Signing the Certificate of Incorporation at the Public Notary, not online but in person (Part 2 of Founding a Company)

Introduction

In this second article - if you have not read it, start with the first article - I continue telling you about the highlights of incorporating two companies in a holding structure in Germany. This article focuses on the signing of the certificate of incorporation at the public notary, and the steps for preparing it.

In follow-up post(s) I'll continue with terminology around the business address and further highlights until finally having both companies ready.

Hi 👋

This is Kai Mindermann, the CEO of NuInnovate - with the vision of creating a world where every improvement serves a meaningful purpose. Just wanted to quickly say: Enjoy your day!

Online Appointment at the Public Notary

There is an official online process for selected cases, including founding a GmbH, via the Online-Verfahren of the federal chamber of notaries, Bundesnotarkammer. It was introduced in August 2022 and allows you to conduct all the necessary steps online, without having to be go anywhere, e.g. the public notary. This sounds fantastic. Also, some time has already passed since it was introduced. So I thought, the initial bugs in the software and the processes have been resolved, and it should go smoothly.

So I went ahead and registered. The registration went mostly very smoothly, as expected, both with the required identification documents and the App on the mobile phone.

The next step, after the authentication, was to pick a specific notary. I did not expect that I had to pick one or could pick one, but was okay with that. So I provided the form with the location information to look for one nearby, even though it didn't matter to me - as I'm doing the online process - apparently it's important for the responsibility of the notaries. I got presented with a list of notaries and picked one I was confident with (after skimming their website).

Further I provided some elementary information about the holding company in the provided form.

Then I sent the form.

Communication with the notary

I waited a few days for the Public Notary to respond, but nothing happened. I still saw the following status indicator:

After waiting a few more days I wrote the public notary a separate email - to which they responded the same day, if I remember correctly. Their response mentioned that the online platform was technically not fully mature and there could be problems. They recommended conducting the procedures via a classic appointment. I had enough confidence in the platform, so I asked for a clarification why it would not work with the online platform. Their, again very quick, response was that the problem lies in one specific part of the process: The final signing of the documents by the notary was not working properly, preventing the documents from being valid.

To prevent further delays, I agreed to the classic appointment.

If there is anybody who did it really fully online, I'd be interested in their experience.

Preparation of the documents

What's needed to found a GmbH? You need the articles of association (Gesellschaftsvertrag/Satzung) and an application to the commercial register (Anmeldung zum Handelsregister) of which both need to be notarized. There are specific requirements for the articles of association as well as a whole list of information to be part of the application to the commercial register. The public notary has templates for all of this, as they are doing these procedures regularly. Of course, you need to provide input to allow them to fill in the blanks.

Since I was going to use the special model protocol (Musterprotokoll), there was no consulting to be done nor specific contracts or articles of association to be created by the public notary. The model protocol is a template, provided by the legislator as an appendix to the GmbH law (Anlage 1 GmbH-Gesetz). This template provides formulations for the minimal required information to found a GmbH. It not only serves as the (very simple) articles of association, but also as list of shareholders and resolution on the appointment of a managing director.

So to be concrete, I needed only the following information:

• Shareholder: full name, birthdate, zip-code city (street not needed) / Company Name in the case of a legal entity
• Managing Director: full name, birthdate, zip-code city (street not needed)
• Company Name: company name GmbH
• Seat: city / community (no more specifics needed here)
• Purpose of the company: ...
• Share capital: 25000 / FÜNFUNDZWANZIGTAUSEND
• "sofort in voller Höhe" (immediately in full) (for the operative GmbH, I selected here "zu 50 Prozent sofort, im Übrigen sobald die Gesellschafterversammlung ihre Einforderung beschließt" (50 percent immediately, otherwise as soon as the shareholders' meeting resolves to call them in))
• Business address: street no, zip-code city (this is needed for the application to the commercial register)

With this information the public notary prepared the model protocol and the application to the commercial register. Then they provided these two drafts as PDF-files to me via a secure online platform. That was the first time I saw how the application to the commercial register looks like.

In parallel the public notary asked me to provide them with the list of the beneficial owners (wirtschaftlich berechtigte Personen) of the company - in this case that's easy as that's only me.

After I reviewed the provided drafts and had only a minor change request, they immediately offered an appointment date which was fitting for me.

Getting to the notary on-time

I thought I planned enough time to get to the public notary on-time. I had, but I made the decision to not follow the proposed route of my navigation system because I thought it was a weird route to take. This decision landed me in a minor traffic jam. The navigation system had intentionally used a different route, one where no traffic jam was. As I was only making slow progress I saw the minutes passing by as well as my time buffer shrinking more and more. After I was out of the traffic, the estimated arrival time was only a few minutes before the appointment time, but I also needed to account for finding a parking space. Yet, the result was less dramatic, I found a good parking spot and was only a few seconds late at the public notary.

Signing the Certificate of Incorporation

I have been to another public notary before, but never for myself, only for the local swimming club. Also, never alone. I was really nervous.

The front-desk verified my identity via my national ID. Then I only had to wait a few minutes until the notary asked me to follow him to his office. There we sat down at the conference table and the notary routinely explained to me how to proceed. He read out loud the certificate of incorporation which mostly consists of the articles of association with some boilerplate before and handed it over to me to sign it. Then he continued to do the same for the application to the commercial register. That was it.

He mentioned that I should really wait for the companies' official entry in the commercial register to conduct any business with it. Also, he said that I will receive scans of the signed documents the next day.

Receiving old-school scans of the documents

Later on the next day I received the scans of the signed documents, now also with the signature of the notary.

These documents and the new information on it, e.g. the certificate number and the actual date of signature, I can now use to open the bank account and transfer the share capital to the new business bank account.

A few days later I also received the notarized copies of the documents by post. I needed to send the notarized copy of the certificate of incorporation by post to the bank for them to finally open the bank account.

Next steps

So far I already covered a few aspects which I discovered, learned and experienced:

• Introduction, watching videos and researching the holding structure
• (This article) Making the actual step of going to the public notary and signing the certificate of incorporation

In the next post(s) I'll highlight the next steps, some of which I did not comprehend quickly in the - for me - necessary detail:

• Virtual Office/Address and Terminology for the different kinds of addresses and locations for the various forms and documents
• Do I need to be present, physically, at the local trade licensing office to perform the trade registration, despite the form being available online?
• Creating an Opening Balance Sheet, Eröffnungsbilanz, from the bookkeeping software, correctly
• Does the Holding Company really need to calculate and submit (pay) the sales tax pre-registration, Umsatzsteuer-Voranmeldung (USt-VA) after every quarter, despite not doing a lot other than waiting (for years) for the returns of the operative company?
• Why won't the bank open a bank account for the Operative GmbH after opening one without problems for the Holding Company? (Part 7 of Founding a Company)
• Delayed assignment of VAT ID / USt-IdNr because of possible consolidated VAT group / umsatzsteuerliche Organschaft?

Disclaimer

The content provided in our articles is for informational purposes only and should not be construed as legal or tax advice. Readers are encouraged to seek professional advice from qualified professionals regarding their specific legal or tax situations.