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Founding and registering a GmbH or UG (haftungsbeschränkt) online

Since August 1, 2022, you can also found a GmbH or UG (haftungsbeschränkt) online. This option was introduced in Germany due to the EU Digitisation Directive (DiRUG). This means that you no longer have to appear in person at the notary’s office to set up your GmbH or UG (haftungsbeschränkt), but can do so conveniently in an online meeting with the notary, even from abroad.

Not only is online incorporation possible, but applications to the commercial register are also permitted for the online procedure.

The virtual procedure does not replace the notarial face-to-face procedure, but is merely an option. If you prefer to appear in person at the notary’s office, this is also possible. A mixed form of incorporation is also possible: one shareholder can appear in person at the notary’s office, while the other shareholders participate online.

What forms of company does online incorporation involve?

You can only use the online procedure to set up a GmbH and UG (haftungsbeschränkt). This option is only possible if the foundation is a cash foundation. This means that the shareholders’ contributions must be made in cash, i.e. in money.

The non-cash foundation and the mixed cash and non-cash foundation are therefore currently still excluded from the online foundation procedure. They will only be included in the online incorporation procedure from 01.08.2023.

Is it possible to complete all the incorporation formalities online?

To form a GmbH or UG (haftungsbeschränkt), a memorandum and articles of association must be drawn up, which must be notarised. The online procedure allows you to carry out this notarisation online, including the shareholder resolutions adopted at the time of formation.

Amendments to the articles of association or the sale and assignment of shares are currently not yet possible using the online procedure and must be notarised by a notary in a face-to-face meeting.

Online entry in the commercial register and managing directors

The formation of the GmbH or UG (haftungsbeschränkt) is completed with the entry in the commercial register. The appointment of the managing directors must be registered with the commercial register. In addition, the company list must be submitted to the commercial register. All these registrations with the commercial register can be carried out via the online procedure. Third-party managing directors can also use the online procedure.

Online incorporation with a power of attorney

There are no restrictions on online incorporation by a representative. The parties involved may be represented by an authorised representative, provided that a notarised or certified power of attorney has been issued . You only need to be careful if the power of attorney was issued by a foreign notary. For this power of attorney to be recognised in Germany, it must be legalised or provided with an apostille. The power of attorney must be submitted to the domestic notary in original or as a copy; electronic submission is not sufficient.

Can I use a sample protocol (foundation protocol) for the online foundation?

You can use a sample protocol. You can choose between the old model protocol for the simplified procedure and the new model protocol for online incorporation. You should only make sure that the new model protocol for online incorporation differs from the old model protocol for the simplified procedure.

In principle, the model protocols are intended to simplify the formation process. They contain a predefined text for the articles of association, serve as a list of shareholders and already contain the appointment of the management.

The new model protocol for online incorporation has been available since August 1, 2022 as Annex 2 to the GmbH Act.

The model protocol for online incorporation contains some privileges compared to the old model protocol for the simplified procedure. The model protocol for online start-ups does not provide for a limit of three founding shareholders. And more than one managing director can be ordered. In addition, there is a standard representation regulation according to which, if a managing director is appointed, this person represents the company alone. If more than one managing director is appointed, the company is represented by two managing directors jointly or by one managing director jointly with an authorised signatory. However, when using the new model protocol for online incorporation, the cost advantage for notary fees, which applies to incorporation using the simplified procedure with the old model protocol, does not apply.

In any case, you should be aware that the disadvantage of the model minutes is that the content of the statutory text cannot be adapted when the company is founded. This can be very disadvantageous under certain circumstances, because the special individual interests of the shareholders cannot be taken into account. It is therefore advisable to seek legal advice to determine whether an individually drafted partnership agreement makes more sense for your company.

How the online notarisation procedure works

During the online notarisation process, a real-time video conference takes place between the parties involved and the notary. The Federal Chamber of Notaries has developed its own video communication system for this purpose. The focus is on the secure electronic identification and transmission of documents or draft contracts. Other communication systems may not be used by the competent notaries.

What do I have to do to use the online procedure?

First you have to register on the portal of the Federal Chamber of Notaries . To register, you must note the following. You need:

  • A computer or tablet with camera and microphone function
  • A suitable identification document
  • A smartphone for reading the eID and the photo
  • The free app of the Federal Chamber of Notaries
  • A stable Internet connection

However, you do not need your own signature card, software or hardware, as the parties involved can provide their electronic signature themselves via the online procedure in the communication system of the Federal Chamber of Notaries.

Proof of identity via eID

The Federal Chamber of Notaries provides for a two-stage procedure for proving the identity of the parties involved in order to ensure the greatest possible security and avoid attempts at deception.

Electronic identification takes place during the first stage. The following proofs of identity are permitted:

  • The German ID card with activated online ID function for German citizens. The ID card must have been issued on or after 02.08.2021, otherwise the photo cannot be read. You will find the date of issue on the back of your ID card. If your ID card is older, the photo can also be taken from your valid passport. You will need both an identity card and a passport.
  • The eID card for EU citizens and nationals of the European Economic Area with a “high” security level. You can check whether your eID card has the “high” security standard here.
  • The electronic residence permit with eID function for third-country nationals.

However, proof of identity such as a German passport or other foreign identity documents from third countries are not permitted.

During the second stage, the notary compares the appearance of the party involved with the available photograph. This is read from the chip of the proof of identity during the real-time video procedure using the downloaded app of the Federal Chamber of Notaries.

The online procedure and notarial duties

The same obligations apply to the notary for the online notarisation procedure as for the face-to-face procedure.

These duties include establishing the legal capacity of the parties involved, reading out the electronic transcript and the duties to examine and instruct.

In the event that the notary cannot guarantee his official duties by means of video communication, it is possible that the notary will refuse the notarisation. This could be the case if the notary is unable to obtain complete certainty about the person of a party or has doubts about their legal capacity.

Only with the electronic signature of all parties involved can the minutes be considered a valid document . The notary is obliged to keep the electronic deed and not to hand it over. However, simple copies (electronic or in paper form), certified copies and copies can be issued by the notary.

Applications to the commercial register

All applications for entry in the commercial register can be certified online.

Notarisation is only carried out via the video system of the Federal Chamber of Notaries, taking into account the two-stage identification procedure. The notary can then authenticate the electronic signature of the parties involved and confirm the online authentication by means of a simple electronic certificate.

What are the costs associated with the online procedure?

You have to expect notary fees. As with a face-to-face appointment, fees are charged for the notarisation of the certificate of incorporation and the certification of commercial register applications in accordance with the German Court and Notary Fees Act.

An additional flat fee of EUR 25 is charged for the notarisation of the articles of association when founding a GmbH or UG (haftungsbeschränkt).

An additional flat fee of 8 euros is charged for the notarisation of applications to the commercial register.

Conclusion:

Seit dem 1. August 2022 kannst Du eine GmbH oder UG (haftungsbeschränkt) online gründen. Zur Online-Gründung hat die Bundesnotarkammer ein Portal entwickelt, über welches Du mit einem zweistufigen Identitätsverfahren eine GmbH oder UG (haftungsbeschränkt) gründen kannst. Bei diesem Verfahren entfällt der Präsenztermin beim Notar und wird über eine sichere Videokonferenz ersetzt. Du brauchst lediglich zwei mobile Endgeräte (Computer/Tablet und Smartphone), mit welchen Du Dir die kostenlose Notarapp herunterlädst. Mittels dieser App und dem speziellen Videokommunikationssystem ist es dem Notar möglich, Deine Identität nachzuweisen, indem Du den Chip Deines zugelassenen Identitätsmittels (eID-fähiger Personalausweis/eID-Karte für Unions- und EWR-Bürger/elektronischer Aufenthaltstitel) auslesen lässt. Des Weiteren ermöglicht das Online-Verfahren auch die notarielle Beglaubigung von Anmeldungen zum Handelsregister.

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