Ag pp doing business in germany

Doing Business in Germany

A short introduction on how to start business activities in Germany

Sven Ole RaapJanuary 13, 2012

© 2011 Sven Ole Raap. All rights reserved.

Overview

• Germany – a profile• Geography, population and language• Economy and investment environment• Banking and finance• Foreign investment in Germany

• How to invest in Germany• Direct transactions and investments• Investments through a permanent establishment• Investments through a company

• Exporting to Germany• Import restricitons• Import duties• Consumer sales from foreign websites

Overview

• Business structures• Limited liability companies and stock corporations• Other forms of corporations• Other business associations• Branches of foreign companies• Companies organized under the law of a foreign jurisdiction

• Accounting and audit requirements• Statutory requirements• German accounting principles• International Financial Reporting Standards (IFRS)• Form and content of annual reports• Auditing profession and auditing standards

Overview

• Business taxation• Tax system and administration• Taxation of corporations• Taxation of partnerships

• Labor law and labor costs• Employment contract and terms of employment• Collective agreements, co-determination and works council• Wages and contributions to social security systems

• Grants and incentives• German incentive programs• US incentive programs

• Business culture and differences

Germany – a profile

• Geography• Located in the center of Europe

• Borders to nine countries and the North and Baltic Seas

• Germany enjoys a temperate climate with no great extremes of heat or cold

• Population• Estimated population is 82 million (last census 1987/81)

• Population has risen in the last decade due to immigration

• Language• Official language is German

• English is by far the best known foreign language

Basic DataArea: 138,000 sq.mi

Coastline: 1,485 mi

Population: 82 mill.

Working Population: 40.8 mill.

Largest cities:Berlin (3.4 mill.)Hamburg (1.8 mill.)Munich (1.3 mill.)

Basic DataArea: 138,000 sq.mi

Coastline: 1,485 mi

Population: 82 mill.

Working Population: 40.8 mill.

Largest cities:Berlin (3.4 mill.)Hamburg (1.8 mill.)Munich (1.3 mill.)


• Political System• Under the German constitution, the Federal Republic of

Germany is a parliamentary democracy with 16 states

• The Capital of Germany is Berlin

• Legal System• Origin of Germany’s civil law is Roman law

• Important legislation is mainly federal law and is embodied in general codes - ultimate source of all law is the constitution or Basic Law (Grundgesetz)

• The judicial system is generally three-tiered (federal, regional and local courts

• The Federal Constitutional Court is the court of last resort if constitutional issues are involved

Basic DataHead of State: Federal President Christian Wulff

Head of Government: Federal Chancellor Dr. Angela Merkel

Basic DataHead of State: Federal President Christian Wulff

Head of Government: Federal Chancellor Dr. Angela Merkel


• Currency• The official currency in Germany is the Euro, which was

adopted on January 1, 1999

• The Euro is freely convertible into other currencies, and the import and export of capital is free

• The Euro is managed by the European Central Bank in Frankfurt / Germany

Exchange rate of the Euro

USA:USD 1.2793

United Kingdom: GBP 0.8254

Japan:JPY 98.745

Switzerland: CHF 1.2184

January 5,2012

Exchange rate of the Euro

USA:USD 1.2793

United Kingdom: GBP 0.8254

Japan:JPY 98.745

Switzerland: CHF 1.2184

January 5,2012


• Economy• Germany is a social market economy

• Germany’s economic position enhances a broad and competitive environment with a strong focus on innovative future technologies

• The typical business in Germany is a small or medium family-owned unit.

• German “Middle Market” (Mittelstand) is regarded as the backbone of the German economy with 99.6% (2010) of all companies being SMEs

• The labor force numbers some 41 million and the unemployment rate is 6.6% (12/2011)

Basic DataGDP:EUR 2.5 trillion

GDP per Capita: EUR 30,569

GDP Growth: 3.6%

Exports of Goods:EUR 952 billion

Imports of Goods:EUR 798 billion

Data for 2010

Basic DataGDP:EUR 2.5 trillion

GDP per Capita: EUR 30,569

GDP Growth: 3.6%

Exports of Goods:EUR 952 billion

Imports of Goods:EUR 798 billion

Data for 2010


• Banking system• Germany has a system of “universal” banks which are

engaged in the full range of banking activites

• Most banks conduct both corporate and private customer business

• Besides banks many non-banking firms have become financial service providers in the past

• Banks, financial services institutions, and insurers in Germany are governed by a state regulator, the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin)


• Foreign investment in Germany• Foreign investment is welcome in Germany

• Foreign investors are subject to the same conditions as German investors when obtaining licenses or building permits, or applying for and receiving investment incentives

• The foreign Trade and Payment Act (Außenwirtschaftsgesetz) is the legal framework for foreign direct investments in Germany

• Current trends towards tax reforms have improved opportunities for foreign investors

• International organizations and decision makers ranked Germany first within Europe, and fifth worldwide in the “most attractive business location” category

Basic DataInward FDI (2010):EUR 509 billion

Inward FDI growth 205-2010: 33%

inward FDIOrigin (2009):EU-27 77%Europe non-EU 9%US 8%Asia 5%

Basic DataInward FDI (2010):EUR 509 billion

Inward FDI growth 205-2010: 33%

inward FDIOrigin (2009):EU-27 77%Europe non-EU 9%US 8%Asia 5%

How to invest in Germany

• Direct transactions and investments• Direct transactions are the easiest option to conduct business

in Germany

• For investors who only intend to sell their products in Germany and thus develop a new market

• German-source income is not subject to income taxation in Germany

• Could be effected by Value Added Tax Law and Customs Law

• German-source income from direct investments (e.g. ín real estate) by foreign investors is typically subject to non-resident (limited) tax liability in Germany.


• Investments through a permanent establishment• Alternative, if a stronger presence will be required or after a

while of business activities to meet market and increasing administrative requirements

• There are no conditions under company law that permanent establishments would have to meet

• Only condition to be met is to inform the municipality in which the permanent establishment will be opened, which will share this information with the local tax office

• Any German-source income derived from a permanent establishment is qualified as commercial income and subject to non-resident tax liability in Germany

• The economic risk will be assumed solely by the foreign head office because a permanent establishment has no legal personality


• Investments through a company• If foreign investors plan to conduct business on an ongoing

basis in Germany it might make sense to set up a company in Germany with a view to intended business

• Foreign investors can choose between different legal forms which are typically divided into corporations (Kapital-gesellschaften) and partnerships (Personengesellschaften)

• Liability and allocation of profit are vital parameters influencing investors’ decisions

Exporting to Germany

• Import restrictions• The only import restrictions of general application are those in

accordance with UN sanctions.

• There is a special licensing procedure for certain specific types of goods, mostly for military equipment and drugs.

• Some import quotas are imposed by the EU, and these are also applied by Germany, which issues licenses freely until the quota is filled

• Since the EU members constitute a single European market, deliveries between Germany and other EU countries do not qualify as imports and exports


• Import duties• Clearance for free circulation generally triggers import duties.

These duties include in particular customs duties, import value added tax and, where applicable, excise duties

• Custom duties are the main duties effectively increasing the price of foreign goods over that of domestic or EU products

• German customs duties are all based on value and are levied at rates dependent on the type of good and on the country of origin

• The rate of duty on imports of manufactured products from other countries is often zero and rarely rises above 10%

• The basis for assessing duties is usually the supplier’s invoice unless it is obviously incorrect


• Consumer sales from foreign websites• Foreign business providing electronic services or downloads

to private, non-business consumers in Germany from outside the EU must register for VAT in an EU state of their choice

• VAT is to charged as though the service had been performed from the state and must be accounted for accordingly

Business structures

• Corporations

Four Different Forms of Corporations

Legal Form Minimum Number of Partners

Minimum share Capital

Legal Liability

GmbH – Limited Liability Company

One Partner EUR 25,000 Liability limited to share capital

UG ‚Mini GmbH‘ – Limited Liability Entrepreneurial Company

One Partner EUR 1.00 Liability limited to share capital

AG – Stock Corporation

One Partner EUR 50,000 Liability limited to stock capital

KGaA – Partnership Limited by Share

Two Partners: general Partner and limited shareholder

EUR 50,000 General Partner: unlimited liability

Limited shareholder:Limited share liability

Business structures

• Other forms of corporations• Societas Europaea (SE)

• European stock corporation

• Once incorporated, the SE can change its place of management to another Member State without giving up its legal status

• The SE can be governed by either a supervisory body and management body (two-tier-system) or by a single administrative body (single-tier-system)

• Societas Privata Europaea (SPE)

• European private company with limited liability

• Not yet available (European Commission proposal)

Business structures

• Partnerships

Four Different Forms of Partnerships

Legal Form Minimum Number of Partners

Minimum share Capital

Legal Liability

GbR – Civil Partnership

Two partners Not required Personal unlimited liability

oHG – General Commercial Partnership

Two partners Not required Personal unlimited liability

KG – Limited Partnership

Two partners: general partner and limited partner

Not required General Partner: unlimited liability


GmbH & Co. KG Two partners: general partner (GmbH) and limited partner

Not required General Partner (GmbH): unlimited liability


Business structures

• Branches of foreign companies• Autonomous Branch Office

• The autonomous branch office is dependent upon the head office company at the internal level but engages in business activities independently

• At the organizational level, autonomous branch offices are to a certain extent independent from the parent company

• Dependent Branch Office

• A dependent branch office is a subordinate department of the head office and does not have any autonomy form the head office

• Invoices have to made out in the name of the head office company

Business structures

• Companies organized under the law of a foreign jurisdiction

• It is possible for companies organized under the law of another European jurisdiction to move their place of management to Germany if their foreign jurisdiction permits such move

• A substantial presence in their home jurisdiction is not required

• The formation of a foreign corporation might involve fewer formalities and entail less expenses, however, the operating costs often exceed the costs of their German counterparts

Accounting and audit requirements

• Statutory requirements• The Commercial Code (Handelsgesetzbuch – HGB) requires:

• to keep an orderly set of books

• the books must be conform to a generally accepted standard of bookkeeping

• a complete record of all transactions and

• must be supported by a complete set of vouchers and other supporting documentation

• that they must be kept in Euro and must written up in a living language


• Statutory requirements• Principles of orderly computerized accounting systems

(requirements by the tax act):

• books must be prepared and retained in Germany at all times, unless the responsible tax office grants a specific exemption

• in principle, approval will be granted where the tax office is satisfied that its right to audit will not be compromised

• Additional requirements

• The Commercial Code contains additional requirements for the audit and publication of financial statements of all limited companies and of partnerships in which no natural person ultimately carries unlimited liability


• Statutory requirements• Categorization as small, medium-sized and large companies

• a small company is one not exceeding any two of the three following criteria:

• a company changes its status with effect for the third year where it has met or fallen below the respective criteria for the second consecutive year

Size annual sales balance sheet total employees

small < EUR 9,680,000 < EUR 4,840,000 < 50

medium-sized < EUR 38,500,00 < EUR 19,250,000 < 250

Large ≥ EUR 38,500,00 ≥ EUR 19,250,00 ≥ 250


• Statutory requirements• Audit and publication requirements

• Small companies are not subject to an audit requirement and may satisfy the publication requirements by depositing a condensed balance sheet and notes thereto, but without a profit and loss account

• Medium-sized and large companies must have their financial statements audited

• The publication requirements for medium-sized companies are easier to fulfill, and these companies are exempt form various otherwise required disclosures.


• German accounting principles• The commercial financial statements form an authoritative

basis for tax accounting purposes (so-called principle of linkage – Maßgeblichkeit)

• All German statutory financial statements must agree with the underlying accounting records and must follow the historical cost convention

• They must be drawn up within three months of the company’s year-end (six months for small companies)

• Consistency and prudence are emphasized as principles

• Financial statements must be drawn up under the assumption of going concern


• International Financial Reporting Standards (IFRS)• Following European law, all quoted companies must draw up

their published consolidated financial statements according to IAS/IFRS for business years starting on or after January 1st, 2005

• From the date, German law allows all companies and other commercial entities to publish their individual and group financial statements under IAS/IFRS, rather than under the accounting principles of the Commercial Code


• Form and content of annual reports• The German financial statements consists of:

• Balance sheet

• Profit and loss account

• “appendix” (notes to balance sheet and profit and loss account – only corporations)

• Directors’ report (medium-sized and large corporations)

• Auditor’s report (medium-sized and large corporations)

• Resolution for profit appropriation

• Cash flow statement (quoted companies)

• Statement of changes in equity (quoted companies)

• Declaration of compliance with the Code of Corporate Governance (quoted companies)


• Auditing profession and auditing standards• The audit profession is led by the:

• Wirtschaftsprüferkammer (Chamber of Public Auditors – Membership is compulsory)

• Institut der Wirtschaftsprüfer (Institute of Public Auditors in Germany

• Qualification for admission

• University degree

• Served for at least three years with a qualified auditor

• Rather difficult exam

• The Institut der Wirtschaftsprüfer lays down detailed and extensive standards of auditing and reporting (largely equals International Standard of Auditing)

• It also sets rules for ethical behavior and professional conduct

Business taxation

• Tax system and administration• Principal taxes

• Most German taxes are levied on income or transactions

• Business income is subject to two taxes: trade tax and then either corporation or income tax

• The major German transaction tax is VAT, levied under the harmonized EU system

• Sources of tax law

• German taxation is based on acts of parliament. Each tax is governed by its own act

• These acts are linked by the tax management act that regulates reporting, filling assessment and appeal procedures common to all, or nearly all, taxes.

• major tax acts are supplemented by official guidelines

Business taxation

• Tax system and administration• Returns

• The tax year is the calendar year

• Taxes on business income based on financial statements supported by a proper accounting system will be levied on the net profit for the business year

• In principle, business must file tax returns by May 31st following the year-end

• Audits

• Tax audits are conducted at three- to five-year intervalls

• Tax audits are usually detailed field reviews of the books, records and other relevant documents of the company and often take several month to complete

Business taxation

• Taxation of corporations• Tax rates and total tax burden

• Germany offers a competitive system of company taxation. The average tax burden on companies is less than 30%. In some regions of Germany, due to a locally variable rate of trade tax, it is under 23%

• Trade tax rates of lager towns and cities generally fall within the range of 14% to 17%. Those of smaller towns and country districts are usually between 12% and 16%

• All corporations are liable to pay corporate tax. The rate of tax is 15% on the taxable profits of the company

• The so-called solidarity surcharge (Solidaritätszuschlag) is added to the corporate tax. This totals 5.5% of the 15% rate of corporate tax, or 0.825%

Business taxation

• Taxation of corporations• Tax rates and total tax burden

• If a German subsidiary company distributes profits to its foreign parent company (a dividend payment) then a 25% rate of withholding tax (Kapitalertragssteuer) is payable

• Almost all the German tax treaties reduce this to 5%, 10% or 15% on dividends paid to foreign corporate shareholders with at least a 25% holding in the German company

• For holdings of at least 80% the US treaties waive it altogether (below 80% it will be reduced to 5%, below 10% it will be reduced to 15%)

Business taxation

• Taxation of individuals• Territoriality and residence

• All resident individuals (natural persons) are taxed on their worldwide income.

• Domestic law deems a person to be resident if the has a home or his habitual abode in Germany.

• Generally, individuals are deemed to have their habitual abode in Germany if they are physically present for more than six month

Business taxation

• Taxation of individuals• Tax rate

• German income tax is levied at rates rising on a sliding scale. The exact rate to be levied depends upon the amount of income itself (applied to the entire income in excess of the tax-free basic allowance

2011/2012 rate scale

Taxable income in euros Tax rate

EUR 01-8,004 (basic allowance) 0

EUR 8,005 – 13,469 14%

EUR 13,470 – 52,881 Sliding scale up to 42%

EUR 52,882 – 250,730 42% less EUR 8,172

EUR 250,731 and over 45% less EUR 15,694

Labor law and labor costs

• Employment contract and terms of employment• Employment contract

• Employment contracts should be entered into, or confirmed by the employer, in writing. However, a lack of written form does not render the contract void or unenforceable.

• An employment contract can be concluded for an indefinite period or a limited period (fixed-term contracts)

• Termination of employment

• Employment contracts can be terminated by either party by giving notice of termination to the other contracting party (in writing)

• The right of the employer to terminate employment contracts without cause is severely restricted


• Employment contract and terms of employment• Terms of employment

• The employer and the employee are generally free to agree on the terms of the employment contract.

• However, this right is limited by mandatory provisions of the law and by collective bargaining agreements (Tarif-vertrag) and works agreements (Betriebsvereinbarung)

• Mandatory provisions

• Working hours

• Paid vacation

• Continued payment of salary in the event of illness

• Anti-Discrimination

• Request to work part-time

• Maternity and parental leave


• Collective agreements, co-determination and works council

• The detailed terms and conditions (e.g. the amount of wages and salaries, working hours etc.) are generally agreed in the course of collective negotiations between the labor unions and the employers’ associations

• Employee participation, i.e. the ability and right of employees to influence company decision-making process, takes place in Germany mainly through the works council (Betriebsrat) (at the operational level) and the supervisory board (Aufsichtsrat) (at company level)


• Wages and contributions to social security systems• The level of the salary or wage in Germany can be negotiated

freely between the employer and employee. There is no general minimum wage (specified for a few sectors only)

• Bonuses only have to be granted if they have been agreed to in the individual employment contracts or in collective agreements

• German social security insurance system consists of:

• Health insurance

• Pension insurance

• Unemployment insurance

• Nursing care insurance


• Wages and contributions to social security systems• Current contributions 2012:

• Contribution ceiling (west)

• for health and nursing care insurance: EUR 45.900

• for pension and unemployment insurance: EUR 67.200

Social security Contribution ratetotal

Employee’s contribution

Employer’s contribution

Health insurance General: 15.5%Reduced: 14.9%

General: 8.2%Reduced: 7.9%

General: 7.3%Reduced: 7.0%

Pension insurance 19.6% 9.8% 9.8%

Unemployment insurance

3.0% 1.5% 1.5%

Nursing care insurance(without children)

1.95%

(2.2%)

0.975%

(1.225%)

0.975%

(0.975%)

Grants and incentives

• German investment incentives packages• Cash incentives

• Investment grants

• Investment allowance (only in eastern Germany)

• Interest-reduced loans

• KfW Loans (national level)

• State development bank loans

• Public guarantees

• State

• Combined State / Federal

Grants and incentives

• German operational incentives packages• Labor-related incentives

• Recruitment support

• Training support

• Wage subsidies

• R&D Incentives

• Grants

• Loans

• Silent / Direct partnerships

Business culture and differences

• Major German Cultural Themes• “Ordnung muss sein” (there must be order)

• Insiders and Outsiders

• Clarity and Compartmentalization

• Private and Public Spheres

• Friends and Acquaintances

• “Pflichtbewußtsein” (one’s sense of duty and obligation)


• German Communication Patterns• Communication style

• “Du” and “Sie”

• Private and Public

• Directness and “Klarheit” (clarity)

• Discussions

• “Unterhaltung” and “Gemütlichkeit” (conversation and coziness)

• “Vertiefen” (going into detail)

• “Verbindlichkeit” (binding nature)

• “Sachlichkeit” (objectiveness)

• The fine art of complaining


• The German Social Market Economy• German View of Business

• Large Companies and Mittelstand

• Importance of job security

• Managerial Approaches

• Risk aversion

• Long-term relationship and secrecy

• Long-term planning

10 Reasons to Choose Germany

01 Leading Economy

02 Global Player

03 High Productivity

04 Excellent Workforce

05 Innovative Power

06 First-Class Infrastructure

07 Inviting Incentives

08 Competitve Tax Conditions

09 Secure Investment Framework

10 Quality of Life


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life

01 Leading Economy

• Germany is the world‘s fourth largest economy and Europe’s economic engine

• Large domestic market

• Easy access to markets in the European Union

• Easy access to the growing markets inEastern Europe

01 Leading Economy

• Germany is the world‘s fourth largest economy and Europe’s economic engine

• Large domestic market

• Easy access to markets in the European Union

• Easy access to the growing markets inEastern Europe


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life

02 Global Player

• Germany was the world’s number one exporter for six years and is now the number two after China

• With EUR 479 billion inward investments Germany is one of the top regions for foreign investments

02 Global Player

• Germany was the world’s number one exporter for six years and is now the number two after China

• With EUR 479 billion inward investments Germany is one of the top regions for foreign investments


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life


• One of the highest productivity rates in the world

• One of Europe’s most cost-effective productions locations

• Competitiveness through German quality and steadily decreasing unit labor costs


• One of the highest productivity rates in the world

• One of Europe’s most cost-effective productions locations

• Competitiveness through German quality and steadily decreasing unit labor costs


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life


• 81% of the German population have been trained to university entrance level or posses a recognized vocational qualification

• Investor friendly social-market economy promotes stable labor relations


• 81% of the German population have been trained to university entrance level or posses a recognized vocational qualification

• Investor friendly social-market economy promotes stable labor relations


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life

05 Innovative Power

• With R&D expenditures of EUR 66.7 billion (2009) Germany is Europe’s No 1 location for research

• With 12,000 patents granted at the European Patent Office in 2010, Germany is Europe’s leading patent applicant

• R&D is backed by billions of euros in annual federal funds

05 Innovative Power

• With R&D expenditures of EUR 66.7 billion (2009) Germany is Europe’s No 1 location for research

• With 12,000 patents granted at the European Patent Office in 2010, Germany is Europe’s leading patent applicant

• R&D is backed by billions of euros in annual federal funds


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life


• Located in the center of Europe Germany is Europe’s Global Logistics Hub

• World Class Transport and Network Infrastructure

• German logistic companies are among the global logistic leaders


• Located in the center of Europe Germany is Europe’s Global Logistics Hub

• World Class Transport and Network Infrastructure

• German logistic companies are among the global logistic leaders


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life


• Attractive incentives to all investors to meet immediate capital needs

• Comprehensive range of programs at all stages of the investment process

• Support ranges from cash grants to incentives for labor and R&D


• Attractive incentives to all investors to meet immediate capital needs

• Comprehensive range of programs at all stages of the investment process

• Support ranges from cash grants to incentives for labor and R&D


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life

08 Competitive Tax Conditions

• The average overall tax burden for corporate companies amounts to 29.83 percent

• Significantly lower tax rates are available in certain German municipalities – up to 7 percent less

• Germany provides an extensive network of double taxation agreements (DTA) ensuring that double taxation is ruled out

08 Competitive Tax Conditions

• The average overall tax burden for corporate companies amounts to 29.83 percent

• Significantly lower tax rates are available in certain German municipalities – up to 7 percent less

• Germany provides an extensive network of double taxation agreements (DTA) ensuring that double taxation is ruled out


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life


• Highly developed economic and political framework ensures security for investments

• Efficient judicial system

• Intellectual property is well protected by patent laws

• Reliable laws enable companies to plan their investments effectively


• Highly developed economic and political framework ensures security for investments

• Efficient judicial system

• Intellectual property is well protected by patent laws

• Reliable laws enable companies to plan their investments effectively


01 Leading Economy

02 Global Player



05 Innovative Power





10 Quality of Life

10 Quality of Life

• Modern, tolerant and cosmopolitan society

• Superior health and education system

• Endless opportunities for sports and recreation

• Vibrant cultural scene

10 Quality of Life

• Modern, tolerant and cosmopolitan society

• Superior health and education system

• Endless opportunities for sports and recreation

• Vibrant cultural scene

For more information on

NPP, please visit us at

www.npp.de

Sven Ole RaapGerman Certified Public Auditor (Wirtschaftsprüfer)German Certified Tax Advisor (Steuerberater)

NPP Niethammer, Posewang & Partner GmbHWirtschaftsprüfungsgesellschaftSteuerberatungsgesellschaft

Johannes-Brahms-Platz 120355 Hamburg – GermanyTel.: +49.(0)40.33 44 6 - 0Fax: +49.(0)40.33 44 6 - [email protected]

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