Branch (economy)
Branch ( English branch (office) , French é tablissement , bureau , dépendance ) is a concept of economics and in the German language as a spatial location of a permanent establishment of a company seen. A distinction must be made between the main branch ( registered office ) and branch offices , which, as a geographically separate but legally dependent permanent establishment, have their own competencies .
Demarcation
The main office is the place where a trading company has its operating center. Branches are parts of the assets of a company that are spatially separate from the place of business, but are legally dependent . In addition, they must be set up permanently and objectively pursue the same business activities as the main office. The branch office differs from branches as pure sales outlets in that it is organizationally able to participate independently in business transactions without it being recognizable - in external relations to third parties - being dependent on the cooperation of its main branch.
In internal controlling , branches are often designed as profit centers . Against this background, they are equipped with competencies for certain operational functions , in particular for their own procurement , production (" parallel production "), business assets ( business premises and operating and office equipment ) or sales . However, essential operational functions are organized centrally in the main office ( board of directors , personnel , organization , financing , accounting or advertising ). Since the branch is not an independent company, but is part of the overall company, branches must operate under the same company as the entire company. Additions ("Cologne branch") are possible. The branch management can independently represent a branch to the outside, but the creditor of claims and debtor of liabilities is always the legal entity of the main branch.
history
The Banking Act (KWG) of December 1934 introduced, in view of the overstaffed banking system in the Weimar Republic, with sections 3 (1) and (2) and section 4 (1b) of the KWG 1934, a need test for branch banks to set up branches and branches, according to which the supervision of the local need for a bank branch was planned. The needs test was seen as a suitable means of keeping the credit apparatus healthy and of protecting the economic fabric from shocks.
In the “pharmacy judgment” of June 11, 1958, the BVerfG held the approval procedure for pharmacies to be incompatible with the fundamental right of free choice of occupation in Article 12 (1) of the Basic Law . As a result, the needs test also had to be abolished in the credit system. The Federal Administrative Court took over this requirement and in July 1958 also abolished the license requirement for the banking industry. The case concerned the opening of a branch of a partial payment bank in Ludwigshafen, which had been rejected by the Federal Banking Supervisory Office by orders of June 8, 1953 and October 30, 1953 because no local and macroeconomic need was to be recognized. The lower instance, the Higher Administrative Court of Rhineland-Palatinate , had argued that the unlimited number of head offices and branches of credit institutions would endanger the currency and the supply of money and credit, because a translation of the credit industry would lead to increased competition between the institutions, an inappropriative one Expansion of the credit volume, the risk of careless money and credit manipulation, and ultimately the collapse of underperforming institutions and thus a disruption of the public's confidence in the state monetary system. The BVerwG countered this by stating that new branches would only be established if the entrepreneurs were convinced of the profitability of their project after a thorough examination of the macroeconomic situation and local conditions . Since liberalization, there has been a rapid increase in bank branches and branches, which has improved customer loyalty and customer proximity.
In the non-banking sector , the automotive industry founded branches in the form of branches, such as the Opel factory in Bochum , where production started in July 1963.
The freedom of establishment of EU citizens has been regulated in the EU member states since February 1992 by the current Art. 49 to Art. 55 TFEU and expressly includes taking up and exercising self-employed activities as well as establishing and managing companies.
Legal issues
The term establishment is often used in laws , but there is no comprehensive and generally valid legal definition . The reason for this is that the different legal purposes with one definition could restrict the scope of the term too much and thus not cover all organizational forms that should be subject to the law as addressees of the norm . The trade regulation (GewO) speaks in § 4 para. 3 GewO of a branch if an independent commercial activity is actually carried out for an indefinite period and by means of a permanent establishment. When a branch is generally a place of business, which in the long run as the extension of a parent body (head office) emerges, its own ( bound by instructions ) management has and is materially sufficiently equipped to conduct business in external relationships with third parties and unwind without the third party must contact the parent company. A main office therefore forms the center of business activity.
Commercial law
The HGB mentions the branch without defining it. According to Section 13 of the German Commercial Code (HGB), it must be registered with the commercial register at the headquarters of the main office. If the main branch is located abroad, the domestic branch must be registered in accordance with Section 13d of the German Commercial Code (HGB) at the location of the commercial register responsible for it. Special regulations exist for corporations according to § 13e HGB (capital stockholders domiciled abroad), Section 13f HGB (branches of stock corporations domiciled abroad) and Section 13g HGB (branches of limited liability companies domiciled abroad). The establishment of branches is to be registered with the commercial register by the board of directors ( § 33 HGB).
Civil and tax law
The BGB also mentions the (commercial) branch in particular in the context of the place of performance ( Section 269 (2) BGB) or the place of payment ( Section 270 (2) BGB) in connection with the performance of contractual services .
According to § 12 No. 2 AO , the branch is to be regarded as a permanent establishment in the tax sense.
Banking and Insurance Law
In banking law, there is an extensive reporting system with regard to branches in accordance with Section 24 (1) No. 5 KWG (relocation of branches), Section 24a (1) KWG (obligation to notify the establishment of branches abroad) or Section 26a HGB (disclosure of branches in Annual financial statements ). In addition, it must be ensured that German credit institutions do not establish or continue a business relationship with a credit institution whose accounts are known to be used by a mailbox bank , and it must be ensured that the correspondent institution does not allow transactions via transit accounts. In § 25m KWG prohibited transactions are listed, which are associated with shell banks, in particular the creation or maintenance of accounts in the name of shell banks. These provisions are also intended to prevent relationships with letterbox companies or letterbox banks from developing.
In the insurance sector , primary insurance companies may conduct insurance business in other EU member states through branches ( Section 57 (1) VAG ). A branch is an agency or branch of a primary insurance company in the territory of another EU member state (Section 57 (2) VAG). The establishment of a branch must be reported to the insurance supervisory authority ( Section 58 (1) VAG). According to Section 341 (2) of the German Commercial Code (HGB), branches of insurance companies domiciled abroad are considered insurance companies . In banking and insurance in particular , some foreign legal norms require the establishment of subsidiaries and do not permit branches.
EU law
According to Art. 49 TFEU , the establishment of subsidiaries, branches, agencies or branches in other EU member states may not be restricted within the scope of the freedom of establishment. According to Art. 19 Para. 2 Rome I Regulation, the branch may conclude contracts on its own responsibility and is also responsible for their fulfillment. In Art. 5 no. 5 of the Brussels Convention provides that a person with residence may be sued in the EU territory in another Contracting State when there has a branch, agency or other establishment.
Business aspects
Branches are a form of distribution. The sales channel via branches aims to cover the market potential of a geographically definable catchment area. The opening of a branch is usually preceded by a detailed location analysis based on an in-depth market analysis . The establishment of a branch indicates that a certain location is of great importance to a company. Organizationally, the branch is more decentralized through the delegation of tasks , competencies and responsibility than a branch, because a branch is usually assigned more operational functions than just sales.
In the case of branches, the delegation can extend to parallel production ("decentralized production"), for example in the case of automobile manufacturers who are expanding their capacities through additional production facilities ("plants"). Parallel production occurs when an identical or similar product ( semi-finished product , finished product or end product ) is produced at the same time in at least two spatially separate production facilities of the same company (location split). At least individual production stages of a more complex production process can be transferred to branches by completing intermediate products through further processing until they are ready for the market (location division). These forms are also used in the international division of labor .
The establishment of foreign branches (or subsidiaries) is a particularly high risk investment . Country risks play a special role here because the foreign state can prohibit the transfer of profits from the branch to the main branch or, in the worst case, expropriate the branch / subsidiary. From a business point of view, foreign branches have disadvantages compared to subsidiaries, because appearing in legal transactions can be cumbersome or impair the trust of business partners in a business relationship. On the other hand, there are monetary advantages, because foreign branches / subsidiaries are often subsidized by the investor's country of residence or in the country of the branch through state financial subsidies and / or tax subsidies .
Others
In German-speaking countries, doctors and surgeons have been announcing their establishment since the 15th century and teachers (or schoolmasters ) since the 16th century. Establishment is also the designation for opening a doctor , psychotherapist . Alternative practitioner , dentist or veterinary practice . For questions of establishment as contract physician or contract psychotherapist who are physicians' associations , as private doctor , the medical associations and as a private doctor the psychotherapist chambers responsible.
Web links
Individual evidence
- ^ Gabler compact lexicon economy . 10th edition. Gabler Verlag Springer Fachmedien, Wiesbaden 2010, ISBN 978-3-8349-0155-2 , p. 396 .
- ^ Gabler compact lexicon economy . 10th edition. Gabler Verlag Springer Fachmedien, Wiesbaden 2010, ISBN 978-3-8349-0155-2 , p. 504 .
- ↑ BVerfGE 7, 377
- ↑ BVerwG, judgment of July 10, 1958, Az .: IC 177.54
- ↑ Julius von Staudinger / Ulrich Magnus , Commentary on the Civil Code , 2002, Art. 28 EGBGB, Rn. 87
- ↑ Michael Kutschker / Stefan Schmid, Internationales Management , 2005, p. 878
- ↑ EG-VO No. 593/2008 of June 17th, 2008
- ↑ Clemens Büter, Internationale Unternehmensführung , 2010, p. 143
- ↑ Markus Conrads / Friedrich Schade, Internationales Wirtschaftsprivatrecht , 2012, p. 171
- ↑ Karl Sudhoff : Four branch announcements by doctors from the 15th century. In: Sudhoff's archive. Volume 6, 1913, pp. 309-312.
- ↑ Ahmed Malak: Three surgeon medical announcements of the 15th century. Studies on the early history of the medical advertising form in Germany. Medical dissertation in Würzburg (1985) 1986 (Commissioned by the publishing house Königshausen & Neumann, Würzburg).
- ↑ Gundolf Keil: The announcement of a surgeon from the 15th century. Investigations on the medical advertising form. In: Contributions to the history of the German language and literature. Volume 89, 1967, pp. 302-318.
- ^ Michael Freyer: The school house. Development stages in the context of the history of the farm and community center as well as school hygiene. Edited by Gundolf Keil and Winfried Nerdinger. Passau 1998, pp. 38, 97 f., 173 f. and in particular the illustration on the front cover (“Who Jemant hie the likes of learning the world to write and read Dútsch ... der kumm har jn”, 1516).
- ↑ Gundolf Keil : "blutken - bloedekijn". Notes on the etiology of the hyposphagma genesis in the 'Pommersfeld Silesian Eye Booklet' (1st third of the 15th century). With an overview of the ophthalmological texts of the German Middle Ages. In: Specialized prose research - Crossing borders. Volume 8/9, 2012/2013, pp. 7–175, here: pp. 10 f. with note 43 ("Writing was one of the common sources of secondary income for [...] teachers, from whom announcements of establishment have also been received").
