The Act Implementing the Digitization Directive (DiRUG) comes into force today. We have summarized the most important changes for you below!
The DiRUG has (finally) brought about a long overdue modernization of German company law. For the first time, the possibility of founding GmbHs and UGs online with cash has been created.
There will be a further simplification for register applications. Notarial certification of commercial register applications can be carried out via video communication. In contrast to online incorporation, online notarization of register applications is not only possible for GmbHs, but also for all German corporations (GmbH, AG, KGaA, UG (haftungsbeschränkt) and for sole traders.
Sounds good at first. However, as is so often the case, the devil is in the detail. The online procedure is only suitable for company founders and persons who have an electronic means of identification. Against this background, the practical relevance of the new possibilities should not be overestimated. Despite the fact that the possibility of online incorporation would be of particular interest to foreign founders, it must be noted that foreigners will be denied access to the online procedure in many cases. This is due to the strict requirements for the means of identification with which founders must prove their identity as part of the online procedure. In particular, people from third countries wishing to set up a business are excluded from the online procedure from the outset due to a lack of adequate means of identification. Even within the European Union, many citizens do not currently have a suitable means of identification.
The limited scope of application is also criticized. For example, there is no possibility of video communication beyond the formation of the company for other transactions requiring notarization, such as subsequent amendments to the articles of association or share transfers.
Our assessment
The DiRUG is undoubtedly of great importance and an important step in the right direction, as it will bring long overdue innovations in terms of technical developments (especially in the formation of GmbHs) and can be seen as the cornerstone of digitization in the notarization and register system. However, the DiRUG has rightly not only earned applause. It is obvious that the legislator would like to test online notarization first. It is therefore to be hoped that further steps will follow!
The author and your usual contacts will be happy to answer any questions you may have!
Marius Rosenberg
rosenberg@tigges.legal
+49 211 8687 220