Since 01. August 2022 it is possible to found a GmbH online. For this purpose, there is a procedure in which online certificates and certifications are carried out. In addition, this method can also be applied to other processes. We explain how this works and what you should consider.

You can now found a GmbH online, since since 01.08.2022 declarations of intent can be certified by video communication. The certification of qualified electronic signatures is also possible online. Certification differs from certification in that it concerns the official determination of the correctness of statements and documents. Certification, on the other hand, concerns the verification of the accuracy of signatures and copies.

The scope of this online procedure mainly relates to applications for public registers and the establishment of a GmbH. However, statutory amendments and capital measures are now also possible in this procedure. However, the scope is limited. We explain to what extent the scope is limited.

The new regulations are based on the law implementing the Digitalisation Directive. This serves the purpose in particular of simplifying the creation of companies and the adoption of decisions amending the statutes through the use of digital instruments and procedures. This is intended in particular to minimize the cost and time expenditure. Nevertheless, the high standards of the notarial certification procedure should continue to be guaranteed.

According to § 78p BNotO, it is the task of the Federal Chamber of Notaries to operate a video communication system for the purposes of documentary activity. Therefore, the Federal Chamber of Notaries is exclusively responsible for the procedure. It is structured as a public-law body and acts in the performance of its task as an indirect State administration. Therefore, notarization via other video communication systems provided by private third parties is not permitted.

For the authentication, an electronic record of the trial is then recorded. The minutes shall be drawn up as a purely electronic document. The video communication must ensure personal identification and the affixing of a signature to the document to be recorded. The details of § 16c BeurkG and the more detailed provisions on the technical operation of the video communication system are regulated by a legal ordinance.

The scope of application via video communication is currently limited. A video-based certification procedure by the notary can only take place in accordance with § 16a (1) BeurkG, as far as this is permitted by law. The same applies according to § 40a (1) sentence 2 BeurkG also for an electronic signature certification.

For now, you can set up a GmbH online. The same applies to the UG. The use of sample protocols for establishing a GmbH in a video-based certification procedure is also possible. It even introduced a new model protocol for online founding, which is not only limited to three shareholders and a single managing director.

However, the cost advantage for the establishment in the simplified procedure according to § 105 paragraph 6 GNotKG does not apply to this new model protocol, since the possible number of shareholders and managing directors exceeds that in the model protocol for the simplified procedure. In order to make use of the cost advantage for the establishment in the simplified procedure, however, under the further conditions of § 2(1a) GmbHG, the simplified procedure can also be used in the case of an online establishment.

You can also set up a GmbH online with Sachagio. Then other formal requirements may not conflict. Such provisions include, for example, §§ 311b, 2033 BGB or § 15 GmbH. This means, therefore, the transfer of a property, the disposition of a joint heir over his estate or the assignment of a share of the business. In addition, fulfillment transactions in need of certification cannot be certified online. In addition, the cash foundation with Sachagio is only possible in this procedure from 01.08.2023.

Resolutions amending the articles of association are included in the scope of the notarial online procedure from 01.08.2023. However, authentication by video communication is only permissible if the decisions amending the Statutes are taken unanimously. If, on the other hand, the resolution is taken as a majority decision against a minority of the shareholders, only the attendance procedure is admissible. In addition, online certification is only permitted in the case of statutory amending resolutions, provided that other formal requirements do not conflict. These include, for example, the appointment of the management.

The resolution on the increase and reduction of capital is made on the amendment of the articles of association. The notary can notarize the process of the resolution according to §§ 36, 37 BeurkG (procedural record). However, an online certification of a decision as a factual record is not possible.

Undoubtedly, the authentication of the resolution can also take place according to the provisions on the authentication of declarations of intent according to § 8 BeurkG. In this type of procedure, the decision to reduce or increase the share capital and the declaration of acceptance of a share in a document can then be authenticated. If the decision is taken unanimously, a decision taken in this way can also be certified by video communication from 01.08.2023.

In order to avoid media breaks in the event of a capital increase, § 57 (3) no. 2 GmbHG clarifies that the submission of a transferee list with a qualified signature is permitted. Accordingly, an online procedure is permissible for the declaration to take over a share in connection with capital increases from 1.8.2023 in accordance with § 55 (1) sentence 2 GmbHG.

An online certification is not possible, for example, for the assignment of shares of a GmbH and the obligation to do so. However, if the acquisition of shares takes place by way of a capital increase, a video-based certification procedure is permitted. On the other hand, an online procedure is not provided for conversion processes, and a physical presence of the participants in the client is still required.

In addition, the law does not provide for a video-based certification procedure for other legal forms. Therefore, this procedure is not possible for public limited liability companies and partnerships with legal capacity. The online procedure is also not open for other areas of law. These include, for example, land purchase contracts, dismissals, marriage contracts, notarial will preparation or other processes.

According to § 40 (1) sentence 2 BeurkG, the certification of a signature by means of video communication can only take place to the extent permitted by law. The notarisation of a founding power of attorney can take place according to § 2 (2) sentence 2 GmbHG since 01.08.2022 by video communication.

The notarial deed or certification of the declaration to take over a share of the business on the occasion of a capital increase can take place according to § 55 (1) sentence 2 GmbHG from 1.08.2023 by video communication.

It is still possible to make the registration application by means of a written declaration and authentication of the signature. This document with the note of the signature certification is then scanned by the notary. Through the electronic certification note and the final hand-held signature, the notary certifies the match of the image file with the certified signature present to him in accordance with § 39a BeurkG. This electronic certification is sufficient according to § 12 paragraph 2 sentence 2 HGB.

There are two method variants according to which a qualified electronic signature can be certified. The notary certifies the signature of the applicant by recognition either in the presence (so-called attendance certification) or by means of the video communication system operated by the Federal Chamber of Notaries according to § 78p BNotO (remote certification).

Certification under the attendance procedure is carried out in such a way that the document to be certified is already provided with a qualified electronic signature or is provided on site and is then recognized in the presence of the notary.

In the case of remote accreditation, public accreditation is permitted in certain cases by the newly created variant of video conference without mandatory presence. The possibility of accreditation by means of video communication eliminates the need to appear in person at a notary.

The online procedure takes place via the video communication system operated by the Federal Chamber of Notaries. The notary certifies by his certification note and his electronic signature that the person appearing in front of him by video communication and the unambiguously identified person has recognized the qualified electronic signature in his name. This procedure exists for all applications to the commercial register regardless of the legal form, the partnership register and the cooperative register.

From 01.08.2023, the electronic signature can also be used for registrations to the register of associations and from 01.01.24 for registrations to the register of companies for GbRs with legal capacity.

Unlike the analogue procedure, you cannot choose every notary in the online procedure. The parties concerned must visit a notary who has his or her area of office at the seat of the legal person or partnership with legal capacity or at the domicile or seat of an organic representative of the legal person or partnership concerned. However, it is not decisive whether the organic representative is also entitled to individual representation. In the case of a general representation, the connection point with one of the general representatives is therefore sufficient to open the official area for certification or certification. This local restriction of notarial responsibility is intended to prevent an excessively high supraregional concentration of documentary activities by means of video communication among individual notaries.

The GNotKG treats notarization in the form of electronic writing as equivalent to physical writing. The certification of a qualified electronic signature by means of video communication in accordance with § 40a BeurkG is also equivalent to the certification of signatures and hand signals. Fees against the presence certificate or presence certification therefore do not arise if you set up a GmbH online with the exception of the expense lump sum.

§ 78q BNotO regulates the financing of the video communication system by charging fees. The notaries are obliged to pay the fees to the Federal Chamber of Notaries as the operator of the video communication system. The Urkundsnotar can allocate the fees paid for the use of the video communication system of the Federal Chamber of Notaries to the participants as expenses.

Case-related lump sums of 25 € are collected for the certification procedure and 8 € for the certification of a qualified electronic signature. The authenticator may not charge the basic monthly fee set out in § 2 (1) NotViKo-GebS.