Limited Liability Company (Germany)
The limited liability company , abbreviated GmbH or Gesellschaft mbH , is a legal form under German law for a legal person under private law that belongs to the corporations . The German GmbH was one of the world's first forms of limited liability corporation. There are now similar forms of society in most countries around the world. The GmbH is by far the most common form of company for corporations in Germany. As of January 1, 2016, there were around 15,500 joint-stock companies with over 1.15 million GmbHs.
The entrepreneurial company (limited liability) has existed as a start-up- friendly variant since 2008 . From a legal and tax point of view, it is a GmbH for which special regulations apply with regard to share capital, company name and use of the annual surplus ( GmbHG).
Companies with limited liability were first made possible by the law on companies with limited liability (GmbHG) passed on April 20, 1892 . As early as 1600 in England the shareholders of the East India Company had been granted limited liability by royal decree, in 1602 in the Netherlands the Dutch East India Company. However, it was not until 1855 that Great Britain introduced the generally accessible limited company (Ltd.) by law , which is comparable to the German GmbH. After the creation of this type of company in Germany, the concept spread all over the world. Similar legal forms were created in Austria in 1906, in Portugal in 1917, Brazil in 1919, Slovakia in 1920, Chile in 1923, France in 1925, Belgium in 1935 and other countries.
As a result of the law to modernize GmbH law and to combat abuse , the entrepreneurial company (limited liability) , also known colloquially as a mini GmbH , was introduced on November 1, 2008 - a GmbH with reduced share capital, for which some special regulations apply.
The GmbH is a trading company within the meaning of the Commercial Code . The legal basis can be found in the GmbHG. on accounting , the Transformation Act and the Insolvency contain further provisions .
Foundation of a GmbH
The GmbH is founded by one or more persons as founding shareholders ( natural and legal persons . Contrary to previous opinion, all jointly owned joint ventures can also be founding shareholders. If a GmbH has only one partner, it is called a one-person GmbH or one-man GmbH .GmbHG). Partners can be both
In addition to agreeing the articles of association, at least one natural person must be appointed as managing director at the founding meeting , who can also be a GmbH partner at the same time. The manager takes the capital contributions and reports against the company in a notary certified form for entry in the commercial register.
Since November 1, 2008, it has also been possible to set up a company using a simplified procedure . The simplified procedure according to(1a) of the GmbHG is reserved for start-ups with a maximum of three shareholders and one managing director. It requires the use of a sample protocol specified in the appendix to the GmbHG, which contains the articles of association, the list of shareholders and the appointment of the managing director. Provisions deviating from the sample protocol cannot be made ( (1a) sentence 4 GmbHG).
Establishment of the GmbH
A GmbH only arises when it is entered in the commercial register , i.e. H. the entry is constitutive . For this is social contract notary to notarize . Must have a notarized then certified commercial register registration done. The articles of association stipulate the founders' obligations to cooperate in establishing the GmbH and the statutes of the future GmbH. Before the notarial partnership agreement is concluded, the company is a pre-founding company . Between the time of the notarial certification and that of the registration, it is the founding company with the addition "i. G." leads. It is referred to as Vor-GmbH . In this phase the company is already partially legally capable, for example it can acquire ownership of a piece of land. In terms of liability law, however, it corresponds to a company under civil law ; Until the entry of the GmbH in the commercial register, the actors are personally unrestricted and jointly and severally liable, which ends with the entry of the GmbH. The pre-GmbH forms a unit with the registered GmbH, both legally and for tax purposes (principle of identity).
Content of the statutes
The statutes of the GmbH must contain:
the company of the GmbH
The company of the GmbH must contain the designation "limited liability company" or a generally understandable abbreviation of this designation, e.g. B. "GmbH" or "Ges. m. b. H.". In particular, the company name must meet the requirements of Sections 18 and 30 of the German Commercial Code (HGB), i.e. it must be suitable for identification, not misleading and not confusable with companies that have already been registered.
seat The seat of the company is the place specified in the articles of association. A political municipality in Germany must be determined as the (statute) seat . The administrative headquarters, branches or dependent branches can be in Germany or abroad.
The object of the company
A GmbH can be established for any legally permissible purpose.
the amount of the share capital
The minimum share capital in Germany is 25,000 euros - the minimum share capital of the entrepreneurial company (limited liability) is 1 euro.
the amount of the business
shares The business share is the share of the share capital taken over by a partner. The share of each partner must be in full euros. When setting up a GmbH, a partner can take over several shares in accordance with (2) of the GmbHG; the shares can vary in size.
The GmbH is to be registered with the registry court of the local court in whose district it is located for entry in the commercial register in section B. The minimum share capital is 25,000 euros in accordance with (1) GmbHG. The registration may only be made if at least a quarter of each share and at least an amount equal to half of the minimum share capital has been paid in. Contributions in kind must be transferred to the company in such a way that they are finally freely available to the company ( (3) GmbHG). If an initial contribution is made that falls below the minimum share capital of 25,000 euros, a share capital of 25,000 euros is entered in the commercial register. The list of shareholders must be submitted as part of the registration . After registration, the review is carried out by the registry court and finally the company is entered in the commercial register.
Liability for transactions before registration
The founders are personally liable as joint and several debtors for liabilities that are established for the company to be founded prior to the notarization of the articles of association . The founders form a society under civil law that does not form a unit with the later society.
If the GmbH established but not yet registered in the commercial register is active by the managing directors or individual partners authorized by the shareholders, the Vor-GmbH is liable with its assets. In addition, the founders can also be liable for these liabilities, although the scope and type of liability are controversial in jurisprudence.
If at the time of entry in the commercial register the net assets of the company are below the share capital (sub-balance sheet), the shareholders remain materially responsible in the amount of the sub-balance sheet of the GmbH.
The persons who act as a representative or as a representative of the company prior to the entry in the commercial register are personally and jointly liable with their private assets for the debts of the GmbH (agent liability, seepara. 2 GmbHG).
When founding a GmbH, notary, court and lawyer fees are regularly incurred for the company founders. Notary fees arise for the certification of the articles of association, the certification of the first shareholders' meeting as well as the draft and the certified registration of the company and the registration of the managing director in the commercial register. Furthermore, the court costs for the entry in the commercial register are incurred.
The company founders are fundamentally interested in imposing the foundation costs on the founded GmbH as far as possible. In principle, start-up costs can be covered by the GmbH within certain limits. The prevailing opinion applies the stock corporation law provision of Section 26 (2) AktG accordingly and demands that the formation costs assumed by the GmbH are disclosed in the articles of association. The GmbH articles of association must show the specific maximum amount in cash. In addition, the GmbH may only assume reasonable formation costs. According to the prevailing opinion, this means assuming costs of up to 10% of the share capital.
The total costs of the establishment are between 450 and 1000 euros plus sales tax. When using the sample protocol in the simplified formation procedure, the notary costs are reduced if the share capital does not exceed 25,000 euros.
Management and external representation
The GmbH must have one or more managing directors ( (1) GmbHG). The power of representation of the managing directors is structured as an organ. Managing directors can only be natural persons with unlimited legal capacity (Section 6 (2) sentence 1 GmbHG). The managing directors conduct the business of the GmbH according to the instructions of the shareholders' meeting and within the framework of the law and the articles of association ( (1) GmbHG). The managing directors represent the GmbH in and out of court vis-à-vis third parties ( (1) GmbHG). The power of representation of the managing directors towards third parties is unlimited and unlimited (Section 37 (2) sentence 1 GmbHG). The managing directors have to exercise the care of a prudent businessman in matters of the GmbH ( Abs. 1 GmbHG). Internal transactions are only permitted if they are expressly permitted in the articles of association or by a shareholders' resolution ( BGB).
In addition to being represented exclusively by managing directors, there is also the possibility of so-called mixed overall representation. In this case, the company is represented either by the managing directors jointly or by a managing director together with an authorized signatory as legal representative (analogy to (3) AktG). In addition, there is also the possibility of granting a general power of attorney in accordance with German Commercial Code (HGB), i.e. the appointment of a legal representative of the company without granting a power of attorney . Both the mixed overall representation and the granting of a general power of attorney are only permissible if this does not affect the managing director's rights and obligations (e.g. , Paragraph 3, GmbHG). For the general representation, this means that the managing director may not be prevented from acting without the participation of an authorized representative. For the granting of general power of attorney, this means that the powers of the general manager may not also include organizational rights and duties, but must remain with the managing director; a position of the representative that is equivalent to the position of managing director is therefore not permitted.
Appointment and employment of the managing director
When the company is founded, managing directors are appointed by the articles of association, later by a shareholders' resolution. Unlike a board of directors of a stock corporation, you can be dismissed at any time by a shareholders' resolution without giving reasons ((1) GmbHG), unless the articles of association prescribe important reasons for dismissal ( (2) GmbHG).
The contractual rights and obligations are usually regulated in an employment contract (service contract), in particular the remuneration and the consequences of leaving the company, be it through the passage of time or through the revocation of the appointment. This is particularly important for managing partners with a majority stake in order to avoid tax disadvantages (e.g. the assumption of a hidden profit distribution).
Supervisory board as a supervisory body
A supervisory board can be provided for in the statutes of the GmbH . In principle, a supervisory board must be formed if the GmbH employs more than 500 employees ( (1) No. 3 Third Thirds Act ). In this case, the ratio of employee to employer on the supervisory board is 1 to 2 in accordance with the Third Party Participation Act . If a GmbH employs more than 2000 employees, the ratio in accordance with the Co-Determination Act is 1 to 1, whereby it must consist of at least 12 natural persons. The chairman of the supervisory board has a second vote in stalemates . The main task of the supervisory board is to monitor the management.
The legal basis for the supervisory board of a GmbH isthe GmbHG.
The highest decision-making body of the GmbH is the shareholders' meeting , in which the entirety of the shareholders is represented. Unless the law or the articles of association stipulate otherwise, their responsibility extends to all matters of the GmbH ( GmbHG) that do not fall within the genuine responsibility of the management. The shareholders take their decisions in the meeting ( Abs. 1 GmbHG). With the consent of all shareholders, a written vote is permitted without holding a meeting (Section 48 (2) GmbHG).
Liability of the GmbH and its shareholders
The GmbH is liable with its company assets ( ) ) for the company's liabilities. The private assets of the shareholders remain unaffected. For obligations that arose before the GmbH was entered in the commercial register, the GmbH has rights of access to the shareholders insofar as these obligations have caused the net assets to fall below the capital figure on the date of entry. Creditors can have these claims of the GmbH against the shareholders seized. The under-balance sheet liability serves to protect against an initial consumption of the share capital. The previous prohibition of pre-pollution was abandoned because of its economically crippling effect.
The partners of the GmbH are only liable for losses from the ordinary business activities of a GmbH if they have caused the company to become unlawful. To this end, the Federal Court of Justice has in recent years developed the offense of existential destruction liability.
Accounting of the GmbH
The provisions of the Commercial Code on bookkeeping (§ to 263 HGB) as well as § to 335 HGB for corporations and in particular § ff. GmbHG apply in principle to the GmbH .
Rights and duties of the shareholders
In the articles of association, each partner has assumed the obligation to provide a share in the share capital ( partner can freely dispose of his share. The share can be sold - provided there is a corresponding notarized contract ( (3) GmbHG) - and otherwise also bequeathed or given away. The shareholders are entitled to the annual surplus, provided that they are not legally excluded from participation ( (1) GmbHG). Each shareholder can demand from the managing directors that they provide him with information about the affairs of the GmbH and allow him to inspect the books ( Paragraph 1 GmbHG). A partner can be excluded from the company by a court judgment if an important reason in his person makes the continuation of the company with him unreasonable.(1) No. 4 GmbHG). The main obligation of a shareholder is to fulfill his / her capital contribution ( (1) GmbHG). Unless otherwise stipulated in the articles of association (restricted transferability), the
A GmbH is subject to corporation tax on its income . The tax rate is 15 percent plus 5.5 percent solidarity surcharge on corporation tax, so that the tax component amounts to a total of 15.825 percent of taxable income.
Capital gains tax
If the GmbH pays out profits to its shareholders ( dividends ), it must withhold 25% capital gains tax plus solidarity surcharge and, if applicable, church tax and pay it to the tax office . The tax rate has been 25 percent since January 1, 2009. The further tax treatment of the dividend and the withheld capital gains tax for the shareholder depends on whether the shareholder is a natural or legal person with domicile or domicile in Germany or abroad.
value added tax
Income tax and social security
If the GmbH employs employees, it has to fulfill the duties of an employer . This also applies in relation to the (shareholder) managing directors, whose remuneration is usually assigned to income from employment (in rare cases it is instead possible that the managing director works as an independent entrepreneur according to UStG and his GmbH for the Management services invoices). The managing director's salaries are wages and are deductible as operating expenses, provided they are appropriate in terms of amount, d. H. insofar as they would also be paid to a third-party managing director who is not a partner for the same service (third-party comparison). As non-dependent employees, managing directors are generally exempt from statutory social insurance. This means that they are not entitled to any tax-free employer contributions to health and long-term care insurance. However, this only applies to managing partners with a stake of less than 50 percent if they are not bound by instructions.
The liability norms according to § 69 AO and § 34 AO relate to the nominal manager (s) and the actual manager. The managing director is personally liable if he does not fulfill the tax obligations of the GmbH. Liability becomes particularly detrimental if the company has started its business before its registration. Then the personal, unlimited liability of the acting partners intervenes.
Dissolution of the GmbH
A GmbH will u. a. dissolved:
- by the expiry of the time specified in the articles of association
- by resolution of the shareholders (more than 3/4 of the shareholders' meeting)
- by court judgment
- by opening insolvency proceedings ; the addition “i. In. "Or" i. IN. ” Added to the company name of the GmbH for insolvency
- with the legal force of the resolution by which the opening of insolvency proceedings was rejected due to lack of assets.
A list of the reasons for dissolution can be found in the GmbHG ( liquidation of the GmbH is not carried out by the managing directors. If the insolvency proceedings are rejected for lack of assets, the managing directors are the liquidators, unless otherwise specified.). The dissolution of the company must be registered for entry in the commercial register. The managing directors are the “born” liquidators, unless otherwise specified. In the opened insolvency proceedings, the
Liquidation of the GmbH
The liquidation is the winding-up procedure after the dissolution of the GmbH, which according toGmbHG has to indicate on the business letters at this stage that the company is in liquidation.
The company is wound up by the liquidators in accordance withGmbHG, which is basically the previous managing directors, except in the case of insolvency proceedings. They are entered in the register and have to terminate the current business of the GmbH and convert the company's assets into money ( GmbHG). Once the liquidation has ended, the liquidators must register the end of the liquidation for entry in the commercial register. The company must be deleted from the commercial register ( GmbHG).
If, after the GmbH has been deleted from the commercial register, assets still appear or other measures are still necessary, a supplementary liquidation must be carried out. The previous liquidators can only continue to work until they are deleted from the commercial register.
- Abandon right , the right of a partner to make his share available in order to avoid an additional payment.
- GmbH & Still
- Covert profit distribution
- Shareholder debt financing
- Managing director liability
- Profit company
- No man GmbH
- Limited Liability Company
- Karsten Schmidt : corporate law. 4th edition 2002, ISBN 978-3-452-24679-0 .
- Eugen Klunzinger : Basic features of company law. 13th edition, ISBN 3-8006-3325-6 .
- Lutz Michalski : Commentary on the law on limited liability companies (GmbH law). Munich 2002, ISBN 978-3-406-48647-0 .
- Hasso Heybrock (Ed.): Practical commentary on GmbH law. 1st edition 2008, ISBN 978-3-89655-268-6 .
- Adolf Baumbach and Alfred Hueck (Eds.): GmbHG - Law on Limited Liability Companies, Commentary. 19th edition 2010, ISBN 978-3-406-58217-2 .
- Hermann Pump, Herbert Fittkau: Avoiding the liability of the GmbH managing director for tax debts of the GmbH. Erich-Schmidt-Verlag, Berlin 2012, ISBN 978-3503-13666-7 .
- Udo Kornblum: Nationwide legal facts on company and company law. GmbHR 2016, 691-701
- Ralf Hangebrauck: The reform of the GmbH law . In: Juristische Arbeitsblätter 2008, p. 125. Peter Kindler: Fundamentals of the new corporation law - The law to modernize GmbH law and to combat abuse (MoMiG). In: Neue Juristische Wochenschrift 2008, p. 3249. Torsten Körber, René Kliebisch: The new GmbH law . In: Juristische Schulung 2008, p. 1041.
- Annex (to Section 2 Paragraph 1a) Federal Law Gazette I 2008, 2045 (PsDF).
- Ulrich Seibert , Christian Bochmann, Johannes Cziupka: Sample protocol as an obstacle to transparency? In: GmbHR - GmbHRundschau . 2017, ISSN 0016-3570 , p. R289 ( gmbhr.de ).
- Federal Gazette: Section 11 (2) Law on Limited Liability Companies, last amended by Article 15 of the Law of July 22, 2017, Federal Law Gazette I p. 2446, 2492 .
- Ralph Wagner: Dr. In: Gmbh Rundschau . Dr. Otto Schmidt KG, 2017, p. R50 .
- Judgment of the Federal Fiscal Court of March 10, 2005, V R 29/03
- IHK Frankfurt am Main : position of the manager.