GERMANY Law and Practice Contributed by: Leif Gösta Gerling, Matthias Krämer, Anna Reuber and Jiabao Gerling-Li, LPA
qualifies as a UBO at all, the managing director(s) of the JV must be filed as the UBO with the transparency register as the so-called fictional UBO. The name, date of birth, place and country of resi - dence, citizenship, and the type and scope of the economic interest of the UBO must be filed with the transparency register. This information will be acces - sible to courts and public services. Other so-called “obliged parties” (eg, banks, lawyers) pursuant to the GwG only have access on a case-by-case basis and to the extent required to fulfil their legal obligations under the GwG. Any other third party must prove a legitimate interest. 4. Legal Developments 4.1 Notable Recent Decisions or Statutory Developments During the past three years, German statutory and case law have significantly shaped the structuring and governance of JVs. The most relevant developments The Act implementing the Conversion Directive (UmRUG) now permits cross-border demergers and conversions (eg, a German GmbH into a Dutch B.V. or a Luxembourg S.à r.l.), providing more flexibility for cross-border JV structures. Partnership Law (Gesetz zur Modernisierung der Personengesellschaftsrecht – MoPeG) can be grouped as follows. Corporate Reorganisation Since January 2024, JVs structured as civil law part - nerships (GbR) must register as an “eGbR” in the new Partnership Register to retain legal capacity for hold - ing real estate or company participations. Deadlock and Governance In a January 2023 case (II ZR 76/21), the Federal Court of Justice ( Bundesgerichtshof – BGH) held that even partners barred from voting count towards quorum. In a July 2024 case (II ZR 71/23 – Hannover 96), the BGH held that shareholder resolutions are not void merely because of third-party voting agreements, pro -
vided the core powers of the shareholders’ meeting are respected. Exclusion and Exit In a July 2023 case (II ZR 116/21), the BGH held that the exclusion of a shareholder in two-tier GmbHs takes effect once the judgment is final, irrespective of compensation payment. Dispute Resolution In a June 2024 case, the Bavarian Higher Regional Court (BayObLG) held that the law governing an arbi - tration clause may differ from that used in the main contract. In a January 2025 case (I ZB 48/24), the BGH reaf - firmed the pro-enforcement approach, maintaining arbitration as the most reliable forum for JV disputes. Financing and Insolvency In an April 2024 case (IX ZR 129/22), the BGH held that third-party loans may be treated as shareholder loans if contractual rights resemble membership, rais - ing subordination risks. Competition Law In a March 2022 case (XXXLutz/Tessner), confirmed by the BGH in 2023, the Higher Regional Court of Düs - seldorf ( Oberlandesgericht Düsseldorf )confirmed a high evidentiary threshold for proving anti-competitive effects, allowing greater leeway for incorporated JVs. 5. Negotiating the Terms 5.1 Preliminary Negotiation Instruments and Practices In the German market, preliminary negotiations for a JV typically involve several standard instruments designed to structure discussions, protect confiden - tial information and set the framework for potential future agreements. A commonly used starting point is a mutual non-disclosure agreement (NDA), which ensures that both parties can exchange sensitive commercial, financial and technical information with - out risking public disclosure or misuse. NDAs often include standard provisions regarding the definition of
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