It is true that under German law applications for registrations in the commercial register 

may now also be certified as part of an online procedure. However, a strict identification procedure needs to be observed. Therefore, the question arises as to whether an online certification abroad (where, less strict identification rules may apply) is recognized in German legal transactions and thus provides an alternative to standard on-site certification in Germany.

According to the decision of the Kammergericht (KG) dated July 17, 2024 (see NZG 2024, 1331), this question has now been answered negatively, at least for an online certification performed in Austria. The reason given for this was, in particular, that the online certification performed in Austria is not equivalent to a German online certification.  

Facts of the Case

In the case to be decided, the managing director of a German limited liability company (GmbH) applied for the registration of the change of the company's domestic business address with the commercial register. For this purpose, a document drawn up by an Austrian notary using the online procedure (under Austrian law) was submitted to the German commercial register. However, the commercial register refused to effect the corresponding entry due to the fact that an online certification performed abroad could only be recognized if the procedure there was equivalent to Sec. 40a, 16a subseq. 1 of the German Notarization Act (BeurkG). This was not the case here. The appeal against the decision of the commercial register has now been rejected by the KG as unjustified.

Reasoning

The decision of the KG to reject the appeal against the decision of the commercial register is correct:

Whether an online certification performed abroad is recognized in German legal transactions depends on whether the fundamental principles of German notarization law have been observed and whether the procedure used abroad is comparable to the procedure under Sec. 16a, 40a BeurkG, 78p German Notarial Code (BNotO) (substitution). According to the KG, this is not the case with an online certification performed under Austrian law:

• The fundamental procedural principle of German notarization law for online certification is the use of an official video communication system. While in Germany the video communication system is operated by the Federal Chamber of Notaries, Austrian notaries may use external service providers for this purpose.
   
• Another fundamental procedural principle is the identification by the notary personally. An electronic form of identification with a “high” level of trust and an electronically read photograph needs to be used. In Austria, the identification procedure may also be carried out by the notary's employees or private service providers. In addition, identification may be carried out by means of the so-called video identification procedure, in which the official photo ID is held in front of the camera for identification and optically checked; a “reading” of the electronic photo does not take place in the video identification procedure.[1]
   
• Furthermore, the fundamental procedural principle applies that the deed is provided with qualified electronic signatures of the notary and the parties involved. According to Austrian procedural law, a simple electronic signature is sufficient; a qualified electronic signature is not mandatory

Furthermore, according to the KG, there was also no legal obligation under European law (Directive 2017/1132/EU (Company Law Directive) as amended by Directive 2019/1151/EU (Digitization Directive)) to recognize the certification carried out in Austria. The European legislator did not seek to achieve any harmonization beyond the introduction of online procedures for the formation of companies and the submission of documents relating to them. Instead, the structure of the online procedures and the verification of the authenticity and trustworthiness of the associated files should remain within the sovereignty of the member states.

Finally, the Austrian notary's freedom to provide services under Art. 56 Treaty on the Functioning of the European Union (TFEU) is not infringed by the absence of an obligation of recognition.

Due to the fundamental importance of the case, the KG has admitted the appeal to the Federal Court of Justice (BGH). Thus, it still has to be observed whether the BGH will follow the decision of the KG. As long as there is no supreme court ruling, we recommend that (online) certification should only be performed by notaries with an official seat in Germany in accordance with the applicable notarization laws.

The team at avocado rechtsanwälte will be happy to support you in all matters of corporate law and, in particular, to advise you on questions related to commercial register applications.