How to set up a company in Germany?

Germany is my biggest trade, economic and technical partner in Europe. According to incomplete statistics, there are currently about 500 Chinese-funded institutions in Germany, most of which are limited companies and only a few joint-stock companies. Germany is an open and highly developed industrial country with a large market capacity but fierce competition. Germany implements the policy of high wages, high welfare and high taxes, and the labor and operating costs are very expensive. In recent years, the proportion of the tertiary industry in Germany has been increasing, the old industries have been gradually transferred to the third world and other places, and the number of corporate bankruptcies has been rising. German enterprises should do a good job in market research and make careful decisions when setting up companies in China.

1. Comparison of main forms and characteristics of German companies

(1) Personal income

A personnel combination company (hereinafter referred to as a joint venture company) refers to a company in which one or several natural persons assume unlimited liabilities to the company's creditors with all their assets, and act as bosses or shareholders, mainly including Kommanditgesellschaft (KG) and Unlimited Trading Company (Offene).

Handelsgesellschaft, OHG), etc. Most of these companies are family businesses established before and at the beginning of the war. Because it is necessary to bear unlimited liability with all personal assets, the form of people's joint venture, a primary company, is no longer in line with the development trend of modern economy.

(2) capital portfolio companies

Capital portfolio companies (hereinafter referred to as the joint venture company) refers to one or several companies registered and established by natural persons or legal persons with the minimum registered capital as stipulated by law, among which Gesellschaft is divided into limited liability companies.

Massachusetts Institute of Technology (MIT)

Haftung (GmbH) and Aktiengesellschaft (AG) are two basic forms, namely, the basic model of modern enterprise system in China.

1. Limited liability company

The minimum registered capital (Stammkapital) of a limited liability company is now 25,000 euros, which bears corresponding responsibilities, and personal property is excluded from the company's debts. A company can be established by one or more shareholders. Registered capital can be contributed in cash and in kind. The minimum contribution per share is 65,438+000 euros, the face value of share capital is 50 euros, and the contribution of shareholders is a multiple of 50 euros. Shareholders may not subscribe for more than one capital contribution when registering in the company. If the investment is made in kind, the object and amount of the investment in kind must be specified in the articles of association. The internal management system of German companies is different from that of the United States and China. The chairman of the board is the chief executive officer (CEO), and there is no general manager. The chairman of a limited liability company is the general manager or president, which is called Vorsitzender in German.

Draw out (short for derivative)

Geschaeftsfuehrung, director (Geschaeftsfuehrer) is the deputy general manager or vice president. Some limited liability companies have only one Geschaeftsfuehrer because of their small scale, and this person is the chairman.

2. Joint stock companies

The minimum registered share capital of a joint-stock company (Grundkapital) is now 50,000 euros. The minimum par value per share is 1 euro. A joint-stock company may or may not be listed, and listing must be approved. The application for listing is put forward by German credit institutions, and the stock exchange is responsible for examination and approval. A joint-stock company only undertakes limited liability corresponding to the registered capital. The Board of Supervisors (Aufsichtsrat) is elected by the shareholders' meeting of the joint-stock company. The Board of Supervisors consists of half representatives of the management and the employees (50% of both parties vote, and the supervisor has two votes when there is no majority opinion). The Board of Supervisors appoints the board of directors (Vorstand). Like a limited liability company, the members of the board of directors may or may not be shareholders, and in most cases, they are not, and the contract appointment system is implemented. The functions and responsibilities of the chairman (Vorstandsvorsitzender) and the director (Vorstandsmitglied) are the same as those of the chairman and director of a limited liability company, but their names are different in German.

(3) Several main forms of foreign enterprises setting up branches in Germany.

The word "branch" in the relevant documents of China's company law only refers to the branches of companies or banks, excluding wholly-owned and joint-venture subsidiaries that operate independently, and excluding representative offices established in other places or countries, also known as representative offices. In German, the word "Niederlassung" is a broad concept, covering the above three situations. The branch discussed in this paper is based on the concept of Germany.

1. Representative Office (Repraesentanz)

The procedure for setting up a representative office in Germany is relatively simple. As long as it is registered with the local business registration bureau (Gewerbeamt), the main person in charge can be exempted from the work permit. According to the relevant German laws and regulations and the agreement between the Chinese and German governments on avoiding double social insurance, the staff of the representative office are "dispatched" and have no obligation to participate in the social insurance of the host country. As it is not an independent legal person, the representative office can only engage in indirect promotion activities such as contacting customers, market research and after-sales service in the host country on behalf of the domestic parent company, and cannot sign legally binding economic and trade contracts; Similarly, because it is not an independent legal person, the representative office does not have to pay all kinds of taxes that the legal person must pay, such as enterprise income tax and business tax, but at the same time it cannot refund the tax (the value-added tax on public goods of the representative office). All you need to pay is personal payroll tax (Lohnsteuer).

2. Joint venture company

As mentioned above, both limited liability companies and joint-stock companies are joint-stock companies, and it is also the most common form for foreign companies to set up branches in Germany (especially the former). Although the names are different, there is no difference in business scope, tax obligation and corporate responsibility. The main taxes and fees of the joint venture company include: (1) Koerperschaftssteuer, with a tax rate of 25%. Due to the flood in Germany in 2002, the income tax rate in 2003 was 26.5%; (2) Gewerbestueer, the actual tax rate varies from 17% to 2 1% depending on the region; (3)solidaritaitsabgabe, the tax rate is 5.5% of the net profit after deducting business tax and enterprise income tax. The calculation method of corporate taxes and fees is three-level progressive, and the average tax burden in Germany is around 40%.

Germany implements a social market economy and is a high welfare country. Once the joint venture company hires employees, it must insure them with five statutory basic insurances, namely, pension insurance, medical insurance, nursing insurance, unemployment insurance and work-related injury insurance, of which the first four premiums are paid by the employer and the employee 50% respectively, and the work-related injury insurance 100% is paid by the employer. The current rates of the five major statutory insurances are 19.5%, 13.7%,10.7%, 6.5% and 2.7% respectively (the rates of industrial accident insurance are different in different industries, and 2.7% here refers to the rates of foreign trade wholesale industries). The social insurance surcharge paid by the employer accounts for about 23.4% of the total wages of employees.

3. A branch of the joint venture company (Zweigniederlassung)

After establishing a limited liability company or joint-stock company in Germany, foreign enterprises may set up branches in other cities or places other than their headquarters according to the needs of business development. The branch mentioned here is China's branch concept. For example, COSCO Germany Limited, headquartered in Hamburg, has a branch in Germany's second largest port, Zweigniederlassung. Its Bremen branch is not an independent legal person, and the salary is paid by the Hamburg head office. After the annual accounting statements are compiled, they are submitted to Hamburg head office for summary, and corporate income tax, business tax and solidarity donations are paid by the head office. It should be pointed out that although the branch is not an independent legal person, it still needs to be registered in accordance with the relevant German regulations, and carry out industrial and commercial registration and obtain a business license.

Second, the basic conditions and procedures for establishing a company in Germany

(1) basic conditions

1. Residence permit

Citizens of non-EU countries who intend to engage in business activities in Germany must show their residence permits without relevant restrictions to the competent authorities. Therefore, our company intends to set up a company in Germany, and the staff must first obtain a residence permit in Germany. Residence permit can be applied to the German embassy (consulate) in China. Before issuing the residence permit, the German embassy (consulate) in China will contact the German Alien Affairs Bureau for advice. The Administration of Foreigners' Affairs usually contacts the local authorities concerned with the application, such as chambers of commerce and industry, economic promotion companies and departments in charge of economic and labor affairs. The duration of the first entry visa (residence permit) is generally 3 months. During this period, foreigners must report to the local aliens affairs bureau or the competent government agency or the police station near their residence immediately after arriving at their destination. If you want to extend your residence permit, you should apply to the local foreign affairs bureau. People who set up a company in Germany do not have to live in Germany, but they must have a designated representative who lives in Germany and bear the relevant responsibilities.

2. Labor permit

Non-EU citizens who intend to work in Germany must apply for a work permit. Labor permits are only issued to foreigners who have the right of abode. The issuing department is the labor bureau preparing to go to the work area. It is easier for foreigners with residence permits to obtain labor permits, because applications submitted to German embassies (consulates) abroad have been pre-examined by relevant German departments before being approved. The validity period of the labor permit is usually 12 months at the beginning. However, the following personnel do not need to apply for a labor permit: (1) German unpaid trainees who do not participate in company management; (2) The legal representative (general manager) or senior representative of a joint-stock company or a limited liability company, or a partner of a joint-stock company; (3) retain foreigners living abroad and personnel engaged in assembly supervision or repair of imported equipment in Germany within a certain period of time; (4) the person in charge of the representative office of a foreign company.

3. Business activities requiring special approval

The following industries and business projects need to have professional knowledge and personal reputation, and can only be opened with the special approval of industry associations and chambers of commerce and industry: banking and insurance; Auction industry; Hotel catering industry and hotels with more than eight beds; Production and sale of weapons, ammunition and drugs; Wholesale and retail of animals, engine oil, power fuel, drugs and plant protectants; Handicraft operators must hold the certificate of industry technician.

(meister brief)； Freight, passenger transport, taxi and car rental business. In addition to the approval of the order management department, the company's premises engaged in special operations must also be approved by the Construction Supervision Bureau and the Industry Supervision Bureau.

Engaged in the retail of over-the-counter drugs, one person in the store must have the professional knowledge required by law before starting business; Weapon operation must pass the professional knowledge examination; Engaged in the hotel industry, you must attend the food law lectures organized by the Chamber of Commerce and Industry and obtain the Business License before you can start business; Engaged in the supervision industry must be familiar with relevant laws and regulations, professional tasks and requirements, and must be trained.

4. Domestic filing or approval

If our company intends to set up trading companies and representative offices in Germany, it needs to apply to the Ministry of Commerce for filing, registration or approval. The enterprise shall report to the competent foreign trade department at the provincial level or cities under separate state planning, and the competent department shall solicit the opinions of the Commercial Office (room) of the German Embassy (Consulate) in Germany for examination and approval, report to the Ministry of Commerce for the record and apply for the approval certificate; Central enterprises can directly seek the opinions of the Economic and Trade Office (room) of the embassy (consulate) in Germany, and then apply to the Ministry of Commerce for approval and obtain an approval certificate. After receiving the approval certificate, the enterprise shall go through the formalities of customs, foreign exchange, bank and personnel assignment management and property right registration of overseas state-owned assets within one year.

According to the relevant regulations of the Ministry of Commerce, the foreign trade departments of Shanghai, Beijing, Tianjin, Jiangsu, Zhejiang, Shandong, Guangdong, Fujian, Ningbo, Xiamen, Qingdao, Shenzhen and other provinces and cities can independently approve enterprises to set up overseas enterprises or representative offices in Germany, but they still need to go through the procedure of soliciting the opinions of the Economic and Trade Office (room) of the embassy (consulate) in Germany.

(2) Procedures

1. Business declaration

(1) As long as business activities are carried out in Germany, it is necessary to declare that the applicant should register business with the "Economic and Order Department" of the local government in writing (called the Business Registration Administration in some places) and obtain a business license (Gewerbeschein). When expanding the business scope, if vending machines are installed within the business scope (such as selling cigarettes or candy) or as additional business in public places, it is also necessary to declare. A copy of the declaration form shall be delivered by the above-mentioned institutions to the local finance bureau, professional cooperatives and chambers of commerce and industry respectively, without further declaration. If you violate the regulations, you will be fined for not reporting or not reporting in time. The application fee is generally low, generally 18 Euro. If approval is required, the approval fee shall be paid separately.

(2) the applicant

If it is an individual enterprise, it shall be declared by the business owner; The limited liability company shall be declared by the general manager; These two companies should be declared by shareholders with unlimited liability; Civil law companies or unlimited liability companies shall be declared by shareholders; A joint-stock company or registered society shall be declared by the chairman.

(3) Documents and materials to be submitted

A complete declaration form and passport; If it is a legal person (such as a limited company), it is also necessary to provide a copy of the industrial and commercial registration; Relevant approval documents of the industry to be approved; If it is a handicraft enterprise, it must provide a "handicraft certificate"

(Handwerkskarte).

2. Business registration

(1) Business name of the company

A company must use the name of the business object or all shareholders or at least one shareholder plus a note indicating the form of the company as its business name. Except for the shareholders, the names of others shall not be used as the company's name. The name of the joint venture company must be marked with the words "limited liability" or "joint stock company". The company name should not make people misunderstand the business scope of the company, and it should be obviously different from other local company names that have been registered in the court.

(2) Registration fee

The registration fee varies with the registered capital, and usually includes legal fees, notarization fees, newspaper publishing fees and consulting fees. The registration fee of the joint venture company is about 250 to 400 euros; The minimum registration fee for a limited liability company is about 750 to 1000 euros; The minimum registration fee for a joint-stock company is 1500 to 1750 euros. In addition, if you consult a lawyer, you should also add this fee. You should ask about the price before consulting.

(3) Capital payment

Before registration, the total cash contribution of a limited liability company must reach at least 654.38+250,000 euros, and the rest can be in kind and must be paid to the company before registration. In addition, if it is a company established by one person, the founder must also submit a guarantee for the unpaid balance of funds. The registered capital of a joint-stock company can be paid in cash or in kind, but the contribution in kind needs to be evaluated and determined.

(4) Business registration and required materials

According to German commercial law, the establishment of a company must be in an open and credible form, that is, notarized and registered in the local court before it can be registered in the business register. Business registration is divided into two categories: A and B. Individual businessmen and joint-stock companies are registered in category A (registration number HRA…) and joint-stock companies are registered in category B (registration number HRB…). The industrial and commercial registration procedures of joint-stock companies are complicated, so please consult the relevant company law or economic law lawyers before handling them. The registration formalities must be handled by a notary public, who shall submit an application for business registration signed by the company's chairman (general manager) to the local court, and submit the following materials:

A copy of the business license of the domestic parent company notarized by a notary public, the original notarized power of attorney of the chairman (legal person) granted by the parent company and the certified German translation are required; Original or officially certified copy of the articles of association translated into German; List of shareholders; Power of attorney of shareholders; A certificate issued by a notary; Passport (for personal registration); Residence and work permit; Business license (you can also register first and then apply for business license). If the company is established by entrustment, it needs to be translated into German as the original power of attorney or a copy of official certification.

The company's industrial and commercial registration needs to be published in the German Federal Gazette, local newspapers or Le Monde, and the formal registration is completed. After registration, there is no need to make an announcement in other newspapers and other media.

(III) Precautions At present, many fraudulent companies issue registration forms and bills of exchange to newly established companies in the name of federal databases, public publishing houses and company registration centers. They imitate the publication format of the Federal Register, which is easy to be mistaken for an official institution. Once they pay the money, it is equivalent to signing a long-term contract with them, which costs money every year, ranging from hundreds to thousands of euros. It is very troublesome and difficult to terminate the contract. It takes a long lawsuit and a lot of money. Please be vigilant when setting up a company. If in doubt, please consult the Chamber of Commerce and Industry and other institutions.

Third, how to choose the right company form.

(A) the new changes in Germany's "share law"

1In July, 1998, Germany revised the Share Law, greatly simplifying the examination and approval regulations, with the aim of supporting and promoting medium-sized enterprises with certain strength, expertise and potential to take advantage of this corporate form to embark on the track of accelerating self-development. The main changes are as follows:

1. Cancel the restriction that there must be more than 5 shareholders, and a joint-stock company can be established as long as it is a natural person or corporate shareholders; 2. Cancel the requirement that the approval report for the establishment of the company should be sent to the local chamber of commerce and industry for filing, and send it to the local court in industrial and commercial registration; 3. Cancel the formal requirement that an announcement must be published in a newspaper before convening the shareholders' general meeting, and simplify it to notify shareholders by registered mail; 4. Cancel the requirement that all resolutions of the shareholders' meeting should be notarized, and the notarization procedure is limited to the most important basic resolutions adopted by the shareholders' meeting; 5. If the number of employees is less than 500 (including 500), there is no need to arrange labor representatives in the board of supervisors; 6. As long as there are special provisions in the articles of association, shareholders have the right to decide the proportion of retained reserves in profits; 7. When the issue price of the company's shares is not significantly lower than the transaction price and the proportion of capital increase does not exceed 65,438+00% of the registered capital, the stock subscription right of non-shareholders of the company shall be cancelled.

(2) Comparison of advantages between representative office and joint venture company

The advantage of setting up a representative office in Germany is that the procedures are simple, there is no need to pay the taxes that legal persons need to pay, and the cost is low. The main person in charge of the representative office does not need to apply for a work permit, and the policy of linking the minimum wage with the work permit implemented in some parts of Germany does not involve these people, so the representative office can grasp and control the required fees and costs to a certain extent. Because the representative office does not have the legal person qualification, it cannot sign contracts with foreign countries. This is the advantage of establishing a joint venture company in Germany. Enterprises that really have the strength and want to take advantage of the German market to vigorously develop import and export trade and economic and technological cooperation should choose to set up joint ventures in Germany. Judging from the five legal social insurance responsibilities of the joint venture company to its employees, within the framework of the Sino-German Agreement on Avoidance of Double Social Insurance, Chinese-funded companies can be exempted from the obligation to take out pension insurance and unemployment insurance in Germany, and the wage cost will be reduced by 25.6%, which is exactly the same as the exemption treatment of representative offices. The agreement also stipulates that once the exemption obligations of these two insurances are determined, it is five years, and then it can be extended for another three years; The representative office can only be exempted for four years, and then apply for an extension of three years.

(3) Selection of limited liability companies and joint-stock companies.

As mentioned above, both of them are joint ventures, and their tax obligations, tax burden levels and corporate responsibilities are exactly the same. However, from the perspective of the company's norms, scale and image, joint-stock companies are obviously superior to limited liability companies. Among the millions of companies in Germany, there are only more than 4,000 joint-stock companies. Most of the powerful German 500 companies are joint-stock companies, such as Mercedes-Benz, Volkswagen, Siemens, ThyssenKrupp and so on. It should be said that the joint-stock company is a more standardized and modern advanced form of joint-stock company, which is based on the number of entries and the promulgation time of the German Limited Liability Company Law (* * 86) and the German Joint-stock Law (* * 4 10) (1892 and 1937 respectively). However, among the Chinese-funded companies currently established in China, except for the German People's Insurance Company, which was required to set up a joint-stock company in Hamburg on 1995, the rest are limited liability companies.

In a word, domestic enterprises in China should fully consider the advantages and disadvantages of various corporate forms permitted by German law when planning to set up companies in Germany, and choose the most suitable model according to their own conditions and long-term development goals. We believe that domestic powerful large enterprises, even medium-sized enterprises with competitive products, are interested in actively exploring the international market. If they want to set up in Germany, regardless of their ownership forms, they should seriously consider the possibility of setting up joint-stock companies. Of course, if you are unfamiliar with Germany and its surrounding markets, you can consider setting up a representative office in Germany first and then turning it into a joint-stock company when conditions are ripe.