DStR 2019, 294 = ZIP 2019, 176 = DNotI-Report 2019, 40 (summary) = DNotZ 2019, 384
A GmbH & Co KG was to be converted into a GmbH by means of a change of legal form. The resolution on the transformation of legal form was unanimous, whereby the sole shareholder of the GmbH created by the transformation of legal form was to become the previous limited partner. The local court rejected the registration of the transformation of legal form: It was necessary that in addition to the limited partner, the previous general partner GmbH also had an interest in the target company (continuity requirement, § 202 para. 1 no. 2 UmwG). Thereupon, the company filed an appeal; the parties involved have additionally regulated that the GmbH leaves the legal entity changing its legal form subject to the condition precedent that the change of form takes effect.
The Superior Court of Justice held that the withdrawal of the general partner was admissible when the change of legal form became effective. The principle of continuity of membership (derived from §§ 194 sub-section 1 no. 3, 202 sub-section 1 no. 2 p. 1 UmwG) was only intended to prevent the involuntary withdrawal of shareholders. However, if all partners agreed to the withdrawal of the personally liable partner, his participation in the legal entity of new legal form could be waived. In addition, the KG justifies its view by stating that in the case of partnerships, the general partner GmbH does not usually have a share in the assets of the KG; on the other hand, membership in a corporation is necessarily associated with such a share in the assets. From this it follows that the change of the legal form of a continuity of the membership can certainly set limits. Furthermore, the KG quotes the exceptions to the principle of continuity of membership (§§ 218 sub-section 2, 221, 236), which already exist in the UmwG, and states that a change of legal form which does not preserve the proportionate nature of membership is also possible; consequently, a change of legal form to zero must then also be permitted. Adherence to the requirement of continuity of membership leads to cumbersome alternative solutions which are not practical.
The change of legal form from a GmbH & Co KG to a GmbH is in practice probably one of the most frequently encountered variants of the change of legal form. There are different ways to reach the goal. The so-called “extended accrual model” is frequently chosen as an alternative outside the Transformation Act (capital increase in the case of a general partner GmbH; contribution of the KG share in return for the granting of company rights while maintaining the provisions of § 20 para. 1 UmwStG (contribution in kind), thereby extinguishing the KG by accrual, § 738 para. 1 sentence 1 BGB). The extended accrual model has the advantage that the general partner GmbH does not become “useless”; on the other hand, it has the disadvantage that e.g. land transfer tax can be triggered (§ 1 Paragraph 1 No. 3 GrEStG).
If one chooses the transformation of legal form, one must understand that the general partner GmbH is not identical with the GmbH created by the transformation of legal form. The general partner GmbH may then have to be liquidated at a later date or,depending on the situation,merged, unless it can serve other purposes.
A further problem in practice was that the general partner GmbH was not supposed to have a share in the assets of the target GmbH (just as it did not have a share in the assets of the partnership). As a consequence of the principle of identity, the trust solutions that were perceived as cumbersome have been used. The Court of Appeal now considers an immediate withdrawal to be permissible subject to the registration of the change of legal form. It hereby follows the Federal Court of Justice, which had affirmed this in 2005 for the transformation of an AG into a GmbH & Co KG (Federal Court of Justice NZG 2005, 722).
Even if, after this decision, it is still recommended to seek agreement with the register court as a precautionary measure (Blasche, notary 2019, 133, 134), the trend is probably clear. Not yet decided is the question of whether, in the case of a change of legal form of a GmbH into a GmbH & Co KG, the accession of the (then necessary) general partner GmbH can also be made subject to a condition precedent on the registration of the change of legal form. According to the tendency of the decisions of the BGH and the KG, this too will probably be affirmed.