Special forms on the setting up of enterprises

Partnerschaft (Partnership of Professionals)

The formation of a company as a Partnership of Professionals has been possible since 1995 when the Partnership of Professionals Act entered into force. The Partnership of Professionals corresponds more or less to the general partnership (oHG) but may only be chosen by the self-employed like physicians or lawyers. Concerning the liabilities of the Partnership of Professionals, the partners are personally liable in addition to the assets of the Partnership of Professionals vis a vis the creditors. They may, however, restrict their liability for claims under damages for defective exercise of profession (also by using standard terms and conditions) to the partner who, within the Partnership of Professionals,has to provide the service or is in charge of managing and supervising?? said service.

The law on Partnerships of Professionals is only very briefly covered by the Act. As a result of the recent authorisation of GmbH formation for some self-employed persons, the interest in this legal form has declined. Partnerships of Professionals have to be entered in the register of Partnerships of Professionals with the local court.

Stille Gesellschaft (Dormant Partnership)

Dorman Partnerships are not externally identifiable; the dormant partner does not register any trade. Dormant Partnerships are partnerships in which someone participates in the trade of another by contributing assets which are transferred to the latter against a share in the profit.

Only the owner of the business and not the dormant partner has rights and obligations in connection with transactions entered into in trading with third parties. The dormant partner has restricted controlling rights; as a matter of principle he may merely demand written information on the financial statements and inspect books and documents to verify their accuracy.

The dormant partner participates in the profit and loss. As opposed to profit sharing which is compulsory, loss sharing can be excluded. After the dissolution of the partnership the dormant partner has a claim to payment of his credit. A debit balance does not, as a matter of principle, require any additional payment but becomes immaterial. In the event of a deviation from the statutory (typical) provisions, reference is made to an atypical Dormant Partnership, e.g. if the dormant partner is granted more controlling rights or if he participates in the management.

EWIV (European Economic Interest Grouping - EEIG)

The EEIG is the first joint company form under Community law. It is to facilitate cross-border co-operation and support the internal market. The EEIG must have at least two participants and at least two of its members must have their head office and/or their registered office in different Member States.
The EEIG itself may not pursue any economic object or generate profits for itself. It is limited to the promotion of the economic objects of its members so that this legal form is often uninteresting.

The formation agreement is valid without any requirements as to form. Since it is, however, to be entered in the commercial register and must contain certain information according to the EEIG Regulation, the written form is factually required. Another prerequisite to formation in Germany is the entry of the EEIG in the commercial register.

The members of an EEIG are liable without restriction as well as jointly and severally for its liabilities. Contrary to the oHG the liability of the members is, however, subsidiary. Creditors may assert claims against members only if they have demanded payment from the company and the latter has not been made within an appropriate period of time.