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Launch of a limited liability company abroad - requirements on attestation clause

The formation of a limited liability company in Germany is possible for persons residing abroad. For this purpose, a local authorized representative have to be appointed, in particular for the conclusion of the articles of association. For the power of attorney to be notarized abroad, it is particularly important that the identity of the authorizing shareholder can be established beyond doubt on the basis of the attestation clause. This was the subject of a decision by the Bremen Higher Regional Court.

Because attestation clause only showed the name of the authorizing party (i.e. the future shareholder) in partly abbreviated form and further information on the date of birth and place of residence of the authorizing party were missing, the registration court refused the initial registration of the limited liability company. The registration court demanded the submission of an attestation clause which allows a clear identity check of the authorizing party (in this respect OLG Bremen, decision of 14.12.2021 - 2 W 31/21).

This seems only consistent. Because the registration court checks in particular whether the company has been properly established before registering the company for the first time. Pursuant to Section 2 (2) of the German Limited Liability Companies Act , the articles of association may only be signed by authorized representatives on the basis of a notarized or certified power of attorney. This is intended to prevent doubts and disputes about the legitimacy of the representatives. The requirements for certification are derived in particular from the Notarization Act and the Service Regulations for Notaries, whereby the German consular officer abroad is responsible for this. Accordingly, the designation of the person signing has to result from the attestation clause itself - a consultation of the signed text is not sufficient for the identification of the person and is also not permissible. In addition, the characteristics to be included in the attestation note to designate the signatory are bindingly determined: when designating natural persons, in addition to the name, the date of birth, place of residence and domicile, and, if necessary, also a different maiden name must be indicated. The submitted power of attorney did not meet the requirements - the attestation clause did not show the date of birth or the place of residence of the declarant, but only the name of the authorized representative, partly in an abbreviated form. Such attestation clause does not allow the registration court to determine ex officio that the shareholder designated in the partnership agreement, for whom the authorized representative signs the partnership agreement, has also declared the power of attorney required for this purpose.

If there are justified doubts on the part of the registration court as to the proper formation of the limited liability company, the company should not come into existence by registration in the commercial register - this applies both in the interest of creditor protection and with regard to preventive protection of the co-shareholders.

In order to properly establish a company, it is advisable to have the formation process, including the preparation and review of the required documents, accompanied by experts - this also applies to company formations that are carried out "from abroad". This avoids queries or even a rejection of the registration by the registry court.

This also applies to the future innovation in the area of the formation of limited liability companies: From August 1, 2022, formation by means of video communication ("online formation") will be possible under certain conditions in accordance with the future Section 2 (3) of the German Limited Liability Companies Act. According to this, the notarization of the articles of association as well as resolutions of the shareholders passed in the course of the formation of the company in the case of formation without contributions in kind can also be carried out by means of video communication in accordance with the new sections 16a to 16e of the Notarization Act. The more detailed form and the effects, in particular with regard to a formation abroad, still remain to be seen. In any case, the granting of a power of attorney will continue to be required for the shareholder located abroad for the registration of the application for entry in the commercial register.

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