The notary appointment for company incorporation in Germany: What you need to know

Contents

• Why is the notary appointment important?
• What happens during it?
• How long does the notary appointment take?
• What documents are needed?
• What does the CEO’s insurance cover?
• What can go wrong?
• What are the waiting times?
• Where I arrange a notary appointment?
• How does it cost?
• What should I do if I missed it? 
• What happens after?
• Arranging everything abroad
• Want to know more?

Why is the notary appointment important?

Anyone who wants to form a company that must be entered in the commercial register (Handelsregister) needs to have the certificate of incorporation (Gründungsurkunde) and articles of association (Gesellschaftsvertrag) certified by a notary public. The notary also completes the registry of the company in the commercial register. Without a notary appointment, it’s not possible to establish a company in Germany!

All corporations, as well as general partnerships (OHG) and registered merchants (eingetragener Kaufmann or eK for short) under the German Commercial Code (HGB), must be entered in the Handelsregister.

What happens during the notary appointment?

All CEOs must be present at the notary appointment. However, shareholders do not have to be present themselves and can be represented by a CEO. The CEO requires a notarised power of attorney (Vollmacht) from the respective shareholder, which entitles him to represent the company.

If the founder’s German language level is insufficient, an interpreter must also be present at the notary’s appointment.

The appointment with the notary is as follows:

1. The notary public inspects all documents and verifies their completeness and validity.
   1. Identity cards of those present
   2. Authorisations and over-authentications, if applicable
   3. Model protocol or statutes
   4. List of shareholders (only necessary in conjunction with a statute)
2. The notary reads the formation documents aloud (Musterprotokoll or customised articles of association).
3. The notary and the CEOs sign the commercial register application (Handelsregisteranmeldung).
4. The notary certifies the articles of association (including the appointment of the CEO and the list of shareholders) or the model protocol and the registration in the commercial register

How long does the notary appointment take?

If you plan to start your business with a model protocol, you will need to schedule about half an hour for the appointment. In the case of a foundation with statutes, the appointment takes about one hour because several documents have to be notarised.

What documents does the notary need from the founder?

The founder(s) only need(s) to bring valid identity papers (identity card or passport) to the notary appointment. The Musterprotokoll or the customised articles of association must be available to the notary before the appointment.

Absent shareholders may be represented but the notary must have a notarised power of attorney!

If the company is formed from abroad, the formation documents must be hyper-authenticated (überbeglaubigt). In such a case, the notarisation in the form of an apostille or legalisation must be available for the translated document. This includes the statutes and powers of attorney, which were originally drafted in another language. If a foreign company is to become a partner of the new company, the foreign extract from the Handelsregister must also be certified.

What does the CEO’s insurance cover?

As per the GmbH Act, the CEO or directors of the new company affirm that there are no circumstances that exclude him or her from the position of CEO (§ 6 para. 2 p. 2 no. 2 and 3, p. 3 GmbHG). Specifically, this refers to the following:

CEOs affirm that within the last five years they have not been convicted of one or more of the following offences either in Germany or abroad:

• Delay in filing for bankruptcy
• Crimes of insolvency (according to §§ 238 – 238 d StGB)
• Making false statements (according to § 82 GmbHG or § 399 AKtG)
• Incorrect presentation (according to § 400 AktG, § 331 HGB, § 313 UmwG or § 17 PublG)
• Fraud, breach of trust and embezzlement listed in §§ 263 – 264 a and §§ 265 b – 266 a StGB, which led to the imposition of a prison sentence of at least one year

Furthermore, the CEOs confirm by their signature that:

• There is no other judgement or official decision that prohibits the exercise of the profession, branch of profession or trade – and thus the activity within the object of the company.
• He or she has not been detained in an establishment on the basis of an administrative order within the past five years so the deadline for the entry into force of a final judgment has been delayed.
• The notary has informed the CEOs about the unlimited duty to provide information to the court in accordance with § 53 para. 2 of the German Federal Central Register Act.
• He or she is not subject to any reservation of consent pursuant to § 1903 of the German Civil Code.

What can go wrong at the notary appointment?

If you bring the necessary documents with you to the notary’s appointment and everyone that needs to be is present, not much can go wrong with your appointment. As a rule, a notary will refuse to authenticate the formation documents only if one of the following circumstances applies:

• Identity documents (passport or identity card) have expired or are invalid.
• Necessary documents are not complete (eg, missing powers of attorney or apostille).
• One of the CEOs is not present.
• Notary will refuse to certify the documents because one of the founders does not speak sufficient German and no interpreter is present.
• The company name/object has no prospect of being entered in the commercial register (eg, because a previous IHK check was not done).
• The articles of association do not comply with the law because, for example, they were drawn up without legal advice or changed at short notice.

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What kind of waiting time should I expect?

How long you’ll have to wait for a notary appointment is not something we can tell you here. The availability of appointments depends on many different factors, such as the region in which the notary’s office is located and their respective capacity. Generally, you’ll receive a notary appointment within a few days.

Which cities can I arrange a notary appointment in?

Which city you arrange the notary appointment is up to you. If the notaries in your region are at full capacity, it may make sense to visit a notary in another region so that the notarisation of your founding documents is not unnecessarily delayed.

How much does a notary appointment cost?

How high the costs for the notary appointment depends on the form of the company, the amount of the Stammkapital (share capital), the use of a Musterprotokoll or customised articles of association, and a number of other factors. With a few simple tricks, you can also save notary fees by creating the list of shareholders yourself (German article).

Also, the notary costs for a UG (haftungsbeschränkt)  differ from the notary costs forming a GmbH.

How do I pay the notary fees?

Depending on the notary’s instructions, you’ll have to either pay the costs incurred at the notary’s appointment in cash or you’ll receive a written invoice by post. Find out in advance how your notary will handle the payment so that you can bring enough cash to the appointment if needed.

I missed the notary appointment: What should I do?

It’s possible that an appointment can’t be kept. If you already know in advance that you will not be able to keep the notary appointment, you should cancel it as early as possible and arrange a new appointment. This way, you won’t have additional costs.

If the founder decides not to form the company at short notice, but the formation documents have already been drawn up, the founder must bear the costs of drawing up those documents.

What happens after the notary appointment?

After you have been to the notary and signed all the incorporation documents, the next step is opening a business account and depositing the capital contribution. The bank will then issue you a receipt for the original investment. Once you have opened the account and made the original deposits, you must present the deposit slip to your notary public. You can either present this to the notary in person or send it to him or her digitally. The notary then takes care of the registration of your company with the commercial register and the tax office.

Careful: Without the bank’s receipt, your company will not be entered in the commercial register and all shareholders will continue to be personally liable for the new company. You should, therefore, send the receipt to your notary’s office as quickly as possible!

Arranging the notary appointment outside of Germany

All CEOs must be present at the notary appointment. The shareholders, on the other hand, can be represented by the CEOs. All foreign documents or the corresponding translation of the documents must also be certified by an apostille or legalisation. If the founders don’t have sufficient knowledge of German, an interpreter must be present at the notary’s appointment.

It may also be difficult for foreign founders to open a business account in Germany. In many cases, the bank also requires that all shareholders and CEOs be present at the opening of the business account.

Find out in advance whether and under what conditions your planned company can open a business bank account in Germany.

Want to know more about the notary appointment?

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Master list:

The Master list of all Company Formation articles