Online formation of a GmbH [German private limited company] - Possibilities for entrepreneurs and founders
Notaries’ offices are also becoming increasingly digitalised. Wide-ranging possibilities for digital certification and notarisation have existed already since 1.8.2023 when the ‘Act to Supplement the Regulations for the Implementation of the Digitalisation Directive (Gesetz zur Ergänzung der Regelungen zur Umsetzung der Digitalisierungsrichtlinie, DiREG) came into force. The online formation of a GmbH is arguably the most practically relevant possibility. This simple and efficient procedure has created an additional digital alternative to the conventional in-person formation procedure; however, in practice, founders have rarely made use of this to date.
Use cases and the online certification procedure
The online procedure for the formation of a GmbH (also in the variant of a German [limited liability] enterprise company; in German: Unternehmergesellschaft [haftungsbeschränkt], UG) can be applied to company formations by way of cash contributions as well as by way of contributions in kind. Furthermore, within the scope of the formation process, it is likewise possible to digitally certify or notarise shareholders' resolutions that have been unanimously adopted, powers of attorney for company formations as well as applications for entries in all registers.
Carrying out an online certification is not just secure but also straightforward. It takes place via a portal of the Federal Chamber of Notaries (Bundesnotarkammer), which has been provided specifically for this purpose, whereby the same data privacy and data security standards as in a ‘real-life’ in-person visit to a notary are guaranteed at all times. The procedure can essentially be summarised with the following six steps:
Registration in the online portal or via the app
Selection of a notary’s office
Uploading of documents
Proof of identity
Reading aloud via video communication
Qualified electronic signature
You can register via the online portal ‘www.onlineverfahren.notar.de/en’ as well as via the ‘Notar’ app. Within the portal, the requested notary can then be selected and the documents that are required for the appointment can be uploaded. The reading aloud by the notary then takes place in the form of a video conference, although the video communication is not recorded so that the confidentiality of the data is maintained at all times.
Technical requirements
The necessary hardware merely comprises a computer or tablet with sound, microphone, and camera functions, or your own smartphone that has an NFC interface. Furthermore, for the identity check, an ID card issued after 1.8.2021 is necessary. If the ID card is older, then a passport will additionally be required.
Limitations on applicability ...
There are certain limitations with respect to the selection of the notary who is supposed to carry out the online certification or notarisation. According to Section 10a of the Federal Code for Notaries (Bundesnotarordnung, BNotO), a locational connection is necessary. This means that either a company’s registered office or the place of residence or the registered office of a managing director or a shareholder has to be located in the district of that local court in which that notary has their location of office.
... in the case of formations on the basis of contributions in kind and ...
Furthermore, there are cases in which the procedure cannot be applied: in the case of formations on the basis of contributions in kind, it is possible to select the online procedure solely if the contribution that is being made is not subject to certification under other regulations. Therefore, in the online procedure, it is not possible to notarise formations with contributions in the form of real estate or GmbH shares.
... certain regulations in the company agreement
A further limitation exists in the case of regulations in the company agreement that are subject to certification. If the agreement includes, for example, obligations to transfer a shareholding in certain situations then this matter would be precluded for an online procedure. Moreover, the online procedure can only be used for shareholders' resolutions related to the formation and that have been unanimously adopted provided that these are not subject to certification under other regulations.
