Dienstag, 15.06.2021
The SE & Co. KG
Successor hybrid of GmbH & Co. KG?
from
Ingo ZilsLawyer
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The preferred choice of the GmbH & Co. KG as a legal form, in particular for medium-sized companies and specifically for family businesses, is primarily due to the combination of characteristics of a partnership and those of a legal entity, as well as the avoidance of personal liability and thethe possibility of using a third-party business management, in deviation from the principle of self-organization that determines the law of partnerships.
However, the number of GmbH & Co. KGs, in which the shareholders replace the general partner GmbH with an SE, is increasing. This raises the question of the reason for this.
In addition to the fact that the SE stands for internationality by virtue of its legal form, an important reason for the increasing importance of the SE with regard to its role as a personally liable partner in a limited partnership is the scope it offers for employee co-determination. The central aspect here is the possibility of "freezing" the existing level of co-determination before the relevant thresholds of 500 (Drittelbeteiligungsgesetz; "DrittelbG") or 2000 (Mitbestimmungsgesetz; "MitbestG") and to avoid the attribution of the limited partnership's employees to the SE with regard to the attribution standard of § 4 MitbestG. Partnerships (including the KG) as such do not belong to the legal forms subject to co-determination under the DrittelbG or MitbestG. However, the GmbH & Co. KG, specifically the general partner GmbH, is subject to co-determination under the conditions of § 4 (1) MitbestG if the limited partners hold the majority in the KG and the general partner GmbH (so-called identically-held GmbH & Co. KG; however, this also applies to the so-called unitary GmbH & Co. KG). In contrast, the attribution rules of § 4 MitbestG do not apply to the SE, either directly or by analogy, due to its legal form. Consequently, an SE & Co. KG can remain free of co-determination even if it employs more than 2000 people.
Family-owned and medium-sized companies that are planning to acquire other companies and their workforces should consider replacing the general partner GmbH with a (pre-formed) SE in good time.
If, in addition to the above aspects, a stock market listing is also being considered – while at the same time maintaining the greatest possible influence of the founders, particularly on the management – the SE & Co. KGaA can be another interesting legal form.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.