Germany Update: A small step for the commercial register, but a big step for companies: It can also (sometimes) be done electronically.

According to a recent decision of the Court of Appeal of 30 June 2022 (file number: 22 W 36/22), the withdrawal of a managing director from a GmbH can be proven under certain conditions with electronically generated and signed documents.

Circumstance

The managing director of a UG (limited liability) has resigned from his position as managing director, which must in principle be registered with the commercial register. The corresponding commercial register application must be accompanied by documents proving the resignation of the managing director and their receipt by the shareholder. As a rule, this proof is provided by a copy of the letter of resignation and acknowledgment of receipt. In this case, the managing director tried a copy of an undated minutes of a shareholders’ meeting in which he declared his resignation. Since it was not only an electronically created document, but also signed via Docu-Sign (e-signature tool), the commercial register rejected the registration. The reason given was that this signature could not be verified by the registration court, so that effective signatures could not be assumed because the signature was made by the service provider in the absence of the signatory.

Reasons for the decision

The appeal against this decision was successful.

The decisive factor for the question of the form of the documents to be submitted is the provision of Section 12 (2) of the German Commercial Code (HGB). After that, documents must be submitted electronically. If a original is to be filed, the submission of an electronic record is sufficient. These requirements are met by the electronic protocol filed with the application. It is clear from this that the managing director has declared to the other shareholders that he will resign from his position as managing director subject to a condition precedent. This not only proves the submission of the corresponding declaration, but also proves its receipt by the appointing body. The mere fact that it is an electronic document cannot lead to a rejection of the registration. This is because Section 12 (2) of the German Commercial Code (HGB) does not provide for the assumption that an electronic record requires that there must be a paper document from which this record was created.

The reference to the lack of verifiability of the signatures was also rejected by the deciding Senate, because the resignation of the managing director’s office can be submitted informally, so that the signing with Docu-Sign, which was criticized by the register court, does not matter.

Conclusion and recommendations

The Senate’s decision is refreshingly timely, but unfortunately only relevant in the small application of Section 12 (2) sentence 2 sentence 1 HGB, which is based on simple electronic recording. These principles therefore cannot be applied to cases where a notarized document or copy is to be submitted and where an electronic [notarized] copy is required in the “electronic world”.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.