Act on the Modernisation of Partnership Law (MoPeG) – the most important changes for practice
Johannes R. Jeep
by Johannes R. Jeep
After its adoption by the German Bundestag on 24 June 2021, and approval by the Bundesrat on 25 June 2021, the MoPeG came into force on 01 January 2024. The law involves amendments to 136 laws and ordinances, particularly affecting Gesellschaft mit beschränkter Haftung & Compagnie Kommanditgesellschaft, or in English, limited liability company and limited partnerships (GmbH & Co KG); Offene Handelsgesellschaft, or in English, general commercial partnerships (OHG); and Gesellschaft bürgerlichen Rechts, or in English, civil law partnerships (GbR).
Special challenges for GmbH & Co KG, OHG, and GbR
The GbR law (partnership under civil law) is realigned within the system of commercial and non-commercial partnerships, recognising its status as a legal entity. In addition, the Companies Register, comparable to the commercial register, has been introduced. The GbR remains a fundamental form for various purposes, from family pools to construction joint ventures.
Legal capacity and liability
The law distinguishes between legally capable GbRs (§§ 706-739 BGB) and non-legally capable GbRs (§§ 740-740c). The legal capacity of a GbR allows it to acquire rights, build assets, and enter liabilities, ending the principle of joint ownership (§ 713). Enforcement of the company's assets requires a title against the company (§ 722). The partners are personally liable for the company's liabilities, both new and existing (§ 721, § 721a).
Representation and management
Active representation allows for joint or individual representation, while passive representation requires individual representation (§ 720). A shareholder's power of representation may be withdrawn for an important reason, such as gross breach of duty or incompetence. Exclusion from management does not affect representation power.
Shareholdings and meetings
Shareholdings and voting power are determined by the agreed shareholding structure (§ 709), based on the value ratios of contributions. The system of fixed and movable capital shares must be maintained. The actio pro socio extends to third parties (actio pro societate, § 715b). The principle of unanimity applies to resolutions of shareholders' meetings of partnerships (§ 714).
Resolution nullity and avoidance
The new regulations include protections for minority shareholders. Majority resolutions amending the treaty can be challenged. Nullity applies if statutory provisions or articles of association are violated (§ 110-115 HGB). Actions must be brought against the company, with exclusive jurisdiction at the district court where the company is registered (§§ 114, 113 para. 1 HGB-neu).
Arbitration clauses
Arbitration clauses must meet minimum requirements: consent of all shareholders, information flow, participation in arbitrator selection and concentration of deficiencies at the arbitral tribunal. Actions against defects in resolutions have effect against all partners (§ 113 (6) HGB).
Withdrawal of a shareholder and succession
In cases of inheritance, the GbR with legal capacity provides for the withdrawal of the deceased partner (§ 723 (1) no. 1), allowing continuation without the deceased or their heir. Transfer of shares to an heir requires a provision in the articles of association (§ 711 (2) sentence 1 BGB). An heir has a right of termination (§ 724) and personal, unlimited liability for debts if he remains in the company.
The MoPeG is a well-thought-out, coherent reform project that does justice to the liberal corporate image of the German constitution (Grundgesetz), which recently marked its 75th anniversary.
GGI member firmFPSBerlin, Düsseldorf, Frankfurt, GermanyT: +49 30 88 59 27 737Law Firm Services
FPS is one of the largest fully independent German law firms, with five offices in Germany. FPS currently employs over 140 lawyers and notaries. One of the firm’s core areas of expertise is national and international litigation as well as dispute resolution.
Johannes has been Managing Partner at FPS until recently. His areas of expertise cover the entire range of corporate, commercial and tax law, including litigation and dispute resolution, mainly in an entrepreneurial, international context. Contact Johannes.
