New legal forms –
From inner movement to outer form
Ingo Krampen works as a lawyer, retired notary and mediator at law firm Barkhoff and Partner in Bochum. Alongside mediation, he mainly focuses on consultation, support and strategic development of non-profit institutions, in particular independent schools. He is also a member of the supervisory board of Hannoverschen Kassen.
I would like to start with a quote from Rolf Kerler from the commemorative publication marking 40 years of Neuguss. ‘After 40 years of experience we would say that the legal issues concerning the transfer of capital assets, as well as the contouring of the capital transformation idea for companies are the most developed so far – even though these are still revolutionary ideas for the majority of society.’
Would you say that the legal issues in this context really are the most developed and are they still seen to be revolutionary in society?
At Neuguss, it’s all about trust property and this always requires trustors and trustees. This results from the principle of responsibility, which in my view is intrinsic to ownership: property entails obligations (article 14 of the Basic Law for the Federal Republic of Germany). However, Neuguss is constructed so that the functions of trustor and trustee coincide and there is no longer a principal for the trustees. The accountability of the trustees is thereby eliminated – they are only accountable to themselves. Neuguss – as has always been communicated – belongs to itself. Belonging to oneself is a nice thought. But how can you manage property when you are only accountable to yourself? Or, to put it another way, to whom are you accountable? The last will and testament of Friederike and Alfred Rexroth contains an interesting passage that – judging by the tonality – was probably formulated by Wilhelm Ernst Barkhoff on the Rexroths’ behalf:
‘Furthermore, the executors of the will in particular have the responsibility to work towards ensuring that, in accordance with our intentions, the companies that Neuguss will be involved with through inheritance upon our death or later develop modern social structures, and, in cooperation with the non-profit organisation Gemeinnützige Treuhandstelle e. V., act from a cultural and social standpoint in their project planning and the running of their business.’
You could probably view Alfred Rexroth as the original trustor in this case, who instructed Neuguss to work for the common good through its direction and actions – beyond the end of his life. But who would be the trustor today? And yes, the significance and consequences of these concerns are certainly unheard of in today’s society.
What role do new legal forms play in this day and age – specifically with regard to so-called ‘social business’? And is the solution perhaps part of the supposed paradox that is hinted at in the quote from Wilhelm Ernst Barkhoff: ‘The shortage of Waldorf teachers can only be tackled by establishing Waldorf schools’?
Wilhelm Ernst Barkhoff demonstrated one of his special strengths here. Namely, the ability to change perspectives – a technique that is taught today as part of mediation training, for example. It came to him relatively intuitively and allowed him to find often astonishingly simple, at times very daring, but always effective solutions. The issue of new forms of ownership for associative communities and cooperations is still not yet sufficiently resolved. The issue here is that the ownership should (at least also) serve the common good, and not only private interests. In the case of company ownership, it is actually immediately evident when you make it clear that all employees are also being ‘sold’ when it comes to a company sale. For this reason, we need a new legal form whereby the ownership of the company is linked to being socially responsible. That was actually the intention of Rexroth and Barkhoff when they founded Neuguss! The problem is that a GmbH, or limited liability company, is actually not suitable, as its construction is designed to achieve profit. The GmbH legal form doesn’t support the social obligation of ownership at all. The most sensible auxiliary construction to date is a foundation – in particular the so-called ‘Doppelstiftung’ or double foundation. Plenty of responsible entrepreneurs who want to preserve this social obligation after their own death have chosen this route already. But this is not a modern take on the notion of ownership – merely an auxiliary construction. Armin Steuernagel and other young entrepreneurs have therefore been using ‘Stiftung Verantwortungseigentum’ to find an appropriate legal form for accountable ownership. They have even convinced the new German coalition government to add it to the targets in their coalition agreement. In my opinion, this is a great opportunity to take even more account of the concerns of an association like Neuguss, also in the definition of an appropriate legal form. In any case, Neuguss retains the special honour of having been a pioneer in this respect.
What exactly does the judiciary mean to you?
Renewal requires flexibility. Legal forms are like good clothes – they have to fit the occasion. You don’t put on a ballgown when you are renovating your flat or wear a boiler suit to the theatre. Law is not independent from people. Law is a space that belongs to us people and which we can continuously redesign. This contrasts with nature – that definitely doesn’t belong to us. Rather, we live in a natural environment within which we should behave responsibly, which unfortunately we very often (still?) fail to do! The legal space, in contrast, is a human construction and we can and should reimagine it constantly – without us ‘shifting’ anything in the spiritual world. For me, law is therefore an enabling space in the best sense.