Planned reform of partnership law

Legal experts have been discussing and calling for a reform of partnership law (civil law partnership (GbR), OHG, KG, partnership company) for several years. The legislator has taken this up and initiated the legislative process at the end of last year with a draft bill on the basis of the draft presented last spring by a commission of experts it had appointed (the so-called "Maurach draft"). The reform is expected to be passed during the current legislative period this summer and come into force on January 1, 2023. The aim of the reform project is to modernize the law of partnerships as a whole, to adapt it to the needs of current business life and, in particular in the case of civil law partnerships, to adapt it to case law and common contractual arrangements in practice.

The main points at a glance:

1. recognition of the legal capacity of the external civil law partnership:

Back in 2001, the BGH ruled in a landmark judgment that a civil law partnership, when it appears externally in legal transactions, is not merely a cooperation-like legal relationship between the participating partners, but an independent legal entity with its own rights and obligations, which can form its own assets. This is now also to be recognized in the law. According to the draft, a distinction is to be made in future between the external GbR with legal capacity, which participates in legal transactions with third parties according to the will of its partners, and the purely internal company, generally without its own assets, in which only the legal relationships between the partners are subject to company law.

2. introduction of a company register for the GbR:

While other companies and corporations with legal capacity can prove their existence and the power of representation of the persons acting on their behalf by being entered in a public register (commercial, association or cooperative register), the accuracy of which business partners can generally rely on, a GbR has so far not had this option. For this reason, a company register - largely corresponding to the commercial register - is to be created for external GbRs. In principle, registration in this register should only be voluntary and, in particular, not a prerequisite for the legal capacity of the external GbR. However, prior entry in the company register is to be mandatory in future for the performance of certain legal transactions, such as the acquisition of land or shareholdings in other companies by the GbR. In return, the entry of the partners in the land register or the list of partners or commercial register entry in the case of shareholdings will no longer be necessary due to the GbR not being entered in the register. In addition, entry in the company register will in future enable the GbR to participate in transformation processes in accordance with the Transformation Act (merger, demerger or change of legal form). In order to draw attention to the registration, a registered GbR will have to bear the legal form suffix "eGbR".

3. free choice of the registered office of the partnership:

Under the current legal situation, it is assumed that a partnership must have its registered office at the place where the de facto management is located. This can be particularly problematic if this is a location abroad. In line with the law already applicable to corporations, the draft therefore provides that partnerships will also be able to freely choose their registered office in future and designate a place in Germany as such even if the management is located abroad.

4. amendment and regulation of the law on defective resolutions:

Decisions by shareholders on matters relating to their company are made by shareholder resolution. If such a resolution suffers from a defect (in form or content), this currently leads to the resolution being null and void in the case of partnerships, which is particularly unfortunate if the defect only becomes apparent or is asserted after a longer period of time. In the law of stock corporations, on the other hand, which is also applied accordingly to limited liability companies, only individual, particularly serious defects lead to the nullity of the resolution, the others only lead to the resolution initially being effective but contestable within a period of generally one month. If such a challenge is not made, the defect becomes irrelevant and the resolution becomes finally effective. The draft bill provides for the introduction of a corresponding system in the German Commercial Code (HGB) for OHGs and KGs. In the case of the GbR, however, the current legal situation is to remain as it is according to the current state of discussion, albeit with the possibility for the company to declare the law on defects in resolutions of commercial partnerships applicable by means of a corresponding provision in the articles of association.

5. opening up commercial partnerships to freelancers as well:

The legal form of an OHG or KG can currently only be chosen by companies whose corporate purpose is the operation of a commercial business or the management of their own assets. Freelancers are therefore excluded. A lawyers' or doctors' KG or GmbH & Co. KG is therefore currently not possible. The draft bill aims to change this and open up the corresponding legal forms for freelancers, albeit with the proviso that the respective professional law also permits this. In the case of lawyers, whose professional law is subject to the legislative competence of the federal government, corresponding professional regulations are planned in parallel with the reform of partnership law. For other freelancers, such as the medical professions, professional law is the legislative responsibility of the federal states, which means that different regulations may apply here.

VOELKER's corporate law team will continue to monitor the reform of the legislative process. It will be particularly interesting to see whether and, if so, which changes to the articles of association of existing GbRs and commercial partnerships will be necessary or recommended as a result of the reform once it has been passed. We will keep you up to date on this on our website.