Berlin Creating a new type of business is not easy. This summarizes the current status of steward-ownership. The Federal Ministry of Justice (BMJ) is acting hesitantly, criticized the chairman of the steward-ownership foundation, Armin Steuernagel, at a conference in Berlin on Tuesday. “Legally, it’s quite a headache.”
Two years ago, the foundation initiated the debate about a new legal form for trustee-managed companies, which is to appear alongside the well-known forms such as GmbH, limited partnership or stock corporation. At that time, around 500 entrepreneurs from all over Germany signed the appeal.
The idea behind it: A company is not an object of speculation. The owners have full design power but are only trustees. There is no unrestricted personal access to company assets. Inheritance and free sale of voting rights are excluded.
In this way, the independence of the company can be maintained over the long term. Control remains with people who have long-term ties to the company.
The traffic light coalition of SPD, Greens and FDP promised in their coalition agreement that they want to create a new legal basis for companies with “tied assets”. But things won’t be easy, as Marco Buschmann’s (FDP) Federal Ministry of Justice now reports on request.
dealing with future generations
“Conceivable legal configurations and possible legal bases” are currently being examined. This must precede a discussion about the advantages and disadvantages of a company form that is not based on a profit-oriented motivation.
The “legal headache” is apparently caused primarily by the tie-up of assets in steward-ownership companies, known in technical jargon as “asset locks” or “capital locks”. The Ministry of Justice describes it as a “key question” as to whether and how future generations could be tied to the so-called “asset lock”.
“Not only aspects of company law are affected, but also the transformation law, which is now predominantly shaped by European law, and tax law,” the ministry said. In addition, questions of inheritance law, family law and insolvency law should also be considered.
The coalition agreement expressly stipulates that a legal form should be created that excludes “tax-saving constructions”.
“Sonman Only on the Yacht”
Currently, fiduciary ownership can only be achieved with endowment structures. However, the advocates of steward-ownership consider this to be too complex, especially for start-ups or medium-sized companies.
The members of the Responsible Ownership Foundation include the organic trading company Alnatura, the cosmetics group Weleda, the hardware store chain Globus, start-ups such as the condom manufacturer Einhorn, but also the BMW Foundation Herbert Quandt.
The initiators refer to companies such as Bosch and Zeiss as role models for trustee-led companies.
The board of directors of the Steuernagel said on Tuesday: “We need new clothes.” The construct of the foundation cements the donor’s will for future generations. Such “rule by the dead hand” is too inflexible. Even the cooperative does not ensure that all assets are tied up in the company. The legal form of the joint-stock company was tailored anyway as a tailcoat.
The initiative received broad support from the traffic light parties at the conference. Verena Hubertz, vice chair of the SPD parliamentary group and a former start-up entrepreneur herself, complained that things are currently going slower than expected because of the Russian war of aggression in Ukraine.
However, she assured that she would work for more “speed” and that the idea would not be “watered down”. Even family businesses need solutions when “the son just hangs out on the yacht”.
Recipe against “Silicon Valley turbo capitalism”?
Green party leader Ricarda Lang praised the idea as part of a new “democratization” of the economy. She said: “Only if we change our economy, if we understand that the markets of the future are climate-neutral and digital, only then will we be able to assert ourselves in international system competition with Silicon Valley turbo capitalism, but also with Chinese state capitalism. “ This requires good ideas and the logic that a company does not only generate profit for one owner.
The Vice Chairman of the FDP, Johannes Vogel, sounded a bit more reserved. “I am convinced that we will make progress in this legislature,” he said. “It seems doable.”
There is a justified concern that tax savings models would become possible. Resistance to the new legal form also comes from family businesses that have existed for generations. They got the push for steward-ownership “down the wrong road”. “That doesn’t mean that for-profit companies don’t take responsibility,” Vogel explained.
Sven Giegold, State Secretary in the Federal Ministry of Economics, assured that he was working with the Ministry of Justice to find a solution. “What is written in the coalition agreement applies,” he said. However, he also asked whether intrinsic motivation instead of profit orientation is sufficient for long-term success in competitive and innovation-intensive markets. This is definitely a “challenge” for steward-ownership.
The conclusion of Steuernagel as chairman of the steward-ownership foundation: “My feeling is: If there isn’t a strong political will, then nothing will happen.”
Resistance to a new legal form
At the moment, however, the opponents of a new legal form are also forming. In advance, the Handelsblatt has received a joint position paper from the Federation of German Industries (BDI) and the Federation of German Foundations (BDS). It says: “From the point of view of the signing associations, the legal form is neither suitable nor necessary for the objective of sustainable and responsible entrepreneurship.”
The desire from the start-up scene to be able to survive on the market even after the start-up phase is understandable. But: “The law should distinguish between charitable work in the public interest and private-sector work.”
It is suggested that companies in other legal forms are less trustworthy and less socially valuable. At the same time, companies in the new legal form envisaged would not have to have a compelling connection to the common good: they would be completely free to choose which activity to carry out and would be committed to their own economic success.
In the position paper, the associations even refer to a “high susceptibility to abuse”, even if there should be no distribution of profits to the shareholders, for example via shareholder loans, rental leases or license agreements. “The legislature would have to constantly tighten up here, so that the desired ‘simple’ legal form could become considerably more complicated within a very short time,” warn the BDI and BDS.
Instead of a new legal form for steward-ownership, the associations advocate “branding” that would be available to every legal form. With such a certification, the orientation as a “particularly sustainable company that acts in a way that is compatible with the common good” can be made known to the public. Foundation law could also be made more flexible and less bureaucratic.
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