Changes due to the MoPeG: Does the GbR now have to be entered in the company register?
Introduction
With the entry into force of the Modernisation of partnership law (MoPeG) On 1 January 2024, the law governing civil law partnerships (GbR) changed fundamentally. For the first time, there is a public Company register for GbRs, which is modelled on the commercial register. Until now, such a register did not exist. The existence and composition of a GbR could not be reliably determined and traced in legal transactions - unlike with OHGs, KGs or GmbHs. The MoPeG has closed this publicity gap. The §§ 707 ff. BGB as amended now provide for the possibility of registering a GbR in the company register at the competent local court.
However, registration is not an end in itself: since 2024, certain important legal transactions require prior registration of the GbR. In the following, we explain what has changed and what GbR partners should pay attention to.
No obligation to register, but often de facto compulsion
In principle, a GbR does not have to be entered in the company register, even under the new law. The law speaks of a mere Registration option (cf. § Section 707 (1) BGB new version.). GbR partners can therefore still form and manage their company without an entry in the register. Purely internal companies also remain possible.
Although the law does not standardise a general obligation to register, it requires prior entry of the GbR in the company register for certain transactions that in turn require entry in another register:
Real estate transactions
Since 1 January 2024, a GbR can only acquire or sell real estate or rights equivalent to real estate (e.g. heritable building rights) if it is entered in the company register. After § Section 47 (2) GBO new version, the land registry may only register rights for a GbR if these are before registered as a „eingetragene GbR“ (eGbR) in the company register. When buying or selling property through a GbR, entry in the register is now a de facto mandatory requirement. Although existing GbRs already entered in the land register are protected, they too must first be registered before any future disposal!
Investments in other companies
The same applies if a GbR wishes to acquire shares in corporations or partnerships. It is true that the entry of a GbR in the company register is not a mandatory requirement for the acquisition of a share - regardless of whether it is a partnership or a corporation.
However, the new GbR shareholder is only entered in the commercial register (and any lists of shareholders) if it is itself registered in the company register as an eGbR. This also results in a de facto obligation to register in this case.
The entry of the GbR (or eGbR) as a shareholder of another company in the commercial register is of essential importance.
With a Ltd. the shareholders are only deemed to be shareholders vis-à-vis the GmbH if they are included in the list of shareholders kept in the commercial register. Section 40 para. 1 sentence 3 GmbHG (new version) stipulates that a GbR can only be entered in the list of shareholders of a GmbH after it has been registered as an eGbR. The same applies to the share register for registered shares and for registration as OHG/KG shareholders.
Even with a KG the registration - especially of the limited partner - has far-reaching liability consequences in case of doubt. This is because only those limited partners who are entered in the commercial register as limited partners with their liability amount are exempt from liability. However, registration is dependent on the GbR being entered in the company register.
Registration of the GbR is therefore unavoidable in most cases.
Existing companies are protected. The GbR only needs to be registered when new legal transactions are carried out or if there are changes to the shareholder structure.
IP rights and conversions
The registration of a GbR is now also a prerequisite for other legal positions requiring registration. For example, the new law requires the GbR to be entered in the register before IP rights (trade marks, patents) are registered in the name of the GbR. Finally, a GbR can only participate in a transformation under the Transformation Act (change of legal form, merger, demerger) if it before has been entered in the company register as eGbR. In other words: Only the eGbR is a convertible legal entity after the reform!
The above examples illustrate that the registration of a GbR in the company register is mandatory for active participation in legal transactions in some cases.
When can registration still make sense? And when is it not?
In addition to the cases described above in which a Entry in the company register de facto necessary In some cases, however, registration may not be required. This applies, for example, to purely internal companies. A BGB internal company (also known as an internal GbR) is a partnership that does not appear externally, but exists solely to regulate the relationship between the partners. This can take the form of an office partnership, a silent partnership in a company or a voting pool agreement, for example. A purely internal company with no external effect not to be registered.
Even a small project-related GbR, such as a consortium (consortium) for a specific construction project or a founding team in the early stages, can initially exist without an entry in the register.
However, when voluntarily registering an external GbR, it should be borne in mind that the registration itself, as well as any subsequent changes, for example in the event of a change of shareholders, require notarisation. On the other hand, registration as an eGbR is irreversible. To terminate an eGbR, it must be liquidated to enable deletion from the company register.
In addition, the eGbR is subject to further publicity obligations. For example, it must report its beneficial owners in the transparency register and immediately report changes in shareholders and changes to the purpose of the company or the power of representation.
However, the new legal situation also offers incentives to consider voluntary registration. This is because registration can be legally advantageous or advisable, even if there is no de facto obligation:
Anticipation of future business
If it is foreseeable that the GbR would like to acquire land in the future, receive investor funds in return for company shares or invest in other companies, it is advisable to voluntarily apply for registration at an early stage. This avoids delays in a planned property purchase or investment because you have to wait for the GbR to be registered. As the registration (with notarised application) can take several weeks, you should make provisions in good time.
Clear legal relationships
Registration creates transparency with regard to the existence, composition and managing directors of the company. Third parties, such as business partners, banks or authorities, can easily check who the shareholders are and who is authorised to represent the eGbR in the public register free of charge. This strengthens trust and legal certainty in business transactions. For an active GbR, it can therefore make sense to act as an eGbR for preventative reasons alone, even if there is currently no obligation to do so.
Foresight
The eGbR offers more organisational options. If the GbR is later to be converted into a limited liability company (e.g. GmbH), this can be done as a registered legal entity by way of a change of legal form in accordance with the UmwG. Without an entry in the register, such a change of legal form would not be possible immediately and delays due to waiting for registration would have to be taken into account. For growing companies (Start-ups), the eGbR can therefore be a stepping stone to seamlessly switch to a more suitable legal form if the business development requires it.
The above explanations illustrate the necessity and expediency of registration. Partners of a GbR should be aware of the type of participation in legal transactions that is and should be practised in order to be able to check whether registration is de facto mandatory or at least expedient.
With pleasure we support you in this process.
