Musterprotokoll vs Gesellschaftsvertrag: How to choose the right articles of association for your company

Contents

• Introduction
• Musterprotokoll vs Gesellschaftsvertrag
• What impact does the choice have?
• What is a Musterprotokoll?
• The right statutes for your company 
• Articles of association in Germany
• DIY company statutes
• More to read

Introduction

An important step when incorporating a company (UG or GmbH) in Germany is drafting its articles of association.

To do this, founders have two options:

They can opt for the Musterprotokoll, which directly translates to ‘model protocol’. This is a standardised template for a company’s articles of association.

The other option is a Gesellschaftsvertrag. This is an official document that is a company’s bespoke articles of association/statutes tailored to its needs.

Musterprotokoll vs Gesellschaftsvertrag: How do the two compare?

Both the Musterprotokoll and the customised Gesellschaftsvertrag can be used to incorporate a UG or GmbH in Germany. In this table, you’ll find a quick overview of all the important differences:

How does the choice impact the company formation process?

The Musterprotokoll (standardised statutes) and Gesellschaftsvertrag (customised articles of association) are not the same, even though they serve the same purpose. Both documents define the rights and obligations of the shareholders of a GmbH or UG.

However, the Gesellschaftsvertrag refers only to the company agreement—i.e., the statutes that govern how the company is run. The Musterprotokoll, on the other hand, includes a standardised company agreement/statutes and templates for the official list of shareholders and the appointment of the CEO. Anyone not using the Musterprotokoll will need to draft their own Gesellschafterliste (shareholder list) and the CEO appointment documents in addition to the agreement.

Though the term Mustersatzung is often used on the Internet, this designation does not officially exist and causes unnecessary confusion. This is not the official Musterprotokoll. Legislators introduced it to make the formation of a UG or GmbH more efficient.

This means that forming a company with standardised statutes costs less and is less time-consuming than using customised articles of association and a shareholder list. However, the details in the Musterprotokoll are fixed, and changes are only possible to a limited extent. Some things that aren’t significant factors in the formation of a one-person UG or one-person GmbH can be problematic with teams of founders with several shareholders.

Creating your own articles of association offers more flexibility to adjust its structure. Still, it is also subject to certain regulations (e.g. the Gesellschaftsvertrag, which is a shareholder contract for a UG or GmbH, must be in written form).

In the following, the unique characteristics of the Musterprotokoll and the Gesellschaftsvertrag are explained in detail.

What is a Musterprotokoll?

The Musterprotokoll can be used as an alternative to the typical articles of association when establishing a GmbH or UG. There is a variant for single founders as well as one for groups of founders consisting of up to three partners.

The content of the standardised statutes is specified in § 2 and § 3 para. 1 GmbH Law (GmbHG) and cannot be changed. The Musterprotokoll is a cloze text—i.e., the founder fills in the relevant information in the designated places. Subsequently, the Musterprotokoll is signed by all shareholders and notarised by a notary. It is then submitted to the Handelsregister (commercial register) before the business is incorporated.

This document has to contain the following information:

• Company name and addresses
• Business purpose
• Share capital
• CEO
• Start-up costs
• Copies (shareholders keep the original; tax office and registry court each receive a copy)
• Further information (supplemented as required by the notary)

The Musterprotokoll may be used for establishing a company under the following conditions:

• A maximum of three shareholders participate.
• A maximum of one CEO is appointed. The latter must be exempted from the restrictions of § 181 of the German Civil Code (BGB).
• The financial year must be based on the calendar year.

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Which kind of statues are right for your company?

Although the Musterprotokoll is faster and cheaper, it’s not necessarily always the more advantageous option. Particularly in litigation, tight regulations are often a hindrance. For example, the following regulations do not exist in the Musterprotokoll:

• Shareholder payments
• Powers of the CEOs
• Legal consequences after termination or death of a shareholder
• Distribution of profits
• Change of shareholders
• Shareholders’ resolutions
• Type of deposits (Only for GmbHs)
• Prerequisites for severance payments for shareholders
• Allocation of profits
• Redemption of business shares
• Conflicts within the company

You can create customised articles of association later down the track but this will cost you time and money.

Gesellschaftsvertrag: What do articles of association look like in Germany?

Articles of association in Germany are agreements drawn up between the shareholders of a corporation, which is reflected in the word Gesellschaftsvertrag, which literally translates to ‘company agreement’.

Since this allows founders to create an agreement that reflects a company’s unique circumstances – this is often the more practical solution in the long term.

Here are the advantages of using customised articles of association:

• Any number of shareholders and CEOs is possible
• Flexibility in the design of the rules
• Start-up costs are tax completely deductible
• The articles of association can be changed later
• A non-compete clause may be established
• Distribution of profits can be regulated individually
• Shareholders and CEOs can change freely among themselves
• The company does not automatically dissolve after the termination of a shareholder
• Termination regulations can be defined on an individual basis
• Regulations regarding shareholder resolutions and shareholder meetings can be defined on an individual basis
• Inheritance regulations can be defined on an individual basis
• Dissolution of the GmbH or UG can be determined on an individual basis
• Incorporating the company with half the share capital (€12,500) is possible

DIY Gesellschaftsvertrag

If you draft the articles of association yourself, note the obligatory components according to § 3 GmbhG:

• Company and address of the corporation
• Business purpose
• Amount of the share capital (Stammkapital)

Other important points that you should discuss with your co-founders:

• The number and the nominal amount in shareholdings/capital contributions, which together make up the UG or GmbH share capital (if more than one shareholder is involved in establishing the company)
• As with the Musterprotokoll, the articles of association must be submitted to the commercial register after notarisation. Additionally, there is the list of shareholders and the appointment of CEOs.
• You can contest the company’s articles of association. However, if the company is already registered in the commercial register, the contract cannot be contested retroactively.
• If the company is already active, contractual defects can only be asserted to a limited extent. In the case of silent partnerships, the general provisions for challenging and voiding can be asserted.
• Any change to the articles of association must be approved by a three-quarters majority in the shareholders’ meeting of the UG or GmbH (§ 53 II GmbHG). Furthermore, every change must be certified by the notary and relayed to the commercial register. The amendment is only valid from the publication of the updated commercial register entry.

Think about whether it would be more advantageous for you to set up your company using the Musterprotokoll vs the Gesellschaftsvertrag. If you decide on the latter and need help drafting a watertight agreement, seek the advice of a specialised lawyer.

Note: Creating articles of association is one of the 20+ steps in the company formation process. Want a roadmap to show you the rest?

Would you like to know more?

We have a master list of all Company Formation articles. A sampling of the list includes:

• The articles of association of Germany’s entrepreneurial company
• Musterprotokoll vs bespoke articles of association for the UG 
• Who is an authorised signatory in Germany?