The corporate partnership law, which in part dates back to the 19th century, is now to be adapted to today’s needs through a current reform project. In the meantime, the Federal Council has already commented on the government draft, so that implementation is likely as early as this autumn. However, a transitional period until the end of 2022 is planned; the law is therefore not to come into force until 01.01.2023. In the following, we inform you about the essential innovations of the government draft on the modernisation of partnership law (RegE MoPeG). The current legislative procedure on partnership law is available at: https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/RegE_Personengesellschaftsrecht.pdf?__blob=publicationFile&v=3.

Innovations for the GbR

A large number of innovations of the MoPeG concern the civil law partnership. Firstly, the legal capacity of a GbR (acting externally) is enshrined in law for the first time; previously this had only been established by case law. Furthermore, §707 (1) BGB-E provides for the introduction of a company register for the GbR to be kept by the local courts.
Although registration is not to be compulsory, the acquisition of rights to be registered in public registers, such as the acquisition of real estate or trademark rights, as well as the position as a shareholder of another company, is to be linked to registration.
In addition, the GbR is to become convertible. GbRs can consequently participate in a demerger, merger or change of legal form under the Transformation Act in the future.

Innovations for the OHG

First, the gaps in the OHG’s resolution procedure law are at least partially closed. Up to now, the HGB only provided regulations on the unanimity principle for resolutions. If the articles of association stipulated other majority requirements, it was usually necessary to resort to the law of the GmbH. This is now to change through § 109 HGB-E: On the one hand, para. 1 now includes virtual meetings such as telephone or video conferences in addition to traditional face-to-face meetings. On the other hand, para. 4 standardises the requirements for the quorum of the meeting in the case of deviations from the unanimity principle (which should continue to be the basic model). Accordingly, the convened shareholders’ meeting shall constitute a quorum if the shareholders present or their representatives have the votes required for the adoption of a resolution, irrespective of their voting rights.
However, fundamental issues such as deadlines for meetings or voting prohibitions are still not regulated in this context. If the articles of association do not contain any provisions in this regard, the law governing limited liability companies will have to be applied.
Other changes relate to the determination and distribution of profits. Until now, the applicable law has been complicated and thus often impracticable. §Section 120 (1) sentence 1 HGB-E now initially assigns the competence to prepare annual financial statements to the partners with management authority. The annual financial statements are then adopted by resolution of the shareholders in accordance with §121 HGB-E. Pursuant to §120 (1) sentence 2 HGB-E, §709 (3) BGB-E, the distribution of profits and losses is to be based primarily on the share ratio. If no participation ratios are specified, the contribution rate shall be used as a basis. If neither participation nor contribution values can be determined, the head quota applies; each partner participates equally in the loss or profit. If a profit is determined, §122 HGB-E assumes the principle of full distribution. If this is not desired, corresponding regulations must be included in the articles of association.

Innovations for the KG

§162 (HGB) currently still provides for a secrecy privilege for limited partners; these are not named when the registration of the limited partnership is announced. This regulation is to be dropped in future. However, the amendment is unlikely to have any practical impact, as information on limited partners can already be obtained through excerpts from the commercial register.
Furthermore, the information rights of the limited partners are to be improved. Under the current regulations, the limited partner has only a very limited right to information. Pursuant to §166 HGB, it may demand inspection of the annual financial statements and the accounting records. However, in order to enforce his other extraordinary right to information, the limited partner requires a court order. The new §166 (1) sentence 2 HGB-E is intended to grant the limited partner a general right to information in the future. However, this right is also linked to the existence of an important reason. This is particularly the case if there is reason to assume dishonest management.
Furthermore, §176 HGB-E stipulates an increase in liability for the limited partner who has not yet been registered. Limited partners who have agreed to participate in legal transactions are liable for all liabilities of the limited partnership that were established until their registration as if they were personally liable partners. Up to now, limited partners have been able to escape this aggravation of liability if the creditors were aware of their position as limited partners. In the future, this relief from liability will no longer apply, so that it is essential to ensure that the limited partner declares his accession to the partnership subject to the condition precedent of the entry in the register.

We will keep you informed about developments in this regard!

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