The adaptation of the Directive on the digitization of companies 2019/1151: the German example –

By Segismundo Álvarez

The Directive (EU) 2019/1151 of June 20, 2019, which modifies Directive (EU) 2017/1132 states that its primary targets are two: to permit the creation of firms and branches electronically or on-line and “Present complete and accessible data on firms” additionally via digital means, increasing the data that should be supplied freed from cost and bettering the interconnection between registries. As it’s pending transposition in Spain, it’s of particular curiosity to have a look at what’s being achieved in neighboring international locations. I’ll give attention to Germany, which has already printed an in depth transposition legislation, and on the side of the web structure, though there is no such thing as a doubt in regards to the significance of the implementation of the second (public and free entry to the basic data of the Mercanti Registryl) which German legislation additionally regulates.

The Directive requires that on-line incorporation be allowed, which consists in making it doable to determine an organization with out the necessity for bodily presence earlier than any authority or for the submission of paperwork on paper that (recital 15, articles 13.octies.1 and 13 .undecies). From there, it leaves Member States free to keep up each their substantive and formal constitutional techniques. In relation to the latter (that are what considerations us right here) artwork. 13.quater.1 permits States

“Designate any particular person or physique licensed by advantage of nationwide legislation to take care of any side of the web incorporation of firms”

and signifies that they don’t seem to be modified

“The procedures and necessities established in nationwide legislation, together with these regarding the authorized procedures for the granting of the devices of incorporation”.

The Directive additionally expressly admits the notarial intervention in stated structure: article 13.quater.1 leaves the intervention of

any particular person or physique licensed below nationwide legislation to take care of any side of on-line firm formation

and 13.octies. 4, 13.nonies and 13.undecies expressly consult with the actions of notaries. Thought-about 20 explains that the idea for this intervention is

fight fraud and company hacking, and provide ensures on the reliability and credibility of paperwork and knowledge contained in nationwide registers… To this finish, Member States must be empowered to require the participation of notaries or attorneys at any stage of on-line procedures”.

To keep away from any doubt, article 13.nonies insists that notarial intervention might also be required when normal statutes are used.

Nevertheless, the upkeep of the notarial operate can’t be achieved within the typical manner to date in all Latin notaries, which is that of the bodily presence of the grantors earlier than a notary. This look serves for the latter to establish them, decide their capability, learn the deed giving the mandatory explanations to ensure their knowledgeable consent, and signal of their presence to present that consent. What occurs is that the present cutting-edge already permits these actions to be carried out in an equal strategy to the face-to-face, as defended by González Meneses and myself. here and has been accepted by the legislator in relation to the meeting minutes. However undoubtedly that means adjustments in notarial and business laws, and because of this the norm accredited in Germany, the Law for the implementation of the digitization guideline (DiRUG) (Regulation for the implementation of the digitization guideline) printed on August 13. The German system, just like the Spanish one, requires the incorporation of firms in public deed, and that’s the reason the norm basically modifies the Regulation regulating genuine paperwork (Notarization Act). The Restricted Legal responsibility Corporations Regulation can also be modified, admitting, on the one hand, a simplified structure with normal statutes and, on the opposite, specifying the incorporation with out bodily presence, topic to the notarial laws, just for restricted firms with contributions in money, however each for the simplified as for the others.

The traits of this distant granting

are as follows:

Notarial grant by videoconference: It appears clear that the upkeep of the notarial operate requires direct interplay with a view to perform the identification, capability judgment and recommendation actions which are inherent to that operate. It’s curious that the interval of adaptation of the Directive has coincided with the pandemic, throughout which we have now seen what number of actions for which presence was thought of important, from work within the workplace to educating, have been carried out via a digital presence. Subsequently, the looks earlier than a notary is maintained, nevertheless it turns into digital. The legislation gives that it’s achieved via the videoconferencing system operated by the Federal Chamber of Notaries (equal to the Basic Council of Notaries) to ensure safety and confidentiality in communications.

Digital and “face-to-face” identification: The primary drawback posed by the notarial look by video convention is that of correctly figuring out the signatories. The Directive, on the one hand, establishes the necessity to admit identification via sure technique of digital identification however admits the potential of including controls. German laws make use of this risk, establishing a double stage of identification:

Digital identification itself: the Directive (artwork. 13.ter) obliges States to confess digital identification techniques that meet the necessities of artwork. 6.1 of Regulation 910/2014, and so does the DIRUG, which admits digital identification via the German DNI (artwork. 16c.1) or an identification that complies with stated article 6 and has a excessive stage of safety (the safety ranges are outlined in artwork. eight of Regulation 910/2014). The conclusion could be that the Member States should admit technique of digital identification of different members of the identical stage that they require for their very own nationwide digital identification techniques for the incorporation of firms. It should be taken into consideration that there’s solely the duty to confess purposes from nationals of Member States and never from third international locations.

Identification by the notary: along with offering this digital identification, the notary can also be required to establish the particular person by advantage of the {photograph} that’s recorded electronically saved within the passport or nationwide id doc of the showing occasion. After all, this requirement isn’t crucial if the notary is aware of the showing occasion (artwork 16.c.2)

It’s also admitted that in the identical doc some showing events act remotely and others in particular person (artwork, 16.e which speaks of “hybrid” identification).

This identification supposes the upkeep of the traditional notarial controls. That’s the reason artwork. 16.a.2 says that the notary the notarial identification by video if he can’t fulfill his authorized obligations, specifically if he can’t arrive on the certainty of id or has doubts in regards to the capability of the grantor. It must be famous that that is expressly allowed within the Directive, which permits bodily presence to be requested in circumstances of doubt about id or capability.

The illustration: It’s logically allowed that the showing events attend represented however the copy of the ability of lawyer shall be integrated into the doc.

The documentary facets: digital writing

The issue of distance motion isn’t solely substantial (as it’s recognized, judges the capability and advises) but in addition formal or documentary, that’s, a mirrored image of that motion, since there can now not be a single bodily deed that’s signed by all showing. That’s the reason most of DIRUG is devoted to those facets.

The articles of incorporation: the artwork. 16.b establishes that there shall be an digital doc of the proceedings, making use of the norms of the notarial acts of the assembly of firms, which in Germany are formalized earlier than a notary public. Making use of this to the Spanish case, wherein not a gathering minutes are learn and signed however a deed wherein the manifestations of will are made and the statutes are accredited, it appears clear that the concept is to keep up the documentary kind, however not in paper however as an digital doc. That’s, a deed shall be written in digital format, and the overall circumstances granted by videoconference may even be recorded. The place of grant would be the domicile of the notary.

This doc, like all deed, should be signed by the events, on this case with an digital signature (artwork. 16.b.4) and by the notary together with his notarial digital signature. It’s also supplied (artwork.16.b.5) that the notary be requested to ship the digital doc previous to signing, which in my view would be the regular manner of performing.

Different articles additionally take care of modifications to digital paperwork, the conservation of the signed digital doc and its equivalence to the paper matrix (artwork. 45) and the doable reconstruction whether it is destroyed (artwork. 46).

The Regulation of notarial territorial competence can also be handled, permitting the deed to be licensed by a reliable notary on the domicile of the corporate or of any of the companions.

The legitimation of notarial signature: DIRUG additionally regulates the legitimation of digital signatures, which can even be fascinating for our functions since it’s doubted right now whether or not paperwork may be made public when the certification of the company settlement is signed with an digital signature. The DIRUG choice is that it may be legitimized solely whether it is ratified by the signer within the presence of the notary or by videoconference. Within the latter case, the notary should establish the one who acknowledges the signature by prior information or by an official doc within the kind seen earlier than.

In Italy

the Directive was additionally transposed. On this case, on April 20, a Delegation Law which establishes the next standards to be adopted by the Authorities for the variation of the Directive: the applying solely to restricted firms with contributions in money and that in any case it’s required “Licensed public deed via using a platform that permits videoconferencing and the signing of the doc with a acknowledged digital signature. “ Subsequently, a regulation much like that established in Germany may be anticipated, whereby the Italian notary, as he does normally at present, may even personally perform id, capability and knowledgeable consent management and digital signature through videoconference. of the writing.

To finish

It must be famous that each international locations have adopted a cautious stance, choosing the minimums required by the Directive: solely firm formation, solely restricted firms and solely with contributions in money. As well as, in Germany the entry into pressure is postponed to August 1, 2022 to permit the mandatory technical variations. Prudence appears cheap as a result of though within the present cutting-edge distant notarial motion is feasible with out lack of its important parts, difficulties will undoubtedly come up and it’s good that there’s a restricted check mattress. Alternatively, the reality is that videoconferencing isn’t completely equal to bodily presence, so it appears higher to proceed demanding it for acts with particular private significance (will, household) and doubtless additionally for these wherein the events have conflicting pursuits that will require some sort of negotiation, as is the case in most contracts.

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