Amendments to the articles of association of a GmbH require notarial certification in many cases. This article provides an overview of the formal requirements and the procedure.
General Principle: Amendments to GmbH Articles Require Notarial Certification
Pursuant to § 53 Abs. 2 GmbHG, the resolution to amend the articles of association of a GmbH requires notarial certification. This formal requirement applies regardless of which part of the articles is amended. The amendment takes effect only upon registration in the commercial register (§ 54 Abs. 3 GmbHG).
Typical Occasions for Amending the Articles
In practice, numerous situations arise that require an amendment to the articles of association:
Change of Company Name
If the company wishes to change its name, this constitutes an amendment to the articles requiring notarial certification. Prior to the change, the permissibility of the new name should be verified with the IHK.
Relocation of Registered Office
The relocation of the statutory seat (as distinct from the administrative seat) requires an amendment to the articles. If only the administrative seat is relocated while the statutory seat remains unchanged, a simple filing with the commercial register suffices.
Change of Corporate Purpose
If the company expands or changes its field of activity, the corporate purpose stipulated in the articles of association must be adapted.
Capital Measures
Capital increase (§ 55 GmbHG): The increase of the share capital requires notarial certification of the increase resolution. The subscription for new shares is effected by notarially certified subscription declarations.
Capital reduction (§ 58 GmbHG): The reduction of share capital likewise requires notarial certification and is subject to special procedural requirements (creditor call, waiting period).
Addition or Modification of Shareholder Rights
Provisions regarding voting rights, profit distribution, non-compete obligations, share transfer restrictions or succession clauses are part of the articles and require notarial certification when amended.
Decision-Making
Resolutions amending the articles require, pursuant to § 53 Abs. 2 GmbHG, a majority of three quarters of the votes cast, unless the articles of association prescribe a higher majority. For certain amendments (e.g. increasing shareholder obligations), unanimity is required.
Procedure for Notarial Certification
- Preparation: The shareholders agree on the desired amendments. The notary receives the current articles of association and the proposed changes.
- Draft: The notary prepares a draft of the amendment resolution and an updated version of the articles.
- Certification appointment: At the appointment, the shareholders' meeting is minuted, the amendment resolution is passed and notarially certified.
- Commercial register filing: The notary files the amendment electronically with the commercial register. A complete restated version of the articles must be attached.
- Registration: The amendment takes effect upon registration in the commercial register.
Special Cases Without Certification Requirement
Not all corporate actions require an amendment to the articles:
- Appointment or removal of managing directors: Provided the managing directors are not named individually in the articles, a private shareholders' resolution suffices (however, the commercial register filing requires notarial authentication).
- Relocation of the administrative seat: No amendment to the articles is required, provided the statutory seat remains unchanged.
- Profit appropriation resolutions: Provided the articles contain no deviating provision.
Transfer of Shares
The transfer of GmbH shares is also subject to a notarial form requirement. Pursuant to § 15 Abs. 3 GmbHG, the assignment requires notarial certification. This also applies to the underlying obligation (share purchase agreement), § 15 Abs. 4 GmbHG.
Costs
Notary fees for amendments to the articles are based on the transaction value of the respective measure. This may be assessed differently depending on the type of amendment:
- Simple amendments to the articles: EUR 30,000 as the standard transaction value (where no higher value can be determined)
- Capital increase: the increase amount as the transaction value
- Name change or change of corporate purpose: generally EUR 30,000
At a transaction value of EUR 30,000, the 2.0 fee for certification amounts to approximately EUR 250 plus disbursements and VAT.
