In 2020, for the first time, the Responsible Property Foundation cited a legislative proposal for a GmbH with tied assets as a new legal form, which has now been rejected. In February 2021, a group of independent professors drew up a new legislative proposal for the company with tied assets, the GmbH-gebV. In the first place, there is great interest in this form of business and society. Representatives of the CDU, SPD, Bündnis 90/Die Grünen and FDP have also spoken out in principle for such a new form of society. With a view to the Bundestag election, it is therefore worthy of the company form to be discussed here.

The GmbH with tied assets is characterized by a certain special feature. Central, as the name suggests, is the binding of the company assets. This main criterion is expressed in many characteristics.

Unlike a normal GmbH, surpluses may not be distributed to the shareholders either from the current operation or during liquidation. Therefore, the shareholders do not participate in the GmbH, because they hope for profits for themselves. Instead, they are rather trustees of society who want to manage and develop the company. Therefore, they are also called owners of responsibility. The motivation behind this can be, for example, that they are convinced of the meaningfulness of economic activity. Accordingly, transfers to affiliated companies of a shareholder are also prohibited. In addition, enjoyment rights may not be granted either to shareholders or to persons associated with them. In the event of liquidation, the proceeds of liquidation shall be transferred to a predetermined beneficiary. This can be a non-profit institution or another GmbH with tied assets.

Nevertheless, the owners of responsibility for their performance should receive an appropriate fixed remuneration that allows them a suitable life and retirement provision. This means that companies are no longer understood as a means to profit. Rather, profits should serve the purpose of the company and not the shareholders.

The draft also contains various measures to ensure asset retention. In particular, it was ensured that securing the asset tie-up is not in the hands of the company. Therefore, the draft proposes an internal reporting obligation in combination with an external audit. Accordingly, the management has a reporting obligation to the shareholders or to a possibly existing Supervisory Board. Above all, the adequacy of the transactions between the shareholders and the company should be discussed. External auditing shall be carried out by an external auditor who may not be the company’s statutory auditor. Both the report of the management and that of the auditor shall be submitted to an independent body. The social contract shall determine which independent institution this shall be. The requirement for the independent body is that it is bound by the principles of ‘fiduciary entrepreneurship’ in its statutes. The independent body has extensive powers.

The GmbH is to be designated as a company with tied assets, so that the purpose of the assets is clearly visible. According to the first draft law, the company GmbH should be called in ownership of responsibility. There has been considerable criticism of this. This term surrogates that only the GmbH with tied assets is responsible. On the other hand, profit-oriented companies do not act responsibly per se. Only the GmbH in responsibility ownership has then taken the positive concept of responsibility for itself. However, this is not always the case. Accordingly, in order not to create confusion and unequal treatment, a new concept had to be found.

The GmbH with tied assets can not only be founded in its original form, but can also be created by changing the articles of association within the framework of a “ordinary” GmbH. This requires a notarized decision on asset commitment. This clearly defines the corresponding commitment of the assets and the destinatary of the assets of the GmbH with tied assets in the event of liquidation must be specified. In addition, the last person to take over must be named in the event of the last shareholder dying. The asset-retention decision shall also contain an opinion on the consequences and possible planned asset-retention measures for employees and their representatives. At least one month before the date of the shareholders’ meeting, the asset commitment decision shall be forwarded to the company’s works council.

The purpose of the enterprise can be not only economic but also non-profit. This should lead to the fact that a GmbH with tied assets is not abused for purpose-free management of its own capital in the sense of a pure asset management company without its own business activities.

Special protection is introduced for the claims of creditors of the founders or shareholders before the establishment of the GmbH with tied assets. This serves to ensure that the founders or shareholders can no longer evade the legitimate claims of creditors by founding and transferring assets to a GmbH with tied assets. Therefore, a founder or shareholder must provide the creditor with security in accordance with § 232 BGB after he has reported within six months after the announcement of the asset commitment decision. For this purpose, money can be deposited or guarantees can be provided or claims attached.

In principle, shares in a GmbH with tied assets may not be sold above the nominal value. Therefore, the Articles of Association of a GmbH with tied assets provide that the sale of shares is only possible against remuneration up to the amount of the contribution made, including any additional payments. Further restrictions on the sale of shares are also possible with regard to the sale price.

Fixed assets can also be circumvented within the framework of the GmbH with tied assets. It is true that an atypical silent partner cannot serve to circumvent the asset-retention arrangements. Nevertheless, the regulations by this shareholder related persons can be avoided. These remain significant weaknesses of the current model, which makes the introduction of the new legal form unlikely in the short term. A GmbH with tied assets can serve to maintain a company in the long term. Similar results could also be achieved with a foundation. However, the constructions with foundations have a certain complexity, so that the process could be accelerated by a GmbH with tied assets.