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Dirk Janzen, MBA

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Fon: +49 (0)30 280 478 60

Email: info@janzenlegal.com

EVERYTHING YOU NEED TO KNOW TO ENTER THE GERMAN AND EUROPEAN MARKET

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To form a German GmbH various documents have to be drafted, signed by the Founder(s) and Managing Director(s), notarized and forwarded to the German Commercial Register in order to register the new company. In case the Founder(s) and Managing Director(s) of the GmbH to be set up do not wish to come over to Germany for that process, the documents can as well be signed in front of a foreign notary at their country of residence. However in this case the notarized documents need further certification from local foreign or German authorities in order to be accepted by the German Commercial Register. In this article we specify the requirements for a company formation from abroad and the various legal forms of document certification required for different countries.

For the formation of a German GmbH various documents have to be drafted, signed and notarized no matter if the Founder(s) or Managing Director(s) come to Germany for the formation process or whether they prefer to form the company from abroad through an attorney.

 

In case the GmbH is formed by a foreigner from abroad the Founder has to be represented by an attorney at the formation process in front of a German notary. The Power of Attorney required for this purpose has to be notarized. Further after the formation the new GmbH has to be registered with the German Commercial Register. The application for registration with the German Commercial Register has to be signed by the new Managing Director(s) of the GmbH and requires notarization as well.

 

Such notarization of the Power of Attorney and Commercial Register Application can be performed by a foreign notary as well however in this case notarized Power of Attorney and Commercial Register Application need to be certified by German or local-foreign authorithies, at least in most cases. With regards to such certification it is distinguished between an Apostille and Legalization.

 

The Apostille and when it is required

 

An Apostille is required in case the country in which the document has been notarized is a member of the Hague Convention on abolishing the requirement of legalisation for foreign public documents. Countries that are members of that Conventation are for example the United Kingdom, the United States, Australia, Hongkong or Japan.

 

However Germany has raised an objection regarding the membership of some of the countries that are official members of the Hague Convention and therefore does not accept Apostilles from these countries, e.g. from Albania or Mongolia. So in these cases an Apostille is not sufficient but Legalization is required.

 

An Apostille is issued by the local authorities of the country in which the (notarized) document has been issued. So for example in case a Power of Attorney for the formation of a GmbH has been notarized in the United Kingdom the British authorities issue an Apostille which proves to the German authorities that the document is authentic.

 

The Legalization and when it is required

 

Countries that are not a member of the named Hague Convention (or in case Germany has raised an objection regarding the membership of some of the countries that are official members of the Hague Convention and therefore does not accept Apostilles from these countries as described) documents issued in such countries require Legalization.

 

Other than an Apostille the Legalization is issued by the German representative authorities in the foreign country in which the document to be certified was issued. Most of the times this is the German Embassy in that country. For example if a Commercial Register Application to form a German GmbH has been notarized in Algeria that document requires Legalization which is issued by the German Embassy in Algeria. This prooves to the German Commercial Register that the document  (the notarized signature) is authentic.

 

However concerning some foreign countries the German authorities generally responsible for performing the Legalization do not issue Legalizations due to a lack of trust in foreign documents from these countries. Countries where no Legalization by the German authorities is possible are for example Afghanistan, Azerbaijan or Cambodia. In this case it has to be examined if a notarization of the signatures of the Founder(s) and Managing Director(s) of the GmbH to be set up can be performed by the German Embassy directly though that requires travelling there.

 

Countries for which neither Apostille nor Legalization are required

 

Lastly in some cases the German law does not require foreign documents to be apostilled or legalized. With some foreign countries such as France, Italy or Belgium, Germany has specially close relationships and because of that the documents from these countries do not require to be apostilled or legalized but have to be accepted by German authorities as they are.

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