Incorporation of a GmbH "from" abroad: this is where it went wrong
A person residing abroad wanted to establish a German GmbH as sole shareholder. Due to his stay abroad, he did not attend the appointment for the formation before the German notary in person, but granted a third party power of attorney to represent him in the formation. This power of attorney was notarized. To the surprise of the grantor of the power of attorney, the registry court refused to register "his" GmbH in the commercial register. The reason given for this was that only the name of the future shareholder - and furthermore only in partly abbreviated form - was stated in the certification note, which was not sufficient. According to the registry court, a certification must contain further individualizing information in addition to the name, i.e. the date of birth and place of residence of the person granting the power of attorney. The notary certifying the articles of association appealed against this and lost.
The Higher Regional Court had no sympathy
In the opinion of the judges, the certification note submitted on the power of attorney did not enable a clear identity check of the principal and thus of the future shareholder of the GmbH. In addition to his full name, it would at least have been necessary to state his date of birth and place of residence. Without this further individualization, it could not be ruled out that a person with the same name had granted the power of attorney. Even if the fumbling was annoying for the grantor of the power of attorney and later GmbH shareholder, the view of the Higher Regional Court is consistent. For if there are justified doubts on the part of the registry court as to the proper formation of a GmbH, the company may not come into existence by entry in the commercial register; this applies on the one hand for reasons of creditor protection and on the other hand for reasons of protection of any co-partners.
What must be observed in the future?
In order to set up a GmbH without any formal errors and to have it entered in the commercial register, it is advisable to obtain expert advice and support during the formation process; this applies in particular to company formations "from abroad". This is particularly true in the case of companies formed "from abroad", as the formation of a GmbH in Germany is also possible for persons residing abroad. In this case, an authorized representative must be appointed locally for the conclusion of the articles of association, which must be notarized. For the power of attorney to be notarized abroad, strict care must be taken to ensure that the identity of the authorizing future shareholder can be established beyond doubt on the basis of the certification note: when designating natural persons, the date of birth, the place of residence and, if necessary, a different maiden name must be stated in addition to the name. If the grantor of power of attorney is abroad, he can have the power of attorney certified either by the German consulate or by a foreign notary. If a foreign notary is consulted, a so-called apostille is required as additional proof of authenticity, depending on the respective country.