The GbR for Freiberufler: The business partnership for liberal professionals in Germany

Contents

• The GbR basics
• Who can start a GbR?
• What are the pros and cons?
• How do I set it up?
• How do I close it down?
• Alternatives to the GbR 
• Conclusion
• Want to know more?

GbR for Freiberufler: What are the basics?

Under German law, the GbR (which is short for Gesellschaft des bürgerlichen Rechts) is categorised under partnerships and must consist of at least two partners. It’s also known as a civil law partnership (BGB-Gesellschaft). In addition to natural persons and legal entities, such as an incorporated company legal personas can also act as a shareholder. The aim is to achieve a common purpose, which is set out in the articles of association (Gesellschaftsvertrag). The legal foundations for this are laid out in §§ 705 ff. BGB.

GbR for Freiberufler: Who can set up one?

The GbR as a legal form is not only an option for business people and interest groups, but also for Freiberufler. If you pursue one of the so-called ‘Katalogberufe’, or liberal professions, you’re a Freiberufler in Germany. These professions can be found in the artistic, medical, educational, technical and consulting fields. For example:

• Professional bands
• Joint practices
• Engineering offices
• Law firms, tax consultant offices (in this case, the GbR is considered a firm)
• Kindergartens

In addition to the pursuit of economic success, the GbR can also be run for charitable or idealistic purposes.

A GbR is legally competent if it acts externally and actively participates in legal relations. Then it’s considered to be a so-called ‘external GbR’ (Außen-GbR). In this case, it can act contractually and can sue or be sued in civil proceedings.

GbR for Freiberufler: What are the pros and cons?

Of course, you can also share an office with other Freiberufler without forming a GbR. If you also want to work with these people, GbR offers you advantages that can make your business easier. However, the simple organisation and the tax benefits are accompanied by some disadvantages.

Pros of the GbR for Freiberufler

• Capital is not carried alone
• Management can also be delegated to other partners
• Compensation of missing expertise
• Possibility of mutual feedback
• Division of the costs incurred (premises, website, etc.)
• Simple accounting with cash method of accounting (Einnahmenüberschussrechnung, EÜR)
• No balance obligation, annual tax declaration is sufficient
• Shareholders act equally
• No income or corporate tax
• Possibility of small business regulation

Cons of the GbR for Freiberufler

• No limitation of liability (Haftungsbeschränkung)
• The distribution of the shareholder shares cannot be regulated individually
• Possibility of suing the entire GbR, for which all shareholders are held responsible
• Restricted name choice, at least one shareholder must be named with full first and last name in the name
• Lawsuits are not possible as a GbR but only as a whole of the shareholders
• Departed shareholders are still jointly liable for the GbR for five years after their departure

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GbR for Freiberufler: How do I set it up?

The establishment of a GbR is quite simple. You and the other shareholders must determine the common purpose. Then you must draft the articles of association. In it, you must determine the rights and obligations of the shareholders by mutual agreement.

The GbR contract

Although concluding the GbR contract orally or by a handshake is legally binding, this will become problematic for legal disputes due to a lack of evidence. If you want something more watertight, you should take your GbR contract in writing and have it certified by a notary public. The written contract is obligatory when incorporating land or real estate.

In the contract, you specify the following:

• The purpose of the GbR (Zweck der GbR)
• Amount of the contributions of the shareholders
• Distribution of profits and losses within the GbR
• Regulation of business management
• Regulation of the shareholders’ meeting including the frequency of the meetings and invitations
• Type of decision-making
• Regulation of the majority of votes: Simple, two-thirds majority, unanimous resolution
• Weighting of votes
• Rules for absences at shareholders’ meetings
• Possibility of compensation for shareholders
• Creation of reserves
• Transfer of shares to third parties
• Possibility of contract termination by shareholders
• Dissolution (Auflösung)
• Timing/scheduling

You do not need minimum capital. In addition, the business registration is omitted because you are Freiberufler. You only have to register the GbR with the tax office. In addition, you don’t have to appoint a CEO because all shareholders vote on decisions.

Business name of a GbR

Essentially, the GbR must use a business name. It’s regulated somewhat differently than the company name. The following should be noted for the business name:

• You can use a made-up name, but in business transactions, the full surname of one of the shareholders should also be included.
• An industry or establishment designation (eg, Gynaecological Practice Dieter Kerner, Purzelbaum Daycare Center) may be supplemented for promotional purposes. However, it’s not used in official business.
• Misleading information, such as the place or industry, must not appear in the business name.
• The “GbR” suffix is mandatory.
• The business name can be used without further appendices for advertising material.
• If you work in an open branch office, the additional information next to the business name must be publicly visible.

The GbR, the oHG and the Handelsregister (commercial register)

Be aware, however, that you are not a ‘company’ in the legal sense as there is no commercial register entry (Handelsregistereintrag).

If your GbR starts operating as a ‘gewerblich‘ (commercial) business (per § 1 para. 2 HGB), it must be converted into an oHG (open trading company) and entered in the Handelsregister, as well as registered as a trade (Gewerbe). The limitation of liability (Haftungsbeschränkung) won’t apply but your business will have to comply with stricter regulations. In such a case, the German Commercial Code (HGB) applies; however, this is only worthwhile for commercial GbRs.

You do not need to apply for a commercial register entry as a freelancer.

GbR for Freiberufler: How do I close it down?

You can’t know in advance how long your GbR will last. Therefore, you should think early about the regulations in the event of a resolution. Agree on these regulations with your partners even before founding. You can then specify, among others things, the following:

• Change of purpose if it cannot be fulfilled
• Redistribution of property if a shareholder terminates the GbR, is terminated or dies, for example, through a continuation clause
• Regulation in the event of insolvency

After the GbR resolution follows the liquidation. The following happens:

• Execution of current business
• Debt settlement
• Refund of deposits and imported items
• Distribution of the remaining assets among the shareholders

Alternative to the GbR for Freiberufler: The PartG

If the limitation of liability is very important to you, the establishment of a  partnership company (Partnergesellschaft, PartG) as an alternative. To do this, you create a PartG contract, which is certified by the notary, and have your PartG registered with the district court in the electronic partnership register (elektronische Partnerschaftsregister). Then you take out liability insurance.

In most cases, as with GbR, the shareholders are liable with their private assets. An exception occurs when only one partner is responsible for the order. Then only the person responsible is liable.

If law firms and tax accountant offices act as PartG, only lawyers and tax consultants may be involved in the company. These companies are also known as law firms.

Conclusion

You do not have to work alone as a freelancer. Especially in the beginning, the establishment of a GbR offers attractive financial and organisational advantages. Make sure, however, that you have a good financial cushion in case you become liable. Take the right steps to protect your private assets in the GbR liability at an early stage.

Want to know more?

The GbR basics:

• What is the GbR? 
• What is a Kleingewerbe? 
• The pros and cons of the GbR

More on Freiberufler:

• What is a Freiberufler?
• How to become a Freiberufler in Germany

The Master List of all Company Formation articles can be found here.