On 20 April this year, a commission of experts from the Federal Ministry of Justice and Consumer Protection presented a draft law on the modernisation of partnership law (MoPeG). This bill contains far-reaching and remarkable changes that will have a significant impact on company law practice. One of the most noted innovations of the draft is certainly the company register for civil law companies (GbR). The following article provides a brief overview of some of the major planned MoPeG changes. At this point, it should be pointed out again that the regulations described below are parts of the draft law, not already legally valid laws.
The legal standardization of the legal capacity of the GbR is one of the core areas of the MoPeG. Until now, the (partial) legal capacity of the GbR was recognised under judicial law. The MoPeG dares to adapt written law to practiced law. For this purpose, the bill separates the legally competent GbR from the non-legally competent GbR. In future, the legally competent GbR should serve as the guiding principle for all partnerships under national law. Therefore, the draft law provides for extensive new regulations of the previous GbR law.
According to the ideas of the expert commission, a GbR is legally competent if it is to participate in legal transactions according to the common will of the shareholders., § 705 para. 2 BGB-E. Consequently, it is a subjective connection of legal capacity. However, the legal capacity of the GbR has also been linked to the new company register. Accordingly, a GbR should be deemed to have arisen and thus have legal capacity if it is entered in the company register, § 719 para 1 p. 2 BGB-E. According to the draft, the legally competent GbR will in future itself bear rights and obligations. Accordingly, the assets transferred to the company, as well as assets subsequently acquired by the GbR, are directly attributable to the company, § 713 BGB-E.
2. The company register
As already mentioned, the company register is one of the most striking proposals in the MoPeG draft. At the same time, it is a long-needed adaptation to the needs of economic justice.
2.1 The function of the company register
The company register is intended to help the GbR, which is officially legally legally competent according to MoPeG, to publicize legal traffic in the past. Due to the legally provided minimum content of the facts to be entered (cf. 2.2.), the company register allows access to many relevant information about the registered GbR. Thus, for example, current or potential contractual partners can easily access all required data via the legally competent GbR. Until now, such information gathering is not readily possible due to the lack of publicly available data. In addition, the company register promotes the protection of legal transactions, since all parties involved can rely on the content of the company register. The MoPeG guarantees this protection by referring to the legitimate expectations of the commercial register (§ 15 HGB), § 707 para. 2 BGB-E.
In addition, the publicity of the registered GbR is rounded off by the (voluntary) name suffix “eGbR” or “registered company civil law”, § 707a para. 3 BGB-E. Due to this name addition, it would be recognizable at first glance that participants in legal transactions are dealing with a GbR with legal capacity and registered in the company register. Furthermore, the concept of the MoPeG provides that registration in the company register for a legally qualified GbR is a prerequisite for registration in further registers. This should apply, for example, to the land register (e.g. as property owner), the commercial register (e.g. as shareholder of an OHG) and the GmbH shareholder list. The combination of the registration of GbR in the company register and the respective special register would probably lead to a considerable simplification in practice. Until now, all current shareholders of a GbR have to be included in the respective special registers. This would be superfluous by entering the GbR entered in the company register.
According to the previous draft of the MoPeG, the contents to be entered in the planned company register are strongly based on the commercial register. §§ 707 para 2, 707a para 1 BGB-E regulate the concrete facts to be entered. In particular, the following information should be subject to registration:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.