17.3 Foreign Partnerships

Scots law no longer follows the previously long-established rule that a partnership cannot take title to feudal property in its own name. Since 28 November 2004, in terms of section 70 of the Abolition of Feudal Tenure etc (Scotland) Act 2000, a partnership can now, provided it has its own separate legal personality, take title to land as owner in its own name. This position applies to foreign partnerships as well, provided that the legal system under which the foreign partnership was established considers that the partnership has a legal persona distinct from its partners and even if despite this, it may not be allowed by its own legal system to take title to property in its home country in the name of the firm. Where a foreign firm is applying for registration in its own name, a referral should be made to a senior caseworker.

17.4 Guidance on the Differences Between Foreign Companies and Foreign Partnerships

Staff may find it difficult to recognise a foreign partnership for what it is, or to recognise the difference between a foreign company and a foreign partnership, especially when a business name is expressed in another language. To help staff overcome this problem, information about various types of business organisation found in other parts of Western Europe is provided below. The information is probably incomplete. Business organisations other than those listed may exist.

If in doubt, settlers should always ask the agent if a particular foreign business is a company or a partnership. Settlers should never rely solely on the relevant answers concerning corporate status in the application forms (question 8 on Form 1, question 4 on Form 2 and question 6 on Form 3). The Keeper knows of cases where agents have mistaken foreign partnerships for companies and wrongly answered the questions on the appropriate forms.

17.4.1 Austria

In Austria, there are 2 kinds of company, the Aktiengesellschaft (AG) and Gesellschaft mit beschränkter Haftung (GmbH). The abbreviation is included in the company name.

Austrian law recognises several sorts of partnerships: Offene Handelsgesellschaft (OHG), Kommanditgesellschaft (KG), Stille Gesellschaft (StG), Erwerbsgesellschaft (EEG), Offene Erwerbsgesellschaft (OEG), Kommanditerwerbsgesellschaft (KEG), and Bürgerlich rechtliche Erwerbsgesellschaft (GesBR). The appropriate abbreviation normally appears in the partnership name.

The abbreviation ‘& Co.’ appears in many Austrian business names. A name containing ‘& Co’ without a company designator indicates that the organisation is a partnership. If a company designator follows the ‘& Co.’, the organisation is a company. (For example, ‘Kofler & Co.’ is a partnership, but ‘Kofler & Co. GmbH’ is a company.)

17.4.2 Belgium

As Belgium is bilingual (Flemish and French), business names may be expressed in either language.

In Belgium, the company formats include the Besloten Vennootschap Met Beperkte Aansprakelijkheid (BV or BVBA) or Société Personelle à Responsabilité Limitée (SPRL), the Naamloze Vennootschap (NV) or Société Anonyme (SA), the Coöperatieve Vennootschap (CV) or Société Coopérative (SC) and the Coöperatieve Vennootschap met onbeperkte en hoofdelijke Aansprakelijkheid (CVOHA) or Société Coopérative à Responsabilité Illimitée et Solidaire (SCRIS). The abbreviation is included in the company name.

There are only 2 types of partnership in Belgium: the Vennootschap onder firma or Société en nom collectif and the Gewone Commanditaire Vennootschap or Société en Commandite Simple. A Belgian business organisation that does not have a company abbreviation in its name is likely to be a partnership.

17.4.3 Denmark

Danish company law provides for 2 forms of limited companies, the Aktieselskab (A/S) and the Anpartsselskab (ApS). The words ‘Aktieselskab’ or ‘Anpartsselskab’, or the abbreviations, will appear in company names.

There are 4 types of partnership in Denmark: the Interessentskab (I/S), the Kommanditselskab (K/S), the Kommanditaktieselskab and the Andelsselskab med begrœnset ansvar (Amba). The abbreviation is likely to appear in the business name.

17.4.4 Finland

In Finland, both Finnish and Swedish are officially recognised languages. Business names may be expressed in either language.

The Finnish company is known as the ‘Osakeyhtiö’ in Finnish and ‘Aktiebolag’ in Swedish. The company name will contain the word or the abbreviation ‘Oy’ or ‘AB’. The German abbreviation ‘AG’ or the English ‘Ltd.’ are also used.

Partnerships come in 2 forms. These are (1) the ‘Avoin yhtiö’ (Ay) in Finnish or ‘öppet bolag’ (Ob) in Swedish and (2) the ‘Kommandiittiyhtiö’ (Ky) in Finnish or ‘Kommanditbolag’ (Kb) in Swedish. The partnership name will contain the appropriate word or abbreviation.

17.4.5 France

In France, the main distinction is not between companies and partnerships, but between commercial companies and civil companies. Companies involving manufacture and trade are deemed commercial but others are not. Many businesses that we would regard as partnerships, such as firms of lawyers, are in the category of civil companies. Consequently, it can be difficult to recognise a French partnership for what it is.

The two most common forms of company in France are the Société à Responsabilité Limitée (SARL) and the Société Anonyme (SA). The abbreviation normally appears in the company name.

Partnerships come in various forms, including the Société en nom collectif (SNC), the Société en Commandité Simple (SCS), the Société en Commandité par actions (SCPA), the Société en participation (SP) and the Société de fait (SF). The abbreviations may or may not appear in the business name.

Additionally, any business calling itself a ‘Société Civile’ (civil company) may well be a partnership, and the settler should clarify the point with the agent. For example, some years ago, a disposition in favour of ‘SCI Quatreff’, with an office address in Paris, was submitted to the Keeper. It transpired that the abbreviation ‘SCI’ stood for ‘Société Civile Immobilière’, a kind of property holding business, and SCI Quatreff was in fact a partnership. The Keeper took the view that the disposition ought to have been granted in favour of trustees acting for the firm.

17.4.6 Germany

In Germany, there are 2 kinds of company, the Aktiengesellschaft (AG) and the Gesellschaft mit beschränkter Haftung (GmbH). The word denoting the type is included in the company name but is often abbreviated.

The Germans recognise 4 types of partnership: the Offene Handelsgesellschaft (OHG), the Kommanditgesellschaft (KG), the Gesellschaft bürgerlichen Rechtes (GbR) and the ‘GmbH & Co. KG’. The last of these is the most common type. The appropriate abbreviation usually appears in the partnership name, but not always. However, the common abbreviation, ‘& Co’, does indicate that a business is a partnership.

17.4.7 Greece

In Greece, there are 2 kinds of company, the Eteria Periorismenos Efthinis (EPE) and the Anonimos Eteria (AE). The abbreviation appears in the company name.

There are 2 types of Greek partnership, the Omorrithmos Eteria (OE) and the Eteorrithmos Eteria (EE). These abbreviations may or may not appear in the business name. However, if the business is not an EPE or an AE, it is probably a partnership. Transliterated from the Greek alphabet, the word ‘Eteria’ may also be written as ‘Etaira’.

17.4.8 Ireland

In Ireland, the situation regarding companies and partnerships is very similar to the situation in the UK. The identity of a business will normally be obvious from its name. Irish companies will always have the words ‘Limited’ (or Ltd.) or ‘Public Limited Company’ (or plc) in their names, or alternatively the Irish equivalents ‘Teoranta’ (or Teo) or ‘cuideachta phoibli theoranta’ (or cpt).

17.4.9 Italy

In Italy, companies are generically known by the name of Società di capitale, but more specifically there are 3 types: the Società per azioni (SpA), the Società a responsabilità limitata (Srl) and the Società in accomandita per azioni (Sapa). The abbreviation always appears in the company name.

Similarly, partnerships have the generic name of Società di persone. Again, there are 3 types: the Società in nome colletivo (Snc), the Società in accomandita semplice (Sas) and the Società semplice. The last of these is rare and the other 2 types usually have the appropriate abbreviation in their names.

17.4.10 Luxembourg

In Luxembourg, companies are either the Société à Responsabilité Limitée (Sàrl) or the Société Anonyme (SA). The abbreviation normally appears in the company name.

Partnerships also come in 2 forms, the Société en nom collectif (SNC) and the Société en Commandité Simple (SCS). The abbreviations may or may not appear in the business name. However, if the business is not a Sàrl or an SA, it is probably a partnership.

17.4.11 Netherlands

The Netherlands has 2 main types of company, the Besloten Vennootschap Met Beperkte Aansprakelijkheid (BV) and the Naamloze Vennootschap (NV). These words, or the appropriate abbreviation, always appear in the company name.

Dutch partnerships come in 3 forms: the Vennootschap Onder Firma (VOF), the Commanditaire Vennootschap (CV) and the Maatschap. The abbreviations may or may not appear in the business name. However, if the business is not a BV or an NV, it is probably a partnership.

17.4.12 Norway

Unusually, Norwegian law regards all business organisations other than sole proprietorships, trusts, co-operatives and foundations as partnerships. The 4 main types of partnership are the Aksjeselskap (AS), the Ansvarlige Selskaper (ANS), the Kommandittselskap (KS) and the Stille Selskap.

Any assertion by an agent that a Norwegian business is a company rather than a partnership should be referred to the Legal Services for examination.

17.4.13 Portugal

Companies in Portugal come in 2 forms, the Sociedade por Quotas which must have the word ‘Limitada’ (or Lda.) in its name, and the Sociedade Anonima (SA).

Partnerships have 3 forms. The first is the Sociedade em Nome Colectivo, which must have the word ‘Companhia’ in its name. The Sociedade em Comandita will have a name in which the expression ‘em comandita’ or ‘& comandita’, ‘em comandita por acções’ or ‘& comandita por acções'. The last is the Sociedade Civil, which is uncommon.

Portuguese law also recognises types of business organisation that are not generally recognised in other jurisdictions. These include the Agrupamento Complementar de Empresas (ACE), a complementary grouping of companies, the Consortium and the Reciprocal Interest Contract. These are all similar to partnerships in format and will be treated as such.

17.4.14 Spain

Spanish companies have mainly 2 forms, the Sociedad anónima (SA) and the Sociedad de responsabilidad limitada (SL). The abbreviation appears in the company name. There are also special types of company, the Sociedad de garantía recíproca and the Mutualidad de seguros.

A partnership in Spain will be either a Sociedad colectiva or a Sociedad comanditaria. Business names might not include these words. In general, if a Spanish business is not one of the company types mentioned above, it will probably be a partnership.

17.4.15 Sweden

In Sweden there are 2 main types of company, the Aktiebolag (AB) and the Ekonomisk Förening (ek för). A company will have the appropriate word or abbreviation in its name.

Partnerships include the Enkelt Bolag, the Handelsbolag and the Kommanditbolag. Business names might not include these words. In general, if a Swedish business is not one of the company types mentioned above, it will probably be a partnership.

17.4.16 Switzerland

Because Switzerland is a multilingual country, Swiss business names can be expressed in French, German, Italian or Romansch. However, French and German are the 2 most common languages in use in Switzerland.

Swiss companies usually take the form of the Société Anonyme (SA) / Aktiengesellschaft (AG). Another, less common type of company is the Société à Responsabilité Limitée (SARL) / Gesellschaft mit beschränkter Haftung (GmbH). The appropriate words or abbreviation appears in the company name.

Partnerships come in various forms: the Société Simple / Einfache Gesellschaft, the Société en nom collectif / Kollektivgesellschaft, the Société en Commandite / Kommanditgesellschaft and the Société en Commandite par actions / Kommandit-Aktiengesellschaft. Business names might not include these words. In general, if a Swiss business is not one of the company types mentioned above, it will probably be a partnership.

17.4.17 Other countries

The Keeper does not have detailed information about companies and partnerships in other countries. In countries where English is the official or business language, it is generally possible to tell if a business organisation is a company or a partnership from its name. Whenever a settler is in doubt about the status of an organisation, he or she should ask the agent.

17.5 European Economic Interest Groupings

A European Economic Interest Grouping or EEIG is a form of supra-national consortium, designed primarily to encourage co-operation between businesses of all shapes and sizes which carry on their activities in different member states of the European Union. It is essentially a creature of EU Law and has been recognised in UK law since 1989 with the European Economic Interest Grouping Regulations 1989 (SI 1989 No.638). It is, moreover, a unique type of entity in that it contains elements of both companies and partnerships.

EEIGs are relatively rare and there are no known examples of EEIGs doing business in the Scottish property market. However, the possibility exists, and staff should refer to the following comments and instructions when examining a deed to which an EEIG is a party.

If an EEIG's name is in English, little difficulty will be encountered in recognising it. The words ‘European Economic Interest Grouping’ or ‘EEIG’ must appear in the name. Unfortunately, authorised equivalents in the other languages of the EU may be used instead, as follows:

In the UK, an EEIG is given the status of a body corporate (paragraph 3 of the 1989 SI) - unlike a partnership. The Keeper will, therefore, accept that an EEIG can deal with heritable property in its own name, without trustees acting on its behalf. Settlers should ensure that agents give satisfactory replies about the EEIG's corporate status to question 8 on Form 1, question 4 on Form 2 and question 6 on Form 3 applications for registration.

An EEIG will have a contract of formation. The settler must requisition a certified copy if it is not provided.

There are no official rules about the execution of deeds by EEIGs. It is assumed that a deed granted by an EEIG may be signed by its manager or managers. Because the need for the signature of more than one manager can be determined only from the terms of the EEIG's contract of formation, the settler should examine the copy contract of formation carefully to determine the position.

Paragraph 18 of the 1989 SI applies certain provisions of the Companies Act 1985 and the Companies Act 2006 to EEIGs, including in particular Part 25 of the 2006 Act for the purpose of the creation and registration of charges. Heritable securities granted by EEIGs will therefore require to be dealt with in the Sasine and Land Registers in the same manner as securities granted by companies. (See Paragraph Standard securities by Limited Companies.

Any questions about these instructions should be referred to a senior caseworker.