Commercial Register: GmbH & Co. KG Requires Prior Registration of General Partner

Berlin – Recent changes to German commercial register laws, effective January 1, 2024, have introduced new complexities for registering certain business structures, particularly the GmbH & Co. KG (a limited partnership where the general partner is a limited liability company).

A recent decision by the Brandenburg Higher Regional Court (Oberlandesgericht, OLG) has highlighted these complexities. The court ruled that a limited partnership (KG) cannot be registered in the commercial register if its general partner (Komplementär), which is itself a registrable legal entity, has not yet been registered.

This ruling significantly impacts new ventures where the general partner is a GmbH (limited liability company) or UG (haftungsbeschränkt, a variant of a limited liability company) that is still in its formation phase. Previously, it was possible to register a KG even if its general partner was not fully registered. The OLG Brandenburg has now clarified that the general partner must be registered prior to the KG's own registration.

The case involved a newly formed KG with a UG (haftungsbeschränkt) as its general partner. The registry court denied the KG's application, stating that the UG first needed to be registered in the commercial register. An appeal against this decision was unsuccessful.

The new regulation, stemming from the Modernization of Partnership Law Act (MoPeG), is now being applied to KGs. This means that company founders must ensure all necessary components of the business structure are properly registered before initiating the registration process. Specifically for a GmbH & Co. KG, this now requires the founding GmbH to be registered first, after which the KG itself can be submitted for registration in the commercial register.