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Setting Up a Business in Germany

Self-Employment

Being self-employed in Germany is necessarily tied to residence. Without some sort of residence permit it will be difficult, if not impossible, for an individual to establish a business in which they are self-employed. (See the separate article on Residence Permits).

It is strongly advised to consult with experts in the field of residence permits and experts schooled in labor, business and tax laws before becoming self-employed in Germany.

Residence permits are usually easily granted for highly specialized professionals, e.g.: scientists, professional experts or specified senior mangers etc. But other qualified professionals can also be granted residence permits.

BASCH Consult

If you want to move to Germany and be self-employed and you meet certain criteria, then you most likely will be automatically issued a residence permit (for both you and your family) if you can show that your business will have a positive effect on the German economy.

This criteria would usually be related to the type of business, your qualifications and whether or not you may be doing something that could be done by a German national or some other qualified resident. The local Foreigners Office would most likely ask for certain documentation and then may well check with the local Chamber of Commerce or other organizations to see whether or not your business is specialized enough and economically viable. If your business is deemed acceptable you could be issued a residence permit. However, there may be limitations as to what you can do and where you can do it. In other words, your permit may restrict you to a certain type of self-employment in a certain geographical area. This decision is up to the local authorities.

There are a few additional steps that must be taken if you are the spouse or family member of an expatriate or otherwise considering working or setting up your own business in Germany. Once again, the residence permit enters into the equation. If you have a residence permit that restricts your work options, you must somehow have those restrictions lifted. It would be advisable get legal assistance to see whether or not the restrictions can be lifted or changed to allow you to start a business.

Something else you must be aware of if you are considering setting up your own business or working in Germany is the recognition of foreign qualifications in various professions. The best contact for information in this area is the German Federal government.

Once all the residence permit questions are sorted out, there are a number of steps that have to be taken to establish and register a business.

First of all, a determination must be made as to the exact classification of your work. Rules and regulations may vary depending on what sort of business you plan to engage in. Like the residence permits, this can be complicated. And, again, it is be advisable to get expert, professional help in finding out just exactly where your profession fits in.

Free-professionals (Freiberufler) are those who have academic training - lawyers, doctors, pharmacists etc. Other professions may be considered to be "trades". Then there are the "crafts" - such as butchers, barbers, florists etc. And then there are the "freelancers" - writers, artists, performers, independent consultants etc.

Your work classification is important because it may very well have an effect on your tax liability, the various certificates and licenses you may need to acquire and whether or not you may be required to be a member of a professional association or other "chamber".

For example, if you intend to engage in what may be classified as a "trade", you should check with the local Trades Office (Gewerbeamt). You will most likely be required to register your business and get a certificate of registration (Gewerbeschein). To get this certificate you will have to demonstrate that you are of reliable character and qualified to run your business. Having a Gewerbeschein obligates you to pay local trade tax (Gewerbesteuer) and requires that you become a member of the local Chamber of Commerce (Industrie- und Handelskammer - IHK) and to pay a yearly membership fee to them.

Free professionals may be exempt from certain registration procedures at the Gewerbeamt as may persons engaged in agriculture or forestry. But there may be other regulations and procedures that are required to be followed.

To engage in "Crafts" you may need the approval of a trade association and establish the fact that you meet German standards relating to specific qualifications for your chosen craft.

"Freelancers" fall into a category all their own and have yet a somewhat different set of regulations, laws and procedures that must be followed.

The importance of getting expert advice about being self-employed in Germany cannot be stressed enough. Laws, rules, regulations and procedures are always undergoing change. To avoid misunderstandings that may result in heartache and trouble with the authorities you should get professional assistance.

The German Federal Ministry of Economics and Technology has good information in English on starting up a business at this link: www.existenzgruender.de.

Should your business flourish and reach a certain level of turnover or profitability you may want to consider incorporating in Germany.

Corporations

Some individuals and companies that intend to engage in commercial activity in Germany may want to look into establishing some sort of corporate entity. The various forms of corporations are shown in the separate article on this page.

Companies that do not have any presence in Germany may want to designate an agent to operate on their behalf to help establish a corporation. Advice from business experts is essential in determining the best type of corporate structure.

Hiring Workers

Free agents (freie Mitarbeiter): are workers who take care of their own taxes and insurance. You or the company have the option of utilizing their services only when you need them, and paying them only if they do the agreed work. And the relationship is easy to terminate if things don't pan out.

A full or part-time employee (Angestellter): hiring these employees will place a number of obligations on you or the company. The employer must, among other things, deduct taxes and insurance premiums from their pay, give them a certain amount of vacation each year, and observe the laws that protect them from arbitrary dismissal. The premiums for the German national retirement, unemployment and health insurance programs are borne equally by the employer and the employee. Half of each premium is deducted from the employee's pay, the other half will be added to it by you and then sent to the appropriate agency and health insurance company.

Taxes and Premiums

Taxes of major concern include the municipal trade tax (Gewerbesteuer) and the value added tax (Mehrwertsteuer), plus the income tax, solidarity surcharge and church tax of your employees You also may be subject to the Corporate Tax (Körperschaftsteuer) if your business is incorporated.

The Gewerbesteuer is levied on business profits by the local authorities, and varies somewhat from community to community. It's usually around 18 percent.

The (Mehrwertsteuer or VAT) assesses a levy on each step in the production and delivery process. You will be expected to add it to whatever you charge for each item you sell to your customers and each service you perform for them, and send this money regularly to the tax office. The VAT is either 19% or 7%, depending on the item. Medical, bank and insurance services are generally exempt.

The "solidarity surcharge," amounting to 5.5% of a person's income tax, covers the costs of integrating the states of the former East Germany. The church tax, of 8% or 9%, need be paid only if the taxpayer opts to remain officially affiliated with one of Germany's established churches. You will be expected to deduct the income, solidarity and church taxes from the employees' pay and send it to the tax office.

You will be subject to the Körperschaftsteuer, now about 25% of earnings, only if you choose the AG or GmbH form of organization. There are some advantages to incorporation, notably a limitation of your liability for the business's debts. (See the box on business forms.) The Gewerbesteuer is considered one of your business expenses, and hence deductible from the Körperschaftsteuer.

Who Can Help?

As mentioned many times in this article, individuals or companies wishing to establish themselves in Germany should seek expert advice regarding legal, accounting and tax matters.

There are private companies that offer such advice. One such company is Consultinghouse A.M.C. int GmbH located in Hanau (near Frankfurt), Germany. Not only can they offer advice and consulting, they also offer accounting services. They can be reached at:
Tel: +49 (0) 6181 / 2503- 30
Fax: +49 (0) 6181 / 2503- 40
E-mail:
inquiries@consutlinghouse.eu
Website: www.consultinghouse.eu

You can get also get advice about setting up a business from one of the 82 Chambers of Commerce and Industry (Industrie- und Handelskammer, IHK) that are located throughout the country.
Deutscher Industrie- und Handelskammertag (DIHK)
Breite Strasse 29, 10178 Berlin
www.ihk.de
Tel: 030 20308-0
Fax: 030-20308-1000

This organization also represents 120 German bi-national Chambers of Commerce and Industry abroad.

Craftsmen should consult the local Handwerkskammer, Chamber of Craftsmanship www.zdh.de.

If you are unemployed, the Labor Agency might grant you a workshop on how to start a business.

You can also consult an attorney and/or tax advisor (Steuerberater). Steuerberater are only allowed to consult you on taxation and book-keeping.

Many countries also have chambers of commerce in Germany. Among them are:

American Chamber of Commerce in Germany
Rossmarkt 12, 60311 Frankfurt am Main
www.amcham.de
Tel: 069-929104-0
Fax: 069-92910411

British Chamber of Commerce in Germany,
Brückenstr. 2, 50667 Köln
www.bccg.de
Tel.: 0221- 314458
Fax: 0221-315335

Types of Companies

If you intend to engage in any commercial activity in Germany, it is wise to establish your own company. This can protect you from a lot of heartache and trouble with the authorities. Here are the various forms.

Gesellschaft mit beschränkter Haftung (GmbH) (Limited liability company). This is by far the most widespread company form. Under it shareholders are not personally responsible for the company's debts.

Just one person is sufficient to set up a GmbH, for which the share capital must be at least €25,000. A notarized agreement must be drawn up between shareholders, and the company's legal existence starts only when it is entered into the Commercial Register (Handelsregister). The name of the GmbH must be derived either from the purpose of the enterprise or the names of the shareholders, and must contain the addendum "mit beschränkter Haftung."

Shares in a GmbH are not embodied in a certificate and can't be quoted on stock exchanges. However they may be transferred through properly notarized documents. A GmbH must appoint one or more managing directors (Geschäftsführer), who may also be shareholders of the company and are the only persons entitled to represent the company.

Aktiengesellschaft (AG) (Joint stock company, corporation). In order to set up one of these there must be at least five members. The minimum required share capital is €50,000, and these shares are the only ones that may be (but need not be) listed on the stock exchanges. Articles of association, authenticated by a court or notary, are initially required to set up an AG, and it only becomes a legal entity when it has been entered in the Commercial Register. The name of the AG is usually taken from the purpose of the enterprise and it must show the words "Aktiengesellschaft (AG)."

An AG must have a managing board (Vorstand), empowered to decide all matters relating to the operation of the business and appointed by and answerable to the supervisory board (Aufsichtsrat). The shareholders of an AG exercise their power to control its policies at regularly scheduled general meetings (Hauptversammlungen).

Offene Handelsgesellschaft (OHG) (General partnership).

In contrast to the GmbH and AG, the partners in an OHG have unlimited liability. Every partner in the company is legally obliged to participate actively in operating the business unless the partnership agreement (Gesellschaftsvertrag) provides otherwise. The OHG is an association that can sue or be sued in a court of law. The Commercial Code provides that decisions should be made unanimously for internal matters, but partnership agreements usually allow for decisions by a majority of votes.

Kommanditgesellschaft (KG) (Limited partnership). This is basically a partnership but also provides for a limitation of liability by having two types of partners: 1) the general partner (Komplementär), who has an unlimited liability extending to his or her personal assets, and 2) the limited partner (Kommanditist) whose liability extends only to his or her nominal holdings in the firm.

GmbH & Co. KG (Limited partnership with a limited liability company as general partner). This combines a limited liability company with a limited partnership by making the former the sole general partner of the latter. The limited partners are, as in the case of all KGs, only liable to the extent of their registered holdings.

Töchtergesellschaft (Subsidiary). A non-independent company physically separated from the parent company, and to a certain degree independent. It usually has its own management, accounting system, balance sheet procedure and business assets.

Zweigniederlassung (Branch). This is more of a non-independent sales center, dependent in every respect on the head office, which also is in charge of central administration.

The distinction between a subsidiary and a branch office is important, as it determines whether an entry must be made in the Commercial Register. The distinction is also important in determining whether a place of business exists within the meaning of German tax law.

The Mittelstand

Much of Germany's business, in contrast to that in other industrialized countries, is conducted by the small and medium-sized companies (SME’s) of the Mittelstand. In one of Forbe’s recent lists of the world's two thousand biggest firms, 252 were Japanese and 564 American.

Only around 50 of these biggest companies were German, meaning that the Mittelstand is the engine of the German economy. The firms in it are often family-owned, with a dominant founder or manager. They have a benevolent attitude toward their employees, who, in turn, are exceptionally well qualified and motivated. In the past much of their business was done locally, and relationships with their customers were close. And their market success was based more on quality than price.

The concept of the Mittelstand dates back to medieval times and is tied in with a long handicraft tradition. Today it is one of the foundations of the middle class and the reason why the phrase "Made in Germany" has been a hallmark of quality for more than a century.

Because there is no official definition of this term (and no satisfactory English translation!) it is hard to demonstrate its importance statistically. It's widely accepted to mean a firm employing between 10 and 500 persons and having an annual turnover of €50 million or less. Estimates vary according to sources but consensus has it that there are about 3.7 million Mittelstand firms in the country, producing anywhere from 35 to 45 percent of the gross national product, creating up to 50 to 70 percent of the jobs in Germany and providing over 80 percent of apprenticeships and other job training opportunities.

Mittelstand firms tend to be concentrated in industry, commerce, the skilled trades, professions, and such service industries as technology, construction, transport, retailing and the hotel and restaurant business.