I. Procedure

Pursuant to Section 2 (3) GmbHG (Act on Limited Liability Companies), the notarization of the GmbH partnership agreement can now be performed by means of video communication. This is not obligatory: the notarization in person can still be chosen. The procedure is governed by sections 16a to 16e of the German Notarization Act (BeurkG). The Federal Chamber of Notaries has set up a special video communication system for this purpose, subject to special security precautions. After making an appointment with the selected notary, digital GmbH founders receive an invitation link to the video conference. However, the prerequisite for choosing the notary is that the registered office of the company to be formed is located in the notary’s area of jurisdiction.

At the start of the video conference, the parties who will sign the document must identify themselves. If the notary cannot be certain of the identity of the participants of the online procedure, he also has the option of refusing digital certification in individual cases.

Identification takes place in two stages: First, the notary reads the electronic ID data of the parties involved from a suitable identification document. For German citizens, this is the ID card with eID function, the electronic residence permit or the eID card/EU citizen card. The free notary app on the smartphone is required for reading out the document (download here: https://online-verfahren.notar.de/ov/gruendung/formular/onboarding/carousel?currentSlide=notarApp). The app uses NFC technology, which is also used for contactless payment in retail, for example.

Note: All ID cards issued since 2017 have the eID function – but it must be activated. A PIN for using the eID function was already generated when the ID card was issued. If the letter with the PIN has been lost, a new letter containing the activation code and the new PIN can be ordered online here: https://www.pin-ruecksetzbrief-bestellen.de/.
In a second step, the notary reads the photo electronically from a suitable identification document via the notary app. The German ID card can be used for this if it has been issued since August 2, 2021. However, the photo from the passport or other identification documents can also be read out, as long as the respective document is valid. The notary subsequently compares the read-out photo with the video image of the parties involved.

Third parties or guests participating in the video conference for information purposes only do not have to identify themselves.

The notarization then proceeds as usual: the notary checks the powers of representation, reads out the document and advises the parties involved. If the founders of the GmbH are represented, the power of attorney must always be submitted on paper, but must be attached to the electronic transcript of the proceedings in electronically certified form.
Finally, the electronic transcript of the hearing must be provided by the parties with qualified electronic signatures. An individual signature certificate is created for each participant on the basis of the eID data read out. If the notary requests the signature in the video conference, a TAN is sent to the smartphone via SMS, which must be entered in an input mask in the video conference. The document is then signed with a click of the mouse.

The DiRUG has also brought about an acceleration of procedures: GmbH formations that are notarized by means of video communication must be entered in the Commercial Register within ten working days of receipt of the application, as a rule, in accordance with the new Section 25 (3) No. 1 of the Commercial Register Ordinance. If only natural persons are involved and the model protocols provided for in Annex 2 are used, the company must even be registered within five working days.

More information about the online process is available here: https://online-verfahren.notar.de/ov/.

II. Outlook

Up to now, digital GmbH formation is only possible for cash formation without contributions in kind. However, the Act Supplementing the Regulations Implementing the Digitization Directive (“DiREG”), which was promulgated on July 26, 2022, already stipulates that, as of August 1, 2023, non-cash incorporations will also be possible remotely – as long as no items are contributed which themselves can only be transferred with notarial certification. This applies in particular to plots of lands and GmbH shares.

But this is not the end of the story: If only the formation of a GmbH via video conference has been possible up to now, shareholder resolutions on amendments to the articles of association and capital measures (e.g., the increase or reduction of the share capital) can also be digitally notarized as of August 1, 2023. It is to be expected that the scope of online communication will continue to be steadily expanded in the future. This also applies to commercial register applications: Since DiRUG came into force, it has been possible to make commercial register applications digitally, but so far only for sole proprietors and capital enterprises. Here, too, DiREG provides for an expansion to all legal entities from August 1, 2023. Similarly, applications to the register of partnerships, cooperatives and associations will also be possible digitally from this date.