German Limited Company (GmbH): The Electronic Signature and the Commercial Register

Company law

In a decision dated June 22, 2022 (22 W 36/22), the Berlin Court of Appeal was the first court to comment on signing by electronic signature, for example using the very popular tool “DocuSign”. The managing director of a UG [a variant of the regular GmbH: company with limited liability], who was authorized to represent the company alone, reported his resignation from office to the commercial register by submitting undated, purely electronically created minutes of a shareholders' meeting in which the managing director declared his resignation from office. The signatures of the shareholders contained the words “DocuSign”. The registry court asserted that the signatures were invalid because they were executed by “DocuSign” in the absence of the signatories. The registry court could not verify the signatures.

The Court of Appeal, on the other hand, considered the electronically created minutes of the shareholders' meeting to be sufficient. Pursuant to § 39 section 2 of the German Limited Liability Companies Act (GmbHG), the documents must be enclosed with the registration application in the form of an original or a certified copy. If an original or a simple copy is to be submitted or if the document is to be in writing, it is sufficient to submit an electronic record pursuant to § 8 section 5 of the German Limited Liability Companies Act (GmbHG) in conjunction with § 12 section 2 of the German Commercial Code (HGB). In the opinion of the Court of Appeal, this does not mean a paper-based source document. The creation of a document that could be permanently reproduced would be sufficient. The Court of Appeal also did not take into account the objection of the registry court that the authenticity of the signatures could not be verified. In principle, in the case of signatures that have not been certified, their authorship is not to be clarified in the commercial register proceedings.

In register practice, it is often observed that applications for registration in the commercial register are rejected on the basis of the electronic signature. In many cases, the registry courts continue to require handwritten signatures by the shareholders. In this context, the requirement of notarial signature certification for the register application must be observed despite numerous formal simplifications (§ 12 section 1 sentence 1 of the German Commercial Code - HGB). In this regard, it should be noted that public certification can also be carried out by means of video communication in accordance with § 40a of the Notarization Act (Beurkundungsgesetz).

In Italy, on the other hand, the use of the qualified electronic signature (digital signature) is very widespread, and the commercial register increasingly insists on the transmission of documents with digital signatures.

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