An important signal from the federal government: Online notarizations of commercial register applications are set to be expanded and will soon be possible, according to the government's plans. This marks a significant advancement for innovation in the country, especially for digital notary services. Below, we offer a deeper insight into the reasons and solutions behind this development.
Online Notarizations are being expanded
The current restriction limiting certain legal entities such as sole proprietors, limited liability companies (GmbH), or corporations (AG) will be lifted. The procedure will also be extended to applications in the partnership, cooperative, and association registers. Additionally, the notarial procedure for online certification will be applicable to unanimously adopted amendments to articles of association, GmbH capital contributions, and foundation powers of attorney. These changes are part of the draft law entitled "Act to Supplement the Regulations for Implementing the Digitization Directive and Amend Other Provisions" (20/1672) put forth by the federal government.
The background for these regulations is the EU Digitization Directive ((EU) 2019/1151). Last year, the Bundestag passed a corresponding law to implement the directive, although certain legal entities were excluded.
This law mostly came into force on August 1, 2022. The federal government explains that the legal committee at the time recommended (resolution recommendation: 19/30523, p. 99) that during this legislative period, the expansion of the online notarization process be tackled, and that other notarial obligations under company and registry law be considered.
Problem and Goal
The provisions of the EU Directive (EU) 2019/1151 of the European Parliament and Council, dated June 20, 2019, amending Directive (EU) 2017/1132 concerning the use of digital tools and processes in company law, were implemented in Germany through the "Law on the Implementation of the Digitization Directive" (DiRUG) of July 5, 2021 (BGBl. I S. 3338). This allows Germany to follow other countries, such as Austria, which laid the foundation for online notarizations with §69b of the Notaries Act.
Notarial Certifications via video Communication
Due to the changes made by DiRUG in § 12 paragraph 1 sentence 2 of the German Commercial Code (HGB), notarial certifications of commercial register applications via video communication are now permissible for sole proprietors, limited liability companies (GmbH), corporations (AG), partnerships limited by shares, as well as for branches of these types of companies and for branches of capital companies governed by the law of another EU member state or another EEA contracting state. However, other legal entities, such as partnerships, cooperatives, and associations, are not yet included in the scope of the online notarization process.
Permissibility of Online Notarizations
Online notarizations of commercial register applications are declared permissible by the federal government through the draft law for all legal entities. Furthermore, applications to the cooperative, partnership, and association registers will be included within the scope of the notarial online notarization process. The scope of the online notarial procedure will also extend to GmbH capital contributions, foundation powers of attorney, and unanimously adopted resolutions to amend the GmbH articles of association (including capital measures like share capital increases and reductions).
This draft serves as the legitimate foundation for platforms like beglaubigt.de, where all forms of online notarizations will be represented—from a simple online UG (entrepreneurial company) formation to the notarization of purchase agreements. Beglaubigt.de is the first digital notary service in Europe, aiming to provide access to digital notarial records for everyone. Currently, beglaubigt.de is available in both Austria and Germany.