如何在德国成立一个公司

4 10 月 2017

  • 德国
  • 公司法

Like in other jurisdictions, in Cyprus the term ‘joint venture’ connotes business arrangements that involve the pooling of resources, knowledge and experiences of the participants for the purposes of accomplishing or implementing a specific task, whether this is a particular project or business activity. There is no specific statute governing joint ventures yet in practice such arrangements take one of the following structures.

  1. Corporate Joint Venture

The cooperation materialises through the setting up of a legal entity separate from its participants with constitutional documents governing its operation and the relations between the participants and the entity in addition to the statutory provisions of the Cyprus Company Law, Cap 113. A shareholders’ agreement is typically executed operating in parallel. It is possible that further agreements such as licences for use of intellectual property etc. will be signed. This vehicle might be more appropriate where it is expected that the joint venture will need to enter into contractual arrangements with third parties due to the limited liability benefits. The termination is usually addressed in a shareholders’ agreement which specifies events of termination e.g. change of control, insolvency of a participant, attainment of objective etc. as well as the relevant processes e.g. sale of shares among participants, liquidation etc.

Taxation of income occurs at the level of the company. Participants are not taxed on dividends in Cyprus if they are not tax residents or if they are companies. If the company is to be taxed in Cyprus, the management and control will need to be exercised in Cyprus. Any assets, including intellectual property created by the company, become property of the new entity. The setting up of the company might be subject to notification to the competent competition authority under merger control rules. Corporate joint ventures are commonly used by international clients aiming to benefit from the network of double tax treaties maintained by Cyprus. They are also a vehicle often employed to enter the Cyprus market with the assistance of a local participant.

Advantages:

  • Limited liability; liability of participants limited to capital.
  • Participants control the company through the power of appointment of the board of directors.
  • The company is governed by the Cyprus Companies Law, Cap. 113, a statute based on English company law rules, which gives more legal certainty and familiarity for participants as well as the counterparties. The relationship is not purely contractual.
  • Tax optimisation possibilities given the low rate of corporate taxation applicable in Cyprus (at the rate of 12.5%). The numerous double tax treaties maintained by Cyprus may be exploited.

Disadvantages:

  • Less flexibility compared to the other structures due to the applicable legal framework both in terms of operation and compliance.
  • Governance and control questions might need to be addressed e.g. to deal with deadlocks.
  • Restrictions and or conditions for the transfer of shares are typically adopted.
  • Both the corporate profit and the dividends returned to participants might, under certain circumstances, be subject to taxation e.g. where participants are natural persons residing in Cyprus.

  1. Partnership Joint Venture

The relationship is governed by the relevant statute which specifies the liability of each partner depending on whether the partnership would be a general or limited partnership. In the first case, each partner has unlimited liability with the other partners for all debts and liabilities of the partnership. In the second case, only the general partner has unlimited liability; limited partners are only liable for the capital they agreed to invest but should not participate in the running of the business. The relevant statute imposes default and overriding rules governing the arrangement e.g. in relation to the termination or profit sharing. The termination of the partnership will typically be governed by the partnership agreement, but the statute also provides for specified circumstances which would apply unless the parties agree otherwise. Business assets and intellectual property contributed by each party become the property of the partnership (except if agreed otherwise) and should be exploited in accordance with the partnership agreement for the purposes of the partnership.

Partnerships are tax transparent, accordingly, taxation occurs at the level of the participants and profits and losses accrue to them. Partnerships might be subject to competition law rules prohibiting the restriction of competition. Further, the creation of a partnership might be subject to notification to the competent competition authority under merger control rules. Partnership joint ventures are regularly used for economic activities of professionals. They have also been used as a vehicle in the context of tenders (public or other).

Advantages:

  • Relatively fewer formalities apply than in the case of corporate joint ventures.
  • Registration requirements exist but no requirement for disclosure of the actual partnership agreement i.e. the constitutional document.
  • Although the partnership has no legal personality, it may sue and be sued in its own name and may trade under its name.
  • Apportionment of profits and losses on the basis of discretion.
  • Attribution of profits to the partners; not to the partnership.
  • Independent tax planning possibilities for each participant as regards losses incurred and profits earned. Wide options may be available due to the extensive network of double tax treaties maintained by Cyprus.

Disadvantages:

  • Significant powers to unlimited partners. Given the powers of partners to bind the partnership, decision-making process needs to be addressed carefully.
  • Liability comes with involvement in the management/control. Unlimited liability of general partners towards third parties. Solutions alleviating the effect of this may be possible.
  • Tax transparency may not be beneficial where the partners are natural persons as they might be taxed at higher rates. Yet with appropriate structuring this may be avoided.

  1. Contractual joint ventures

The basis of the cooperation of the participants is solely a contractual agreement between them. It is expected that such agreement will include detailed provisions regulating the rights and liabilities of the parties towards each other, the distinct role and input of each, their contributions, their share in the income generated etc. No separate legal personality is created. Business assets and intellectual property remain the property of the participant who contributed or developed them (unless of course the parties agree otherwise).

Profits and losses accrue to the participants and taxation is also incurred at the level of the participants. Such arrangements might be subject to competition law rules prohibiting the restriction of competition. Contractual joint ventures are commonly used in the context of tenders (public or other).

Advantages:

  • Governed solely by contact law thus greater flexibility as to the operation and termination. Contract law in Cyprus is based on common law principles.
  • No registration requirements.
  • Minimal formalities compared to the other possible structures.
  • No joint liability; liability towards third parties limited to own acts or omissions of each participant.
  • Independent tax planning possibilities for each participant as regards losses incurred and profits earned.

Disadvantages:

  • Lack of legal personality might cause difficulties in establishing commercial or contractual relationships with third parties.
  • Need for detailed regulation of all aspects of the cooperation in the agreement due to the lack of legal framework for the relationship; careful and skilful planning is required.
  • Depending on the facts and provisions adopted, risk of classification of the relationship as a partnership by a court with the consequence of joint liability.

  1. European Economic Interest Grouping (EEIG)

A vehicle established and governed predominantly by European law (Council Regulation 2137/85) instead of national law. Specific purposes for EEIGs apply i.e. to facilitate or develop the economic activities of the members to enable them to improve their own results. In that context the activities of EEIGs must be related to the economic activities of the members but not replace them. The purpose is not to make profits for the EEIG itself. EEIGs are governed by a contract between their members and Council Regulation 2137/85. They have capacity, in their own name, to have rights and obligations of all kinds, to contract or accomplish other legal acts as well as to sue or be sued. There is unlimited joint liability of the participants for the debts and liabilities of the EEIG but the exclusion or restriction of liability of one or more members for a particular debt or liability is possible if it is specifically agreed between the third party and the EEIG. EEIGs enjoy tax transparency. Profits or losses are taxable at the hands of the participants.

Advantages:

  • Established under European law; EEGIs might be ideal for alliances of firms in different member states of the European Union for joint promotion of activities.
  • Relatively fewer formalities apply than in the case of corporate joint ventures though there are registration requirements.
  • Tax transparency.

Disadvantages:

  • Managers bind EEIGs as regards third parties, even if their acts do not fall within the objects (unless the third party had knowledge).
  • Unlimited liability of participants.
  • More limited scope for use due to the statutory purposes dictated.

Which option is the most appropriate and or efficient in terms of structuring in a particular case depends on the facts at hand and the actual needs of the participants. The different factors need to be carefully examined with the help of experts so that the most suitable solution is adopted.

Directive (EU) 2017/1132 “relating to certain aspects of company law”, entered into force on July 20, 2017, lays the foundations for a fully harmonized European company law. The European Parliament and the Council intend to create the conditions to effectively promote the fulfillment of the freedom of establishment and of the freedom to conduct business as set out by the Treaty on the Functioning of the European Union (TFEU) and the Charter of Nice. This process of consolidation has started in 2012 by the Action Plan, which was the fruit of the public consultation on the European company law and corporate governance aiming at “a modern legal framework for more engaged shareholders and sustainable companies”.

The Directive operates in two directions: on one hand, it aims at streamlining the existing legislations consolidating – and repealing – six previous Directives on European company law:

– Directive n. 82/891/EEC concerning the division of public limited liability companies;

– Directive n. 89/666/EEC concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State;

– Directive n. 2005/56/EC on cross-border mergers of limited liability companies;

– Directive n. 2009/101/EC on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent,

– Directive n. 2011/35/EU concerning mergers of public limited liability companies and

– Directive n. 2012/30/EU on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the incorporation of limited liability companies and the maintenance and alteration of their share capital.

The Annex IV includes a correlation table linking the articles of the consolidated Directives with the new one.

New rules are directed in particular to coordinate safeguards and guarantees that must be provided – as well as the information that must be disclosed – to shareholders and third parties in order to the make them equivalent throughout the Union. As matter of fact, the recitals of the Directive emphasise the need for specific harmonised safeguards to be in place, especially with respect to limited liability companies, notably because of their frequent cross-border business and their predominant feature in the economy of the Member States, more dynamic over last decades.

To date, due to the lack of a uniform discipline, there are indeed 28 different national company laws, which address domestic companies as well as foreign entities operating in another Member State to the detriment – indirectly of course – of freedom of establishment for companies, which, according to art. 54.1 of the TFEU, are to “be treated in the same way as natural persons who are nationals of Member States”.

The Directive consists of 168 articles, four Annexes and three titles that encompass different themes: from the incorporation of public limited liability companies, to companies’ representation, companies registers, branches of companies based in a Member State although govern by the law of another, capital requirements and even mergers (domestic and cross-border) or divisions of companies.

In more detail, the main innovations introduced by the Directive concern:

The incorporation of public limited companies, where the articles of incorporation and the articles of association shall be drawn up and certified in due legal form in all Member States whose laws do not provide for pre-emptive administrative or judicial control at the time the company is actually incorporated.

The implementation of a central companies register – resulting from the interconnection of the existing national registers – that enables users to access from a single web portal.

Capital requirements for public limited liability companies, which shall be not less than euro 25,000.00.  The Commission will regularly examine the economic and monetary trends and, as the case may be, revise this requirement accordingly with a view to devoting this type of company to medium-sized/large undertakings.

Acts of the organs of the company, which shall be binding regardless of the validity of the appointment of the person serving in the organ itself and despite the fact that the acts actually carried out exceed the company’s corporate scope (on this issue, Member States may provide otherwise: for example providing that he company shall not be bound where such acts are outside the objects of the company, if it proves that the third party knew that the act was exceeding those objects or could not in view of the circumstances have been unaware of it, bearing in mind that the pre-emptive disclosure of this information will not suffice as it will always be necessary an assessment on case by case basis.

Disclosure requirements concerning branches of companies set up in another Member State’s territory. These branches will be subject to disclose information to the national register (which, in the meantime, will have become interconnected Europe-wide) in order to offer the public reliable and certain corporate information and data. In particular branches shall disclose information relating to the activity they carry out; the name and legal form of the company and the name of the branch, whenever they differ with one another; the relevant accounting documents along with the identity of the subjects authorized to represent the company in legal proceedings and deal with third parties (it will also be necessary to specify whether they have to operate jointly or not). Likewise, it will be necessary to disclose the information regarding the bankruptcy/winding-up procedures the company may go through along with the identity and the powers of the receiver or, in any case, the person in charge of the winding-up procedure/bankruptcy procedure.

Mergers and companies divisions that will have to be carried out taking into account the safeguards provided by the Directive 2001/23/EC to protect the workers of the companies involved. In this case, the Directive provides a discipline that, similarly to the companies’ incorporation procedure, requires that the document regulating the merger (deeds, contracts depending on the national rules on this matter) shall be drawn up and certified in due legal form whenever the laws of the Member State do not proved for judicial or administrative pre-emptive supervision as to the lawfulness of the whole operation. The same rule shall apply in the event the national laws required that the merger project is approved by the general shareholders meeting of the company.

In the end, if the Directive will have a partial impact on the development a uniform European company law, it is worth noticing that this consolidation project has excluded the harmonization of several further EU Directives concerning the Company Law. As far as the Italian Law it can be said as it is almost entirely compliant already with the Directive excluding those rule on capital requirement (in Italy nowadays the minimum share capital of società per azioni is fixed in 50 thousand euro) and the implementation of the European companies register and the company’s representation rules.. As it does not introduce any new provision, there is no date for the Member States to transpose it at a national level, however, the Annex III remarks the time limit to incorporate the abolished Directives into the domestic legal systems.

As clearly set forth by the Directive “this Directive is not aimed at establishing any centralised registers database storing substantive information about companies. At the stage of implementation of the system of interconnection of central, commercial and companies registers (‘the system of interconnection of registers’), only the set of data necessary for the correct functioning of the platform should be defined”. Surely, the leading aim of the Directive is to improve the certainty of the disclosure and the cross-border access to company and its brunches information, this purpose is very challenging considering the national system of the company registers which are quite fragmented at a local level.

The author of this post is Milena Prisco.

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The limited liability company (“Limitada”) is the most common form of corporate organization in Brazil, being largely adopted in view of advantages. A Limitada must have at least two partners (quotaholders), natural persons or legal entities that do not need to be Brazilian or Brazilian residents.

As a consequence of such requirement, many companies adopting the limited liability form would have a second partner holding as little as one quota simply to comply with the legal requirement. In many cases, the second partner would have no interference in the business but undertakes a liability that is not under his/her/its control.

Also, the need of the second partner would imply in extra costs with documentation and bureaucratic measures, not to mention extra accounting requirements when such second partner is a legal entity.

In 2011 a new legislation was passed modifying the Brazilian Civil Code and included a new corporate form, the Limited Liability Individual Company, known as EIRELI. However, the EIRELI could not be incorporated with a legal entity as its holder, but would only be applicable to natural persons, whether Brazilians or Brazilian residents.

Finally, in May 2017, the Brazilian Civil Code was modified once again in order to allow legal entities, whether domiciled in Brazil or not, to be the sole holders of an EIRELI. However, a holder of an EIRELI can only hold a single company incorporated as an EIRELI.

A Limitada or an EIRELI are advantageous as they (i) are subject to fewer disclosure requirements as opposed to a corporation; (ii) have a simpler and less expensive organization; and (iii) corporate decisions can be taken easier and quicker.

This Article intends to present the basic organization of a Limitada and of an EIRELI, as follows:

Partners, Quotas and Capital

A Limitada must have at least two partners, natural persons or legal entities that do not need to be Brazilian or Brazilian residents. An EIRELI may have only one holder, natural person or legal entity that do not need to be Brazilian or Brazilian resident.

Each of the foreign partners or the holder, in case of EIRELI, shall name a legal representative, who lives in Brazil, with minimum powers to accept service of process and for representation before the Federal Revenue for obtaining a taxpayer number (for controlling purposes only).

There is no minimum quota capital requirement for most cases, unless a permanent visa is required or if an import license is needed (the amount of the company’s capital influences the authorized amounts for imports and exports). The Brazilian company may be financed either by the direct investment (capital) or by loans to be granted by the partners. In case of loans, thin-capitalization rules apply.

The ownership of the Limitada quotas or of the EIRELI is reflected in the company’s Articles of Association, since no certificates to that effect are issued.

The quotas of a Limitada can only be transferred by a specific amendment to the Articles of Association and must be subscribed at the time the company is established. The EIRELI’s capital may or may not be divided into quotas.

The company’s capital does not have to be paid up upon incorporation; it may be paid up within a certain period of time (i.e., two years), in Brazilian currency or goods.

Company’s name, objectives and address

The Limitada’s name has to include some words that indicate what the company’s objectives are. The names should be followed by the objectives (if more than one just the main objective) and by the specific area of the market. The EIRELI does not have to follow those requirements.

The company objectives and address must be included in the Articles of Association.

Administration

The administration structure of the Limitada and of the EIRELI must be determined in the Articles Association. In addition, in the Articles of Association, or in a separate document for the Limitada, at least one administrator (general manager) has to be nominated. The partners of the Limitada or the holder of the EIRELI are(is) free to appoint one or several of them to administer the company, as well as third parties.

The administrator has to be a Brazilian resident, meaning either a Brazilian or an expatriate bearing a permanent visa.

Partners Resolutions

Most of the partners’ resolutions in a Limitada may be taken by majority of the capital or by any higher quorum agreed upon by the partners.

Resolutions of the partners altering the Articles of Association or deciding on acquisition, merger, dissolution, and cessation of the liquidation status must be taken by three quarters of the company’s capital. A few other resolutions as the election of the administrators when the capital is not fully paid up must be taken by the totality of the company’s capital.

As the EIRELI has one single holder, all decisions are taken by the holder.

Liability of Partners and of Holder

The liability of the partners of the Limitada and of the EIRELI’s holder is limited to their respective participations in the company’s capital, except when the company’s capital is not fully paid-up. In this case, the partners are liable, with their personal assets, for the total amount of the company’s capital. Please note that in certain cases of disregard of the corporate veil, activities against the law and acts performed without proper authority, the partners or the holder may be unlimitedly responsible, especially in tax, labor and environment areas. In case of non-payment of taxes the administrator may be held co-responsible.

In this clip I briefly introduce the main options to consider when doing business in Iran.
You can read more on this topic in my articles An introduction to Iran Corporations  and Obtaining a Foreign Investment License and browse Legalmondo’s blog for some other  posts on doing business in the region.

公司种类

根据德国法律，有几种类型的公司可供选择。然而，最适合在德国经商的经营主体类型是：

  • 有限责任公司(“GmbH” and “UG”);
  • 股份有限公司(“AG”);
  • 有限合伙公司(“KG”).

选择的标准是责任、税收、融资、个人参与和控制以及灵活性。对于较大的公司，有限责任公司（“GmbH”）或股份有限公司(“AG”)通常最合适。他们的股东责任仅限于各自的股份。最低股本在50000欧元(股份有限公司AG)、25000欧元（有限责任公司GmbH）和1欧元（有限责任公司的子公司UG）之间变化。有限责任公司（“GmbH”）及其子公司（“UG”）的股份转让通常须经其他股东批准和公证，而股份有限公司的股份可自由转让。然而，有限责任公司（GmbH）是一个比起股份有限公司（AG）更加灵活和程序要求不高的主体类型。有限责任公司（GmbH）, 有限责任公司子公司（UG）, 和股份有限公司 （AG）是由一个或多个创始股东组成的公司，通过章程并任命其总经理，比如在股份有限公司（AG）中，在公证书中设立监事会（至少有三名成员）。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。由于税收原因，合伙公司往往更受青睐，尤其是有限合伙公司（KG），因为有限责任的原因，通常与作为普通合伙人的公司合并(“有限责任公司GmbH 与有限合伙公司 KG” 或者 “股份有限公司AG 和 Co. 有限合伙公司KG”)。其需要至少两位合伙人。

所依据的法律：

  • 对于有限责任公司GmbH及其子公司UG，有限责任公司法(“GmbHG”)
  • 对于股份有限公司AG，股份有限公司法(“AktG”)
  • 对于合伙公司，德国民法典(“BGB”)和德国商法典(“BGB”)

外国企业一般与国内企业受相同的法律规范。例外的是，德国国家经济与技术部可以限制或者禁止位于欧盟，冰岛，列支敦士登，挪威或者瑞士（欧洲经济区“EEA”）之外的个人或者经营实体收购或者参股国内经营主体。前提是：

  • 外国投资者在一家德国公司中获得25%或者更多的投票权。
  • 收购危害了国家公共秩序或安全（对外贸易和支付条例[“AWV”]55-59节）。如果所收购的国内商业实体涉及到基础设施部门（电信、电力供应、火车、机场或医院），情况尤其如此。

有限公司的成立

有限责任公司（GmbH或UG，见上文）要求最低股本为25000欧元（GmbH）和1欧元（对于“UG”）。GmbH和UG由一个或一个以上的创始股东组成，通过章程并在公证书中任命其总经理。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。

股份有限公司的成立

一个股份有限公司所要求的最低股本（AG）是50000欧元。

股份有限公司由一个或多个创始股东组成，在章程中通过章程，并在公证书中设立监事会（至少有三名成员）。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。

成立代表处

“代表处”的任务仅限于观察市场而非经营业务。在德国商法下，代表处不作为独立部门存在。相反，在德国，一个代表处可为外国公司的一个分支代表处（见下文），或为一个独立承包商/业务提供商（但并非外国公司）的代表处。代表处不需要于商业登记处注册。相反，在当地贸易局（“gewerbeanzeige”）进行一个正式的登记便足够。

成立一个分公司

进行直接销售的另一途径是建立

  • 一个自治分公司(„selbständige Zweigniederlassung“)或
  • 一个从属分公司(„unselbständige Zweigniederlassung“)

分公司不是独立的实体，而是属于主公司的总部，并受管理总部的相同的组织法的约束。因此分公司的责任取决于总部。

一个自治的分公司进行与总部相同的业务活动（不仅仅是辅助活动）。此外，它具有一定的个人的和事实上的自主权，特别是通过关于自主行政权力、银行账户、资产负债表和商业资产的管理。这样的分公司需注册于

  • 当地贸易局（如上文）
  • 德国商业注册。其需分公司的详细信息，包括一个在其“母国”的商业登记公证副本及其董事的代表权，再加上公司记录和章程。所有文件应翻译成德语并且公证副本应认证（通常通过一个旁注）。

从属分公司不自主行事，但强烈依赖总部（例如，它以总部的名义开具发票）。

税收程序

在德国经营的外国企业和个人，有两级征税：

  • 贸易税适用于德国的所有企业和个人，并按应纳税收益支付。作为地方税，不同市政府的税率不同；
  • 所得税取决于业务实体：
  • 公司缴纳企业所得税（15%的税率）。股东须缴纳资产收益税和股息税。德国公司的平均税负为30%（企业所得税和贸易税）。
  • 合伙企业本身不受所得税的约束，但其合伙人受公司（如企业实体）或个人（如个人）所得税的约束。
  • 个人缴纳个人所得税。税率随着收入的增加而增加（最多为45%，收入为250000欧元时），但可以缴纳贸易税来相抵。股息和资产收益适用特别的税率。

对于股息、资产收益、付款利息和许可证费用，需缴纳预扣税（“Kapitalertragssteuer”）。这相当于分配给公司的资产收益的25%（再加上5.5%的“团结附加税”，加入税额）。如果这些税款涉及与企业原籍国签订的双重征税条约，则这些税款可退还。

公司登记

在德国建立公司的要求在公司登记或商业登记处（“handelsregister”）注册。登记由地方法院管理。其向商人和商业公司说明在德国如何经营。其目标是在与这些公司打交道时创造透明度和法律安全（例如了解公司的总经理、其注册席位、创始资本等）。这些均可以通过访问www.handelsregister.de.网站得到。

Brazilian legislation requires every nonresident that holds quotas, capital or shares of a Brazilian company appoints an attorney-in-fact that resides in the country, with powers to receive service of process.

Besides granting the power required by law, foreign partners usually grant other powers to their attorneys-in-fact, in order to facilitate the procedures, since all documents executed abroad must be notarized and Apostilled, and once they arrive in Brazil they must be translated by a sworn translator and registered before the Public Registry of Titles and Documents, in order to be valid in Brazil, which is time and money consuming.

Also, all foreign companies holding quotas, capital or shares of the Brazilian company, need a Taxpayer number, called CNPJ. The taxpayer number is not for tax payment purposes, but for controlling purposes only. The foreign partners / holder need to grant a power of attorney for their enrollment at CNPJ, and representation before the Federal Revenue in all matters.

By the time the company is incorporated the Power of Attorney granting the above-mentioned mandatory powers must be presented before the Board of Trade.

Moreover, all Foreign Direct Investment must be registered at the Central Bank of Brazil. This means that every time the foreign shareholder/partner transfers money to the Brazilian company as investment, the respective exchange agreement must be registered at the Central Bank. Such registration is done electronically.

The main effects of such registration are the possibility of remitting dividends and of repatriating the capital invested.

In view of the above, the documents to be presented at the incorporation of a company in Brazil are:

  • Power of Attorney granting to a Brazilian resident powers to accept service of process, for enrollment at CNPJ and representation before the Federal Revenue;
  • In case the foreign partners/shareholders/holder are/is a natural person, a copy of his/her passport;
  • In case the foreign partners/shareholders/holder are/is a legal entity:

– Copy of the passport of the legal representative of the foreign partners/shareholders/holder; and

– Updated Certificate issued by the Board of Trade of the foreign partners/shareholders/holder’s head offices attesting: (a) its existence and good standing, and (b) its legal representatives for the purposes of evidencing that the company was duly represented in the Power of Attorney granted. This document (or a separate one issued by a public authority) must also contain the head offices address, name of shareholders, capital and objectives.

Note that all documents need to be duly notarized and apostilled. Once they arrive in Brazil, they will undergo sworn translation and will be registered at the Public Registry Office in order to be valid.

We would like to point out that the Federal Revenue and commercial banks have increasingly been requesting a series of complementary documents for compliance reasons, so that the final beneficiaries (natural person) of each foreign company holding quotas, capital or shares of Brazilian entities may be identified.

At the chosen bank’s own discretion, other documents may be necessary, as balance sheets, statements and corporate documentation until the end controller (natural person) is identified. These documents must be presented for the opening of a bank account, and banks have been taking quite some time to open the account.

The purpose of this brief essay is to give an overview of company types  according to Hungarian law, along with some relevant legal standards that define their operation.

A member of the European Union since 1 May 2004, Hungary is a country in rapid growth and, as such, an attractive destination for prospective investors that wish to set up a local enterprise.

What kind of business associations can be established?

Hungarian Civil Code regulates the foundation, organization and operation of business associations with a registered seat in Hungary.

The Hungarian law complies with EU legislation and allows for foreign nationals to establish business associations in Hungary under the same terms and conditions as Hungarian citizens.

  1. General Partnership (Hungarian: “Közkereseti társaság”)

Members of the partnership shall undertake to jointly engage in business operations with unlimited, joint and several liability, and to make available the capital contribution necessary for the activities of the partnership.

  1. Limited Partnership (Hungarian: “Betéti társaság”)

Members of the partnership shall undertake to jointly engage in business operations, and the liability of at least one member (general partner) for the obligations of the partnership shall be unlimited. If there is more than one general partner, all general partners shall be jointly and severally liable. At least one other member (limited partner) shall only be obliged to provide the capital contribution undertaken in the Memorandum of Association, and, with the exceptions set out in the Hungarian Civil Code, shall not be liable for the obligations of the partnership.

  1. Limited Liability Company (Hungarian: “Korlátolt felelősségű társaság”)

This is a business association founded with an initial capital (so-called subscribed capital) consisting of capital contributions of a pre-determined amount, where the liability of members to the company is limited to the provision of the contribution to the initial capital, and possibly to other contributions established in the partnership agreement. This is the most common company form in Hungary. The minimum subscribed capital required to start a company has been recently raised to HUF 3,000,000 (approximately € 10,000).

  1. Limited (Joint-Stock) Company (Hungarian: “Részvénytársaság”)

Limited companies are business associations founded with a share capital (subscribed capital) consisting of shares of pre-determined face value, and the obligation of members (shareholders) to the company is limited to the provision of the face value or issue price of shares.

Private and public limited companies are usually founded for larger investments in terms of invested capital. The minimum subscribed capital of a private limited company (“Zrt”) is HUF 5,000,000 (approximately € 15,000), while a public limited company (“Nyrt”) requires a capital of at least HUF 20,000,000 (approximately € 60,000). Privately held companies (“Zrt”) operate similarly to public limited companies but their shares cannot be listed on the stock exchange and specific provisions apply to the sale and purchase of shares.

Pursuant to the law, nonprofit business associations can also be set up.

What is the procedure for founding a business association?

A business association can be founded by both Hungarian and foreign citizens.

The first step is signing a Memorandum of Association, which is usually drafted and countersigned by a legal practitioner or notary. The format of this document varies depending on the kind of business association established.

Since 16 March 2017, there is no administrative fee for founding an association, with the exception of privately held companies (“Zrt”), for which it amounts to HUF 50,000 (approximately € 150).

The next step is requesting the inclusion of the company in the Register of Companies, which, according to Hungarian law, shall be carried out by a lawyer.

The following documents shall be submitted with the registration request: Memorandum of Association; acceptance of mandates (executive officers, members of the supervisory board, and auditor); statement by the executive officer or certificate from the financial institution about the payment of initial contributions; special power of attorney granted to the legal representative; certificate of payment of the necessary expenses.

The registration request shall be submitted to the County Court within thirty (30) days from the foundation of the business association. Foundation of certain types of businesses may require prior authorization by relevant authorities (e.g. foundation permit in the banking sector). In that case, the request of registration shall be issued within fifteen (15) days from receipt of the foundation permit.

The Court has eight (8) days to review and approve the request and the attached documents. Within the framework of the Hungarian Civil Code and other legal regulations, members (shareholders) may freely establish the contents of the articles of association, according to their own personal and economic needs.

Once the registration is completed, the association will be listed in the Register of Companies and published in the Official Company Gazette (Hungarian: “Cégközlöny”).

What is the corporate tax rate in Hungary?

As of 1 January 2017, the Hungarian government cut the corporate tax rate to 9%, and now Hungary has the lowest level of corporate taxes in Europe, which gives the country a competitive edge to attract foreign direct investment to the country.

Benedikt Rohrssen

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    Brazil – Legal requirements for incorporating a company

    28 9 月 2017

    • 巴西
    • 机构
    • 公司法

    Like in other jurisdictions, in Cyprus the term ‘joint venture’ connotes business arrangements that involve the pooling of resources, knowledge and experiences of the participants for the purposes of accomplishing or implementing a specific task, whether this is a particular project or business activity. There is no specific statute governing joint ventures yet in practice such arrangements take one of the following structures.

    1. Corporate Joint Venture

    The cooperation materialises through the setting up of a legal entity separate from its participants with constitutional documents governing its operation and the relations between the participants and the entity in addition to the statutory provisions of the Cyprus Company Law, Cap 113. A shareholders’ agreement is typically executed operating in parallel. It is possible that further agreements such as licences for use of intellectual property etc. will be signed. This vehicle might be more appropriate where it is expected that the joint venture will need to enter into contractual arrangements with third parties due to the limited liability benefits. The termination is usually addressed in a shareholders’ agreement which specifies events of termination e.g. change of control, insolvency of a participant, attainment of objective etc. as well as the relevant processes e.g. sale of shares among participants, liquidation etc.

    Taxation of income occurs at the level of the company. Participants are not taxed on dividends in Cyprus if they are not tax residents or if they are companies. If the company is to be taxed in Cyprus, the management and control will need to be exercised in Cyprus. Any assets, including intellectual property created by the company, become property of the new entity. The setting up of the company might be subject to notification to the competent competition authority under merger control rules. Corporate joint ventures are commonly used by international clients aiming to benefit from the network of double tax treaties maintained by Cyprus. They are also a vehicle often employed to enter the Cyprus market with the assistance of a local participant.

    Advantages:

    • Limited liability; liability of participants limited to capital.
    • Participants control the company through the power of appointment of the board of directors.
    • The company is governed by the Cyprus Companies Law, Cap. 113, a statute based on English company law rules, which gives more legal certainty and familiarity for participants as well as the counterparties. The relationship is not purely contractual.
    • Tax optimisation possibilities given the low rate of corporate taxation applicable in Cyprus (at the rate of 12.5%). The numerous double tax treaties maintained by Cyprus may be exploited.

    Disadvantages:

    • Less flexibility compared to the other structures due to the applicable legal framework both in terms of operation and compliance.
    • Governance and control questions might need to be addressed e.g. to deal with deadlocks.
    • Restrictions and or conditions for the transfer of shares are typically adopted.
    • Both the corporate profit and the dividends returned to participants might, under certain circumstances, be subject to taxation e.g. where participants are natural persons residing in Cyprus.

    1. Partnership Joint Venture

    The relationship is governed by the relevant statute which specifies the liability of each partner depending on whether the partnership would be a general or limited partnership. In the first case, each partner has unlimited liability with the other partners for all debts and liabilities of the partnership. In the second case, only the general partner has unlimited liability; limited partners are only liable for the capital they agreed to invest but should not participate in the running of the business. The relevant statute imposes default and overriding rules governing the arrangement e.g. in relation to the termination or profit sharing. The termination of the partnership will typically be governed by the partnership agreement, but the statute also provides for specified circumstances which would apply unless the parties agree otherwise. Business assets and intellectual property contributed by each party become the property of the partnership (except if agreed otherwise) and should be exploited in accordance with the partnership agreement for the purposes of the partnership.

    Partnerships are tax transparent, accordingly, taxation occurs at the level of the participants and profits and losses accrue to them. Partnerships might be subject to competition law rules prohibiting the restriction of competition. Further, the creation of a partnership might be subject to notification to the competent competition authority under merger control rules. Partnership joint ventures are regularly used for economic activities of professionals. They have also been used as a vehicle in the context of tenders (public or other).

    Advantages:

    • Relatively fewer formalities apply than in the case of corporate joint ventures.
    • Registration requirements exist but no requirement for disclosure of the actual partnership agreement i.e. the constitutional document.
    • Although the partnership has no legal personality, it may sue and be sued in its own name and may trade under its name.
    • Apportionment of profits and losses on the basis of discretion.
    • Attribution of profits to the partners; not to the partnership.
    • Independent tax planning possibilities for each participant as regards losses incurred and profits earned. Wide options may be available due to the extensive network of double tax treaties maintained by Cyprus.

    Disadvantages:

    • Significant powers to unlimited partners. Given the powers of partners to bind the partnership, decision-making process needs to be addressed carefully.
    • Liability comes with involvement in the management/control. Unlimited liability of general partners towards third parties. Solutions alleviating the effect of this may be possible.
    • Tax transparency may not be beneficial where the partners are natural persons as they might be taxed at higher rates. Yet with appropriate structuring this may be avoided.

    1. Contractual joint ventures

    The basis of the cooperation of the participants is solely a contractual agreement between them. It is expected that such agreement will include detailed provisions regulating the rights and liabilities of the parties towards each other, the distinct role and input of each, their contributions, their share in the income generated etc. No separate legal personality is created. Business assets and intellectual property remain the property of the participant who contributed or developed them (unless of course the parties agree otherwise).

    Profits and losses accrue to the participants and taxation is also incurred at the level of the participants. Such arrangements might be subject to competition law rules prohibiting the restriction of competition. Contractual joint ventures are commonly used in the context of tenders (public or other).

    Advantages:

    • Governed solely by contact law thus greater flexibility as to the operation and termination. Contract law in Cyprus is based on common law principles.
    • No registration requirements.
    • Minimal formalities compared to the other possible structures.
    • No joint liability; liability towards third parties limited to own acts or omissions of each participant.
    • Independent tax planning possibilities for each participant as regards losses incurred and profits earned.

    Disadvantages:

    • Lack of legal personality might cause difficulties in establishing commercial or contractual relationships with third parties.
    • Need for detailed regulation of all aspects of the cooperation in the agreement due to the lack of legal framework for the relationship; careful and skilful planning is required.
    • Depending on the facts and provisions adopted, risk of classification of the relationship as a partnership by a court with the consequence of joint liability.

    1. European Economic Interest Grouping (EEIG)

    A vehicle established and governed predominantly by European law (Council Regulation 2137/85) instead of national law. Specific purposes for EEIGs apply i.e. to facilitate or develop the economic activities of the members to enable them to improve their own results. In that context the activities of EEIGs must be related to the economic activities of the members but not replace them. The purpose is not to make profits for the EEIG itself. EEIGs are governed by a contract between their members and Council Regulation 2137/85. They have capacity, in their own name, to have rights and obligations of all kinds, to contract or accomplish other legal acts as well as to sue or be sued. There is unlimited joint liability of the participants for the debts and liabilities of the EEIG but the exclusion or restriction of liability of one or more members for a particular debt or liability is possible if it is specifically agreed between the third party and the EEIG. EEIGs enjoy tax transparency. Profits or losses are taxable at the hands of the participants.

    Advantages:

    • Established under European law; EEGIs might be ideal for alliances of firms in different member states of the European Union for joint promotion of activities.
    • Relatively fewer formalities apply than in the case of corporate joint ventures though there are registration requirements.
    • Tax transparency.

    Disadvantages:

    • Managers bind EEIGs as regards third parties, even if their acts do not fall within the objects (unless the third party had knowledge).
    • Unlimited liability of participants.
    • More limited scope for use due to the statutory purposes dictated.

    Which option is the most appropriate and or efficient in terms of structuring in a particular case depends on the facts at hand and the actual needs of the participants. The different factors need to be carefully examined with the help of experts so that the most suitable solution is adopted.

    Directive (EU) 2017/1132 “relating to certain aspects of company law”, entered into force on July 20, 2017, lays the foundations for a fully harmonized European company law. The European Parliament and the Council intend to create the conditions to effectively promote the fulfillment of the freedom of establishment and of the freedom to conduct business as set out by the Treaty on the Functioning of the European Union (TFEU) and the Charter of Nice. This process of consolidation has started in 2012 by the Action Plan, which was the fruit of the public consultation on the European company law and corporate governance aiming at “a modern legal framework for more engaged shareholders and sustainable companies”.

    The Directive operates in two directions: on one hand, it aims at streamlining the existing legislations consolidating – and repealing – six previous Directives on European company law:

    – Directive n. 82/891/EEC concerning the division of public limited liability companies;

    – Directive n. 89/666/EEC concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State;

    – Directive n. 2005/56/EC on cross-border mergers of limited liability companies;

    – Directive n. 2009/101/EC on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent,

    – Directive n. 2011/35/EU concerning mergers of public limited liability companies and

    – Directive n. 2012/30/EU on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the incorporation of limited liability companies and the maintenance and alteration of their share capital.

    The Annex IV includes a correlation table linking the articles of the consolidated Directives with the new one.

    New rules are directed in particular to coordinate safeguards and guarantees that must be provided – as well as the information that must be disclosed – to shareholders and third parties in order to the make them equivalent throughout the Union. As matter of fact, the recitals of the Directive emphasise the need for specific harmonised safeguards to be in place, especially with respect to limited liability companies, notably because of their frequent cross-border business and their predominant feature in the economy of the Member States, more dynamic over last decades.

    To date, due to the lack of a uniform discipline, there are indeed 28 different national company laws, which address domestic companies as well as foreign entities operating in another Member State to the detriment – indirectly of course – of freedom of establishment for companies, which, according to art. 54.1 of the TFEU, are to “be treated in the same way as natural persons who are nationals of Member States”.

    The Directive consists of 168 articles, four Annexes and three titles that encompass different themes: from the incorporation of public limited liability companies, to companies’ representation, companies registers, branches of companies based in a Member State although govern by the law of another, capital requirements and even mergers (domestic and cross-border) or divisions of companies.

    In more detail, the main innovations introduced by the Directive concern:

    The incorporation of public limited companies, where the articles of incorporation and the articles of association shall be drawn up and certified in due legal form in all Member States whose laws do not provide for pre-emptive administrative or judicial control at the time the company is actually incorporated.

    The implementation of a central companies register – resulting from the interconnection of the existing national registers – that enables users to access from a single web portal.

    Capital requirements for public limited liability companies, which shall be not less than euro 25,000.00.  The Commission will regularly examine the economic and monetary trends and, as the case may be, revise this requirement accordingly with a view to devoting this type of company to medium-sized/large undertakings.

    Acts of the organs of the company, which shall be binding regardless of the validity of the appointment of the person serving in the organ itself and despite the fact that the acts actually carried out exceed the company’s corporate scope (on this issue, Member States may provide otherwise: for example providing that he company shall not be bound where such acts are outside the objects of the company, if it proves that the third party knew that the act was exceeding those objects or could not in view of the circumstances have been unaware of it, bearing in mind that the pre-emptive disclosure of this information will not suffice as it will always be necessary an assessment on case by case basis.

    Disclosure requirements concerning branches of companies set up in another Member State’s territory. These branches will be subject to disclose information to the national register (which, in the meantime, will have become interconnected Europe-wide) in order to offer the public reliable and certain corporate information and data. In particular branches shall disclose information relating to the activity they carry out; the name and legal form of the company and the name of the branch, whenever they differ with one another; the relevant accounting documents along with the identity of the subjects authorized to represent the company in legal proceedings and deal with third parties (it will also be necessary to specify whether they have to operate jointly or not). Likewise, it will be necessary to disclose the information regarding the bankruptcy/winding-up procedures the company may go through along with the identity and the powers of the receiver or, in any case, the person in charge of the winding-up procedure/bankruptcy procedure.

    Mergers and companies divisions that will have to be carried out taking into account the safeguards provided by the Directive 2001/23/EC to protect the workers of the companies involved. In this case, the Directive provides a discipline that, similarly to the companies’ incorporation procedure, requires that the document regulating the merger (deeds, contracts depending on the national rules on this matter) shall be drawn up and certified in due legal form whenever the laws of the Member State do not proved for judicial or administrative pre-emptive supervision as to the lawfulness of the whole operation. The same rule shall apply in the event the national laws required that the merger project is approved by the general shareholders meeting of the company.

    In the end, if the Directive will have a partial impact on the development a uniform European company law, it is worth noticing that this consolidation project has excluded the harmonization of several further EU Directives concerning the Company Law. As far as the Italian Law it can be said as it is almost entirely compliant already with the Directive excluding those rule on capital requirement (in Italy nowadays the minimum share capital of società per azioni is fixed in 50 thousand euro) and the implementation of the European companies register and the company’s representation rules.. As it does not introduce any new provision, there is no date for the Member States to transpose it at a national level, however, the Annex III remarks the time limit to incorporate the abolished Directives into the domestic legal systems.

    As clearly set forth by the Directive “this Directive is not aimed at establishing any centralised registers database storing substantive information about companies. At the stage of implementation of the system of interconnection of central, commercial and companies registers (‘the system of interconnection of registers’), only the set of data necessary for the correct functioning of the platform should be defined”. Surely, the leading aim of the Directive is to improve the certainty of the disclosure and the cross-border access to company and its brunches information, this purpose is very challenging considering the national system of the company registers which are quite fragmented at a local level.

    The author of this post is Milena Prisco.

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    让您可以在全世界范围内寻找您需要的律师，获得联系，一起合作，无缝接轨。

    The limited liability company (“Limitada”) is the most common form of corporate organization in Brazil, being largely adopted in view of advantages. A Limitada must have at least two partners (quotaholders), natural persons or legal entities that do not need to be Brazilian or Brazilian residents.

    As a consequence of such requirement, many companies adopting the limited liability form would have a second partner holding as little as one quota simply to comply with the legal requirement. In many cases, the second partner would have no interference in the business but undertakes a liability that is not under his/her/its control.

    Also, the need of the second partner would imply in extra costs with documentation and bureaucratic measures, not to mention extra accounting requirements when such second partner is a legal entity.

    In 2011 a new legislation was passed modifying the Brazilian Civil Code and included a new corporate form, the Limited Liability Individual Company, known as EIRELI. However, the EIRELI could not be incorporated with a legal entity as its holder, but would only be applicable to natural persons, whether Brazilians or Brazilian residents.

    Finally, in May 2017, the Brazilian Civil Code was modified once again in order to allow legal entities, whether domiciled in Brazil or not, to be the sole holders of an EIRELI. However, a holder of an EIRELI can only hold a single company incorporated as an EIRELI.

    A Limitada or an EIRELI are advantageous as they (i) are subject to fewer disclosure requirements as opposed to a corporation; (ii) have a simpler and less expensive organization; and (iii) corporate decisions can be taken easier and quicker.

    This Article intends to present the basic organization of a Limitada and of an EIRELI, as follows:

    Partners, Quotas and Capital

    A Limitada must have at least two partners, natural persons or legal entities that do not need to be Brazilian or Brazilian residents. An EIRELI may have only one holder, natural person or legal entity that do not need to be Brazilian or Brazilian resident.

    Each of the foreign partners or the holder, in case of EIRELI, shall name a legal representative, who lives in Brazil, with minimum powers to accept service of process and for representation before the Federal Revenue for obtaining a taxpayer number (for controlling purposes only).

    There is no minimum quota capital requirement for most cases, unless a permanent visa is required or if an import license is needed (the amount of the company’s capital influences the authorized amounts for imports and exports). The Brazilian company may be financed either by the direct investment (capital) or by loans to be granted by the partners. In case of loans, thin-capitalization rules apply.

    The ownership of the Limitada quotas or of the EIRELI is reflected in the company’s Articles of Association, since no certificates to that effect are issued.

    The quotas of a Limitada can only be transferred by a specific amendment to the Articles of Association and must be subscribed at the time the company is established. The EIRELI’s capital may or may not be divided into quotas.

    The company’s capital does not have to be paid up upon incorporation; it may be paid up within a certain period of time (i.e., two years), in Brazilian currency or goods.

    Company’s name, objectives and address

    The Limitada’s name has to include some words that indicate what the company’s objectives are. The names should be followed by the objectives (if more than one just the main objective) and by the specific area of the market. The EIRELI does not have to follow those requirements.

    The company objectives and address must be included in the Articles of Association.

    Administration

    The administration structure of the Limitada and of the EIRELI must be determined in the Articles Association. In addition, in the Articles of Association, or in a separate document for the Limitada, at least one administrator (general manager) has to be nominated. The partners of the Limitada or the holder of the EIRELI are(is) free to appoint one or several of them to administer the company, as well as third parties.

    The administrator has to be a Brazilian resident, meaning either a Brazilian or an expatriate bearing a permanent visa.

    Partners Resolutions

    Most of the partners’ resolutions in a Limitada may be taken by majority of the capital or by any higher quorum agreed upon by the partners.

    Resolutions of the partners altering the Articles of Association or deciding on acquisition, merger, dissolution, and cessation of the liquidation status must be taken by three quarters of the company’s capital. A few other resolutions as the election of the administrators when the capital is not fully paid up must be taken by the totality of the company’s capital.

    As the EIRELI has one single holder, all decisions are taken by the holder.

    Liability of Partners and of Holder

    The liability of the partners of the Limitada and of the EIRELI’s holder is limited to their respective participations in the company’s capital, except when the company’s capital is not fully paid-up. In this case, the partners are liable, with their personal assets, for the total amount of the company’s capital. Please note that in certain cases of disregard of the corporate veil, activities against the law and acts performed without proper authority, the partners or the holder may be unlimitedly responsible, especially in tax, labor and environment areas. In case of non-payment of taxes the administrator may be held co-responsible.

    In this clip I briefly introduce the main options to consider when doing business in Iran.
    You can read more on this topic in my articles An introduction to Iran Corporations  and Obtaining a Foreign Investment License and browse Legalmondo’s blog for some other  posts on doing business in the region.

    公司种类

    根据德国法律，有几种类型的公司可供选择。然而，最适合在德国经商的经营主体类型是：

    • 有限责任公司(“GmbH” and “UG”);
    • 股份有限公司(“AG”);
    • 有限合伙公司(“KG”).

    选择的标准是责任、税收、融资、个人参与和控制以及灵活性。对于较大的公司，有限责任公司（“GmbH”）或股份有限公司(“AG”)通常最合适。他们的股东责任仅限于各自的股份。最低股本在50000欧元(股份有限公司AG)、25000欧元（有限责任公司GmbH）和1欧元（有限责任公司的子公司UG）之间变化。有限责任公司（“GmbH”）及其子公司（“UG”）的股份转让通常须经其他股东批准和公证，而股份有限公司的股份可自由转让。然而，有限责任公司（GmbH）是一个比起股份有限公司（AG）更加灵活和程序要求不高的主体类型。有限责任公司（GmbH）, 有限责任公司子公司（UG）, 和股份有限公司 （AG）是由一个或多个创始股东组成的公司，通过章程并任命其总经理，比如在股份有限公司（AG）中，在公证书中设立监事会（至少有三名成员）。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。由于税收原因，合伙公司往往更受青睐，尤其是有限合伙公司（KG），因为有限责任的原因，通常与作为普通合伙人的公司合并(“有限责任公司GmbH 与有限合伙公司 KG” 或者 “股份有限公司AG 和 Co. 有限合伙公司KG”)。其需要至少两位合伙人。

    所依据的法律：

    • 对于有限责任公司GmbH及其子公司UG，有限责任公司法(“GmbHG”)
    • 对于股份有限公司AG，股份有限公司法(“AktG”)
    • 对于合伙公司，德国民法典(“BGB”)和德国商法典(“BGB”)

    外国企业一般与国内企业受相同的法律规范。例外的是，德国国家经济与技术部可以限制或者禁止位于欧盟，冰岛，列支敦士登，挪威或者瑞士（欧洲经济区“EEA”）之外的个人或者经营实体收购或者参股国内经营主体。前提是：

    • 外国投资者在一家德国公司中获得25%或者更多的投票权。
    • 收购危害了国家公共秩序或安全（对外贸易和支付条例[“AWV”]55-59节）。如果所收购的国内商业实体涉及到基础设施部门（电信、电力供应、火车、机场或医院），情况尤其如此。

    有限公司的成立

    有限责任公司（GmbH或UG，见上文）要求最低股本为25000欧元（GmbH）和1欧元（对于“UG”）。GmbH和UG由一个或一个以上的创始股东组成，通过章程并在公证书中任命其总经理。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。

    股份有限公司的成立

    一个股份有限公司所要求的最低股本（AG）是50000欧元。

    股份有限公司由一个或多个创始股东组成，在章程中通过章程，并在公证书中设立监事会（至少有三名成员）。他们在商业登记处登记后存在。或者，供应商可以收购一家现存的、不活跃的空头公司，并以此为优势，立即开始经营。

    成立代表处

    “代表处”的任务仅限于观察市场而非经营业务。在德国商法下，代表处不作为独立部门存在。相反，在德国，一个代表处可为外国公司的一个分支代表处（见下文），或为一个独立承包商/业务提供商（但并非外国公司）的代表处。代表处不需要于商业登记处注册。相反，在当地贸易局（“gewerbeanzeige”）进行一个正式的登记便足够。

    成立一个分公司

    进行直接销售的另一途径是建立

    • 一个自治分公司(„selbständige Zweigniederlassung“)或
    • 一个从属分公司(„unselbständige Zweigniederlassung“)

    分公司不是独立的实体，而是属于主公司的总部，并受管理总部的相同的组织法的约束。因此分公司的责任取决于总部。

    一个自治的分公司进行与总部相同的业务活动（不仅仅是辅助活动）。此外，它具有一定的个人的和事实上的自主权，特别是通过关于自主行政权力、银行账户、资产负债表和商业资产的管理。这样的分公司需注册于

    • 当地贸易局（如上文）
    • 德国商业注册。其需分公司的详细信息，包括一个在其“母国”的商业登记公证副本及其董事的代表权，再加上公司记录和章程。所有文件应翻译成德语并且公证副本应认证（通常通过一个旁注）。

    从属分公司不自主行事，但强烈依赖总部（例如，它以总部的名义开具发票）。

    税收程序

    在德国经营的外国企业和个人，有两级征税：

    • 贸易税适用于德国的所有企业和个人，并按应纳税收益支付。作为地方税，不同市政府的税率不同；
    • 所得税取决于业务实体：
    • 公司缴纳企业所得税（15%的税率）。股东须缴纳资产收益税和股息税。德国公司的平均税负为30%（企业所得税和贸易税）。
    • 合伙企业本身不受所得税的约束，但其合伙人受公司（如企业实体）或个人（如个人）所得税的约束。
    • 个人缴纳个人所得税。税率随着收入的增加而增加（最多为45%，收入为250000欧元时），但可以缴纳贸易税来相抵。股息和资产收益适用特别的税率。

    对于股息、资产收益、付款利息和许可证费用，需缴纳预扣税（“Kapitalertragssteuer”）。这相当于分配给公司的资产收益的25%（再加上5.5%的“团结附加税”，加入税额）。如果这些税款涉及与企业原籍国签订的双重征税条约，则这些税款可退还。

    公司登记

    在德国建立公司的要求在公司登记或商业登记处（“handelsregister”）注册。登记由地方法院管理。其向商人和商业公司说明在德国如何经营。其目标是在与这些公司打交道时创造透明度和法律安全（例如了解公司的总经理、其注册席位、创始资本等）。这些均可以通过访问www.handelsregister.de.网站得到。

    Brazilian legislation requires every nonresident that holds quotas, capital or shares of a Brazilian company appoints an attorney-in-fact that resides in the country, with powers to receive service of process.

    Besides granting the power required by law, foreign partners usually grant other powers to their attorneys-in-fact, in order to facilitate the procedures, since all documents executed abroad must be notarized and Apostilled, and once they arrive in Brazil they must be translated by a sworn translator and registered before the Public Registry of Titles and Documents, in order to be valid in Brazil, which is time and money consuming.

    Also, all foreign companies holding quotas, capital or shares of the Brazilian company, need a Taxpayer number, called CNPJ. The taxpayer number is not for tax payment purposes, but for controlling purposes only. The foreign partners / holder need to grant a power of attorney for their enrollment at CNPJ, and representation before the Federal Revenue in all matters.

    By the time the company is incorporated the Power of Attorney granting the above-mentioned mandatory powers must be presented before the Board of Trade.

    Moreover, all Foreign Direct Investment must be registered at the Central Bank of Brazil. This means that every time the foreign shareholder/partner transfers money to the Brazilian company as investment, the respective exchange agreement must be registered at the Central Bank. Such registration is done electronically.

    The main effects of such registration are the possibility of remitting dividends and of repatriating the capital invested.

    In view of the above, the documents to be presented at the incorporation of a company in Brazil are:

    • Power of Attorney granting to a Brazilian resident powers to accept service of process, for enrollment at CNPJ and representation before the Federal Revenue;
    • In case the foreign partners/shareholders/holder are/is a natural person, a copy of his/her passport;
    • In case the foreign partners/shareholders/holder are/is a legal entity:

    – Copy of the passport of the legal representative of the foreign partners/shareholders/holder; and

    – Updated Certificate issued by the Board of Trade of the foreign partners/shareholders/holder’s head offices attesting: (a) its existence and good standing, and (b) its legal representatives for the purposes of evidencing that the company was duly represented in the Power of Attorney granted. This document (or a separate one issued by a public authority) must also contain the head offices address, name of shareholders, capital and objectives.

    Note that all documents need to be duly notarized and apostilled. Once they arrive in Brazil, they will undergo sworn translation and will be registered at the Public Registry Office in order to be valid.

    We would like to point out that the Federal Revenue and commercial banks have increasingly been requesting a series of complementary documents for compliance reasons, so that the final beneficiaries (natural person) of each foreign company holding quotas, capital or shares of Brazilian entities may be identified.

    At the chosen bank’s own discretion, other documents may be necessary, as balance sheets, statements and corporate documentation until the end controller (natural person) is identified. These documents must be presented for the opening of a bank account, and banks have been taking quite some time to open the account.

    The purpose of this brief essay is to give an overview of company types  according to Hungarian law, along with some relevant legal standards that define their operation.

    A member of the European Union since 1 May 2004, Hungary is a country in rapid growth and, as such, an attractive destination for prospective investors that wish to set up a local enterprise.

    What kind of business associations can be established?

    Hungarian Civil Code regulates the foundation, organization and operation of business associations with a registered seat in Hungary.

    The Hungarian law complies with EU legislation and allows for foreign nationals to establish business associations in Hungary under the same terms and conditions as Hungarian citizens.

    1. General Partnership (Hungarian: “Közkereseti társaság”)

    Members of the partnership shall undertake to jointly engage in business operations with unlimited, joint and several liability, and to make available the capital contribution necessary for the activities of the partnership.

    1. Limited Partnership (Hungarian: “Betéti társaság”)

    Members of the partnership shall undertake to jointly engage in business operations, and the liability of at least one member (general partner) for the obligations of the partnership shall be unlimited. If there is more than one general partner, all general partners shall be jointly and severally liable. At least one other member (limited partner) shall only be obliged to provide the capital contribution undertaken in the Memorandum of Association, and, with the exceptions set out in the Hungarian Civil Code, shall not be liable for the obligations of the partnership.

    1. Limited Liability Company (Hungarian: “Korlátolt felelősségű társaság”)

    This is a business association founded with an initial capital (so-called subscribed capital) consisting of capital contributions of a pre-determined amount, where the liability of members to the company is limited to the provision of the contribution to the initial capital, and possibly to other contributions established in the partnership agreement. This is the most common company form in Hungary. The minimum subscribed capital required to start a company has been recently raised to HUF 3,000,000 (approximately € 10,000).

    1. Limited (Joint-Stock) Company (Hungarian: “Részvénytársaság”)

    Limited companies are business associations founded with a share capital (subscribed capital) consisting of shares of pre-determined face value, and the obligation of members (shareholders) to the company is limited to the provision of the face value or issue price of shares.

    Private and public limited companies are usually founded for larger investments in terms of invested capital. The minimum subscribed capital of a private limited company (“Zrt”) is HUF 5,000,000 (approximately € 15,000), while a public limited company (“Nyrt”) requires a capital of at least HUF 20,000,000 (approximately € 60,000). Privately held companies (“Zrt”) operate similarly to public limited companies but their shares cannot be listed on the stock exchange and specific provisions apply to the sale and purchase of shares.

    Pursuant to the law, nonprofit business associations can also be set up.

    What is the procedure for founding a business association?

    A business association can be founded by both Hungarian and foreign citizens.

    The first step is signing a Memorandum of Association, which is usually drafted and countersigned by a legal practitioner or notary. The format of this document varies depending on the kind of business association established.

    Since 16 March 2017, there is no administrative fee for founding an association, with the exception of privately held companies (“Zrt”), for which it amounts to HUF 50,000 (approximately € 150).

    The next step is requesting the inclusion of the company in the Register of Companies, which, according to Hungarian law, shall be carried out by a lawyer.

    The following documents shall be submitted with the registration request: Memorandum of Association; acceptance of mandates (executive officers, members of the supervisory board, and auditor); statement by the executive officer or certificate from the financial institution about the payment of initial contributions; special power of attorney granted to the legal representative; certificate of payment of the necessary expenses.

    The registration request shall be submitted to the County Court within thirty (30) days from the foundation of the business association. Foundation of certain types of businesses may require prior authorization by relevant authorities (e.g. foundation permit in the banking sector). In that case, the request of registration shall be issued within fifteen (15) days from receipt of the foundation permit.

    The Court has eight (8) days to review and approve the request and the attached documents. Within the framework of the Hungarian Civil Code and other legal regulations, members (shareholders) may freely establish the contents of the articles of association, according to their own personal and economic needs.

    Once the registration is completed, the association will be listed in the Register of Companies and published in the Official Company Gazette (Hungarian: “Cégközlöny”).

    What is the corporate tax rate in Hungary?

    As of 1 January 2017, the Hungarian government cut the corporate tax rate to 9%, and now Hungary has the lowest level of corporate taxes in Europe, which gives the country a competitive edge to attract foreign direct investment to the country.

    Renata Antiquera

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