Changes Affecting Partnerships and Digitalization in Corporate Law
Part 1: Important Changes for General Partnerships (GbR) Effective January 1, 2024; The Partnership Registry Is Coming
In mid-2021, the Bundestag approved the modernization of partnership law, which has far-reaching implications for the legal framework governing the GbR.
One of the most significant changes is the introduction of the partnership register for the GbR (Sections 706–707d BGB, as amended). This is a public register comparable to the commercial register, designed to improve the identification of GbRs in legal transactions. Registration is generally optional. This means that any GbR that engages in legal transactions (a so-called “external GbR”) retains its legal capacity. However, the legislature provides for an indirect registration requirement in certain cases, namely when the GbR is the owner of real estate or rights equivalent to real estate, or when it is a shareholder in a GmbH.
Upon registration, the GbR must include the suffix “eGbR” or “registered civil law partnership” in its name. The register publishes the name, registered office, and address of the GbR, as well as the full name, date of birth, and place of residence of all partners, and the powers of representation of all partners. Registration in the civil partnership register requires a visit to a notary, as the registration application must be publicly certified.
One advantage of registration is the publicity effect of the civil law partnership register, which is comparable to that of the commercial register.
Part 2: Digital GmbH Formation? – Notarization via Online Meetings
Since August 1, 2022, a GmbH and a UG (limited liability) can be formed through a notarial online procedure. This covers all shareholder resolutions required for formation, i.e., the establishment of the company with the articles of association and the appointment of the first managing director, as well as the registration of the first managing director with the commercial register and the submission of the first list of shareholders. Managing directors can therefore also participate online. Further resolutions are not yet possible at this time. On July 15, 2022, however, the Bundestag passed an amendment to the DiRUG, according to which the formation of a GmbH through a contribution in kind, as well as shareholder resolutions amending the articles of association and resolutions to increase capital for a GmbH, may also be notarized via the onlineprocedure.
The technical prerequisite for the online procedure is, first, that the notary uses the video communication system of the Federal Chamber of Notaries. Conducting the online procedure via commercial providers such as Zoom or MS Teams is not permitted. Additionally, all participants must be equipped with a PC featuring a working camera and microphone, a smartphone with the Federal Chamber of Notaries’ app for scanning photo ID, and a stable, high-speed internet connection. Participants must also have a photo ID with a so-called eID, and the eID function must be activated. The German ID card meets these requirements, but this may not apply to foreign documents. Caution is advised in this regard.