The German Act Implementing the Digitalisation Directive (2019/1151/EU) dated 5 July 2021 (DiRUG) enables both the "GmbH" (German limited liability company) and its "little sister" the "UG (haftungsbeschränkt)" (German entrepreneurial company with limited liability) to be incorporated using an online procedure from 1 August 2022.
Notarisation, which is required for the incorporation, can now be made by video communication with notaries via a new video communication system implemented by the German Federal Chamber of Notaries. For this, notaries prepare an electronic record of the incorporation using a qualified electronic signature.
Under the German Act Implementing the Digitalisation Directive (DiRUG), the possibility of online incorporation is (initially) limited to incorporating GmbHs and UGs by way of contributions in cash. From 1 August 2023, the notarial online procedure will be extended, on the basis of the German Act Supplementing the Regulations for Implementing the Digitalisation Directive (DiREG), to certain incorporations of GmbHs by way of contribution in kind, incorporation powers of attorney and resolutions amending the articles of association which have been adopted unanimously, including capital measures. However, contributions of real estate and GmbH shares will not be permitted online.
In addition to the online incorporation, the German Act Implementing the Digitalisation Directive (DiRUG) makes it possible, also from 1 August 2022, for commercial register applications for corporations and by sole proprietors to be certified in the course of an online procedure. It is no longer necessary for the signatory to appear in person at the notary's office if the signatory can meet the technical and legal requirements for this (further details are available at https://www.onlineverfahren.notar.de/).
The German Act Implementing the Digitalisation Directive (DiRUG) has also brought some changes to register law. For example, notifications of entries in the commercial register will now only be made possible by retrieving the relevant information for the first time from the register portal of the individual German federal states (referred to as the "register only" solution).
It is also possible for anyone to access the content of the commercial register as well as the registers of partnerships, cooperatives and associations online from 1 August 2022. The previous requirement to register with the register portal will also cease to apply.
General restriction: Given the lack of suitable means of identification, nationals of non-EU countries are excluded from participating in notarial online procedures as a matter of principle. EU citizens and persons with electronic residence titles must meet certain technical requirements. However, these hurdles are not too high (see https://www.onlineverfahren.notar.de/ and our blog on "Using the notarial online procedure").
We have highlighted the advancing digitalisation in corporate law in a German-language CMS blog series:
Elektronische Signaturen und Online-Verfahren im Gesellschaftsrecht - CMS Blog (cmshs-bloggt.de)
If you read German, please have a look and contact us if you have any questions.
We have also summarised our general recommendations on digitalisation in company law for you in this Checklist.
We would be pleased to advise you on the new digital possibilities, also those which could be useful for your company!
