In June 2022, the Bundestag passed the Act Supplementing the Regulations Implementing the Digitalisation Directive and Amending Other Regulations (hereinafter abbreviated "DiRUG Supplementary Act"). The DiRUG Supplementary Act will lead to considerable extensions of the scope of application of the notarial procedures for online certifications and online notarisations already created by the Act Implementing the Digitalisation Directive (hereinafter abbreviated "DiRUG") last year, most of which will already come into force on 1 August 2022.
A brief overview of the new regulations is provided below.
I. Previous legal situation under the DiRUG
In October 2021, we had already reported in a newsletter on the far-reaching changes due to the DiRUG, which made online formation of limited liability companies (GmbH, incl. its special form of the entrepreneurial company with limited liability) and certain online commercial register applications possible from 1 August 2022.
According to DiRUG, the online notarisation procedure was only open for the formation of a GmbH and was additionally restricted by the fact that it was only to cover so-called cash incorporations (Bargründungen). Foundations in kind (Sachgründungen), on the other hand, were expressly excluded from the scope of application of the notarial online formation procedure.
The scope of application of online certifications was limited to applications for entry in the commercial register, whereby only applications by sole traders (eingetragene Kaufleute), for domestic corporations (limited to GmbH, AG and KGaA) and for branches of domestic corporations (such as before) or of foreign corporations governed by the law of another EU member state or EEA signatory state were covered. Applications for registration in the commercial register for commercial partnerships (KG and oHG) were excluded from the possibility of notarial online certification under the DiRUG.
II. Future legal situation under the DiRUG Supplementary Act
The DiRUG Supplementary Act extends the scope of application of the notarial procedure of online notarisation (Online-Beurkundung) to the following legal transactions requiring notarial recording:
- incorporations of GmbHs in kind (i.e. incorporations in which the nominal amounts of the shares of all founding shareholders are not to be provided exclusively in money),
- granting of powers of attorney for the formation of a GmbH (so-called formation powers of attorney),
- declarations of intent made jointly with the formation of the GmbH,
- unanimous resolutions to amend GmbH articles of association including capital measures (i.e. increase and reduction of the share capital).
The restriction of the procedure of online certification (Online-Beglaubigung) of commercial register applications to certain legal entities was abolished. In future, certification of commercial register applications by means of video communication with the notary will be permissible for all legal entities to be entered in the commercial register. Limited partnerships (especially in their frequent form of the GmbH & Co KG) and general partnerships (oHG) will also be covered.
Furthermore, applications to the register of cooperatives (Genossenschaften), partnerships (Partnerschaften) and associations (Vereine) will be included in the scope of the notarial procedure for online certifications.
With regard to the details and technical process of the notarial online procedures, we refer to our earlier newsletter on DiRUG in order to avoid repetition.
III. Entry into force of the new regulations
The new regulations on the notarial online certification of applications to the commercial, partnership and cooperative registers are to come into force at the same time as DiRUG, as early as 1 August 2022. The same applies to the new regulations on the admissibility of the notarial online certification of powers of attorney for the formation of a GmbH and declarations of intent and shareholder resolutions made jointly with the formation.
In contrast, the new regulations on the extension of online procedures to applications to the register of associations, the formation of GmbHs in kind, shareholders' resolutions on the amendment of articles of association and declarations on the subscription to new GmbH shares on the occasion of capital increases will not enter into force until 1 August 2023, as these require considerably higher organisational and technical effort.
IV. Video of the Federal Chamber of Notaries for better understanding
A video by the Federal Chamber of Notaries, which shows you in a simple and comprehensible manner how to carry out the online formation of limited liability companies and the online application for certain registrations in the commercial register in the future, can be accessed here (please switch to the English version of the website).
Smart and to the point.
DSC Legal is a notary’s office and law firm located at the Brandenburg Gate in Berlin.
Our experienced notaries and lawyers are specialised in providing comprehensive legal advice and support to domestic and foreign clients and principals in connection with real estate transactions, project developments, the creation of condominium property as well as the establishment, acquisition or sale and operation of companies.
Advising on issues relating to corporate law and tenancy law is one of the core areas of our legal practice.