G: Part 2: MoPeG - Major Changes for the GbR

Sept 29, 2021 Benn-Ibler Rechtsanwälte

On January 1, 2024, the Act on the Modernisation of the Law on Partnerships (Personengesellschaftsmodernisierungsgesetz - MoPeG) is to come into force. The reform focuses on the civil law partnership (Gesellschaft bürgerlichen Rechts, GbR) with the recognition of its legal capacity and establishing a public register for such entities.

With the recognition of the legal capacity of the GbR in the law, a change of model from a consortium to a partnership with legal capacity, established for a certain duration and endowed with rights and obligations, is carried out. According to the newly formulated Section 705 BGB (German Civil Code), there will be:

• registered GbR with legal capacity
• unregistered GbR with legal capacity
• a GbR without legal capacity

This differentiation is intended to approximate the general partnership (Offene Handelsgesellschaft, OHG) and the limited partnership (Kommanditgesellschaft, KG).

It will also be possible in future to have the GbR entered in a public company register. In this way, the previous publicity deficit is to be remedied. In principle, it is free to choose whether or not to register, but registration is necessary for the acquisition of rights which are entered in public registers, such as the ownership of real estate.

For the first time, the law also provides a right to challenge deficiencies in resolutions. In the future, deficient partners resolutions are no longer automatically void in principle, but maybe contested by legal action, as is the case with companies. The corresponding regulations are standardised in the German Commercial Code (Handelsgesetzbuch, HGB), but can be amended by agreement of the partners. However, the procedure for contesting resolutions must be agreed in the relevant partnership agreement.

It is also clarified by law that the GbR with legal capacity is able to own assets. Enforcement of an execution title can therefore only be carried out against the assets of the partnership, never against those of a partner.

In Austria, on the other hand, a civil law partnership does not have legal capacity either by law or case law. According to the legislature, this is also not considered necessary, because general partnerships, a similar legal form, have legal capacity. The Supreme Court also rejects the application of the right to challenge resolutions as foreseen under corporate law to commercial partnerships.

(Drucksache 19/27635)