The Online Formation and Registration of a Gmbh or UG (Haftungsbeschränkt)

Since 1st of August 2022, you can also incorporate a GmbH or UG (haftungsbeschränkt) online. This possibility was introduced in Germany thanks to the EU Digitalisation Directive (DiRUG). For the incorporation of your GmbH or UG (haftungsbeschränkt), you no longer need to appear in person at the notary’s office, but can conveniently manage this via an online meeting with the notary, even from abroad.

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

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

Which Legal Forms Does Online Incorporation Cover?

You can only use the online procedure for the incorporation of a GmbH and UG (haftungsbeschränkt). This option is only available if all subscriptions are made in cash. This means that the contributions for the shares must entirely be paid up by the shareholders in cash.

Contributions in kind and mixed cash and non-cash contributions are currently excluded from the online incorporation procedure. They will only be included in the online incorporation procedure from 01.08.2023 on.

Are All Formation Formalities Possible Online?

In order to establish a GmbH or UG (haftungsbeschränkt), articles of association must be drawn up and notarised. The online procedure already enables you to carry out this notarisation alongside with the shareholders‘ resolutions passed at the time of formation online.

Amendments to the articles of association or the sale and transfer of shares are currently not included in the online procedure and must be notarised on-site by the notary during a presence appointment.

Online Registration in the Commercial Register and Managing Directors

Upon entry into the commercial register, the incorporation of the GmbH and the UG (haftungsbeschränkt) is finalised. The appointment of the managing directors must be filed with the commercial register. The shareholders’ list also needs to be filed with the commercial register. These applications to 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 proxy. The parties involved can be represented by a proxy, provided that a power of attorney was notarised or certified by a notary. You only have to be careful if the power of attorney was notarised by a foreign notary. In order 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 the original version or as a notarial certified copy; electronic submission is not sufficient.

Can I Use a Sample Protocol (Foundation Protocol) for Online Incorporation?

You can use a sample protocol. In that case, you have the choice between the old sample protocol for the simplified procedure and the new sample protocol for the online incorporation. However, you should know that the old sample protocol for the simplified procedure is different from the new sample protocol for online incorporation.

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

The new sample protocol for the online incorporation can be found as Annex 2 to the German Limited Liability Companies Act (GmbHG) since 1st of August 2022.

The sample protocol for online incorporation contains some privileges compared to the old sample protocol for the simplified procedure. The sample protocol for online formation does not provide for a limit of three founding shareholders maximum. And more than one managing director may be appointed. In addition, there is a common representation provision, according to which if only one sole managing director is appointed, them alone represents the company. If more than one managing director is appointed, the company is represented by two managing directors jointly or by one managing director and one authorised signatory. In turn, the cost privilege with regard to the notary’s fees applying to the incorporation by means of the old sample protocol in the simplified procedure does not apply when using the new sample protocol for online incorporations.

In each case, you should be aware that the disadvantage of the sample protocols lies in the fact that during the incorporation, the legally provided text cannot be adjusted. This may cause serious disadvantages, as special individual interests of the shareholders cannot be taken into account. It is therefore advisable to seek legal advice in order to weigh up whether individually drafted articles of association would be better for your company or not.

How the Online Certification Procedure Works

In the course of online notarisation, 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 terms. Other communication systems may not be used by the competent notaries.

What Do I Have to Do to Use the Online Procedure?

First of all, you have to register on the platform of the Federal Chamber of Notaries.

To register, you must observe the following. You need:

• A commercially available computer with camera and microphone function
• A suitable identity document
• A smartphone to read the eID and the photograph
• The free app of the Federal Chamber of Notaries
• A stable internet connection

On the other hand, 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 the 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 to avoid attempts of deception.

During the first stage, electronic identification takes place. The following identity documents are admissible:

• The German identity card (Personalausweis) with eID function for German nationals. The identity card must have been issued on or after 02.08.2021, because elsewise the photograph cannot be read. You will find the date of issuance on the back of your identity card. In case your identity card is older, the photograph may be read from your valid passport. You will hence need both: your identity card and your passport.
• The eID card for EU citizens and nationals of the European Economic Area classified with the security level "high“. You can check whether your eID card is classified with the security level “high” here.
• The electronic residence permit with eID function for third-country nationals.

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

During the second stage, the notary compares the participant's appearance with the available photo. This is read from the chip of the identity document during the real-time video conference 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 persons involved, reading out the electronic transcript as well as the duties of verification and instruction.

In the event that the notary cannot ensure 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 not 100% certain about the identity of the person of a party involved or has doubts regarding their legal capacity.

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

Applications with the Commercial Register

Any applications for entry in the commercial register may by certified via the online procedure.

The notarial certification is exclusively carried out via the communication system of the Federal Chamber of Notaries, subject to the two-stage identification procedure. The notary can then certify the electronic signatures of the parties involved and authenticate the online certification by means of a simple electronic certificate.

What Are the Costs of the Online Procedure?

If you use the notarial online procedure, you have to expect a flat-rate expense fee of 25 euros and costs of 8 euros for the certification. The flat-rate fee is a one-off charge that is not charged more than once, even in the case of several electronic signatures.

You will have to pay notary fees. As in the case of a face-to-face meeting, the costs for the notarisation of the articles of association and the certification of the applications for the commercial register are charged in accordance with the German Court and Notary Fees Act (Gerichts- und Notarkostengesetz).

For the notarisation of the articles of association when incorporating a GmbH or an UG (haftungsbeschränkt) an additional fee in the amount of 25 euros is charged.

For the notarial certification of applications to the commercial register an additional fee in the amount of 8 euros is charged.