IfM Bonn: From an economic point of view, the proposed new legal form brings more disadvantages than advantages
According to estimates by the Institut für Mittelstandsforschung (IfM) Bonn for 2022 to 2026, an average of 38,000 company transfers in Germany per year are currently pending. Owners primarily try to implement an internal family succession plan – but family members are not always willing to take over. In these cases, it is necessary to find potential buyers from outside the company or within the company’s workforce so that the company does not have to close down ultimately.
“At first glance, the company with bound assets proposed by the Stiftung Verantwortungseigentum (Responsible Ownership Foundation) appears to be a suitable legal form for ensuring the continued existence of companies and facilitating succession. However, suppose this variant of the GmbH is examined from an economic point of view. In that case, it becomes apparent that the search for successors is more difficult than easier,” explains Dr Rosemarie Kay, Deputy Managing Director at IfM Bonn. A company with bound assets (a GmbH-gebV in Germany) differs from other legal forms on the one hand by the long-term binding of company profits (asset locking) and on the other hand by the regulation that shares may be passed on only within the so-called “Skills and Value Family”.
One of the hurdles in the search for a successor is removed when a GmbH-gebV is involved: potential buyers can avoid paying the usual market price. In return, however, they have to accept that they will not receive a share of the profits or an increase in the value of their investment due to the unalterable long-term asset locking in the company. In addition, they are restricted in their entrepreneurial freedom of action because they are initially accepted as shareholders by the “Skills and Value family” and must act by them. “Ultimately, therefore, only those persons who share the values of the capabilities and family can be considered buyers. This also applies to the regular heirs of a company,” explains Dr Kay. If most shareholders accept no individuals, transfers to legal entities are also conceivable in this legal form. However, the selection of these companies is limited to those that operate in the legal form of a company with bound assets.
Overall, the researchers do not see any advantages for corporate succession in the proposed legal form of a GmbH-gebV. After all, in principle, every entrepreneur can already choose the successor according to their values, regardless of the legal form. Likewise, they are not forced to base the sale price of their company on usual market prices.
The complete article "Company with bound assets – a legal form that can facilitate successions in the future?" by the IfM authors was published in the magazine Corporate Finance. The publication "Company with bound assets – a critical view from an economic perspective" is available on the homepage of the Institut für Mittelstandsforschung.
Denkpapier "A critical view of the legal form from an economic perspective"
