Читать книгу The Limited Liability Company under German Law (the GmbH) - Dr Alexander Schröder-Frerkes - Страница 7
ОглавлениеII. Company formation: establishing a new GmbH
5. The regular GmbH and the Unternehmergesellschaft in general
Under German law, there are two basic types of limited liability companies. The ‘regular’ GmbH is a company which has a stated share capital of at least €25,000.1 In addition, by means of The German Act to Modernise the Law Governing GmbHs and Combat Abuses (Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen – MoMiG), effective as of 1 November 2008, the so-called Unternehmergesellschaft (haftungsbeschränkt) (entrepreneurial company with limited liability) was established as a (sub)form of GmbH. The Unternehmergesellschaft is an entity to which all regulations of the Act on Limited Liability Companies apply, with the exception of certain regulations relating to share capital. Further details will be outlined in Section 34.
6. General
A GmbH is only effectively established once it is registered in the relevant commercial register.2 Prior to registration, a distinction can be drawn between two different phases in the company creation process: the phase between the decision of the shareholders to establish a GmbH and the notarisation of the articles of association (pre-formation phase), and the stage between the notarisation of the articles of association and the entry of the GmbH into the commercial register (pre-registration phase).
7. Pre-formation phase (Vorgründungsgesellschaft)
In the period prior to the notarisation of the articles of association, the GmbH does not yet exist as a legal entity. At this point in time, the existing entity is a Vorgründungsgesellschaft. The Vorgründungsgesellschaft either takes the legal form of a civil law association under the German Civil Code (Gesellschaft bürgerlichen Rechts – GbR) or of a general partnership, depending on the scope of the activities and the purpose the entity is pursuing (aside from establishing a GmbH). During this phase, neither the representation of the entity nor the liability of the shareholders are governed by the principles pursuant to a GmbH, but by those pertaining to a civil law association or a general partnership. In other words, the shareholders are jointly and severally liable for any and all obligations which arise in the company’s name at this point in time. The company is managed and represented jointly by all shareholders, in so far as there is no agreement to the contrary already existing at this point in time. If, at a later point in time, the GmbH is finally registered, the rights and obligations created by the Vorgründungsgesellschaft are not transferred automatically by law to the GmbH; the obligations arising during this phase remain unaffected and must be fulfilled by the still existing Vorgründungsgesellschaft or its shareholders respectively. However, the liabilities may be transferred to the GmbH with the consent of the creditors. The same applies to the rights created by the Vorgründungsgesellschaft, wherein third-party consent may be required here too.
8. Pre-registration phase (Vor-GmbH)
The so-called Vor-GmbH or GmbH in Gründung (iGr) exists as an individual legal entity in the period of time between the notarisation of the articles of association and the registration of the company in the commercial register. The Vor-GmbH is already governed by the Act on Limited Liability Companies (GmbHG) and the articles of association in so far as they do not call for a registration of the company. The relationship between the managing directors and the shareholders’ meeting is thus determined by the articles of association and, in addition, the Act on Limited Liability Companies. The managing directors are entitled to represent the Vor-GmbH vis-à-vis third parties. However, their powers of representation are limited to purposes relating to the formation of the company and do not extend beyond these purposes. Typical activities pertaining to the company formation are, for example, the opening of bank accounts, the acquisition of real property, the leasing of office space, etc. If the parties wish to contribute (einbringen) a company to the GmbH by way of a contribution in kind, the scope of authority of the managing directors also includes the right to continue to run such a company, since it may not be left unmanaged whilst waiting for the registration of the GmbH to finally be concluded.
The most important difference compared with a fully registered GmbH, however, is in terms of liability towards third parties. Since a Vor-GmbH is not yet registered in the commercial register and the GmbH is thus not yet fully founded, liability towards third parties cannot be limited to the assets of the GmbH. According to s11, para. 2 of the Act on Limited Liability Companies, all persons acting on behalf of the GmbH prior to its registration are jointly and severally liable for any obligations resulting therefrom. Such a person is typically the (designated) managing director, but may also be a shareholder or a third person acting in the capacity of a managing director when representing the company externally. Additionally, all shareholders are personally liable without limitation towards the GmbH itself in the event that, at the time of the entry into the commercial register, the value of the assets of the GmbH fails to match the amount of the stated share capital.3 A use of the assets (Verkehrsgeschäft) is, however, permitted, for instance if the cash contributions are used to buy office equipment. In other words, the contributions must exist in terms of their value but the contributions themselves do not have to exist. This shareholder liability continues to apply after the registration, in the event that negative equity is still present.
The GmbH is fully established at the point of its registration in the commercial register. By law, all rights and obligations of the Vor-GmbH are transferred to the GmbH. The Vor-GmbH and the GmbH are identical legal entities, with the GmbH being the legal successor of the Vor-GmbH. In addition, the liability of the persons acting on behalf of the company prior to its registration ceases according to section 11, paragraph 2 of the Act on Limited Liability Companies.
9. Formation by contributions in cash
Typically, a GmbH is established by way of a contribution of the share capital in cash. In a regular GmbH, the stated share capital required to establish the company amounts to €25,000. In the case of the Unternehmergesellschaft, the stated share capital may be lower, with a minimum stated share capital of €1.00 being required. In both cases, the entry in the commercial register may only be successfully filed if at least one quarter of each subscribed share has been contributed and the total of all contributed shares amounts to a minimum of half of the stated share capital.4 Since the Act to Modernise the Law Governing GmbHs and Combat Abuses came into force, the same rules apply if the GmbH is only established by one individual shareholder. The provision of collateral is no longer required. If there are any funds outstanding with regard to the stated share capital, the managing director is responsible for demanding that these amounts are paid.
10. Formation by contributions in kind
In the articles of association, the shareholders of a GmbH may also agree to raise the stated share capital not by contributions in cash but by contributions in kind.5 An Unternehmergersellschaft, however, may not be established by contributions in kind. The object of the contribution and the amount of the share capital to be raised by a contribution in kind are to be determined in the articles of association. Furthermore, in a special report (Sachgründungsbericht), the shareholders must outline the relevant circumstances which explain why the value of the contribution in kind matches at least the value of the subscribed share capital.6 If an entire company or enterprise is to be contributed to the GmbH as a contribution in kind, the financial statements for the last two business years must also be submitted.
The contribution in kind may consist of any assets which have a determinable economic value. The assets may be tangible or intangible, movable or immovable. They may also include claims, intellectual property rights and real estate. The mere provision of services by a shareholder, however, is not acceptable as a contribution. The uncertainty surrounding the value of the services in question and the matter of whether or not they are provided is deemed to disqualify them as an appropriate means of raising the subscribed capital.
Prior to filing of the registration for the GmbH, the contribution in kind must be effected in full and the asset must be transferred to the GmbH.7
If the value of the contribution in kind does not amount to the value of the assumed share capital when the GmbH registration is filed, the shareholder must pay the difference in cash. Such a claim on the part of the company will be barred by the statute of limitations after a ten-year period following the entry of the company into the commercial register.8 Only when all of these requirements are satisfied is the contribution in kind considered duly fulfilled and the respective share capital fully contributed.
11. Combined contributions
Combined contributions to raise the share capital are generally allowed and may take two different forms. A shareholder may effect the contribution in kind by transferring assets to the company whose value exceeds the amount of the share capital he or she has subscribed in the articles of association. In this context, the law refers to a ‘gemischte Sacheinlage’ (mixed contribution in kind). The shareholder is entitled to receive compensation for the value of the transferred asset which exceeds the share capital he or she has undertaken to contribute. This compensation may take various forms, for example, the granting of a corresponding loan or the provision of services by the GmbH. Such forms of contribution in kind must also be in compliance with the rules as set out in Section 10.
A combined contribution may also refer to the obligation to contribute the share capital being partly satisfied by a contribution in cash and partly by a contribution in kind. In such cases, the respective requirements regarding contributions in cash and in kind as set out in the previous sections must be satisfied in order for the share capital to be fully and duly contributed. Aside from this, there are no special regulations which must be observed.
12. General remark
The Act on Limited Liability Companies stipulates certain mandatory provisions which must be contained in the articles of association. If the articles fail to satisfy these minimum requirements, the company will not be entered into the commercial register. In practice, the notary would refuse to notarise such articles of association and would instead first ensure that they at least satisfy the legally prescribed minimum in terms of their content. We will explain such mandatory provisions in further detail below. In addition, we shall briefly outline some provisions which can typically be found in the articles of a GmbH.
13. Mandatory provisions
The mandatory provisions pertaining to the articles of association as set out under section 3, paragraph 1 GmbH are explained in the following subsections.
14. Mandatory provisions: company name
The name of the company must contain the designation ‘Gesellschaft mit beschränkter Haftung’ or a generally understandable abbreviation thereof, such as ‘GmbH’.9 Apart from this restriction, the name of the company may be freely chosen. Names can be entirely fictitious.
However, when selecting the name of the company certain limitations which apply to all trading companies must be observed. First, the name must identify the company appropriately and distinguish it from any other company.10 Secondly, the name of the company may not contain any element which might mislead people as to the true business situation involved.11
Finally, the company name must be distinct from other company names which are already registered in the commercial register of the same community.12
15. Mandatory provisions: place of business
The articles must state the company’s place of business.13 The company’s place of business is the domestic location as indicated in the articles of association.14 This means that the business address in Germany may be freely chosen, even if the company does not have any production site or administration in this country. Thus, even when it is only active abroad, the GmbH may have its formal place of business in Germany. Before the Act to Modernise the Law Governing GmbHs and Combat Abuses came into force, a German GmbH could only choose as its place of business the location where it either had its administrative headquarters or maintained business premises.
16. Mandatory provisions: business purpose
The articles must furthermore state the purpose of the business.15 A GmbH may be set up for any legally permissible purpose,16 whether it be economic, political, religious, athletic or otherwise.
Some business activities may require the prior consent of the authorities, examples here are for instance banking and the activities of other credit institutions, insurance companies, weapons manufacturing and similar enterprises. Apart from these few exceptions, general permission or a licence to establish a GmbH and to conduct its business is not required in Germany. The company only needs to be registered with the trade tax office (Gewerbesteueramt) for tax purposes.
17. Mandatory provisions: share capital (Stammkapital)
Unless a GmbH is formed as an Unternehmergesellschaft, its share capital must amount to at least €25,000, which must be set out in the articles of association.17
18. Mandatory provisions: shares
The articles must state the number and the nominal values of shares held by each shareholder.18 Before the Act to Modernise the Law Governing GmbHs and Combat Abuses came into force, a shareholder could not subscribe for more than one share in a GmbH at the time of its formation. Now, a shareholder may hold several shares when establishing the GmbH or may acquire these later. The shares held by a shareholder may also have different nominal values. The nominal value of each share must be stated in full in euros (at least €1.00); that is, the creation of ‘penny-shares’ is not possible.19 Prior to the Act to Modernise the Law Governing GmbHs and Combat Abuses, the minimum nominal value of each share to be held by a shareholder had to amount to €100. Even if several shares with different nominal amounts are created, the total sum of the nominal amounts of all shares together must be identical to the share capital amount as stated in the articles.20
Unlike a stock corporation, a GmbH does not issue tangible shares and its shares may not be traded (directly) on a stock exchange. The ownership of a share in a GmbH is not determined by the ownership of a tangible piece of paper, but by the list of shareholders which is to be recorded in the commercial register at the request of the managing director or a notary (if the latter participated in any changes to the shareholders’ structure or their respective shareholding). The list is accompanied by a corresponding notarial deed or documentation issued by the managing directors indicating the distribution of the shares between the founding shareholders and any subsequent notarial deeds pertaining to the transfer of shares in a GmbH to a third person. For further details on changes in the shareholder structure, please refer to Sections 178–193.
19. Mandatory provisions: shareholders
The articles of association must set forth the names of the founding shareholders,21 wherein a GmbH may have either one or several shareholders.22 Shareholders in a GmbH may be individuals or legal entities. There are no restrictions and permission is not required with regard to foreign individuals or entities becoming shareholders in a German GmbH.
20. Mandatory provisions: miscellaneous
If the GmbH is only established for a limited period of time or if the shareholders have additional obligations towards the company apart from contributing the part of the share capital they undertook to contribute, these particular items must also be included in the articles of association.23 Additional obligations of this kind could for instance be the provision of goods and services, the payment of cash outside the subscribed share (eg, a premium or agio) or the provision of other assets necessary for the operation of the business (office space, licences, machinery, etc).
21. Other typical provisions
Apart from the mandatory provisions to be contained in the articles of association as set forth under Sections 13–20, the shareholders are principally free to include other provisions in the articles, and typically do so. The articles may deviate from most of the statutory provisions as provided in the Act on Limited Liability Companies.
22. Other typical provisions: business year
Typically, and if the articles of association do not stipulate otherwise, the business year equals the calendar year. However, the articles may provide for a business year which deviates from the calendar year, as long as it does not exceed a period of 12 months.24
23. Other typical provisions: representative powers of the managing directors
According to the Act on Limited Liability Companies, a GmbH under German law is represented jointly by all of its managing directors.25 If the company has only one managing director, he or she represents the company individually. However, the articles of association typically stipulate that a company is either represented by only one managing director, or, in the case of there being several managing directors, by either two managing directors or a managing director together with an authorised signatory (Prokurist). Furthermore, the articles often stipulate that the managing directors are exempted from the prohibition of self-dealing in order to be able to enter into agreements between themselves and the GmbH.26
24. Other typical provisions: powers of the shareholders’ meeting and consent requirements
Very often, the articles of association also contain information regarding the powers of the shareholders’ meeting. The responsibilities of the shareholders’ meeting of a GmbH are set forth under section 46 of the Act on Limited Liability Companies. However, these powers may to a large extent be amended by the articles of association.
Typically, the articles provide for two different possible amendments of the powers of the shareholders’ meeting. First, the articles usually provide for certain types of transactions the managing directors may not enter into without the prior consent of the shareholders’ meeting. In this case, the powers of the shareholders’ meeting are extended in the articles. Secondly, the articles may also stipulate that powers of the shareholders’ meeting are shifted to another corporate body such as a supervisory board or even the managing directors. The articles may thus reduce the powers of the shareholders’ meeting.
24a. Other typical provisions: formal requirements for the shareholders’ meeting
Very often the articles contain provisions regarding formal procedures and rules pertaining to the calling and holding of a shareholders’ meeting.27 These typically set forth who is responsible for calling a meeting, the notice period for calling regular and extraordinary shareholders’ meetings, the means of communication by which the invitation must be extended, the majority which is required to pass a resolution, whether or not a resolution may also be passed outside a shareholders’ meeting and if yes, which means of communications are acceptable to do so (telephone, facsimile, email, etc), what must be contained in the minutes of the meeting and, in some cases, which formal requirements must be observed when objecting to shareholders’ resolutions.
25. Other typical provisions: change in the shareholder structure
The articles often contain provisions with respect to a change in the shareholdings in the company. The articles may stipulate that transferring shares in the company requires the prior consent of the GmbH.28 Furthermore, a typical provision pertains to a pre-emptive right on the part of the other shareholders in the event that a shareholder wishes to sell its share to a third party. This enables the prevention of third-party access to the company, and allows the shareholder structure to remain homogeneous.
25a. Other typical provisions: finances
Provisions regarding the financial situation may also often be found in the articles. They set forth, first, certain formal requirements with regard to the establishment of the financial statements on behalf of the company. Secondly, the articles often contain provisions on the use and distribution of the profits of the GmbH.
26. Sample articles (Musterprotokoll)
Since the Act to Modernise the Law Governing GmbHs and Combat Abuses entered into force, the Act on Limited Liability Companies now also provides sample articles of association which may be used as an alternative to individually drafted articles when establishing a GmbH. The sample articles contain all the information mandatorily required according to the Act on Limited Liability Companies.29 They contain provisions pertaining to the firm and the seat of the company, its purpose, the share capital and the names of the shareholders, the nomination of the managing directors and the list of shareholders (Gesellschafterliste). In addition to these mandatory provisions, the sample articles may not contain any other provisions which in any way deviate from the Act on Limited Liability Companies.30 One advantage of using sample provisions is that the notarial fees are lower when a GmbH is established based thereon.31 Additionally, the process of registration in the commercial registers may be faster for these ‘sample GmbHs’, even though there is little empirical data to date in this regard.
The sample articles, however, can only be used by those companies which have up to three shareholders and only one managing director.32 Furthermore, the sample articles may only be used if the share capital is raised in cash and not in the form of contributions in kind.
27. Notarial form requirement
A notarial deed, which must be signed by all shareholders, is required for the articles of association and in order to establish the GmbH.33 This means that all shareholders, whether they are natural persons or legal entities, have to appear in person before the notary or send a duly authorised agent in their place (for further details on agents see Section 30). In order to draw up the notarial deed, the content of the deed of establishment and the articles of association must be read aloud to the present or represented shareholders in the presence of the notary. After the deed has been read aloud, it must be signed by all shareholders (or their representatives) and the notary.
The notarial form described above is also required if any further changes are made to the articles of association in the form of either the addition or deletion of content.34
28. Notarial form requirements: notarisation abroad
Even though they are limited and regulated by statute, notarial fees in Germany can sometimes be rather high compared with other European countries. This sometimes raises the question as to whether a notarisation of certain documents relating to a GmbH – in particular share transfer agreements – may be undertaken by a foreign notary in order to save costs. Under German law, the recognition of notarial deeds issued in a foreign country is subject to very stringent rules and the issue of whether or not a notarisation meets the requirements under German law in specific cases is often highly disputed amongst scholars and courts. If difficulties associated with the validity of notarial deeds are to be avoided, it is advisable to have any deeds in connection with a GmbH notarised by a notary in Germany. In the event that a notarisation shall be carried out by a foreign notary, in each case the parties should assess whether, in view of the transaction or the amendment of the articles in question, the notarisation by the specific foreign notary would be accepted as equivalent to notarisation performed by a German notary. In connection with a transfer of shares, effected in certain Swiss cantons, courts have recognised the notarisation as being equivalent to a notarisation by a German notary.35 The issue of potential equivalence usually only bears relevance in this particular context (share transfer), as the notarial fees for the foundation of a GmbH are comparatively low.
29. Notarial form requirements: shareholder signature
As outlined in Section 27, in principle the shareholders must sign the notarial deed of establishment for the GmbH and the articles of association in person. Legal entities are represented by their responsible corporate body, that is, their directors. With regard to foreign legal entities, the notary may request sufficient evidence of the authorisation of the person representing such an entity to sign legal documents on its behalf (eg, a notarised excerpt from the company register certified with an apostille etc). Moreover, the shareholders may also be represented by agents (see Section 30).
30. Notarial form requirements: representation by agents
The shareholders who must sign the notarial deed of establishment for a GmbH may also be represented by agents. In this case, the power of attorney by virtue of which they are acting requires notarisation itself.36 A simple written power of attorney is not sufficient (unlike in the case of a transfer of shares). The power of attorney may also be notarised by a foreign notary, but must then be further certified by means of an apostille in order for it to be recognised in Germany. There may be an exception in this regard if the country where the power of attorney has been notarised has entered into a treaty with Germany according to which an apostille is not required for the recognition of such foreign documents within Germany (eg, Austria, Belgium, France, Italy, Denmark). In this case, a simple notarisation of the power of attorney is deemed sufficient. A list of countries and the formal requirements for the recognition of documents drawn up in these countries may be found on the website of the German Institute of Notaries (Deutsches Notarinstitut – DnotI) under www.dnoti.de.
30a. Amendment of articles of association
Any subsequent amendments to the articles of association (in particular changes with regard to the stated share capital) must be approved by a shareholders’ resolution.37 This authority to amend the articles may not be transferred to another corporate body such as, for example, the supervisory board (see Section 73 for details). The resolution requires a majority of three quarters of the votes cast (not of the total share capital) and must be notarised.38 The articles may provide for a higher majority and may even require the consent of all shareholders. However, they may not prescribe a lower majority (eg, a simple majority). The articles of association may stipulate additional requirements such as, for example, the consent of a particular shareholder and special formal requirements in connection with the invitation to vote and the passing of the resolution. The consent of a third party outside the company (eg, a bank or the authorities) or of another corporate body to the amendments to the articles is, however, not permissible. The amendments to the articles only become valid once they have been entered into the commercial register.39
31. Documents to be filed
A GmbH must be registered with the relevant commercial register in order to be fully established.40 The commercial register in Germany is maintained by the local courts (Amtsgerichte). The competent local court is the court in whose district the company has its business seat.41
If the stated share capital is raised by contributions in cash, the registration may only be filed if at least one quarter of each share has been contributed and the total contributions paid in for all shares amount to at least half of the stated share capital.42 In the event that the GmbH is established by way of contributions in kind, these contributions must be paid in in full prior to filing.43 The applications for entry in the commercial register are to be signed and filed by the managing directors.44 Furthermore, the signatures of the managing directors must be notarised, that is, the application for registration must be signed before a notary and forwarded to the court for entry in the commercial register accompanied by an electronic signature of a notary.45 The application letter together with the documents is therefore filed for entry into the commercial register by the notary on behalf of the company.
The application itself must contain the following documents and declarations:46
•articles of association and, if applicable, power of attorney of the agents who signed the notarial deed on behalf of the shareholders;
•documents providing evidence for the nomination of the managing directors, if their nomination has not yet been recorded in the articles of association;
•list of shareholders including family name, first name, date of birth, domicile (in the case of a legal entity: place of business), subscribed shares, indicating their respective nominal value, the serial number thereof in the list of shareholders and the shareholder who has subscribed for the respective share;
•agreements which are the basis for contributions in kind (if applicable) on the part of the shareholders, in particular the non-cash contribution report (Sachgründungsbericht); and
•in the case of a contribution in kind, expert opinion proving that the value of the assets contributed in kind is at least on the level of the nominal capital.
The former stipulation that if a licence is required for the company the respective licence document must also be filed ceased to apply once the Act to Modernise the Law Governing GmbHs and Combat Abuses entered into force. This means that a GmbH may be registered in the commercial register even if the required licence is still missing. However, the licence must be submitted without delay once it has been granted.
To facilitate communication with the GmbH, the new Act on Limited Liability Companies now requires that the company must file a domestic business address for registration.47 All communication may then be forwarded to this address. Moreover, the company may voluntarily file a domestic address of a third person entitled to receive communication on behalf of the GmbH.48
31a. Declarations to be issued
Within the application, the managing directors must issue a declaration to confirm that all contributions towards the stated share capital have been duly made according to the minimum statutory requirement (ie, half of the amount in the case of a cash contribution, the full amount in the case of a foundation on the basis of an in-kind contribution) and that the respective amounts are ultimately at the free disposal of the managing directors.49 If the court has serious doubts regarding the correctness of these declarations, it may request additional documentation.50 If a shareholder and the GmbH have agreed that his or her contribution shall be repaid to him or her, this arrangement must also be recorded in the commercial register.51 For details regarding the conditions for the fulfilment of the shareholder’s obligation to contribute towards the stated share capital please refer to Section 162.
In addition, the managing directors must issue a declaration to confirm that they are not prohibited from practising certain professions which are either wholly or partly identical in nature to the business purpose of the GmbH, and that they have not been sentenced either in Germany or abroad under, inter alia, certain provisions of the German Criminal Code, the German Commercial Code and the German Law Regulating the Transformation of Companies.52 The managing directors must also confirm that they have been instructed by the court, a domestic or foreign notary, a person practising a similar legal profession or a consular clerk as to their unlimited disclosure obligation towards the court. Such instruction may also be given in written form.53
Finally, the managing directors must indicate the form of their power of representation in the application letter, for example, joint or individual, and any exemptions from section 181 of the German Civil Code,54 which allows contracts between the managing director him- or herself and the GmbH or between the GmbH and other companies represented by the managing director (self-contracting).
32. Registration and publication
Once all of these documents have been filed, the court responsible for the respective commercial register assesses whether all the requirements for establishing a GmbH have been fulfilled. If the company has not been properly established or the registration has been incorrectly filed, the court may refuse to register the GmbH.55 This applies in particular if the contributions in kind have been ‘significantly’ overvalued. In such a case, however, the court may order that the respective shareholder must match the missing share capital by means of a payment in cash.56 Typically, the court will notify the filing notary if it believes that the application contains certain errors or the company formation is incorrect in order to give the notary and the shareholders the opportunity to amend the mistakes.
Once all of the documents have been filed correctly, the GmbH is then registered with the commercial register. When registering the company, the court publishes the trade name and the place of business of the company, the purpose of the company, the registered share capital, the day upon which articles of association were signed and the names of the managing directors in the commercial register.57 Additionally, the powers of representation of the managing directors are also published in the commercial register.
Since the Act to Modernise the Law Governing GmbHs and Combat Abuses came into force, it has also been a requirement that the domestic business address under which documents or other notices may be served to the company is published in the commercial register.58 If the company has also nominated a person who is entitled to receive declarations of will and documents served upon the company in the company’s name, these details must also be published.59 Such persons are typically legal or tax advisers, and as long as they are registered with the commercial register, they are deemed to be authorised to receive declarations of will and other documents on behalf of the company. The publication of these addresses facilitates communication with the GmbH and it is more difficult for managing directors to avoid receiving documents on behalf of the GmbH. Moreover, if the company cannot be reached under its registered address, under the address of the third party or under any other known domestic address, declarations of will and other documents may be served via public notification (öffentliche Zustellung).60 In addition, if the GmbH has no managing director, either in factual or in legal terms (Führungslosigkeit), declarations of will and documents may also be served upon the shareholders of the company.61 Therefore, the possibility of ‘burying’ a GmbH by avoiding the service of declarations of will and other documents is significantly reduced.
In addition, the information to be registered as outlined above must also be published in the electronic information and communication system prescribed by the administration of justice department for the respective state (Landesjustizverwaltung). The publication may thus be effected in different ways depending on the state in which the company is registered. Typically, the information is published under www.handelsregisterbekanntmachungen.de, or in the electronic federal gazette (elektronischer Bundesanzeiger; www.bundesanzeiger.de).
33. Legal consequences of registration
Upon registration, the GmbH is fully established as separate legal entity.62 Any rights and obligations created by the Vor-GmbH are transferred automatically by law to the fully established GmbH.
E. Unternehmergesellschaft (haftungsbeschränkt)
34. General
When the Act to Modernise the Law Governing GmbHs and Combat Abuses was enforced, a second type of GmbH was created which is referred to as an ‘Unternehmergesellschaft (haftungsbeschränkt)’ or ‘UG (haftungsbeschränkt)’. The characterising feature of the Unternehmergesellschaft is that its registered share capital is lower than €25,000.63 It may even be as low as just €1.00.64 The name of the company must contain the words ‘Unternehmergesellschaft (haftungsbeschränkt)’ or ‘UG (haftungsbeschränkt)’,65 by which means it should be clearly distinguishable from an ‘ordinary’ GmbH, which has a minimum share capital of €25,000.
The Unternehmergesellschaft may only be established by way of a contribution in cash, and not by contributions in kind.66 The contribution must be paid in full prior to the filing of the company for registration.67
The Federal Supreme Court has confirmed the prohibition of contributions in kind by stating that the formation of an Unternehmergesellschaft by way of the company being split off from an existing entity pursuant to section 123, paragraph 2, no. 2 of the German Law Regulating the Transformation of Companies is not permissible.68 In another decision of the same year,69 the court ruled, however, that the prohibition of contributions in kind for an Unternehmergesellschaft should not apply to situations in which the share capital of the company is increased by a contribution in kind which results in a share capital for the company of €25,000 or more, that is, the minimum share capital of a (regular) GmbH. By these means, the Unternehmergesellschaft would then fulfil the criteria of a regular GmbH upon the registration of the capital increase. The court argued that otherwise the founders of a Unternehmergesellschaft would be discriminated against in comparison with the founders of a regular GmbH, where a contribution in kind is possible at any time. However, a capital increase in the case of the Unternehmergesellschaft which does not amount to the level of the minimum share capital of a GmbH is still only possible by way of contributions in cash.
Prior to reaching the minimum stated share capital of €25,000, the Unternehmergesellschaft is obliged to create capital reserves (Rücklagen) in its balance sheet and must increase these reserves by a quarter of its yearly net profits (Jahresüberschuss) until the minimum stated share capital amount for a GmbH is reached or exceeded.70 The GmbHG also lists cases in which the capital reserve may be used for purposes other than to increase the share capital (eg, to balance yearly losses or loss-carry forwards). In order to appropriately account for the low capital base of the Unternehmergesellschaft, a shareholders’ meeting must be called not only when half of the stated share capital is lost according to the balance sheet of the company (as is the case in a GmbH), but also as soon as the company is threatened by insolvency (drohende Zahlungsunfähigkeit).71 Once the minimum level for the stated share capital for a GmbH (€25,000) is reached, the Unternehmergesellschaft may change its company form and call itself a GmbH, and the restrictions outlined above no longer apply.72 However, it may also choose to retain the company description ‘Unternehmergesellschaft’.
Aside from these particular regulations, the Act on Limited Liability Companies applies in full to the Unternehmergesellschaft.
1Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 1 (FRG).
2Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s11, para. 1 (FRG).
3So called ‘Verlustdeckungshaftung’.
4Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s7, para. 2, sentence 1 (FRG).
5Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 4 (FRG).
6Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 4 (FRG).
7Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies), 1892, s7, para. 3 (FRG).
8Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies), 1892, s9, para. 2 (FRG).
9Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s4 (FRG).
10Handelsgesetzbuch (HGB) (Commercial Code) 1897, s18, para. 1 (FRG).
11Handelsgesetzbuch (HGB) (Commercial Code) 1897, s18, para. 2 (FRG).
12Handelsgesetzbuch (HGB) (Commercial Code) 1897, s30, para. 1 (FRG).
13Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 1, no. 1 (FRG).
14Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s4a (FRG).
15Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 1, no. 2 (FRG).
16Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s1 (FRG).
17Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 1; s3, para. 1, no. 4 (FRG).
18Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 1, no. 4 (FRG).
19Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 2 (FRG).
20Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 3 (FRG).
21Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 1, no. 4 (FRG).
22Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s1 (FRG).
23Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 2 (FRG).
24Handelsgesetzbuch (HGB) (Commercial Code) 1897, s42, para. 2, sentence 2 (FRG).
25Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s35, para. 2, sentence 2 (FRG).
26Bürgerliches Gesetzbuch (BGB) (Civil Code) 1900, s181 (FRG).
27For details see Section 73a et seq.
28Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s15, para. 5 (FRG).
29Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s3, para. 1 (FRG).
30Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s2, para. 1a (FRG).
31Gerichts-und Notarkostengesetz (GnotKG) (Court and Notary Cost Act) 2013, s107, para. 1.
32Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s2, para. 1a (FRG).
33Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s2, para. 1 (FRG).
34Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s53, para. 2, sentence 1 (FRG).
35For further details on the notarial form requirement in connection with the transfer of shares, see Section 181.
36Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s2, para. 2 (FRG).
37Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s53, para. 1 (FRG).
38Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s53, para. 2 (FRG).
39Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s54, para. 3 (FRG).
40Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s7, para. 1; s11, para. 1 (FRG).
41See Section 15 for details on the place of business of a GmbH.
42Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s7, para. 2, sentences 1 and 2 (FRG).
43Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s7, para. 3 (FRG).
44Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s78 (FRG).
45Handelsgesetzbuch (HGB) (Commercial Code) 1897, s12 (FRG).
46Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 1 (FRG).
47Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 4, no. 1 (FRG).
48Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s10, para. 2, sentence 2 (FRG).
49Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 2, sentence 1; s7, paras. 2, 3 (FRG).
50Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 2, sentence 2 (FRG).
51Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s19, para. 5, sentence 2 (FRG).
52Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 3 and s6, para. 2, sentence 2, nos. 2 and 3 (FRG). For details see Section 98.
53Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 3, sentence 2 (FRG).
54Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s8, para. 4, no. 2 (FRG).
55Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s9c, para. 1, sentence 1 (FRG).
56Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s9, para. 1 (FRG).
57Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s10, para. 1 (FRG).
58Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s10, para. 1, sentence 1 (FRG).
59Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s10, para. 2, sentence 2 (FRG).
60Handelsgesetzbuch (HGB) (Commercial Code) 1897, s15a (FRG).
61Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s35, para. 1, sentence 2 (FRG).
62Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s11, para. 1 (FRG).
63Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 1 (FRG).
64Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5, para. 2, sentence 1 (FRG).
65Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 1 (FRG).
66Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 2, sentence 2 (FRG).
67Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 2, sentence 1 (FRG).
6811 April 2011, Bundesgerichtshof (German Federal Supreme Court) (II ZB 9/10).
6919 April 2011, Bundesgerichtshof (German Federal Supreme Court) (II ZB 25/10).
70Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 3 (FRG).
71Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 4 (FRG).
72Gesetz betreffend die Gesellschaft mit beschränkter Haftung (GmbHG) (Act on Limited Liability Companies) 1892, s5a, para. 5 (FRG).
