Extension of the scope of application of notarial online procedures

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.

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.

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).

Read the full article here:

https://dsc-legal.com/en/en-blog/220-extension-of-the-scope-of-application-of-notarial-online-procedures