HGB §335b
Application to Certain OHG and KG
Anwendung auf bestimmte OHG und KG
The HGB provision extending the entire criminal and administrative fine cluster (§§331–335a) to partnerships (OHG and KG) that are required to prepare accounts under §264a.
1
Conceptual Framework Linkage – Why This Separate Provision Is Legally Necessary
CLOSING BOOK 3, SECTION 2 ENTIRELY: §335b is the final provision of the entire criminal/administrative/coercive-fine Subsection this poster series has documented across §§331–335a – and, with it, the final provision of Book 3, Section 2 (Supplementary Provisions for Corporations) as a whole. A short, purely extending provision – but a legally NECESSARY one, for reasons rooted in constitutional criminal-law principle.
A closing of a genuine gap, required by criminal-law certainty principles
Recall §264a from much earlier in this series: certain OHG/KG partnerships lacking any personally-liable natural person (the classic GmbH & Co. KG structure) must follow the SAME corporation-level accounting rules as a genuine Kapitalgesellschaft. But German constitutional criminal-law principle (nulla poena sine lege certa – no punishment without a sufficiently definite law) requires that criminal and administrative sanctions have their OWN explicit, sufficiently specific statutory basis – §264a's own extension of ACCOUNTING obligations does NOT automatically carry criminal or administrative CONSEQUENCES along with it. §335b is precisely this necessary, separate extension.
HOW §335B MAPS TO GERMAN ACCOUNTING PRINCIPLES
Bestimmtheitsgrundsatz (the principle of legal certainty) – a genuinely foundational German constitutional-law concept requiring criminal/administrative liability to rest on its OWN clear statutory foundation Substance over form, closing the loop – the SAME anti-avoidance logic that originally justified §264a itself (denying the escape-hatch of formal partnership status where no genuine personal liability exists) is completed here for the enforcement dimension too
What §335b does, at a glance
§335b extends the ENTIRE criminal-provisions cluster (§§331–333a), the administrative fine provision (§334), and the coercive fine provision (§335) – plus, by cross-reference, the appeal mechanism of §335a – to OHG and KG partnerships within the meaning of §264a(1), with specific adaptations to who exactly the proceedings are directed against.
2
Scope – §264a(1) Partnerships Specifically
The exact same population established many posters ago
§335b applies to the SAME OHG and KG partnerships §264a(1) already established – those where NO natural person bears unlimited personal liability, typically because the sole general partner (Komplementär) is itself a limited-liability entity, most commonly a GmbH. Recall the worked example from that earlier poster: KG Beta, with a GmbH as its sole general partner, was caught by §264a where KG Alpha, with a natural-person general partner bearing genuine personal liability, was not – the SAME distinction governs §335b's own scope.
3
The Core Extension – Every Provision From §331 Through §335
A complete, comprehensive extension – nothing in this cluster is left out
§§331–333a – the entire criminal-provisions cluster: misrepresentation, false assurance (Bilanzeid), auditor accuracy/confidentiality breaches, and the audit committee bribery/persistence offence §334 – the negligence-level administrative fine provision, including its own massive cross-reference list of substantive violations §335 – the disclosure-enforcement Ordnungsgeldverfahren, with its own escalating, repeating structure and size-sensitive late-compliance reductions
This is a genuinely COMPREHENSIVE extension – every single provision this poster series has documented across the entire Straf-/Bußgeld-/Ordnungsgeld Subsection applies with EQUAL force to a qualifying partnership as it would to an ordinary Kapitalgesellschaft.
4
Worked Example – a GmbH & Co. KG's General Partner Facing §331 Exposure
The same deliberate falsification, the same criminal consequence, in a partnership wrapper
Example 1: Deliberate misrepresentation at a GmbH & Co. KG
A GmbH & Co. KG – caught by §264a(1) since its sole general partner is itself a GmbH with no natural person bearing personal liability anywhere in the structure – has its accounts deliberately falsified by the general-partner GmbH's own management, to flatter results ahead of a financing round, exactly paralleling the Example 1 scenario from the very first §331 poster in this series.
DESPITE the entity being, in legal FORM, a partnership rather than a Kapitalgesellschaft, §335b extends §331's own criminal exposure – imprisonment up to three years or a fine – to this scenario in FULL, exactly as it would apply to an ordinary corporation. The partnership structure provides NO shelter from the same criminal accountability this series has documented throughout.
5
The Adapted Täterkreis – Personally Liable Partners, or Their Representative Bodies
A sensible adaptation for an entity that has no board of its own
§335b sentence 2 specifically adapts §335's own Ordnungsgeldverfahren mechanism to be directed against the PERSONALLY LIABLE PARTNERS (persönlich haftende Gesellschafter) of the qualifying OHG/KG, OR against the MEMBERS of the REPRESENTATIVE BODIES of those personally liable partners – recognising that a partnership itself has no management or supervisory board in the same sense a corporation does, so the proceeding must instead reach whoever ACTUALLY exercises equivalent authority: typically, the management board of the GmbH serving as the general partner.
6
Worked Example – Applying the Adapted Täterkreis
Reaching through the general partner to the individuals who actually manage it
Example 2: Identifying who a §335 proceeding actually targets
A GmbH & Co. KG fails to disclose its Jahresabschluss on time. The KG's sole general partner is "Komplementär-GmbH," whose own management board consists of two individuals.
The §335 Ordnungsgeldverfahren, as extended by §335b, is directed against EITHER the Komplementär-GmbH itself (as the personally liable partner) OR directly against its TWO management board members individually – reaching THROUGH the corporate general-partner structure to the actual individuals exercising management authority, rather than being stymied by the KG's own lack of a traditional board.
7
The Dual-Target Structure, Continued
The same dual-track approach established for ordinary corporations
§335b sentence 3 confirms the SAME dual-target structure already established for ordinary Kapitalgesellschaften under §335(1): the proceeding MAY ALSO be directed against the OHG or KG itself directly, not only against the personally liable partners or their representative bodies – giving the Bundesamt genuine flexibility in how it pursues enforcement.
8
§335a's Extension – the Appeal Mechanism Too
A qualifying partnership enjoys the exact same procedural protections
§335b sentence 4 confirms that §335a – the two-tier appeal structure this series just documented in full, with its two-week Beschwerde deadline, suspensive effect, LG Bonn's exclusive jurisdiction, and narrow, permission-gated Rechtsbeschwerde – applies CORRESPONDINGLY here too. A qualifying partnership faces neither MORE nor LESS enforcement exposure, and enjoys the exact SAME procedural protections, as an ordinary Kapitalgesellschaft would.
9
Critical Judgments & Practical Difficulties
Where judgement matters most
SIGNIFICANT JUDGEMENTS
Confirming a specific partnership genuinely qualifies under §264a(1) before proceeding with any §335b-extended enforcement action
PRACTICAL DIFFICULTIES
Correctly identifying the appropriate individual targets within a multi-tier general-partner structure, particularly where the general partner is itself part of a larger corporate group
10
Relationship to IFRS
Entity-type-specific enforcement extension sits entirely outside any accounting standard
Precisely as with every other provision in this criminal/administrative cluster, IFRS has no equivalent – the specific question of WHICH entity types a jurisdiction's own enforcement apparatus reaches is a matter of purely domestic company and criminal law. §335b completes this poster series' documentation of just how comprehensively German law closes potential gaps in its own accountability architecture – leaving no realistic legal-form loophole through which a genuinely corporation-like enterprise could escape the same accountability an actual corporation faces.
11
Statement Mapping
Where every §335b event lands
Event / obligationDocument affectedNotes
Any §331–335 violation, at a §264a partnershipJahresabschluss / disclosure filingIdentical consequences to an ordinary Kapitalgesellschaft
12
Related Provisions – Cross-Reference Map
How §335b connects across HGB Book 3
ProvisionNature of the connection
§264a(1)Defines the exact population §335b extends this entire cluster to
§§331–333a, §334, §335, §335aThe complete cluster this provision extends in full
§335cThe NEXT and final provision of this entire Book 3, Section 2 – notifications to the auditor oversight body
With §335b, this poster series has now documented the ENTIRE Straf-, Bußgeld- und Ordnungsgeldvorschriften Subsection – the last major substantive cluster of Book 3, Section 2. One final, narrow provision (§335c) remains before this Section closes entirely.
13
Quick-Reference Glossary
Nulla poena sine lege certa
"No punishment without a sufficiently definite law" – the German constitutional principle requiring §335b's separate, explicit extension.
Persönlich haftender Gesellschafter
Personally liable partner – the adapted Täterkreis target for a qualifying partnership's own §335 proceeding.
Komplementär-GmbH
A GmbH serving as the sole general partner of a KG, the classic structure triggering §264a(1) and hence §335b.