The GbR company register is coming: clarify now what needs to be done!

Information about a GbR and the persons behind the GbR has not been as easy to obtain as, for example, in the case of a GmbH.

This will change on 01.01.2024 when the Act to Modernise the Law on Partnerships (MoPeG) introduces the company register for civil law companies.

The MoPeG is the largest reform of partnership law in more than a hundred years and aims to adapt the legal situation to today’s needs and circumstances.

There is still time. But GbR shareholders should already find out whether and what action may be required due to the MoPeG. This is because very fundamental strategic decisions may have to be made in connection with the entry in the GbR company register and their implementation may take some time.

No compulsory registration

However, one piece of information right from the start: not every GbR will have to be entered in the company register – there will be no compulsory entry in the commercial register as there is, for example, for the GmbH. And the fact that the articles of association of a GbR do not have to be notarised will not change either.

But: The entry in the register leads to the fact that registered companies have different legal possibilities than non-registered companies. This is especially true with regard to so-called register-relevant transactions such as

• the entry or amendment of an entry in the land register,
• the entry of the GbR in the commercial register or share register, or also
• the participation of a GbR in a corporation or another GbR.

This is because, when the MoPeG comes into force on 01.01.2024, a civil law partnership can only conduct these transactions relevant to the register if it is entered in the register of companies.

Concrete effects

What does this mean in concrete terms? If, for example, a GbR is the owner of a property or holds company shares in a GmbH, the GbR can only sell the property or the company shares after 01.01.24 if it is entered in the company register.  

For a large number of civil law companies, nothing will change. However, GbRs with real estate assets or shareholdings in corporations will have to register in order to remain capable of acting. This is likely to apply above all to family offices, but also to communities of heirs, for example. 

Registration has no effect on legal capacity

For about 20 years, it has been recognised in case law that the GbR is considered to have legal capacity. Until now, this was not regulated by law. This is now also changing: the GbR is now expressly recognised as having legal capacity in § 707 of the German Civil Code (BGB).

However, the legal capacity is completely independent of the entry in the GbR company register – the legal regulation is merely “taken care of” in one breath with the introduction of the register.

Publicity vs. privacy

One of the main objectives of the GbR company register is to ensure more transparency in business transactions and to make it comprehensible which persons are behind a company. For this reason, all partners must be listed with their names and addresses when registering a GbR.

An advantage for business partners and authorities. In some constellations, however, shareholders may not like it for reasons of privacy. In such a case, it is necessary to consider very fundamentally whether and how the future of a person in the company should be shaped. Under certain circumstances, more extensive reorganisations of the company or several companies may be necessary. This must be considered in good time so that a reorganisation is completed before a company is registered on 01.01.24 in order to continue to be able to act without restriction.  

Further consequences of registration

In addition to the above-mentioned aspects, registration also has other consequences for a registered GbR. For example, the GbR must bear the name suffix “registered civil law partnership” or “eGbR” from the time of entry in the GbR company register.

The registered companies can then make use of the option to choose a contractual seat. This free choice of domicile allows a German GbR to conduct all business activities outside Germany and still remain a German partnership.

Another major advantage for shareholders of an eGbR is that in future it will be much easier to prove their power of representation in legal transactions with an extract from the GbR register. Registered companies under civil law will therefore become much more trustworthy in the future.  Furthermore, the entry of the GbR in the company register means that the company must then also enter itself in the transparency register and report its beneficial owners.

GbR Company Register: Companies under Pressure to Move

Even if the MoPeG does not mean that every GbR must be registered in the new company register, the introduction of the GbR company register does put some companies under pressure and, under certain conditions, leads to a de facto obligation to register.

In order to be able to determine whether this is the case, it is therefore important and sensible to clarify at an early stage with the support of a lawyer whether and to what extent adjustments to the articles of association or an adjustment of the shareholder structure make sense in a very specific individual case.

From when can the registration of a GbR in the company register be ordered at the local district court?

The GbR can be entered in the new company register as of January 1, 2024. This is the date on which the MoPeG comes into force.

If the partners of a GbR decide to register the company, they must file an application with the court in whose district the company has its registered office. In principle, the registration is to be effected by all partners, whereby this is to be done via a notary of your choice in publicly certified form.

In case of doubt, I recommend that you coordinate the registration process with your notary.