase agreement and conveyance can already be notarized. The notary will only wait until the GbR has been entered in the company register before applying for entry in the land register. This also applies to the deletion of a right entered in the land register in favor of a GbR (Munich Higher Regional Court, decision of 8 October 2024 – 34 Wx 234/24). However, the requirement for prior entry in the land register does not apply without exception. For example, it does not apply to the entry of a compulsory mortgage against a GbR not entered in the company register (Schleswig Higher Regional Court, decision of 20 June 2024 – 2x W 36/24).
The special provision of § 899a BGB (old version) was repealed with the introduction of the pre-registration requirement. Under this provision, it was presumed that the persons (and only the persons) entered in the land register were partners in the GbR. The deletion also changes the material legal situation. This is because acquisitions from an old GbR that was entered in the land register before January 1, 2024 are no longer protected by good faith if it was not entered in the company register before the sale. With the entry of the old GbR in the company register, however, an even more comprehensive protection of good faith applies in accordance with § 707a para. 3 BGB.

2. Entries in the commercial and company register

Even as a shareholder in a partnership, the GbR is only entered in the commercial register or company register if it itself has been entered in the company register beforehand. This registration requirement is also only of procedural nature, i.e. the lack of prior registration of the GbR in the company register does not prevent the acquisition of company shares under substantive law, but only the completion of the register in the registration procedure.
If an existing GbR was already entered in the commercial register as a general partner or limited partner of a general partnership (OHG) or limited partnership (KG) before the MoPeG came into force, there is initially no mandatory obligation to enter the GbR in the company register. However, if the number of partners in a GbR changes, it is no longer possible to correct the entry in the commercial register. In this case, the shareholders can only be corrected after the GbR has been (pre-)entered in the company register. However, if a GbR sells its entire shareholding in an OHG or KG, no entry in the company register is required. In this case, the GbR is deleted from the commercial register without prior entry.

3. Entry in the list of GmbH shareholders and in the share register

Since January 1, 2024, a GbR can only be entered in the list of shareholders of a GmbH and changes can only be made to its entry if the GbR is entered in the company register. However, the lack of registration of a GbR that is a shareholder of a GmbH has no (negative) impact on its substantive shareholder status. Pre-registration is only relevant for entries or changes in the list of shareholders, but not for the assertion of shareholder rights, profit participation or voting rights.
Prior entry into the company register is also irrelevant for the effectiveness of the substantive disposal of GmbH shares by a GbR. However, if a GbR not entered in the company register sells its shares, it cannot be deleted from the list of shareholders until it has been entered in the company register. The purchaser of the shares cannot exercise his shareholder rights until he has been entered in the list of shareholders, as § 16 para. 1 sentence 1 Act on Limited Liability Companies (GmbHG) requires entry in the list of shareholders in relation to the company. In addition, the entry in the list of shareholders may be relevant with regard to a bona fide acquisition of shares from a non-entitled person. For changes to the list of shareholders that do not affect the shares of the GbR, prior registration of the GbR is not required, for example if only other shareholders sell their shares in the GmbH.
The initial entry of the GbR as the owner of registered shares and a change to its entry in the share register can also only be made following its prior entry in the company register.
The material acquisition of registered shares by a GbR is – as with the acquisition of GmbH shares – effective irrespective of the entry in the company register. However, an acquiring GbR that has not been pre-registered would not be entitled to shareholder rights in relation to the company pursuant to § 67 para. 2 sentence 1 German Stock Corporation Act (AktG) due to the lack of entry in the share register. In contrast to the list of GmbH shareholders, however, in these cases the seller could at least be deleted from the share register and the shares could be noted as unregistered shares. If a GbR sells registered shares, the GbR can only be deleted from the share register if or after it has been entered in the company register. As there are no multiple entries in the share register for the same shareholding, the acquirer cannot be entered in the share register for this period and therefore cannot exercise his shareholder rights under § 67 para. 2 sentence 1 AktG in relation to the company.

4. Participation in conversions

The GbR with legal capacity can also be involved in conversions in accordance with the Transformation Act. The prerequisite for this is that the GbR – whether as the transferring, acquiring or new legal entity – is entered in the company register. This applies to mergers, demergers and changes of legal form. In this respect, the prior entry of the GbR in the company register is even a substantive legal requirement for its participation in a transformation measure.

VI. Conclusion

Since the MoPeG came into force, the question of entry in the company register has therefore always arisen in practice for GbRs (with legal capacity). This applies to both existing and newly formed GbRs. If, as part of its business activities, a GbR is or is to become the owner of rights that are subject to one of the aforementioned pre-registration obligations or has such rights, there is a de facto obligation to make a (pre-)entry in the company register. This applies, for example, to real estate and asset management companies or family pools, which in practice are often constituted in the legal form of a GbR. Otherwise, the advantages and disadvantages associated with registration must be carefully considered. In particular, if the associated subject publicity is not desired, entry in the company register can be omitted as long as there is no “compulsion”.
In the context of corporate transactions or conversion measures in which a GbR is involved, however, the existing pre-registration requirements should be considered as early as possible. These can otherwise lead to unexpected delays or unwanted additional work. If necessary, this should be avoided by registering the GbR in the company register as early as possible. In any case, the legal, factual and economic risks associated with existing pre-registration obligations should be adequately taken into account when drafting the contract.