date | theme

15.06.2019 | Division of operations: Requirements – Legal consequences – Avoidance

17.06.2019 | Legal consequences in the split of operations

19.06.2019 | Personal interdependence: domination – groups of people – relatives

21.06.2019 | The material interdependence in the split operation

24.06.2019 | The minority shareholder at Besitz-GbR (this contribution)

27.06.2019 | The Wiesbaden model: avoiding the division of businesses with spouses

You can avoid a division of operations in advance if you include a minority shareholder in the Besitz-GbR. For this purpose, the holding company (GbR) must have agreed on a unanimity agreement and the management must be jointly exercised by both GbR shareholders.

In the video we show you various strategies to avoid a division of operations in advance, as well as in retrospect or to consciously maintain it.

1st principle of unanimity and majority

By including a minority shareholder, the division of operations can be avoided by means of the unanimity and majority principle. According to the BFH jurisprudence, this is indisputable if a sole shareholder is not involved in the operating company and this is a partnership. In addition, unanimous resolutions of the shareholders' meeting are required for all transactions in connection with the provided operating bases.[60] If the holding company is a GbR, the division of operations is always avoided, since the unanimity principle according to § 709 para. 1 BGB applies, unless otherwise regulated by the social contract.

However, if the holding company is an OHG or KG, the unanimity or a qualified majority is contractually agreed. The unanimity or qualified majority must include all business of daily life and no partner may be appointed contractually as the sole managing director of the company. If a partner is appointed as the sole managing director of the company, de facto control arises. [] 61]

In the Wiesbaden model, there is the problem of the involvement of the spouse, such as in a divorce. This can be circumvented by including a minority shareholder. However, in return shares in the ownership company are granted to a foreign person, which is often not desired in practice.

3rd Conclusion

If the operating company is operated in the legal form of a GmbH, the avoidance of the division of operations by the inclusion of a sole operating partner is in principle not possible. To control a corporation, it is sufficient to be able to exercise control over the business of daily life, which is carried out exclusively by the managing director at a GmbH. [62] In the case of resolutions on the appointment and removal of managing directors, the simple majority applies and so majority shareholders can designate the managing director and also develop the will to act. [63] In order to avoid the division of operations by inclusion of a sole operating partner, unanimity resolutions or qualified majority resolutions must be agreed in the statutes of the Betriebs-GmbH, which also apply to everyday business.