Whether there is seat theory or not, that is the question

The Federal Court of Justice (II ZB 25/17) may take the seat theory one last time with its June 15, 2021 decision

“Registration of an entry in the commercial register must be presented electronically with a simple electronic certificate from a notary in accordance with section 12 paragraph 1 clause 1, paragraph 2 clause 2 clause 2 HGB pursuant to section 39a Berkjie. 126a BGB It is not sufficient to submit the application with the qualified electronic signature of the issuer as per

The judgment has a rather trivial tenure. what was it about?

An English limited company registered a branch in the Commercial Register in Frankfurt am Main District Court in March 2014. With an interim judgment dated 11 June 2014, the Court of Registry informed the parties involved that the registration could not be complied with as it provided the electronic certificate required under section 39A of Berkeley in conjunction with section 12(2). had not been. German Commercial Code (HGB), a publicly certified version of the Partnership Agreement of the Parties Forms and translations not attached, does not specify the amount of the share capital of the parties involved and is the responsibility of the directors of the parties involved in section 13G(2) Article 3 GmbHG in conjunction with 2 HGB Section 8 is missing to inform it of its unrestricted obligation to provide information to the Court in respect of any obstruction in the appointment in accordance with.

The Federal Court states:

“The appellate court has rightly held that the registration of the parties in accordance with 12 para. 1 sentence 1, para. 2 sentence 2 clause 2 HGB is to be submitted with a simple electronic certificate pursuant to 39a BeurkG and broadcast with it by their directors. Qualified electronic signatures are not sufficient. For the domestic register process and thus for the entry of a branch of a foreign company into the commercial register, the German register procedure law applies.

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Unsuccessfully, the party continues to oppose the appellate court’s finding that, in accordance with Sections 13G(1), (2) of the German Commercial Code (HGB), it cannot submit the model article it has adopted unchanged as its statutes, but in a public certified copy and certified translation its memorandum of cooperation is required …

The obligation to present the memorandum of association in a publicly certified copy with a certified translation, contrary to the viewpoints of those involved, ultimately violates the requirements of Directive (EU) 2017/1132 (Company Law Directive) regarding the disclosure of does not do. Information and documents from branches … to which the parties belong after the United Kingdom leaves the European Union and the transition period agreed in the withdrawal agreement no longer applies to companies in other Member States within the meaning of Article 29, but to companies it occurs. from a third country within the meaning of Article 36 of the Companies Law Directive, whose disclosure obligations are regulated in Art. Do not apply because the party involved can no longer invoke freedom of establishment…

In accordance with the Directive, Member States are in principle free to provide for further disclosure measures in the case of companies from third countries other than the minimum information specified in Article 37. “

In particular this last sentence can only be resolved with the Federal Court adhering to the so-called seat principle Explain. According to this, a company can be registered or established only where it has an effective seat. A foreign company loses your registration and thus often the privilege of lack of liability on the part of shareholders when the effective seat is transferred to Germany. In this case, registration in the Commercial Register will have to be done again so as not to be considered a regular general partnership (OHG) with unlimited liability of the shareholders. opposite of this, founding principle The idea that the only thing that matters is whether the company is effectively incorporated in a country. With effective formation, the company acquires its legal capacity, which it retains even if it moves its effective seat abroad. The start-up principle thus enables the seat to move across the range while maintaining the start-up position.

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Otherwise, the Federal Court of Justice would have to discuss the privilege of registering the branch in accordance with the foundation principle. Beyond the European independence of establishment, the foundation principle meant recognition of the company law of the state in which the company was established.

With the Law on the Modernization of Partnership Law (Partnership Law Modernization Act – MoPeG) On August 10, 2021, the German legislature abolished the seat doctrine and opened the door to the start-up doctrine (BT-Drucksache 19/27635, p. 126 f.). According to the new 706 BGB, partnerships can now also move their administrative headquarters overseas, which is possible for companies with limited liability and stock corporations for several years (“MoMiG”). Therefore the Federal Court of Justice will hardly be able to uphold its opinion for seat theory, for example BGH, Decision of 27 October 2008 – II ZR 158/06. In any case, the attempt to justify would be overkill: only the departure of German companies is privileged, but not the arrival of foreign companies. It’s hard to listen.

In the midst of discussion on the interpretation of 30 December 2020 European Union and United Kingdom closed trade and cooperation agreements The extent to which British corporations are still to be recognized in Germany will thus likely disappear into thin air: the foundation principle already requires such recognition.

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About the Author: Forrest Morton

Organizer. Zombie aficionado. Wannabe reader. Passionate writer. Twitter lover. Music scholar. Web expert.

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