Online formation of a GmbH soon possible

On February 10, 2021, the German Federal Cabinet approved the draft of the Act Implementing the Digitalization Directive (DiRUG).

The occasion was Directive 2019/1151 of the European Parliament and of the Council of June 6, 2019 amending Directive (EU) 2017/1132 with regard to the use of digital tools and processes in company law - Digitization Directive.

The use of digital tools and procedures is intended to facilitate the establishment of companies and branches within the EU.

How will the online formation of a GmbH work?

The DiRUG is therefore intended to enable the formation of a GmbH in an online procedure in the future. The founders will no longer have to appear in person at a notary's office. For this purpose, the Federal Chamber of Notaries will operate a video communication system with which the parties involved and the notary can meet virtually. The notary identifies the parties involved using the electronic proof of identity on their ID cards. For this purpose, the participants need a card reader, which they connect to the terminal device with which they participate in the video conference. The certificate of incorporation is read out and authenticated in this video conference. Instead of signing the deed in person, the participants must sign the deed electronically. To do this, they need signature cards that meet the requirements for a qualified electronic signature. For example, the electronic signature function on the ID card can be activated for this purpose. Only cash foundations are permitted. Incorporations in kind must be carried out in the conventional analog way.

What other processes will soon be possible online?

Other commercial register applications can also be certified online by a notary in this way. However, this only applies to the GmbH, the AG and the KGaA. Other notarizations, such as amendments to the articles of association, cannot be carried out using this new procedure. In particular, the OHG and the KG are not covered by this amendment to the law.

The qualified electronic signature is also likely to be the hurdle for the new procedure. Only those who frequently establish companies or make commercial register applications will equip themselves with the means for a qualified electronic signature.

Unlike in the analog world, you cannot go to just any notary. The parties involved must go to a notary (virtually) who has his office area at the registered office of the company or at the residence of one of the shareholders.

As a by-product of the amendment, retrievals from the commercial register will be free of charge in the future.