The formation of a GmbH mandatorily requires notarial authentication of the articles of association. This article describes the process from preparation through to registration in the commercial register.
Notarial Authentication as a Formation Requirement
The limited liability company (GmbH) is the most commonly chosen legal form for corporations in Germany. Its formation requires notarial authentication of the articles of association (Satzung) pursuant to § 2 Abs. 1 GmbHG. The same applies to the Unternehmergesellschaft (haftungsbeschränkt) as a special form of the GmbH.
Preparation: Decisions to Be Made in Advance
Before visiting the notary, the founders should clarify the following points:
- Company name: The company name must include the suffix "GmbH" or "Gesellschaft mit beschränkter Haftung" and must be reviewed for admissibility by the IHK.
- Registered office: The statutory seat must be located in Germany.
- Business purpose: The description of business activities must be sufficiently specific.
- Share capital: A minimum of EUR 25,000 for the GmbH, a minimum of EUR 1 for the UG (haftungsbeschränkt).
- Shareholders and shares: Distribution of the share capital among the shareholders.
- Management: Appointment of the managing director(s).
Required Documents for the Authentication Appointment
The shareholders must bring the following documents to the appointment:
- Valid identity cards or passports
- For legal entities as shareholders: commercial register extract and proof of authority to represent
- Where applicable, permits for activities requiring official authorisation
If a shareholder is unable to attend in person, a notarially certified power of attorney is required.
The Authentication Appointment
During the authentication appointment, the notary reads aloud the articles of association and explains the individual provisions. The authentication is then completed with the signatures of all shareholders.
At the same time, the following additional resolutions are typically passed and authenticated:
- Appointment of the managing director
- Application for registration in the commercial register
- Where applicable, declarations pursuant to § 8 GmbHG (managing director's assurance)
Model Protocol or Individual Articles of Association?
For straightforward formations with up to three shareholders and one managing director, the simplified procedure using the statutory model protocol (Annex to § 2 Abs. 1a GmbHG) may be used. This reduces the effort and costs but offers less flexibility.
Individual articles of association are recommended when:
- More than three shareholders are involved
- Special provisions regarding shareholder meetings, voting rights, or profit distribution are desired
- Succession arrangements, share transfer restrictions, or non-compete clauses are to be included
- Deviating provisions on management are envisaged
After Authentication: Steps to Registration
After authentication, the following steps are required:
- Payment of share capital: At least half of the nominal value of each share and a total of at least EUR 12,500 (for the GmbH) must be deposited into the business account.
- Opening a business account: A certified copy of the formation deed is required for this purpose.
- Commercial register application: The notary electronically submits the application to the registry court.
- Registration in the commercial register: The GmbH becomes a legal entity upon registration. Until that point, it operates as a "GmbH in Gründung" (GmbH i.G.).
Trade Registration and Tax Registration
After formation, the trade must be registered with the competent trade office. In addition, tax registration with the tax office is carried out, which requires completion of the tax registration questionnaire.
Costs
Notarial fees are based on the share capital as the transaction value. For a GmbH formation with the minimum share capital of EUR 25,000 using the model protocol, notarial fees amount to approximately EUR 190 (0.5 fee). For individual articles of association, a 2.0 fee applies, amounting to approximately EUR 324 for EUR 25,000 in share capital. Additional costs arise for the commercial register application, certifications, and the registration itself.
