Selling a company that you have invested years into in Germany is a significant decision not only commercially but also legally and emotionally. Moreover, in a highly regulated legal system like Germany, a wrong step can lead to severe consequences in terms of taxes and liabilities.
Company Sale in Germany: Why Should It Be Treated as a Strategic Project?
Most entrepreneurs think of selling a company as “finding a buyer and agreeing on a price.” However, in Germany, this process:
- Is based on multiple branches of law (BGB, HGB, GmbHG/AktG, tax and competition law),
- Includes mandatory procedures such as notarization, commercial registry notifications, and employee transfers,
- If structured incorrectly, can lead to tax audits and compensation lawsuits that may last for years after the sale.
Therefore, company sales in Germany should be treated like a comprehensive M&A (mergers & acquisitions) project that needs to be planned from end to end. Below, you will find a step-by-step legal and practical process, particularly from a GmbH-focused perspective.
1. First Strategic Decision: Share Deal or Asset Deal?
Company sales in Germany fundamentally proceed through two structures: Share Deal and Asset Deal.
1.1. Share Deal
In a Share Deal, the legal entity of the company continues as is; the buyer acquires the shares of the company (for example, GmbH shares or AG shares):
- All assets, contracts, existing debts, and risks remain with the company; the buyer indirectly assumes them.
- Share transfer in GmbH must be executed with a written transfer agreement arranged in the presence of a notary and then reported to the commercial registry.
- Share transfer in AG usually occurs through share delivery and registration in the share ledger; in some special cases, the notary process may also come into play.
While Share Deal provides a “cleaner” acquisition image, especially for foreign investors, it also carries past period risks, necessitating comprehensive legal and financial due diligence.
1.2. Asset Deal
In an Asset Deal, the legal entity remains with the seller; only specific assets and business elements are transferred. For example:
- Brands, domains, patents, and other intellectual property rights,
- Customer portfolios and contracts,
- Machines, equipment, stocks,
- Real estate and operational units.
In general:
- It must be clearly defined which assets and contracts will be transferred.
- Notarization is typically not mandatory; however, for transactions affecting the essence of the company, such as the transfer of all assets of a GmbH, a shareholder decision and often a notarized partners’ decision are required.
The choice of structure is decisive in terms of tax optimization, where past risks will remain, and the strategic goals of the buyer. While international buyers prefer to acquire the company as a “package” through Share Deal, in some cases, Asset Deal may be more advantageous to limit risks.
2. Legal Framework for Selling a Company in Germany
Company sales fall under the scope of multiple laws and regulations simultaneously:
- BGB (Bürgerliches Gesetzbuch): General contract provisions, liability, and compensation.
- HGB (Handelsgesetzbuch): Special provisions related to commercial enterprises.
- GmbHG / AktG: Share transfers in GmbH and AG, quorum for decisions, partners and general assembly processes.
- Tax legislation: Corporate tax, income tax, VAT, possible withholdings.
- Competition law: German Competition Authority (Bundeskartellamt) and merger control by the EU Commission for transactions of certain sizes.
The language of contracts can be English, and parties can choose foreign law to a certain extent. However, the mandatory provisions in Germany (for example, employee transfers, certain competition bans, consumer and employee protection, data protection – GDPR) can override these preferences. Therefore, the approach of “we made the contract in English and subject to foreign law, thus escaping German rules” is a serious misconception.
3. Preparation for Sale: Valuation, Documentation, and Positioning
3.1. Preparation of the Sales File and Documents
Before a professional sales process, the seller typically completes the following steps:
- Preparation of a professional exposé / information note introducing the company,
- Creation of a draft Non-Disclosure Agreement (NDA) for potential buyers,
- Preparation of a template for a Letter of Intent (LOI) that defines the basic commercial and legal framework.
These documents are critically important for both marketing and legal risk management. The seller is under an obligation of disclosure and care regarding the information provided; missing or misleading information can lead to compensation claims and even criminal liability in the future.
3.2. Company Valuation and Balance Sheet Optimization
Valuation is typically done using the following methods:
- Discounted Cash Flows (DCF),
- EBITDA multiples,
- Asset-based approaches.
Before the sale, the seller can:
- Eliminate unnecessary cost items and idle assets,
- Simplify the company’s balance sheet structure,
- Review personnel and management contracts
to both increase valuation and minimize risks identified by the buyer.
4. Due Diligence Process: Detailed Examination by the Buyer
The potential buyer conducts a comprehensive due diligence study before moving to a binding contract. This study typically includes the following dimensions:
4.1. Legal Review
- Partnership structure, shareholder agreements, transfer restrictions,
- Significant commercial contracts, licenses, and permits,
- Existing or potential lawsuits,
- Intellectual property rights such as trademarks, patents, copyrights,
- Data protection and GDPR compliance,
- Industry-specific regulations.
4.2. Financial and Tax Review
- Quality of income, profitability, cash flow,
- Short and long-term debts, guarantees, off-balance-sheet liabilities,
- VAT, corporate tax, income tax, withholding and transfer pricing practices,
- Possible tax risks and past audits.
4.3. HR and Operational Review
- Employee contracts, collective labor agreements,
- Salaries, benefits, bonus structures,
- Payroll processes, social security obligations,
- IT infrastructure, cybersecurity, and data backup,
- Supply chain and dependence on key customers.
The seller often conducts a preliminary Vendor Due Diligence to be prepared for this process. This approach reduces surprise risks and increases trust with the buyer.
5. Sale Agreement (SPA/APA): Which Clauses Are Critical?
In the legal framework, two main types of agreements stand out:
- Share Purchase Agreement (SPA): Agreement related to share transfer (Share Deal).
- Asset Purchase Agreement (APA): Agreement regulating the transfer of specific assets (Asset Deal).
5.1. Notary Requirement for GmbH Shares
The SPA for the transfer of GmbH shares must be signed in the presence of a notary according to §15 GmbHG. The notary:
- Reads and explains the contract text,
- Certifies the signatures,
- Then initiates the process for commercial registry notifications.
5.2. Essential Provisions to Include in SPA/APA
- Subject of Sale: Transferred share ratios or detailed asset list.
- Sale Price and Payment Terms: Upfront, installment, performance-based earn-out mechanisms, escrow accounts, etc.
- Warranties and Representations: Guarantees provided by the seller regarding the company’s financial status, contracts, tax situation, lawsuits, and liabilities.
- Indemnification and Liability Limits: Compensation mechanisms for potential breaches, liability caps, and statutes of limitations.
- Non-compete and Non-solicit: Provisions limiting the seller’s competition and solicitation of key employees in certain timeframes and geographical areas.
- Dispute Resolution: German courts or arbitration (German arbitration rules are preferred in most transactions).
- Labor Law and Employee Transfer: Especially in Asset Deals, §613a BGB regarding employee transfer, information obligations, and rights to object.
- Intellectual Property Transfer: Usually detailed in a separate IP transfer agreement.
6. Approvals, Notifications, and Competition Law Control
6.1. Competition Authorities and Merger Notification
Depending on the size of the transaction, a merger notification may need to be made to the German Competition Authority (Bundeskartellamt) or the EU Commission. When turnover thresholds are exceeded, completion of this approval process is required before the transaction is legally closed.
Additionally, in heavily regulated sectors such as finance, energy, and telecommunications, licenses and permits obtained from relevant sectoral authorities are also reviewed and often need to be renewed on behalf of the buyer.
6.2. Commercial Registry and Corporate Approvals
In GmbH and AG, significant steps include:
- Obtaining general assembly/partners’ board decisions and notarization if necessary,
- Authorization and closing decisions from the management board or directors’ board (Geschäftsführung),
- Notification of share transfers and management changes to the commercial registry (Handelsregister).
7. Closing and What Awaits You Afterwards?
7.1. Typical Steps on Closing Day
- Signing of final contracts (especially SPA) in the presence of a notary,
- Payment of the sale price directly or through an escrow account,
- Updating the signature circulars, issuing bank instructions,
- Updating commercial registry records and authorizations.
7.2. Post-Closing Risks and Disputes
The most frequently raised issues after closing include:
- Warranty breaches and misrepresentations,
- Emergence of hidden debts and liabilities,
- Tax authorities reviewing past periods,
- Conflicts of interest when the seller continues to remain in management.
Such disputes are often brought before arbitration, mediation, or commercial courts. The liability limitations and burden of proof provisions in the sale agreement become decisive at this point.
8. Tax Dimension from the Seller’s Perspective: GmbH & Co. KG and Other Structures
Tax planning regarding the net proceeds from the sale of the company is as important as the sale price itself. Particularly in commercial partnerships like the GmbH & Co. KG, which is common in Germany:
- Gains from the sale of the company are often assessed under §16 EStG (Income Tax Act).
- A significant tax burden may arise at the partner level.
Additionally, there are serious differences between Share Deal and Asset Deal regarding:
- Type of taxable gains,
- VAT (especially in Asset Deals),
- Corporate tax and possible withholdings.
Therefore, it is essential to conduct tax due diligence and professional tax structuring when determining the sale structure.
9. Employee Transfer: §613a BGB and Labor Law Dimension
Especially in the Asset Deal scenario, labor law holds separate importance. According to the provision of the German Civil Code §613a BGB:
- If a business or business unit is transferred, the relevant employees automatically transfer to the new employer.
- Basic working conditions such as salary, seniority, and leave rights are preserved.
- The employer must timely and in writing inform the employees and, if applicable, the works council (Betriebsrat) about the process.
- Employees have the right to object to the transfer within a certain period.
In a Share Deal, since the legal employer remains the same legal entity, employment contracts technically do not change parties; however, if significant structural changes occur, informing the works councils and conducting certain processes may still be necessary.
10. International Investors and Mandatory German Provisions
While Germany is an attractive market for international investors, it is important to remember that some mandatory national rules will apply in all cases:
- Provisions regarding labor law and employee protection,
- Data protection (GDPR compliance),
- Competition law and cartel regulations,
- Restrictions related to consumer protection.
Even if another country’s law is chosen in the contract, provisions that conflict with these mandatory rules in Germany may not gain validity. Especially in cross-border transactions, working with teams that can read both German law and the chosen foreign law together provides a significant advantage.
11. Establishing a Safe and Optimized Structure for the Company Sale Process in Germany with Corpenza
Selling a company in Germany often becomes a process that cannot be conducted alone; corporatization, tax, payroll, employee transfer, and international mobility issues need to be managed together. Particularly:
- If the buyer is a foreign investor and part of the management team will be relocated to other countries,
- If restructuring the existing company, separating assets, or planning the sale by establishing a new holding is on the agenda,
- If some employees need to be sent to different EU countries under the “posted worker” model or require EOR/payroll solutions,
- If there are considerations for evaluating the income from the sale through investment, residence permits, or citizenship programs in different countries,
a multi-layered consulting need arises.
As Corpenza, we provide integrated solutions in:
- Corporatization and restructuring,
- International tax and accounting,
- Payroll, EOR, and posted worker models for personnel leasing and tax optimization,
- Investment-based residence permits, golden visa, and citizenship strategies
For an entrepreneur selling their company in Germany, this means both correctly establishing the sale structure and optimizing post-sale wealth and mobility planning on a global scale.
12. Conclusion: Selling a Company in Germany Requires Strong Planning
When selling your company in Germany, thinking solely in terms of “price” and “buyer” often means leaving value and potential future risks on the table. For a successful sale:
- First, determine the correct sale structure (Share Deal / Asset Deal),
- Conduct a strategic preparation covering legal, financial, tax, and HR dimensions,
- Be prepared for the due diligence process; manage documents and data transparently but controlled,
- Carefully address critical clauses such as warranties, indemnities, non-compete, and employee transfers in SPA/APA contracts,
- Timely and completely fulfill competition law, sectoral licenses, and commercial registry notifications,
- Plan post-sale taxes and wealth, preferably on an international scale.
When you structure this process correctly, Germany’s strong and predictable legal system becomes not an obstacle but rather an advantage that enhances investor confidence.
Disclaimer
The information here provides a general framework regarding the company sale process in Germany; it does not constitute legal, financial, or tax advice. Legislation in Germany and other countries changes frequently; we strongly recommend checking the current situation with competent lawyers, tax advisors, and relevant official sources before taking action in your specific case.
