Corporate social responsibility (CSR) has gained importance worldwide in recent years. Companies have recognised the need to take into account the interests of shareholders and stakeholders in harmony with environmental, employment, social and human rights concerns, not only to improve their corporate image but also to live a good neighbourly life with the community in which they operate.
The CSR philosophy is being internalised and practised by more and more start-ups, family-owned and medium-sized companies. They define themselves as purpose entrepreneurs and want to transform their companies into purpose companies (responsibly owned companies). A responsible ownership company does not primarily serve the capital market, but seeks to establish and maintain a healthy balance between profit, competitiveness, public welfare and sustainability in the long term.
The responsible ownership company should practise the basic idea of the social market economy:
The purpose of the responsible ownership company is not profit and its distribution to the shareholders, but the reinvestment of generated profits in sustainable goals of the enterprise.
In a responsible ownership company, investors are not allowed to have a say; instead, the voting rights lie with the entrepreneur. In this way, the entrepreneur retains control over the company’s activities and always places the mission of the company at the centre of corporate action.
The entrepreneur sees himself as a trustee rather than the owner of the responsible ownership company. He has a fiduciary function and cannot sell or bequeath the company. When he leaves, he passes it on to the next (fiduciary) managing director. The responsible ownership company therefore belongs “to itself”.
In Germany, responsible ownership can be implemented with the help of various legal forms and ownership structures:
In Denmark, the ownership structure of the individual foundation model is widespread.
In the Netherlands, individual foundation models are organised in so-called STAK structures - a special form of foundation that is allowed to issue share-like certificates/derivatives.
In the UK, the trust partnership model is practised: The company is owned by a trust that represents the partners of the company and their interests through a democratically elected partner council. The management, on the other hand, is elected meritocratically and monitored and controlled by the partners’ council. The partners of the company can only participate in the profits to a limited extent. The company itself is designed to be inalienable.
Finally, the Perpetual Purpose Trust (PPT) from the USA should be mentioned: The PPT holds the majority of voting rights in the company and determines the management. The trust is managed by a so-called Trust Protector Committee, the composition of which is flexible and usually involves a large number of stakeholders.
Due to the very high and narrow legal requirements for tax recognition of non-profit status, the gGmbH is rarely suitable as a legal form that seeks to meet the flexibility needs of a responsible ownership company as an active player in the social market economy.
The foundation construct may, on the one hand, be too complicated for start-ups or medium-sized enterprises, and on the other hand, it may not be in line with interests due to the rigid purpose of the foundation and due to the strict separation of ownership and responsibility in the foundation models. Finally, the foundation is subject to foundation supervision.
The use of foreign legal forms and ownership structures requires a case-by-case, well-founded examination of both the foreign legal system and the legal treatment of the legal form in Germany.
At the end of 2019, the Stiftung Verantwortungseigentum (Responsible Ownership Foundation) was founded in Berlin, which aims to disseminate and promote the alternative model of responsible ownership. To this end, there is already a “Draft Law for the Limited Liability Company in Responsible Ownership” (GmbHG-E), which provides for the amendment of the GmbH law and the creation of a new legal form, the GmbH-VE (GmbH in Responsible Ownership), as follows:
The proposal has caused a stir in the media and a divided response. In advisory practice, structures designed for responsible ownership are playing an increasingly important role. Should the submitted draft law on the GmbHG be implemented in this or a similar form, a significantly less complex arrangement will be available in the future.
Author: Nikolay Stoykov
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