A Gesellschaft mit beschränkter Haftung (GmbH) is the best known form of corporations in Germany. With more than 1 Mio. companies, the formerly popular partnerships are overtaken now by this form of company (as of 2013). The GmbH in a legal entity that has its own rights and obligations. In consequence the GmbH is an independent legal personality, e.g. it can sue and be sued independently from the shareholders. The GmbH itself can be owner of movable properties. Bodies of the GmbH are the managing director, the shareholders and the meeting of the shareholders. Further under certain circumstances a board of directors can be appointed.

B. Basics

The GmbH is born with the registration in the commercial registry. Before the registration into the commercial registry it is a so called „Vorgründungsgesellschaft“ („Association before formation“) in the form of a BGB company (= company organised under the German civil code) which has the purpose of formation of a GmbH.

With the notarization of the AoA the so called Vor-GmbH („before GmbH“) comes into existence. It may also – like the Vorgründungsgesellschaft – be the bearer of rights and obligations, but then the suffix “i.G.” should be used to make it clear that the GmbH has not been registered yet in the commercial register.

With the registration with the commercial register the GmbH is „born“. The GmbH’s purpose can be any legally permitted purpose.

The share capital of a GmbH must amount at least EUR 25.000,00. According to § 7 GmbH-Law half of the share capital has to be contributed when the notary applies for registration at the commercial register. The company has the obligation to hold the minimum share capital. This capital can be provided in cash or kind. Upon the registration of the company the managing director must assure that the minimum regular share capital has been paid. Opening a bank account can be difficult for foreigners who are not resident in Germany. Many banks have strict conditions. So there are banks that want to get to know their customers in person. However, there are also banks that open a bank account after legitimacy of the customer at an official place without the premise of entering Germany.

The GmbH is represented by one or more managing directors who can be appointed indefinitely or for a certain time by the shareholders in the AoA with the formation or afterwards. Managing directors can only be natural persons, who are absolutely sui iuris (unlimited legal capacity). Managing directors are subject to special and due diligence requirements which have to be met, amended by responsibilities developed by case law.

The GmbH is liable only with its own assets, the shareholders are exempt from personal liability. By way of exception the shareholders can have personal liabilities.

The AoA can be customized. Since the reform of the GmbH-Law there is on the other hand the possibility to use a sample for the AoA (so called “Musterprotokoll”). Given the premise of maximum three shareholders and only one managing director this sample can be used. Also, only cash and no contributions in kind may be provided.

The shareholders make their decisions at the shareholders’ meeting by means of shareholder resolutions. Required majorities can be specified in the AoA. The AoA must indicate the number and nominal value of the shares of the shareholders. The nominal sum has to be in full Euros, therefore the minimum nominal sum is EUR 1,00.

When the nominal capital is contributed and the AoA are notarized, the notary has to apply for registration of the GmbH at the commercial register:´

C. Regarding foreigners

The formation of the association is not bound to the nationality of the shareholders or the managing directors. Even foreigners can found an association or be appointed managing director without authorization. Three constellations are possible: A foreign managing director with residence or settlement permit, meaning with domicile in Germany, can manage a GmbH without any difficulty. The same thing applies for EU-Citizens because of their EU freedoms, namely the freedom of movement. Entry and residence as well as admission to work, be it self-employed or dependent, is possible without any permission. For non-EU-Citizens, it has long been controversial in Germany whether managing directors had to have a residence permit. By now there is the consensus that these managing directors do not need any residence title. In some cases it is argued that the managing directors shall at least have the possibility to being able to enter Germany for at least three months within a calendar year. But even this point is judged differently. It is advisable to clarify with the respective commercial registry because there is nationwide inconsistency regarding this point. Non-EU citizens without a residence permit, who want to become self-employed in Germany, do not need a special work permit. Upon obtaining a residence permit, a self-employed person can be self-employed without a separate permit. For a planned stay of less than 90 days, an application for a so called Schengen visa is sufficient. For a planned stay of more than 90 days, a visa for the purpose of self-employment (so-called “national visa”) must be applied for at one of the German diplomatic missions abroad. The respective institute or consulate then forwards the request to the responsible immigration office. The foreigners authority at the planned place of residence in Germany then decides on this request. This process can take two to four months.

The economy has been stable over the years, having met the global financial crisis in 2007/2008 easily. Germany has a highly skilled labour force, but still not enough to cover all needs. That is why big legal changes are being made in June 2019, as the new Fachkräfteeinwanderungsgesetz (Law on Migration of Highly Skilled People) has been adopted by the parliament. The county has a large capital stock, is known for the low level of corruption and its innovations. When thinking of Germany many think of its industry and quality behind it, why Germany is one of the biggest exporters in the world.

Another important thing to know is that Germany has not a single economic centre as one might think of the capital Berlin. German is the official language; English is spoken widely.

With investing in Germany, the question raises whether a migration to Germany is meaningful. It is good to know, that the German population is constantly growing older meaning that there is a shortage of skilled workers in Germany, e.g. in the fields of IT, engineering and health care. Germany has a widely range of migration laws which may affect the investment plan.

Entering and staying in Germany is connected with a visa requirement for non-EU-citizens. An exception exists for example for the citizens of the United States of America or the United Arab Emirates, who do not need a visa for a stay up to 90 days in a 180-days-period.

A visa means the Schengen visa, which can be extended for a total stay of 90 days per period of 180 days. For stays longer than 90 days, a visa (so-called national visa) is required. For those stays the following visa models are given:

Ø residence permit,

Ø EU Blue Card,

Ø ICT card,

Ø settlement permit and

Ø EU permanent residence permit

The residence permit is a temporary residence permit issued for specific residence purposes. The settlement permit, on the other hand, is an indefinite residence permit entitling the holder to work. A settlement permit is mandatory if certain conditions are met (for example, if you hold a residence permit for 5 years, secure your livelihood, sufficient knowledge of German, etc.). The situation is similar with the EU permanent residence permit, which allows holders of a residence permit to enjoy the freedom of movement within the EU. In addition to the settlement permit, this is the strongest form of a residence permit. For foreigners with an academic or equivalent qualification level, it is possible to obtain a residence permit by applying for the so-called EU Blue Card. It is a requirement to obtain a German or recognized foreign or comparable foreign university degree and a minimum annual gross salary of EUR 53.600,00 or EUR 41.808,00 for skilled workers in certain fields. The EU blue card can be converted into an unlimited settlement permit. For an entrepreneurial transfer, the so-called ICT card and the so-called mobile ICT card are the right visas. The ICT card only enables activities in a German branch for executives, specialists and trainees for more than 90 days, but for a maximum of three years (for trainees a maximum of one year). In contrast, the Mobile ICT card is issued for short-term mobility for more than 90 days if the alien already holds a residence permit from another EU member state.

In general, the application procedure has to be done before entering Germany. The applicants have to submit their application with all needed documents in person at the competent authority.

O.Law supports investors from all around the world knowing the German market with legal advice in the relevant areas as well as supporting in and representation in disputes.

O.Law is a modern and dynamic law firm working in cooperation with highly motivated, professionals offering legal advice in the heart of Dusseldorf. We are characterized by our cooperation with a tax advisor and a network of lawyers in Eastern Europe.

O.Law supports in all legal requests regarding commercial law, focusing on our international cooperation. In view of the intensity of German-Turkish trade relations and the importance of them, we established a Turkey Desk.

Solutions that are efficient and economically sensible, with creative approaches are defining O.Law’s hallmarks. O.Law offers legal services in German, Turkish and English and can support double culturally. To speak a common language is important to us.

O.Law –

Attorney at Law Hülya Oruç, LL.M.

Goethestr. 30

40237 Düsseldorf

+ 49 211 976 358 -19

info@olaw.eu

www.olaw.eu

O.Law is a law firm based in Düsseldorf. Working for entrepreneurs worldwide, making their business dreams come true.

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Die Aufenthaltstitel werden erteilt als

· Visum

· Aufenthaltserlaubnis

· sog. Blaue Karte EU

· sog. ICT-Karte

· sog. Mobile-ICT-Karte

· Niederlassungserlaubnis

· Erlaubnis zum Daueraufenthalt-EU.

Details zu den unterschiedlichen Aufenthaltstiteln

Mit Visum ist das Schengen-Visum gemeint, dass für eine Gesamtaufenthaltsdauer von 90 Tagen je Zeitraum von 180 Tagen verlängert werden kann. Für längere Aufenthalte als 90 Tage ist ein Visum (sog. Nationales Visum) erforderlich. Hierfür kommen die Aufenthaltserlaubnis, die Blaue Karte EU, die ICT-Karte, die Niederlassungserlaubnis sowie die Erlaubnis zum Daueraufenthalt EU infrage. Die Aufenthaltserlaubnis ist ein befristeter Aufenthaltstitel, der zu bestimmten Aufenthaltszwecken erteilt wird. Die Niederlassungserlaubnis ist hingegen ein unbefristeter Aufenthaltstitel, der zur Ausübung einer Erwerbstätigkeit berechtigt. Eine Niederlassungserlaubnis ist zwingend zu erteilen, wenn bestimmte Voraussetzungen erfüllt sind (z.B. bei Besitz eines Aufenthaltstitels seit 5 Jahren, Sicherung des Lebensunterhaltes, ausreichende Deutschkenntnisse etc.). Ähnlich verhält es sich mit der Erlaubnis zum Daueraufenthalt-EU, die den Inhabern dieses Aufenthaltstitels eine gewisse Freizügigkeit innerhalb der EU ermöglicht. Neben der Niederlassungserlaubnis ist dies die stärkste Form eines Aufenthaltstitels. Für Ausländer mit akademischem oder diesem gleichwertigen Qualifikationsniveau ist es möglich einen Aufenthaltstitel durch Antrag auf die sog. Blaue Karte EU zu erlangen. Voraussetzung ist u.a. die Erlangung eines deutschen oder anerkannten ausländischen oder vergleichbar ausländischen Hochschulabschlusses und eines jährlichen Mindestbruttogehaltes von ca. EUR 52.000,00 usw. Bei Vorliegen von bestimmten Voraussetzungen kann sich die Blaue Karte in eine unbefristete Niederlassungserlaubnis umwandeln. Für einen unternehmerischen Transfer wurde die sog. ICT-Karte und die sog. Mobile-ICT-Karte eingeführt. Die ICT-Karte ermöglich ausschließlich die Tätigkeit in einer deutschen Niederlassung für Führungskräfte, Spezialisten und Trainees für mehr als 90 Tage, maximal jedoch für drei Jahre (für Trainees maximal ein Jahr). Die Mobile-ICT-Karte hingegen wird für die kurzfristige Mobilität für mehr als 90 Tage erteilt, wenn der Ausländer bereits einen Aufenthaltstitel eines anderen EU-Mitgliedsstaates besitzt.

Allgemeine und besondere Voraussetzungen

Die Aufenthaltstitel berechtigen nicht automatisch zur Befugnis zur Ausübung einer Erwerbstätigkeit. Es ist vielmehr eine ausländerbehördliche Erlaubnis erforderlich, und zwar grundsätzlich nach Zustimmung der Bundesagentur für Arbeit.

Zunächst gibt es allgemeine Erteilungsvoraussetzungen, die für jede Art von Aufenthaltstitel vorzuliegen hat. Diese sind:

· die Sicherung des Lebensunterhalts,

· Staatsangehörigkeit und Identität müssen geklärt sein,

· es darf kein Ausweisungsinteresse bestehen,

· der Aufenthalt darf die Interessen der BRD weder beeinträchtigen noch gefährden und

· der Besitz eines Passes.

Für die ICT-Karte, die Niederlassungserlaubnis und der Erlaubnis zum Daueraufenthalt-EU kommen noch folgende besondere Voraussetzungen hinzu:

· Einreise mit dem erforderlichen Visum und

· Angaben müssen korrekt und bereits bei Erteilung gemacht sein.

Des Weiteren gelten die für den jeweiligen Aufenthaltszweck maßgeblichen besonderen Vorschriften zur Ausbildung, Erwerbstätigkeit, völkerrechtliche, humanitäre oder politische Gründe und familiäre Gründe.

Für die Aufnahme von einer selbstständigen Tätigkeit gilt, dass die Tätigkeit im Interesse der BDR liegen muss und finanziell durch Eigenkapital oder eine Kreditzusage abgesichert sein muss. Für qualifizierte Ausländer (abgeschlossenes Studium in Deutschland) gelten erleichterte Bedingungen.

Für die Aufnahme von einer selbstständigen Tätigkeit gilt, dass die Tätigkeit im Interesse der BDR liegen muss und finanziell durch Eigenkapital oder eine Kreditzusage abgesichert sein muss. Für qualifizierte Ausländer (abgeschlossenes Studium in Deutschland) gelten erleichterte Bedingungen.

Für die Aufnahme von einer abhängigen Tätigkeit gilt der Grundsatz, dass die Bundesagentur für Arbeit ihre Zustimmung erteilen muss. Hiervon gibt es durch Rechtsverordnung festgelegte Ausnahmen. Darüber hinaus muss ein konkretes Arbeitsplatzangebot vorliegen. Alternativ kann bei Vorliegen der Voraussetzungen die Blaue Karte EU beantragt werden, die qualifizierten Ausländern eine auf zunächst vier Jahre befristete Aufenthaltserlaubnis mit Erlaubnis zur Aufnahme einer Erwerbstätigkeit gestattet. Schon nach 33 Monaten kann bereits ein Anspruch auf Erteilung einer Niederlassungserlaubnis bestehen.

The EU Blue Card is a residence title for special purposes, given residence permits in Germany in this form since 2012.

It is intended to facilitate immigration of highly qualified third-country citizens to Germany. It also helps to make the local labour market more attractive to well-educated employees and counteract the shortage of skilled workers. The EU Blue Card is addressed to persons from third countries, who have not the citizenship of any EU state.

Legal Basis and Requirements

The requirements for the EU Blue Card are widely stated in the German Residence Law. The Requirements are as followed:

· Completed University Education: if this education is not obtained in Germany, the university education must be accepted, or it has to be similar to a German completed university education

· Employment Contract or Binding Job Offer

· Minimum Gross Salary: there is no need for an approval of the German Federal Employment Office if a certain level of income reached or is offered. This year’s salary is EUR 53.600,00. There is an exception for professions like IT-specialist or physicians, stated with EUR 41.808,00 as off 2019.

Validity of the EU Blue Card

The Blue Card is issued for the duration of the employment contract plus three months, but for a maximum of period of four years. An extension is possible if the preconditions are met. A change of job within the first two years of the employment must be notified to the competent immigration authority, who in turn issues their written consent.

Advantages of the EU Blue Card

Ø Fast track to a settlement permit: as a holder of an EU Blue Card in Germany you can apply for a permanent national residence title. The requirement is to be in a highly qualified employment for 33 months and having simultaneously paid into a retirement scheme. Persons who can prove adequate knowledge of German (Level B1) can apply for a settlement permit after 21 months already.

Ø Mobility in- and outside the EU: when having an EU Blue Card for at least 18 months you are allowed to enter another EU Member State without any visa for the purpose of highly qualified employment and apply for the EU Blue Card there within one month. Given this advantage to your family members as well. Further the EU Blue Card holder can stay up to 12 months in a non-EU-country without losing his residence title, this fact applying for the family members as well.

Ø Family Reunification: Spouses might be granted a residence permit even if they do not have any knowledge of German prior to entering the country. Furthermore, spouses are immediately entitled to take up dependent or independent employment without any restrictions.

Procedure

Ø If you are already living in Germany under a different residence title: contact your immigration authority responsible for the place of residence

Ø Living in non-EU-countries: apply first for visa with purpose of employment in Germany at competent German Embassy in home country. After arriving in Germany apply for EU Blue Card before visa expires (the Embassy will give short term visa for coming to Germany and applying for the Blue Card).

Ø Third country nationals with EU Blue Card from another EU Member State: working in Germany is possible after 18 months, application must be submitted at local immigration office within one month

How we do help?

O.Law provides legal advice and issues the documents needed for it’s clients when applying for the EU Blue Card. By nature there are many questions before applying for such a visa. The German offices are known for their bureaucratic and sometimes not easy procedures. Please do not hesitate to contact us in case of needing assistance.

Mail us: info@olaw.eu

Call us: +49 211 976 358 – 19

www.olaw.eu

The economy has been stable over the years, having met the global financial crisis in 2007/2008 easily. Germany has a highly skilled labour force, but still not enough to cover all needs. That is why big legal changes are being made in June 2019, as the new Fachkräfteeinwanderungsgesetz (Law on Migration of Highly Skilled People) has been adopted by the parliament. The county has a large capital stock, is known for the low level of corruption and its innovations. When thinking of Germany many think of its industry and quality behind it, why Germany is one of the biggest exporters in the world.

Another important thing to know is that Germany has not a single economic centre as one might think of the capital Berlin. German is the official language; English is spoken widely.

Form of Corporations

There are several corporate forms, of which foreign investors can think about when placing their investments.

First in mind there are companies such as

· Gmbh (German form of Limited Liability Company, Gesellschaft mit beschränkter Haftung)

· AG (German form of a Stock Corporation, Aktiengesellschaft)

· SE (European Company, Societas Europeae)

Each of this company form has its own legal framework, in addition European regulations and constituent documents must be acknowledged.

A Gesellschaft mit beschränkter Haftung (GmbH) is the best-known form of corporations in Germany. With more than 1 Mio. companies, the formerly popular partnerships are overtaken now by this form of company (as of 2013). The GmbH in a legal entity that has its own rights and obligations. In consequence the GmbH is an independent legal personality, e.g. it can sue and be sued independently from the shareholders. The GmbH itself can be owner of movable properties. Bodies of the GmbH are the managing director (must be a natural person), the shareholders and the meeting of the shareholders. Further under certain circumstances a board of directors can be appointed. The registered share capital has to be at least EUR 25.000,00. There is no direct liability of its shareholders, unless in extraordinary cases exceptions apply and the corporate veil of a GmbH does not hold up.

A requirement like having a local director does not exist. In general, nationals of any country can become a managing director and they do not need to have a residence in Germany. Also, regarding the shareholders there do not exist any requirements regarding the legal form, location or nationality.

The managing directors have duties to the GmbH and the shareholders and can be personally responsible for actions or omissions of the company in certain circumstances (e.g. in insolvency, taxes or social security payments).

The establishment procedure is formalistic and requires the support of a notary. It is realistic to plan minimum of four weeks for such an establishment and to have the help of an attorney for drafting the articles of association for the needs of the shareholders.

The second alternative for structuring an investment can be a partnership. The forms of partnerships are

· GbR (Civil Law Partnership, Gesellschaft bürgerlichen Rechts)

· oHG (General Partnership, offene Handelsgesellschaft)

· KG (Limited Partnership, Kommanditgesellschaft)

· GmbH & Co. KG (Combination of Limited Partnership (KG) and a Limited Liability Company (GmbH))

The advantage of partnerships is that they are transparent for income tax purposes. On the other hand, it has to be thought of the fact that the partnerships have full personal liability. Furthermore, partnerships are legally required to have their effective management in Germany.

As a third form of investment a Joint Venture can be an option, too. Two or more individuals or entities can agree on working together aiming the same strategic goal. Joint Ventures can be incorporated, organised as partnerships or can be unincorporated.

Another possibility for foreign investors is the establishment of a registered branch (Zweigniederlassung) in Germany. A registration is not required when the branch is just a representative office, used for liaison purposes. Every change that is made in the foreign entity effects the registrations and the commercial register has to be kept up constantly. Also, the registered branch is tax compliant meaning that it has bookkeeping and tax obligations.

Forms of investment

Any investment shall be well planned and a due diligence investigation shall be undertaken in respect of the target company, target assets, the business, the vendors and any material assets or contracts owned or operated by the relevant company as well as regarding its tax situation and other areas which may be of importance.

The investment can be made by a company acquisition, an equity investment or a asset acquisition.

A company acquisition will involve the investor acquiring ownership of the existing shares in a company. Such an acquisition will usually be done by a share purchase agreement when a private company is acquired.

Another way to acquire shares of a company is the subscription of new shares, the so-called equity investment. By increasing the capital of the existing company and waiving the shareholders’ subscription rights the investor will be allowed to buy the new shares. On top usually a shareholder agreement is signed to govern the future relationship of the shareholders as far as the articles of partnership agreements do not contain these.

Furthermore, the investor could buy the business without buying shares by way of asset acquisition. The investor purchases only specific assets and liabilities set out in the agreement. This transaction is more complex and may require substantial dealings with third parties, a due diligence examination is a must. Especially the consideration of transferring employees is essential. According to German law employees transfer automatically to the buyer of the business unless they object.

There does not exist a specific legal framework for foreign investors regarding this issue. In fact, there are no restrictions on the ownership of business and companies by foreigners or on capital in-flow or foreign exchange control mechanisms. Transactions can be subject to merger clearance and to export controls.

O.Law supports in all legal requests regarding commercial law, focusing on our international cooperation. In view of the intensity of German-Turkish trade relations and the importance of them, we established a Turkey Desk.

Solutions that are efficient and economically sensible, with creative approaches are defining O.Law’s hallmarks. O.Law offers legal services in German, Turkish and English and can support double culturally. To speak a common language is important to us.

O.Law –

Attorney at Law Hülya Oruç, LL.M.

Goethestr. 30

40237

Bu yazımızda sizlere en popüler şirket formu olan GmbH yani Almanya’da limited şirket kurulumunu açıklayacağız.

GmbH nedir?

Gesellschaft mit beschränkter Haftung (GmbH), Almanya’da en popüler şirket tipidir. 2013 itibariyle Almanya’da 1 milyondan fazla GmbH bulunmaktadır ve böylece eskiden daha popüler olan şahıs şirketlerini geride bırakmaktadır.

GmbH, kendi hakları ve yükümlülükleri olan tüzel kişiliğe sahiptir. Sonuç olarak, GmbH bağımsız bir tüzel kişiliktir. Örneğin pay sahiplerinden bağımsız olarak dava açabilir veya dava açılabilir. GmbH’nın kendisi taşınabilir sahibi olabilir. GmbH’nin organları müdür, ortaklar ve genel kuruldur. Ayrıca belirli koşullar altında bir yönetim kurulu atanabilir. GmbH ortaklarının sorumlulukları şahıs işletmesinin aksine sınırlıdır.

GmbH Nasıl Kurulur?

GmbH, bir veya daha cok gercek veya tüzel kişi tarafindan kurulabilir. Kuruluşu belirli bir ortak sayısına bağlı değildir. Tek kişi olarak da GmbH kurulabilir.

GmbH ticari sicil kaydı ile tüzel kişilige sahip olur. Ticaret siciline tescilden önce, bir BGB şirketi (Alman Medeni Kanunu’na göre düzenlenen şirket) şeklinde bir “Vorgründungsgesellschaft” (“kurulumdan önceki şirket”) adı verilen ve bir GmbH’nin kurulması amacıyla kurulmuş olan bir şirkettir.

Sirket sözleşmesinin noter tasdiki ile birlikte Vor-GmbH ‚(‚önce GmbH“) ortaya çıkmaktadır. Aynı zamanda Vorgründungsgesellschaft gibi hak ve yükümlülüklerin taşıyıcısı olabilir, ancak daha sonra “i.G.” eki, yani GmbH’nın henüz ticaret siciline kayıtlı olmadığını açıkça belirtmek için kullanılmalıdır.

Ticari sicile yapılan tescil ile GmbH tüzel kişilik kazanır.

GmbH’nin amacı yasal olarak izin verilen herhangi bir amaç olabilir.

Almanya’da Limited Şirketin Minimum Sermayesi Ne Kadardır?

Kurulacak olan şirkete nakdi sermaye getirebildiği gibi ayni sermaye de getirebilir. Kanuna göre ticaret sicilinde başvuru yapıldığında sermayenin en az yarısının banka hesabına yatırılmış olmasi gerekir. GmbH’nin kuruluşu icin asgari sermaye bedeli 25.000,00 EUR’dur. Şirketin asgari sermayeyi elinde tutma yükümlülüğü bulunmaktadır. Şirketin tescili ardından şirket müdürü asgari sermayenin ödenmiş olduğunu doğrulamalıdır.

Almanya’da Şirket Banka Hesabı Nasıl Açılır?

Almanya’da ikamet etmeyen yabancılar için banka hesabı açmak zor olabilir. Birçok banka sıkı şartlar altında hesap açmaktadır. Örnegin müşterilerini şahsen tanımak isteyen bankalar da vardır. Ancak, Almanya’ya giriş yapmadan müşterinin resmi onayı sonrası banka hesabı açan bankalar da vardır.

GmbH Ortaklarının Sorumlulukları

GmbH bir veya daha fazla müdür tarafindan temsil edilir. Ortaklar tarafından süresiz olarak veya belli bir süre için kuruluş esnasında şirket sözleşmesi ile ya da sonradan atanabilirler. Sadece gerçek kişiler müdür olabilirler. Müdürler, içtihatla geliştirilen özel ve due diligence şartlarına tabidirler. GmbH sadece kendi borçlarından sorumludur. Ortaklar kişisel malları ile sorumluluktan muaftır. İstisnai olarak ortakların kişisel yükümlülükleri olabilir.

Yabancı olarak (Alman Vatandaşı Olmayanlar İçin) Şirket Kurmak

Almanya’da şirket kuruluşu ortakların veya müdürlerin uyruğuna bağlı değildir. Yabancılar bile bir şirket kurabilir ve özel bir izin gerekmeden şirket müdürü olabirler.

Yabancılar Şirket Almanya’a şirket kurulumu sonrası yönetimi 3 şekilde düşünülebilinir:

Yerleşim izni olan yabancı bir müdür Almanya’da ikamet ederek, bir GmbH’yı herhangi bir zorlukla karşılaşmadan yönetebilir.Aynı şey AB vatandaşları (Avrupa Birliği üye ülke vatandaşları) için de geçerlidir. AB üyesi olmayan bir ülkenin vatandaşları (Türkiye gibi) konusunda , Almanya’da şirket müdürlerinin ikamet iznine sahip olup olmamaları şartı uzun zamandır tartışılmaktadır. Bu müdürlerin ikamet zorunluluğuna ihtiyaç duymadığı konusunda fikir birliği var denilebinilir.

Arada müdürlerin en azından bir takvim yılı içerisinde en az üç aylığına Almanya’ya gelme imkânına sahip olmaları gerektiği savunulmakta olsa da bu konu Almanya’da bulunan eyaletlere göre farklılık göstermektedir. Şirketin kurulacağı ilgili ticari sicil ile irtibata geçip konunun açıklığa kavuşturulması tavsiye edilir.

Ekibimiz Almanya’da şirket kurmak konusunda sizi hangi eyatletlerin daha avantajlı olacağı konusunda yönlendirebilir.

Almanya’da serbest meslek sahibi olmak isteyen fakat ikamet izni olmayan ve de AB vatandaşı da olmayanlara özel çalışma izni gerekmemektedir.

Oturma izni alındıktan sonra, serbest meslek sahibi kişi ayrı bir izin olmadan çalışabilir.

90 günden daha az süren planlı bir konaklama için, Schengen vizesi için başvuru yeterlidir. 90 günden fazla süren planlı bir konaklama için, serbest meslek amaçlı bir vize (“ulusal vize” denilen), yurtdışındaki Alman enstitütü veya konsolosluklarına başvuru yaparak alınmalıdır. İlgili enstitü veya konsolosluk daha sonra talebi sorumlu yabıncılar polisine iletecektir. Vize kararını Almanya’daki yabancılar polisi bu talebe göre karar verir. Bu süreç iki ila dört ay sürebilir.

Almanya’da oturum izni konusunda ekibimiz yardımcı olabilmektedir. Lütfen bizimle aşağıdaki iletişim bilgilerini kullanarak iletişime geçiniz.

Av. Hülya Oruç

The subject of this article is the issue of the passive freedom to provide services for non-EU citizens, here especially regarding Turkish citizens. This article questions whether Turkish citizens have a right to asses the EU without any visa or at least getting a visa without high requirements. In particular, the Demirkan judgment of the European Court of Justice (ECJ, C-221/11) from 24.09.2013 – which is still one of the most important judgements regarding this topic – will be discussed. The judgment of the ECJ concerns the visa requirements of Turkish citizens, despite existing provisions in the Association Agreement, which the European Economic Community (EEC) had signed with Turkey on 12.09.1963, and the accompanying Additional Protocol of 23.11.1970.

B. The Freedom to Provide Services

The freedom to provide services is governed by Chapter III of the Treaty on the Functioning of the European Union (TFEU), here in Articles 56 to 62 TFEU. The TFEU itself does not define what freedom to provide services means. As a rule, the wording of Article 57 (1) and (2) TFEU states that they must be commercial, artisanal and professional activities. Furthermore, the service must be provided against payment and the most important factor is that it has to be temporary. This in fact happens to distinguish it from the freedom of establishment. In its Gebhard (ECJ C-55/94) decision the ECJ emphasized the importance of the duration, frequency, regularity and continuity of the service. Another prerequisite, as with all the fundamental freedoms of the TFEU, is crossing borders.

I. The Active Freedom to Provide Services

Only this form of freedom to provide services is expressly standardized in the TFEU. The freedom to provide services enables the service provider to move to another Member State in order to perform there. Article 57 (3) TFEU grants the service provider a right of residence for the duration of the provision of the service. The freedom to provide services does not depend on the nationality of the recipient of the service. Only the nationality of the service provider is important. According to Article 56 (1) TFEU, he must be citizen of the EU. This can be different for third-country nationals. Although third-country nationals could be considered as recipients of services (passive freedom to provide services), they are not eligible for providing such services (freedom to provide services) under Article 56 et seq. TFEU.

II. The Passive Freedom to Provide Services

There is also the possibility that the service recipient himself exceeds the limit to receive a service, which is referred to as passive or negative freedom to provide services. This thus widens the scope of the provisions on the freedom to provide services. The circle of persons falling within the scope of Article 56 et seq. TFEU are now extended: it protects not only the private, but also the business active and thus the antagonist. On the other hand, the passive freedom to provide services does not depend on the characteristic of self-employment, since he is merely the recipient and not the service provider himself, whose autonomy depends on the right to freedom to provide services.

III. Restrictions

The main function of the fundamental freedoms is to prohibit discrimination against EU citizens and thus to prevent unequal treatment. First, the general prohibition of discrimination under Article 18 TFEU should be mentioned here, which should guarantee equal treatment of foreigners and nationals. This covers both direct and indirect discrimination. However, different rules in the Member States do not automatically mean that the principle of Article 18 TFEU is breached. Furthermore, Article 56 (1), 57 (3) TFEU infers a prohibition of discrimination which prohibits both open and covert discrimination. Article 56 TFEU guarantees rights of entry, residence and free movement in the State in which the service is provided. Article 56 et seq. TFEU lays down a prohibition on restricting the state in which the service is provided from taking any action which prohibits or impedes the service provider’s performance in order to make the cross-border service so unattractive to the provider of the service. Differentiation according to criteria which in fact leads to discrimination, hidden or indirect, is therefore prohibited. According to the famous Dassonville formula (ECJ, 8/74) created by the ECJ, a measure that is not discriminatory but has different effects on nationals and foreigners is also not allowed.

IV. Justification

First, a justification can be made through primary law: By virtue of the reference made in Article 62 TFEU, the barriers of freedom of establishment (Article 51 et seq. TFEU) apply mutatis mutandis. Accordingly, the justifications of public order, safety and health may be relevant. Unwritten barriers like public welfare are to be considered, too.

Member states especially must observe the principle of proportionality. In particular, the measures taken must be appropriate, necessary and proportionate in the strict sense, viz be appropriate.

A justification of a restriction of the freedom to provide services is possible through secondary law, too. The Council and Parliament are empowered to adopt common guidelines on the mutual recognition of diplomas, certificates and other evidence of formal qualifications (e.g. the Directive on Services in the Internal Market).

C. The problem of the passive freedom to provide services for non-EU citizens

A differentiation is made between active and passive freedom to provide services for third-country nationals. It is argued that non-EU citizens should not be included in the scope of Article 56 et seq. TFEU when it comes at least to the freedom to provide services. The judgment of the ECJ in the case Demirkan (ECJ, C 221/11) deals with whether Turkish citizens can derive a right to passive freedom to provide services.

I. Legal background in the case of Turkey

Turkey has been an official candidate for accession to the EU since 1999 and has signed some agreements with the EU

The most important agreement is the Association Agreement between the EU and Turkey from 12 September 1963. In addition, the Additional Protocol was completed on 23 November 1970, which led to discussions and to the judgment to be discussed here. This article will finally have a closer look to the Regulation (EC) 539/2001 and as an example for national law, German national law.

One of the most important treaties is the Association Agreement. The preamble of the Association Agreement shows the intention to provide economic assistance to Turkey and to improve its living conditions in order to facilitate Turkey’s subsequent accession to the European Union. The Agreement mentiions the gradual establishment of a customs union, which refers to the current Customs Union between the European Union and Turkey existing since 1996. The purpose of the Association Agreement is to remove the obstacles between the European Union and Turkey in order to be able to carry out trade without restrictions. Articles 12, 13 and 14 set out the free movement of workers (Article 12), the right of establishment (Article 13) and the freedom to provide services (Article 14).

The purpose of the Additional Protocol is to clarify the details and timing of the transitional phase referred in the Association Agreement. The Additional Protocol should serve as a further step towards the establishment of a customs union. Article 41 (1) (stated in Chapter II, right of establishment, services and transport) of the Additional Protocol contains the so-called „standstill clause“. It stipulates that the „Contracting Parties shall not introduce among themselves any new restrictions on the freedom of establishment and the freedom to provide services“.

According to the ruling in the case Savas of the ECJ (ECJ, C- 37/9) this article is to be regarded as a clear standstill clause, since it is „clearly, […] exactly and not tied to conditions […]”. Accordingly, new restrictions are not possible and Article 41 of the Additional Protocol is directly applicable. Therefore, this rule implies that the rules underlying the time of the conclusion of the Additional Protocol apply and that only newer rules apply if they are more favourable to Turkish nationals. Member States are therefore prohibited from introducing regulations restricting the freedom of establishment or the freedom to provide services from the entry into force of the Additional Protocol. This means that the legal status is „preserved“, and no deterioration can occur.

The Council Regulation (EC) No 539/2001 from March 2001 contains a list „for the establishment of […] third countries whose nationals must be in possession of visas when crossing the external borders and the list of third countries whose nationals are exempted from this requirement“. The recitals indicate that the decision to add the countries to the list in Annex I to the Regulation is case-related. This is done based on criteria such as „illegal immigration, public order and security and the external relations of the Union with third countries“. Turkey lists in Annex I to the Regulation, which imposes on Turkish nationals the obligation to obtain a visa through an act of the European Union. The states listed in Annex I are referred to as „negative states“. According to Article 1 (2) of the Regulation, nationals of the countries listed in Annex II are exempt from the visa requirement if they do not wish to remain in the European Union for more than three months. This catalogue is called „positive states“. In May 2014 Regulation (EC) No 539/2001 was amended by Regulation 509/2014 and a number of States in Annex I were inserted in Annex II, thus requiring them a visa requirement when staying in the Community European Union has been cancelled for less than three months.

As an example, shortly national German law shall be stated: At the time of the entry into force of the Additional Protocol in 1973, Turkish nationals did not need a visa. The Law on Foreigners from 1965 allowed Turkish nationals to enter Germany without a visa if they wanted to stay in Germany for a maximum of three months; whereas service providers were only exempted from the visa requirement for two months. The condition was that the stays did not last longer than three or two months and that no gainful employment should be exercised during this period. According the Law on Foreigners from 1971, Turkish nationals needed only a visa in the form of a visa in their passport if they wished to pursue gainful employment in Germany. Thus, there was also the possibility to enter the country legally as a tourist, without obtaining a visa and in the meantime change the intention to stay and only then you needed the approval. In 1980, Turkey was removed from the list of positive states of the Law on Foreigners, which introduced the visa requirement for Turkish nationals.

II. Interim Results

The explanations given above lead to the requirement for a visa for Turkish nationals under national and higher-ranking EU law in order to be able to cross the external borders of the European Union. However, it is questionable how the Association Agreement and Additional Protocol, which are international treaties, affect these regulatory systems. Article 55 (1) of the Additional Protocol provides that ‚the Contracting Parties shall not introduce among themselves new restrictions on the freedom of establishment and the freedom to provide services‘. Controversial discussions are held about Article 41 (1) of the Additional Protocol concerning its wording, its history and its purpose. The European Court of Justice has received a preliminary ruling under Article 267 TFEU from the higher administrative court in Berlin-Brandenburg on the question of whether Turkish nationals need a visa to enter the European Union when it comes to a family visit with the potential use of services.

III. The Demirkan Case

After a visa application of 14-year-old Leyla Ecem Demirkan and her mother was denied without any justification the case was brought in front of the administrative court in Berlin where Demirkan argued that she not only wanted to visit her stepfather but also planned to receive services in Germany, strengthening her argument with regard to Article 41 (1) of the Additional Protocol. The administrative court in Berlin dismissed the action for lack of economic activity. In fact, business men e.g. can access the EU easier than people wanting to come to the EU for touristic purposes. The alternative claim was also rejected because according to the higher administrative court of Berlin-Brandenburg Article 41 (1) of the Additional Protocol did not apply to family stays. According to the court the standstill clause stated that there is „no […] freedom of movement for Turkish nationals independent of any economic activity“. The higher administrative court in Berlin-Brandenburg requested in accordance with Article 267 TFEU a preliminary ruling on whether Article 41 (1) of the Additional Protocol also included the passive freedom to provide services. The ECJ has decided on the questions on 24 September 2013.

The ECJ begun with stating the legal framework it had to study to answer the questions asked by the higher administrative court of Berlin-Brandenburg. After developing that the above-mentioned legal frameworks and in fact the Additional Protocol is most important here, the ECJ stated that in fact Article 41 (1) of the Additional Protocol is essential. The ECJ argues:

“As regards the status conferred on Turkish nationals under the Association Agreement, Article 41(1) of the Additional Protocol lays down – as is apparent from its very wording – in clear, precise and unconditional terms, an unequivocal ‘standstill’ clause, which prohibits the Contracting Parties from introducing new restrictions on freedom of establishment and freedom to provide services with effect from the date of entry into force of the Additional Protocol (see, with regard to restrictions on freedom of establishment, Case C‑37/98 Savas [2000] ECR I‑2927, paragraph 46).”

So, this leads to the Conclusion that the standstill clause as stated in Article 41 (1) of the Additional Protocol has immediate effect. Turkish citizens can therefore rely on this clause if the clause is applicable. Furthermore, the ECJ comes to conclusion, that:

“It should be noted that the ‘standstill’ clause prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national of such economic freedoms in the territory of a Member State subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to that Member State (see, to that effect, Savas, paragraphs 69 and the fourth indent of paragraph 71; Abatay and Others, paragraph 66 and the second indent of paragraph 117; and Tum and Dari, paragraphs 49 and 53).”

After stating this the court is questioning whether this ruling is affecting only the active freedom of providing services or as well the passive freedom of services. All in all, the outcome of the ECJ after discussing the wording, the purpose and the historical backround of Article 41 of the Additional Protocol is that

“[T]he fact that the purpose of the Association Agreement is purely economic is reflected in the wording of the agreement. That is apparent from the titles of Chapters 1, 2 and 3 in Title II to the agreement, relating to the implementation of the transitional stage, those titles being, respectively, ‘Customs union’, ‘Agriculture’ and ‘Other economic provisions’. Moreover, Article 14 of the Association Agreement, which states that ‘[t]he Contracting Parties agree to be guided by Articles [45 EC], [46 EC] and [48 EC] to [54 EC] for the purpose of abolishing restrictions on freedom to provide services between them’, is in Chapter 3 of Title II of the agreement, the title of which, as indicated above, expressly refers to economic matters.”

This meant that the standstill clause, which had been ruled out widely positive by the ECJ, lost its eternal effectiveness.

D. Conclusion and Solutions

The concern of this case law for Turkish nationals is enormous. Especially Germany is particularly affected as one of the most popular host countries and destinations of Turkish citizens.

The ruling of the ECJ in the Demirkan case may be regarded as a step backwards, since in the previous judgments of the ECJ rather approximate and positive connected to the Association Agreement. As stated above, the ECJ is of the opinion that Article 41 (1) of the Additional Protocol does not cover the passive freedom of providing service. However, it is questionable whether this view is tenable.

The ECJ is mainly stating its ruling on the wording of the Additional Protocol. But it is notable that the original EEC Treaties as well did not include the passive freedom to provide services in their wording. It was not until 1984 that the Court ruled this in its judgment regarding Luisi and Carbone. Although the terms used in the contracts cannot be transferred to the Association Agreement, nevertheless, it offers a „dynamic interpretation“. In the view of the ECJ, the purpose of the transfer of the freedom to provide services from the TFEU was to establish a purposeful identity of the two treaties. The Association Agreement and the Additional Protocol, as stated in several court decisions, would pursue purely commercial purposes. By contrast, the EU’s founding treaties would not pursue a purely economic purpose. A transfer could therefore not take place. After the Second World War, not only economic goals but increasingly the goal of securing peace in Europe were in the foreground. However, it is very questionable whether the superficial cause of securing of peace has not now developed into a purely economic alliance and is being further developed. If one looks at the preamble of the TFEU, one can deduct from this that more economic interests are in the foreground than, for example, social concerns. The objective of the Association Agreement is „trade and economic relations“, which is supposed to improve living standards in Turkey. The main objective of the Association Agreement, the customs union, is already existing since 1996. Comparability cannot be rejected because of the wider content of the EU Treaties. The Association Agreement and the Additional Protocol serve as preparation for the accession of Turkey to the EU. It is impossible that back then the parties could have thought of every little part what would have today be important. Also, the intention of the Association Agreement cannot be to introduce a general freedom of movement, such as Article 21 TFEU. The Court considers that the concept of freedom to provide services should be subsumed under Article 41 (1) of the Additional Protocol. Service providers can therefore rely on it before national courts and assert rights in conjunction with other standards. Nevertheless, the Court continues to consider that the concept of passive freedom to provide services does not fall within Article 41 (1) of the Additional Protocol. This is surprising when one considers that the freedom to provide services is the standard case.

It seems more a political than a legal decision to decide whether the passive freedom to provide services can be transferred to Article 41 (1) of the Additional Protocol. The Federal Government of Germany does not want to reveal its own opinion on this topic. On a small request from the FDP (Free Democratic Party) Group in 2007, the government referred only to the competence of the European Commission and its current examination of whether adjustments to Regulation 539/2001 were necessary. After a very positive verdict was pronounced in another case (Soysal and Savatli, ECJ, C- 228/06), the Federal Ministry of the Interior had even blocked access to the website „Alien Law for the Police“ (www.westphala-stoppa.de), because they believed that the visa exemption was not only just for long-distance drivers but also other groups of service providers and service recipients. Why such a censorship was made is very questionable. The question of why Member States are so sensitive to such a case law and whether the ECJ ruling was more a political than a legal decision remains in the air. For me as a Turkish citizen, born in Germany, it is rather a disappointing judgment. Previous judgments were always rated and accepted by the press as very positive. The verdict in the Demirkan case, however, is perceived by the Turkish and German media as very negative.