The Limited Liability Company under German Law (the GmbH). Dr Alexander Schröder-Frerkes
for the foundation of a GmbH are comparatively low.
29. Notarial form requirements: shareholder signature
As outlined in Section 27, in principle the shareholders must sign the notarial deed of establishment for the GmbH and the articles of association in person. Legal entities are represented by their responsible corporate body, that is, their directors. With regard to foreign legal entities, the notary may request sufficient evidence of the authorisation of the person representing such an entity to sign legal documents on its behalf (eg, a notarised excerpt from the company register certified with an apostille etc). Moreover, the shareholders may also be represented by agents (see Section 30).
30. Notarial form requirements: representation by agents
The shareholders who must sign the notarial deed of establishment for a GmbH may also be represented by agents. In this case, the power of attorney by virtue of which they are acting requires notarisation itself.36 A simple written power of attorney is not sufficient (unlike in the case of a transfer of shares). The power of attorney may also be notarised by a foreign notary, but must then be further certified by means of an apostille in order for it to be recognised in Germany. There may be an exception in this regard if the country where the power of attorney has been notarised has entered into a treaty with Germany according to which an apostille is not required for the recognition of such foreign documents within Germany (eg, Austria, Belgium, France, Italy, Denmark). In this case, a simple notarisation of the power of attorney is deemed sufficient. A list of countries and the formal requirements for the recognition of documents drawn up in these countries may be found on the website of the German Institute of Notaries (Deutsches Notarinstitut – DnotI) under www.dnoti.de.
30a. Amendment of articles of association
Any subsequent amendments to the articles of association (in particular changes with regard to the stated share capital) must be approved by a shareholders’ resolution.37 This authority to amend the articles may not be transferred to another corporate body such as, for example, the supervisory board (see Section 73 for details). The resolution requires a majority of three quarters of the votes cast (not of the total share capital) and must be notarised.38 The articles may provide for a higher majority and may even require the consent of all shareholders. However, they may not prescribe a lower majority (eg, a simple majority). The articles of association may stipulate additional requirements such as, for example, the consent of a particular shareholder and special formal requirements in connection with the invitation to vote and the passing of the resolution. The consent of a third party outside the company (eg, a bank or the authorities) or of another corporate body to the amendments to the articles is, however, not permissible. The amendments to the articles only become valid once they have been entered into the commercial register.39
31. Documents to be filed
A GmbH must be registered with the relevant commercial register in order to be fully established.40 The commercial register in Germany is maintained by the local courts (Amtsgerichte). The competent local court is the court in whose district the company has its business seat.41
If the stated share capital is raised by contributions in cash, the registration may only be filed if at least one quarter of each share has been contributed and the total contributions paid in for all shares amount to at least half of the stated share capital.42 In the event that the GmbH is established by way of contributions in kind, these contributions must be paid in in full prior to filing.43 The applications for entry in the commercial register are to be signed and filed by the managing directors.44 Furthermore, the signatures of the managing directors must be notarised, that is, the application for registration must be signed before a notary and forwarded to the court for entry in the commercial register accompanied by an electronic signature of a notary.45 The application letter together with the documents is therefore filed for entry into the commercial register by the notary on behalf of the company.
The application itself must contain the following documents and declarations:46
•articles of association and, if applicable, power of attorney of the agents who signed the notarial deed on behalf of the shareholders;
•documents providing evidence for the nomination of the managing directors, if their nomination has not yet been recorded in the articles of association;
•list of shareholders including family name, first name, date of birth, domicile (in the case of a legal entity: place of business), subscribed shares, indicating their respective nominal value, the serial number thereof in the list of shareholders and the shareholder who has subscribed for the respective share;
•agreements which are the basis for contributions in kind (if applicable) on the part of the shareholders, in particular the non-cash contribution report (Sachgründungsbericht); and
•in the case of a contribution in kind, expert opinion proving that the value of the assets contributed in kind is at least on the level of the nominal capital.
The former stipulation that if a licence is required for the company the respective licence document must also be filed ceased to apply once the Act to Modernise the Law Governing GmbHs and Combat Abuses entered into force. This means that a GmbH may be registered in the commercial register even if the required licence is still missing. However, the licence must be submitted without delay once it has been granted.
To facilitate communication with the GmbH, the new Act on Limited Liability Companies now requires that the company must file a domestic business address for registration.47 All communication may then be forwarded to this address. Moreover, the company may voluntarily file a domestic address of a third person entitled to receive communication on behalf of the GmbH.48
31a. Declarations to be issued
Within the application, the managing directors must issue a declaration to confirm that all contributions towards the stated share capital have been duly made according to the minimum statutory requirement (ie, half of the amount in the case of a cash contribution, the full amount in the case of a foundation on the basis of an in-kind contribution) and that the respective amounts are ultimately at the free disposal of the managing directors.49 If the court has serious doubts regarding the correctness of these declarations, it may request additional documentation.50 If a shareholder and the GmbH have agreed that his or her contribution shall be repaid to him or her, this arrangement must also be recorded in the commercial register.51