Digital Corporate Law - Online Certifications and Notarisations available as of 01.08.2022
German corporate law is (finally) going digital. In implementation of the EU Digitisation Directive of 20 June 2019 (Directive (EU) 2019/1151 - amending Directive (EU) 2017/1132 – Abl. L 186 of 11 July 2019), the German legislator first passed the Act Implementing the Digitisation Directive (DiRUG of 5 July 2021, Federal Law Gazette I p. 3338) and - even before its entry into force - on 13 April 2021 initiated a government bill amending the DiRUG (RegE). While the DiRUG was still limited to the implementation of the Directive, the RegE now goes beyond the Directive.
Already under the DiRUG it was envisaged that from 1.8.2022 onwards the electronic formation of a GmbH and register applications should be made possible. However, under the DiRUG, the GmbH formation should be limited to cash formations and the publicly certified register applications should be limited to applications by registered merchants (eingetragene Kaufleute), Companies of limited Liability (GmbH), Stock Corporations as well as partnerships limited by shares (incl. branches). Accordingly, not only GmbH formations in kind, but also other shareholders' resolutions and/or agreements requiring certified or notarised form (unless made in connection with the incorporation) as well as register applications by commercial partnerships were excluded from online notarisation. The RegE now goes beyond these requirements. As of 1 August 2022, it not only includes commercial partnerships in the procedure for the online certification of register applications, but will also enable the online notarisation of the formation of limited liability companies in kind (from 1 August 2023), powers of attorney for the formation of a company (from 1 August 2022) and unanimously adopted resolutions on amendments to the articles of association (including capital measures) (from 1 August 2023).
In future, online certification and notarisation will be carried out by means of video communication using a special (and exclusive) video communication system of the Federal Chamber of Notaries (Bundesnotarkammer). The previous paper-based transcripts will be replaced by the creation of an electronic transcript and the signatures of the parties involved in the procedure can be replaced by a qualified electronic signature.
The usage of the online procedure requires that the parties involved can identify themselves by way of of an electronic means of identification. In addition to the identity card for German citizens, these means of identification include the eID card for EU/EEA citizens, electronic means of identification of other EU/EEA states (provided that the trust level is "high") and electronic residence permits of third-country nationals. The electronic means of identification and the electronic photo are read either via a card reader or (in most cases) via an app of the Federal Chamber of Notaries installed on an NFC-enabled smartphone.
The new procedures for online certification and notarisation thus promise to make things much easier for the parties involved. The verification of powers of attorney certified abroad as well as proofs of existence and representation of foreign legal entities issued abroad have not yet been transferred to the digital age and will still have to be sent to the notary's office in paper form (in advance).
If you would like to know how you and your company can benefit from the legal changes, please contact us.