Choice of legal structure

You want to start a business and need to decide which legal structure to adopt:

• Which legal structure fits best your plans?
• How does the choice of legal structure affect you and your business?
• Type of your self-employed activity: Business or liberal profession?

Unincorporated firm (excerpt)

• Sole proprietorship (1 person)
• Civil-law partnership (GbR) for 2 or more people

Liability

Partners in unincorporated firms are fully liable with all the private and company assets.

Start-up expenses

Business people [Gewerbetreibende] register their business with the trade office for a fee of about EUR 50 per founder.

Business people [Gewerbetreibende] and members of the liberal professions [Freie Berufe] register their self-employed activity with the tax office and there is no fee.

In the case of civil-law partnerships (GbR), it is advisable to prepare a written partnership agreement.

Accounting

Single-entry bookkeeping (i.e. preparing a net income statement) is sufficient up to annual revenues of EUR 600,000 and annual profits of EUR 60,000. However, if your business exceeds  either of these limits, the tax office will notify you that you must use double-entry bookkeeping (with annual balance sheet and income statement) and prepare a balance sheet. Single-entry bookkeeping is easier and less expensive, whereas double-entry incurs much higher running costs for tax consultation and accounting.

Company name

Liberal professions and small businesses that are not entered in the commercial register (“Handelsregister”) do not have a company and thus have no company name. You must include your full name and a complete, legally valid address on all business correspondence (such as letters, invoices, legal notice, etc). IT legislation also has to be complied with when communicating and trading online. However, you may also invent a name for your employment activities or classify them according to a particular activity or sector. Before you add any such additional names you should check that the name hasn’t already been registered as a company or trademark or is used by another company. It is important not to break any laws concerning trademarks, competition, or names. Businsses that are entered in the commercial register may use their full personal name as their corporate name, but do not have to.

Good to know:
Even as a sole proprietor you can employ staff.

Incorporated firms (excerpt)

• Limited liability company (GmbH) (1 or more persons)
• Provisional company with limited liability (Unternehmergesellschaft haftungsbeschränkt, UG) (1 or more persons)

The involvement of a German notary is required for the incorporation.

Liability

At incorporated firms, liability is limited to the company assets. However, if due diligence requirements are violated, liability is no longer limited and and recourse can be made to the  manager’s private assets, too. One issue is frequently underestimated: Where bank loans are taken out, the need for collateral often leads to personal liability, for example if the partner gives  personal guarantees. This can also apply to rental contracts.

Start-up expenses

Compared to an unincorporated firm, the cost of setting up a limited liability company (GmbH/UG) is relatively high. The costs include notarial certification of the partnership agreement and entry in the commercial register, plus any fees paid to lawyers to draft the partnership agreement. A limited liability company also requires capital stock of at least EUR 25,000, of  which at least 50% (i.e. EUR 12,500) must be paid in when the entry is made in the commercial register. Once this entry has been made, you are free to work with this capital. Before business operations are started, you need to register the company with the local trade office and tax office.

Online formation

From August 2022 onward, online formation of a GmbH or UG (haftungsbeschränkt) by way of cash contribution will be possible – enabling a remote and faster incorporation procedure. The online notarization takes place in a video conference between the notary and the parties involved. The German Federal Chamber of Notaries provides a video communication system with a two-step identification procedure that requires an electronic proof of identity (eID).

Accounting

Double-entry bookkeeping (with an annual balance sheet and income statement) is always compulsory for incorporated firms, regardless of their revenue and profit levels. That means higher running costs such as for accounting and tax advice on top of higher start-up expenses.