Foundation : chapter 5

• Pages: 87-101
• Published date: 01 January 2008
• Date: 01 January 2008
• DOI: 10.10520/EJC74090
• Author: Christoph Jaehne

87

CHAPTER 5

FOUNDATION

5.1 Introduction

In order to incorporate their business entities and to achieve the status

of a juristic person for the respective entity, members must comply

with certain regulations dealing with the entity’s foundation. These

regulations share the aim that members must commit themselves

to the business entity being established and provide it with the ne-

cessary means to start business. They also share the fact that they

have to be registered with an off‌icial authority, this being the local

court for the GmbH and the Registrar of close corporations for the

close corporation. In both cases, after registration the public has to be

in formed. However, differences in this founding process exist ref‌lect-

ing the position of the GmbH as a ‘Kapitalgesellschaft’. As the share

capital required is meant to protect the creditors, the GmbHG sets out

in detail provisions with regard to the members’ contribution and its

maintenance. In addition the position of a managing director is com-

pulsory, he has specif‌ic tasks in the process of f‌iling the formal ap-

plication. Even with these differences in mind, it is interesting to com-

pare some aspects of the founding process, i.e., provisions regarding

name, domicile, transparency of f‌inancial matters, kind of business

and amendment of articles of association and founding statement.

5.2 GmbH

The GmbH is entered into a commercial register,1 which is main-

tained by the local court in the company’s county or district. In order

1 With regard to the importance of the commercial register, see Brox,

Handelsrecht und Wertpapierrecht (1993), §7 note 101 et seqq. with

further references. However, due to changes in the Disclosure Directive

with the aim to ease and to speed up access, beginning on 1 January

2007 the commercial registers in all Member States, i.a., must be kept

electronically and must be ready to be accessed electronically, Direc-

tive 2003/58/EC of the European Parliament and of the Council of 15

July 2003 amending Council Directive 68/151/EEC, as regards disclo-

sure requirements in respect of certain types of companies, Off‌icial

Journal No. L 221/13 of 4 September 2003. For an overview regarding

internet access to commercial registers in Europe, see Wachter, “Han-

delsregister in Europa”, 2004, GmbHR R 29. See also for changes

through the introduction of the electronic commercial register in the

‘Gesetz über elektronische Register und Justizkosten für Telekommu-

nikation’ (abbr. ERJuKoG, Act on Electronic Registers and Legal Costs

for Telecommunication), BGBl. I 2001, 3422 and the TransPuG (Trans-

parency and Disclosure Act), BGBl. I 2002, 2681, i.a., easing the use

of electronic means Becker, “Neue Wege zur Register publizität”, 2003,

GmbHR R 145; Noack, “Online-Unternehmensregister in Deutschland