Last year, we had already reported that the European Commission intended to digitize corporate law, planning to set up cross-border companies online. The European legislator has now adopted the amendment to the Directive as regards the use of digital tools and processes in company law (http://www.europarl.europa.eu/doceo/document/TA-8-2019-0428_EN.pdf). Online formation and registration is thus coming another step closer. From a formal point of view, the amendment of the Directive still requires the approval of the Council of the European Union, but it is unlikely that it will be rejected.
In principle, the Directive is to be transposed into national law within two years. Accordingly, Member States will have to offer the cross-border online formation of a limited liability company (GmbH) in the future. Member States are able to decide independently whether online formation will also be offered for other legal forms, such as stock corporations (AG) or partnerships limited by shares (KgaA).
It must be possible to register the companies entirely online. Consequently, it should no longer be necessary for applicants to appear in person before an agency or a notary. Only in exceptional cases should it be possible to demand the applicant's actual presence (such as where the presence is justified by reason of the public interest in preventing identity misuse or alteration) (Article 13b(4)) or in cases in which a physical presence appears necessary to ensure legal capacity and the authority of applicants to represent a company (Article 13g(8)).
The Directive also obligates Member States to ensure that all documents and information can be filed in electronic form. This also applies to proof that the share capital has been paid up. For the online formation of a GmbH, Member States must offer templates in an official...