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

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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