[members-discuss] [SPAM] Re: RIPE legal: Please stop this madness!

Afaik what you suggest is not compatible with Dutch law. Partnerships that are not legal persons cannot assume liability and therefore cannot really be a party to a contract. They may *seem* to be a party to a contract (named on it), but legally it would be the GP that's the real party.

The whole definition of a "legal person" is that it is distinct from other persons regarding liability and thus can be party to a contract itself. A partner of a partnership without legal personhood could sign under the name of the partnership, but it would legally not be different had the partner signed under its own name and left the partnership out, so the partnership is fully transparent with regards to liability and property rights.

"Lightup Network Solutions GmbH & Co. KG" can only be a party to a contract by assuming the legal personhood of "AirAccess GmbH" (which is 100% liable and controls 100% of its property), so effectively they are one and the same legal person. Whether it is named "AirAccess GmbH", "AirAccess GmbH trading as Lightup Network Solutions GmbH & Co. KG" or "Lightup Network Solutions GmbH & Co. KG", all three refer to the same legal person.

Such a partnership (without legal personhood) is basically a fiction for the purposes of organising bookkeeping etc, but legally there is no distinction between the partnership and the GP. So, IMO RIPE is correct to consider the partnership and the GP the exact same legal entity, as, in fact, they are.

Of course Markus Stalder is a different natural person.

-- 
Regards,
   Terrence Koeman, PhD/MTh/BPsy
      Darkness Reigns (Holding) B.V.

Please quote relevant replies.


> -----Original Message-----
> From: members-discuss <members-discuss-bounces at ripe.net> On Behalf Of
> INCUBATEC Generic Domain
> Sent: Wednesday, February 20, 2019 10:11 AM
> To: athina.fragkouli at ripe.net
> Cc: members-discuss at ripe.net
> Subject: Re: [members-discuss] [SPAM] Re: RIPE legal: Please stop this
> madness!
> Importance: Low
> 
> Dear Athina,
> 
> honestly „trading as“ does not look like the best solution to me.
> 
> If there is a general partnership („oHG“ in Germany, „oG“ in Austria,
> „SNC“ in Italy, France, Belgium etc., „ordinary“ partnership in Ireland
> etc.), then - outside - any member can normally legally represent and
> bind the partnership; so the signature of one of the members is
> sufficient to bind the partnership. If there is a limited partnership
> („KG“ in Germany and Austria, „SAS“ in Italy, „SCS“ in France, Belgium
> etc.) then only one of the general partners can legally represent and
> bind - outside - the limited partnership.
> 
> In the specific case a limited liability company „AirAccess GmbH" is the
> general partner of Lightup Network Solutions GmbH & Co. KG. The LLC
> „AirAccess GmbH“ is legally represented by the M.D. Markus Stalder.
> 
> So the contracting party is Lightup Network Solutions GmbH & Co. KG,
> legally represented by the G.P. AirAccess GmbH, in turn legally
> represented by the Managing Directory/legal rep. Markus Stalder.
> 
> The voting rights etc. would thus ultimately belong to Markus Stalder as
> long as he is the M.D. of the G.P. and as long as the G.P. retains this
> position and rights in the limited partnership.
> 
> Of course only Markus Stalder SIGNS, but he signs in his function as
> legal rep. of the G.P. in turn representing the L.P. not to represent
> himself; this is a big difference to „trading as" and also a big
> difference to Markus Stadler personally and the L.P., e.g.:
> - liability: RIPE NCC as creditor would have to try to satisfy its
> credits first from the L.P., then from the G.P. and normally would have
> no recourse to Markus Stadler itself;
> - tax: the L.P. has the right to offset the RIPE fees as costs, not
> Markus Stadler
> - assets: any sale of IPv4 resources etc. would accrue to the L.P.
> first, not to to Markus Stadler etc.
> 
> So currently the specific wording of ripe-700 art. 1.1 would need to be
> amended as well as the articles of association so that not only natural
> and legal persons, but also partnerships with legal capacity (e.g. that
> can enter contracts, sue etc. but need not necessarily be „full“ legal
> persons; in German: „rechtsfähige Personengesellschaften“) can become
> members (and sign the SSA). Is that compatible with dutch law? If yes,
> then I would suggest the articles of association be amended so that:
> 
> - in addition to natural and legal persons, also partnerships with legal
> capacity can become members and sign the SSA, with the requirement that
> such partnerships
> - nominate one natural or legal person as rep. towards RIPE NCC.
> 
> I think that the GmbH & Co. KG is a widely used partnership form and
> excluding this form from RIPE NCC would not be in the best institutional
> interest.
> 
> I have no affiliation with Markus Stalder etc.
> 
> Sincerely,
> Thomas Moroder
> 
> 
> > Am 19.02.2019 um 15:45 schrieb Athina Fragkouli
> <athina.fragkouli at ripe.net>:
> >
> > Dear Markus,
> >
> > Although we cannot discuss individual cases publicly, we would like to
> > clarify for all members some of the general issues you bring up. Our
> > staff have also followed up with you personally on your ticket with
> > options to resolve your case.
> >
> > According to our Due Diligence procedure, we can only accept the
> > Standard Service Agreement signed by either a natural or legal person.
> > This is reflected in our procedural document Due Diligence for the
> > Quality of the RIPE NCC Registration Data:
> > https://www.ripe.net/publications/docs/ripe-700
> >
> > Accordingly, we do not accept an SSA signed by a partnership that is
> not
> > a legal person. Also entering into the Standard Service Agreement
> > creates RIPE NCC membership rights, which should be given to either a
> > natural or a legal person (see Article 4.1 of the Articles of
> Association:
> > https://www.ripe.net/publications/docs/ripe-712).
> >
> > If someone insists on having their partnership mentioned in the SSA,
> we
> > do allow them to sign as "[legal name] trading as [partnership name]".
> >
> > We appreciate that in some jurisdictions, partnerships may be able to
> > enter into agreements. However, the liability in case of partnership
> is
> > not as clearly defined as in legal persons. Therefore, in the case of
> > partnerships, we ask for one of the partners to sign the SSA (and they
> > can add the indication "trading as" the partnership).
> >
> > Kind regards,
> >
> > Athina Fragkouli
> > Head of Legal
> > RIPE NCC
> >
> >
> > On 15/02/2019 11:42, Markus Stalder wrote:
> >> Hi list!
> >>
> >> My company has been a RIPE LIR for 17 years now. This week was the
> first
> >> time ever that I became, was and still am really, really pissed at
> RIPE.
> >>
> >> There's some madness going on in RIPEs legal department. It appears
> they
> >> recently hired some retard who now wants to prove he/she is a
> smartass.
> >> Harsh words, but I have no other explanation for what's going on
> right now!
> >>
> >> Here's the story:
> >>
> >> Sunday, 10th February, 17:08 CET: I sent away the online application
> for an
> >> additional LIR account. Automatic E-Mail confirmation received.
> >>
> >> Monday, 11th February, 15:07 CET: I didn't receive a human reply yet,
> and
> >> since the business day was nearing its end, I mailed them about the
> status,
> >> and asked whether I could come by their Amsterdam office the next day
> to
> >> sign the required documents - in order to speed up the whole process.
> >>
> >> Monday, 11th February, 15:57 CET: Reply from RIPE. Let me just copy
> and
> >> paste: "I regret to inform you that we do not offer the possibility
> to sign
> >> your contracts in our office and regrettably there is no option to
> speed up
> >> the application procedure." - Ok, no biggie. But then:
> >>
> >>
> >> Quote start.
> >>
> >> "We can see that this is an additional LIR account for Lightup
> Network
> >> Solutions GmbH & Co. KG.
> >>
> >> We are currently reviewing applications with a legal entity type
> 'GmbH &
> >> Co. KG' together with our legal department and they have stated the
> >> following: "GmbH & Co. KG" is a sub-form of a "KG" (partnership).
> >>
> >> It normally consists of a general partner and one or more limited
> partners,
> >> which can be legal or natural persons.
> >>
> >> According to "Due Diligence for the Quality of the RIPE NCC
> Registration
> >> Data" the signing party of an agreement can either be a legal or a
> natural
> >> person. A "KG" is not considered a legal person and cant be the
> signing
> >> party in our agreements.
> >>
> >> The agreement can be signed though by one of the legal or natural
> persons
> >> that are partners (general or limited). We therefore cannot register
> >> Lightup Network Solutions GmbH & Co. KG.
> >>
> >> As you already have an LIR account with us, we will have to update
> your
> >> existing account, de.lightupnet, before we can register this second
> account
> >> for Lightup Network Solutions GmbH & Co. KG.
> >>
> >> I created a new ticket for your company update and my colleagues will
> >> contact you shortly for the update."
> >>
> >> Quote end.
> >>
> >>
> >> That didn't sound so good. I've had a company with the legal form
> GmbH &
> >> Co. KG (it's a German company) for about 15 years now and my initial
> gut
> >> feeling was "That's just plain bullsh*t!".
> >>
> >>
> >> Tuesday, 12th February, 12:30: I receive another E-Mail. New ticket,
> as
> >> they promised.
> >>
> >>
> >> Quote start.
> >>
> >> "It has come to our attention, that the legal name of your LIR
> account has
> >> been registered incorrectly.
> >>
> >> It was advised by our Legal Department that the legal form of your
> company
> >> as "GmbH & Co. KG" is a form of a general partnership that does not
> have a
> >> legal personality.
> >>
> >> If there is a document proving opposite, please send it to us.
> According to
> >> our procedure, we can only sign an agreement with a legal person that
> has a
> >> legal personality or a natural person.
> >>
> >> Therefore, we will have to correct your legal name to <Markus Stalder
> >> trading as "Lightup Network Solutions GmbH & Co. KG">, instead of
> <Lightup
> >> Network Solutions GmbH & Co. KG>."
> >>
> >> Quote end.
> >>
> >>
> >> They also asked that I upload a photo/scan of my passport, which I
> did. I
> >> just thought: Ok, let them have their way. If they want to change my
> LIRs
> >> description, who really cares. All I want is to create a 2nd LIR and
> speed
> >> this whole thing up. But, since they want to be SO LEGALLY CORRECT, I
> >> replied and mentioned the following. Let me copy and paste.
> >>
> >>
> >> Quote start.
> >>
> >> "I just uploaded my passport.
> >>
> >> However, following your logic, you need to change all of the
> following
> >> German legal forms in your database to "Individual-name trading as
> ...":
> >>
> >> - OHG
> >> - KG
> >> - GmbH & Co. OHG
> >> - GmbH & Co. KG
> >>
> >> I understand that you would have to do that with a GbR, as a GbR
> cannot get
> >> registered in the commercial register of companies and you need to
> specify
> >> the names of the individuals. But I think with the above 4 legal
> forms you
> >> are making as mistake here.
> >>
> >> Although it is correct that a GmbH & Co. KG does not have a legal
> >> personality that differs from its general partners (Persoenlich
> haftende
> >> Gesellschafterin) or limited partners (Kommanditist), a GmbH & Co. KG
> is
> >> still a legal entity as its able to sue in front of court, or get
> sued in
> >> front of court. A GmbH & Co. KG can also purchase rights and enter
> into
> >> liabilities, can purchase property and other in rem rights related to
> >> estates. (Source:
> >> <https://www.frankfurt-
> main.ihk.de/existenzgruendung/rechtsfragen/idem/kg/>)
> >>
> >> That being said, since Lightup Network Solutions GmbH & Co. KG was
> founded,
> >> I have never ever signed a contract where the contractual partner was
> >> "Markus Stalder trading as Lightup Network Solutions GmbH & Co. KG"
> but the
> >> contractual partner was always Lightup Network Solutions GmbH & Co.
> KG.
> >> That includes application forms towards government entities as well
> as
> >> contracts with larger corporations.
> >>
> >> Actually, my gut feeling based on my own experience with my GmbH &
> Co. KG
> >> in the last decades tells me that you are making a mistake here.
> >>
> >> And, if you want to be really accurate: You must be aware that the
> >> Kommanditist (limited partner) is not allowed to represent the
> company.
> >> That is something only the Komplementaerin (general partner) can do.
> The
> >> general partner of Lightup Network Solutions GmbH & Co. KG is
> AirAccess
> >> GmbH.
> >>
> >> I'm attaching both company extracts for your convenience.
> >>
> >> So, correct would be:
> >>
> >> AirAccess GmbH trading as Lightup Network Solutions GmbH & Co. KG"
> >>
> >> Quote end.
> >>
> >>
> >> Wednesday, 13th February 2019, 18:02: Reply from RIPE.
> >>
> >>
> >> Quote start:
> >>
> >> "Many thanks for the clarification and the provided documents.
> >>
> >> Please be informed that our Due Diligence for the Quality of the RIPE
> NCC
> >> Registration Data <https://www.ripe.net/publications/docs/ripe-700>
> has
> >> been implemented in 2018. As the application process for our members
> was
> >> not so strict before, it was possible to register an LIR account
> under the
> >> partnership name. Currently, we are working on correcting these
> details in
> >> the Database.
> >>
> >> At this moment we are reviewing German applications with a legal
> entity
> >> type 'GmbH & Co. KG' together with our legal department. Thus the
> >> information you provided is very helpful.
> >>
> >> On the review the documents you submitted, we indeed can see that
> >> "AirAccess GmbH" is a general partner with a special right to
> represent the
> >> company. The names of both LIR accounts (de.lightupnet,
> de.lightupnet1)
> >> will be corrected tomorrow. It will be confirmed to you once the
> accounts
> >> are updated."
> >>
> >> Quote end.
> >>
> >>
> >> ... another day passes ...
> >>
> >>
> >> Thursday, 14th February 2019, 16:11: Now for the E-Mail from RIPE
> that blew
> >> my mind, in a negative sense.
> >>
> >>
> >> Quote start:
> >>
> >> "Many thanks for your patience.
> >>
> >> We have reviewed your case internally and agreed that there is no
> need to
> >> sign a new agreement for LIR account <de.lightupnet>, as it was
> signed by
> >> the director of the company.
> >>
> >> It has also come to our attention that, the company AirAccess GmbH
> (reg. No
> >> HRB 56386) already has LIR account <de.airaccess>.
> >>
> >> Therefore LIR <de.airaccess> should be linked as an additional
> account to
> >> <de.lightupnet>, and <de.lightupnet1>.
> >>
> >> Please be informed that the following will be applied to all
> additional LIR
> >> accounts:
> >>
> >> - The /22 IPv4 allocation you will receive is subject to the RIPE NCC
> >> Transfer Policy and can therefore only be transferred 24 months after
> the
> >> allocation date.
> >> - Members with multiple LIR accounts are entitled to just one vote at
> RIPE
> >> NCC General Meetings. The oldest LIR account will receive the vote.
> >> - If you wish to transfer internet resources between your LIR
> accounts,
> >> you need to pay the full annual service fee for all LIR accounts.
> >> -  If you wish to close LIR account, you need to pay the full annual
> >> service fee for all LIR accounts.
> >>
> >> At this moment could you please inform us what name you prefer for
> LIR
> >> accounts <de.lightupnet>, <de.lightupnet1>:
> >> "AirAccess GmbH" or "AirAccess GmbH trading us Lightup Network
> Solutions
> >> GmbH & Co. KG"?
> >>
> >> Once it is clarified, we will proceed with updating the legal details
> of
> >> your accounts and process the application for <de.lightupnet1>."
> >>
> >> Quote end.
> >>
> >>
> >> Spontaneous thought: HOLY F*CK, ARE THEY SERIOUS ?! ?! ?!  They want
> to
> >> change the name of my company - Lightup Network Solutions GmbH & Co.
> KG -
> >> to a completely different company: AirAccess GmbH !!!  Totally
> unrelated to
> >> each other, different business, different company, different
> everything!
> >> THEY MUST BE NUTS!  Here my reply:
> >>
> >>
> >> Quote start.
> >>
> >> "Hi <name of RIPE NCC support person>,
> >>
> >> thanks for your mail.
> >>
> >> Ok, now you are really taking it over the top.
> >>
> >> 1) You want to link AirAccess GmbH as an additional account to
> >> de.lightupnet. And you want to do this for a company which is a legal
> >> entity by itself.
> >>
> >> I do not allow you to do this. AirAccess GmbH is a legal entity by
> itself
> >> and I do not want that you change anything about its current LIR
> status,
> >> name or anything else.
> >>
> >> 2) You are offering that I can choose the name for de.lightupnet and
> >> de.lightupnet1 to be "AirAccess GmbH", a company which is an entity
> by
> >> itself and is merely the Komplementaerin for Lightup Network
> Solutions GmbH
> >> & GmbH Co. KG.
> >>
> >> I'm shocked by that idea. That is just completely wrong.
> >>
> >> Of course I do NOT want de.lightupnet and de.lightupnet1 to be named
> >> "AirAccess GmbH" because it would be an factual error. And I don't
> want
> >> RIPE to make wrong statements about our company/companies towards the
> >> public.
> >>
> >> It would be like offering to present nl.ripe as KPN. Or Nike as
> Adidas.
> >>
> >> As it appears right now your legal department is doing a mistake when
> it
> >> comes to understanding how GmbH + Co. KGs work.
> >>
> >> Could you also please let me know the E-Mail address or telephone
> number
> >> where I can file a complaint about this whole procedure?
> >>
> >> Thank you."
> >>
> >> Quote end.
> >>
> >>
> >> This is where it stands right now.
> >>
> >> It's Friday, 15th February.
> >>
> >> The work week is over.
> >>
> >> I'm sitting here, waiting for RIPE since Monday to send me the LIR
> >> agreement for the 2nd LIR, so that I can sign it, pay it, and be done
> with
> >> it.
> >>
> >>
> >> My rhetorical questions are:
> >>
> >> 1) Are they fucking serious ... I can't remember the last time I was
> this
> >> angry at anyone.
> >>
> >> 2) It's RIPE. A large, established organisation that's been around
> forever.
> >> WHY THE F*CK does it take them always 1 day to process something, to
> reply
> >> to something? They have TONS of employees, they have TONS of LIRs
> that pay
> >> them TONS of money, why is everything moving so slowly with them ?!
> ?! ?!
> >> It's 2019, not 1995 FOR F*CKS SAKE !!! Get your act together and
> adapt to
> >> the times, modernize yourself and BE FASTER. UARRRGHHHL.
> >>
> >> 3) Why in heavens name do they EXACTLY have to start with this whole
> >> f*cked-up process when I ACTUALLY need something from them (a 2nd LIR
> >> account)? Why in this very moment? Yeah, because my company popped up
> on
> >> their screen because I applied for a 2nd LIR account, makes sense.
> But,
> >> could they not simply process the damn LIR application at the same
> time to
> >> speed this whole thing up, and later change this sh*t. No, of course,
> it
> >> would be not efficient for them to do that, but it's NOT MY FAULT
> they
> >> didn't ask to update this data/fix this company sh*t earlier. But now
> THEY
> >> MAKE IT MY PROBLEM. Because I'm losing precious time. F*CK!
> >>
> >> 4) If you look at the LIR list for Germany here -
> >> <https://www.ripe.net/membership/indices/DE.html> - and search for
> "GmbH &
> >> Co. KG" in the document, you will see many companies that are still
> >> "unchanged": Company name GmbH & Co. KG, but you will also see some
> that
> >> were already "updated" according to RIPE logic: "Firstname Lastname
> trading
> >> as Company GmbH & Co. KG" - the "funny" thing is that this is just
> wrong as
> >> I explained earlier. They have to re-do all these changes. By looking
> at
> >> this list it appears I'm the first where they offer to change it to
> >> "Another-company-name GmbH trading as Company GmbH & Co. KG" JUST
> BECAUSE I
> >> told them that with GmbH & Co. KGs the Kommanditist is not allowed to
> >> represent the company. So, being the first, and looking at that list
> for
> >> comparison tells me they have no idea what they are doing!
> >>
> >>
> >> Have a good day everyone and down with unnecessary, over-the-top
> >> bureaucracy! It's 2019 FOR F*CKS SAKE!!!
> >>
> >>
> >> Regards
> >> Markus
> >>
> >> Mit freundlichen Grüßen
> >>
> >> Markus Stalder
> >> ms at lightupnet.de
> >>
> >> Lightup Network Solutions GmbH & Co. KG
> >> http://www.lightupnet.de
> >>
> >> Fon +49 (0)69 962 4456 0  (Zentrale)
> >> Fon +49 (0)69 962 4456 11 (Durchwahl)
> >> Fax +49 (0)69 962 4456 20
> >> __________________________________________________
> >>
> >> Please direct all support issues directly to
> >> support at lightupnet.de. This will guarantee fastest
> >> processing possible.
> >>
> >> Bitte richten Sie alle Support-Anfragen direkt an
> >> support at lightupnet.de. Nur so ist die schnellst-
> >> mögliche Bearbeitung gewährleistet.
> >> __________________________________________________
> >>
> >> _______________________________________________
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> >> members-discuss at ripe.net
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> >>
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