The Act to Modernize the Law on Civil Law Partnerships (MoPeG) came into force on January 1, 2024, bringing comprehensive reform to the law of civil law partnerships (GbR).
Since family-owned companies (also known as family pool companies) are often organized in the legal form of a GbR or limited partnership, the new regulations of partnership law that took effect with the enactment of the MoPeG are of particular relevance for them.
The term "family pool" is an untechnical term used to describe corporate arrangements for structuring family assets. These regularly serve to transfer, jointly manage, and maintain assets within the family in a structured manner. The structures are aimed at cohesion and protection of the assets as well as control of the decision-making and disposal powers over the family assets.
The topic of transparency obligations, which continues to be particularly relevant for family-owned companies, is discussed below, taking into account the changes brought about by the MoPeG.
For family-owned companies in the legal form of a GbR, the introduction of the company register is one of the most relevant changes introduced by the MoPeG.
Pursuant to Section 705 para. 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), an explicit distinction is now made between a GbR with legal capacity and a GbR without legal capacity. Pursuant to Sections 705 para. 2 and 707 para. 1 BGB, shareholders of a GbR with legal capacity have been able to register the GbR for entry in the newly introduced company register since January 1, 2024.
Upon entry in the company register, a registered civil law partnership (eGbR) is created, which must have a corresponding name suffix (Section 707a para. 2 sentence 1 BGB). Entries in the company register are the subject of the public faith formed under commercial law, including the so-called positive and negative publicity effect.
Formal Preregistration Requirement
In principle, the GbR can be registered in the company register voluntarily. The legal capacity of the GbR or its external effectiveness are not linked to its registration.
In certain situations, however, there may be a de facto obligation to register. This is referred to as a formal preregistration requirement. Certain rights are reserved exclusively for the eGbR; only the eGbR can acquire or dispose of these rights.
This becomes relevant, for instance, if the company is to be entered as the authorized party in so-called "object registers" or if the following comparable legitimacy effect is intended with regard to legal ownership:
In this respect, the de facto registration requirement is particularly relevant for the asset-managing GbR, i.e., a GbR with real estate assets or company shares. If the GbR's assets include company participations or, as is often the case with family-owned companies, real estate, or if these are to be acquired, the company will have to arrange for an entry in the company register if the ability to dispose of these assets is to be ensured.
Shareholders of family-owned companies often wish for special discretion. However, if the entry is made, the registered office and address of the company as well as the personal details of the shareholders (full name, date of birth, and place of residence) and representation arrangements are entered in the company register.
Pursuant to Section 20 para. 1 sentence 1 of the German Act on the Detection of Profits from Serious Crimes (Gesetz über das Aufspüren von Gewinnen aus schweren Straftaten, GwG), legal entities under private law and registered partnerships whose registered office is in Germany are generally required to obtain, keep, and update information on their beneficial owners and to report this information without delay to the transparency register in which they are registered. The reporting obligation is linked to the registration of companies in company, commercial, or comparable public registers.
In the absence of an entry in such a register, the unregistered GbR was also not obliged to report the beneficial owners of the company to the transparency register until December 31, 2023.
Since January 1, 2024, the GbR has been required to report to the transparency register in accordance with Section 20 para. 1 sentence 1 GwG when the company is entered in the company register. For the eGbR as a "registered partnership," there is now an obligation to report its beneficial owners and their personal data to the transparency register for the first time.
Pursuant to Section 20 para. 1 sentence 1 GwG, the eGbR must obtain and retain the information listed in Section 19 para. 1 GwG (in particular, first and last name, date of birth, place of residence, type and scope of economic interest, and nationality) on its beneficial owners, keep it up to date and notify the register-keeping body immediately for entry in the transparency register. The same applies in the event of changes to the information subject to the reporting obligation.
Beneficial owners are those natural persons who own or control an association or legal structure (Section 19 para. 1 and 3 in conjunction with Section 3 para. 1 GwG).
In the case of associations, the beneficial owner pursuant to Section 3 para. 2 sentence 1 GwG is, in principle, any natural person who directly or indirectly
In this respect, those shareholders who hold more than 25% of the capital shares or control more than 25% of the voting rights must be notified to the transparency register with their personal details as the beneficial owners of a family-owned company in the legal form of an eGbR.
In the context of exercising of control in other ways or a comparable manner, the transparency register also records certain agreements with and among shareholders, such as voting trust agreements or voting pools.
An exercise of control in other ways within the meaning of Sections 3 para. 2 no. 3, 19 para. 3 no. 1 b) GWG exists in particular in the case of agreements between a third party and a shareholder or between several shareholders. Depending on the specific circumstances of the individual case, this may include, for instance, voting agreements that give rise to control, as voting agreements generally oblige shareholders to exercise the voting rights to which they are entitled from their company shares in a certain way in the future.
In practice, voting agreements are often concluded in separate contracts. Such contracts may be classified as a simple relationship under the law of obligations or may have the status of a company themselves. Unilateral voting agreements as well as reciprocal voting agreements with different resolution content ("You vote for X if I vote for Y") are generally classified as contracts under the law of obligations with a synallagmatic character. However, they are not partnership agreements, as they are not based on a common purpose. Voting pools with the status of companies require a mutual promise to exercise voting rights. This means that they must be based on an identical point of reference and be aimed at an identical resolution content. Such a concurring joint exercise of votes as the purpose of the union makes it a company with a contractually defined common purpose.
Voting pools organized under corporate law can take the form of both partnerships and corporations. The choice of legal form depends primarily on the functional density of the voting pool. If the coordination is to extend exclusively to the voting behavior in the superordinate association, the voting pool is usually a GbR. If its members only regulate their relationship with each other, it is an internal GbR without legal capacity.
In any case, the members of the pooling agreement remain holders of voting rights in the superordinate association to which the agreement relates, for example shareholders of the superordinate company. They only regulate the relationship between themselves through the pool agreement.
It is also possible that there are situations in which a voting agreement does not exist between the direct shareholders of an association subject to reporting obligations, but rather that a holding company in the form of a GbR is interposed. The shareholders of this intermediate GbR then conclude a voting agreement.
In this situation, the intermediate GbR is also referred to as the main pool, while the voting pool is also referred to as the sub-pool.
The members of the sub-pool are the beneficial owners of the association subject to the reporting obligation who indirectly exercise "control in a comparable manner" over the association by means of their sub-pool agreement via the intermediary GbR (Section 3 para. no. 3 GwG).
This may become relevant, for instance, in the case of a family-owned company that holds the shares of an entrepreneurial family in the family business. The sub-pool can be used to coordinate the behavior of the members of a family tribe in relation to the intermediate GbR.
According to the legal situation until December 31, 2019, only "shareholders who are beneficial owners or who are directly controlled by the beneficial owner" were obliged under Section 20 para. 3 sentence 1 GWG (old version) to disclose the information necessary to comply with the reporting obligations to the associations subject to the reporting obligation.
The intermediate GbR as the shareholder was indeed subject to a disclosure obligation. However, the members of the sub-pooling agreement were not subject to any disclosure requirements vis-à-vis the intermediate GbR. The intermediate GbR could therefore assume that it was not controlled within the meaning of Section 20 para. 3 GwG (old version) and therefore did not inform the association of this.
However, the legal situation changed on January 1, 2020, when Section 20 para. 3 sentence 1 GwG introduced a disclosure obligation for "beneficial owners of associations". In this respect, it is no longer necessary for the beneficial owner to also be a shareholder of the association. As a result, the members of the sub-pool themselves are now obliged to disclose the information in accordance with Section 19 para. 1 GwG to the associations subject to the reporting obligation.
The change in the legal situation resulting from the entry into force of the MoPeG on January 1, 2024 does not alter this. The members of the sub-pool agreement remain subject to the disclosure obligation pursuant to Section 20 para. 3 sentence 1 GwG as beneficial owners of an association subject to the reporting obligation. Since the MoPeG came into force, they are also subject to this disclosure obligation as beneficial owners of the intermediary eGbR, as it is now itself an association subject to the reporting obligations pursuant to Section 20 para. 1 GwG.
Family-owned companies in the legal form of a GbR in particular should continue to keep an eye on the risk of disclosing internal family information due to (de facto) registration obligations of the GbR managing the assets. The same applies if shareholdings are coordinated by voting agreements. In these cases, a careful analysis of whether a legal structure is possible in the specific individual case that avoids, or at least limits the extent of, the undesired disclosure of internal family information may be considered.
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