Commercial register and register of associations
Before founding a company, you should first seek tax advice from a tax consultant or a lawyer for tax law as to which form of a German company is most suitable for your purposes - also from a tax law perspective. At the IHK (Chamber of Industry and Commerce) website you will find an overview of the GmbH and the UG (limited liability company), also in English.
We will only make appointments for the formation of a GmbH or a UG after we have received all the information required for preparation.
For both the GmbH and the UG it is possible to use the so-called "Musterprotokoll" according to the annex to § 2 section 1a GmbHG for the formation if up to three shareholders and one managing director are involved.
However, we only recommend using the „Musterprotokoll“ if only one person is to be permanently involved in the company.
If there are several partners, we do not recommend using the „Musterprotokoll“, as it does not contain any regulations on the relationships between the partners. For example, each shareholder can sell his or her share to a third person without the consent of the other shareholders.
Furthermore, in the event of a change in management, the newly appointed managing director(s) can no longer be exempted from the restrictions of § 181 BGB, so that they can no longer conclude legal transactions with themselves and as the representative of a third party. If another managing director is added, the first managing director is also no longer authorised to represent the company alone, so that both can only act jointly.
Only with an individual shareholders' agreement is it possible for you to make binding agreements on important regulations and aspects - especially in the event of a dispute. The provision of a shareholders' agreement is included in the notarisation fee, whereby it is adapted to the individual needs of your company.
For the preparation of the formation of a GmbH (limited liability company) or a UG (limited liability partnership) we require (regardless of whether it is formed with a „Musterprotokoll“ or with "ordinary" articles of association):
- Telephone number for queries
- (all) first names and surnames, addresses, dates of birth and places of birth of all partners and all managing directors
- Description of the company's purpose
- Name of the company
- Business address of the company
- Amount of share capital and which shareholder is taking over which shares (and in the case of the formation of a limited liability company, whether the share capital is already paid up in full or in the amount of 12,500 euros at the time of formation)
- Information as to whether the managing director has a criminal record. If so, why (criminal records which no longer appear on the criminal record must also be stated).
All participants must be able to speak German or English, otherwise an interpreter (who must not be related to any of the participants) must be brought along, whose personal data we also need for the preparation of the formation. If the deed needs to be translated into English, we ask for a note to that effect. This can be done by the notary, but additional fees will be charged.
We would like to point out that the name and purpose of the company should be clarified in advance with the Chamber of Industry and Commerce (IHK) in order to avoid problems during registration.
The dissolution of a GmbH or a UG (haftungsbeschränkt) is effected by a resolution of the shareholders. This resolution does not need to be notarised. The way in which you as shareholders can pass resolutions is set out in your articles of association. Of course, we can also draft a corresponding resolution for you, but this is subject to a fee.
The resolution must state when the dissolution will take place. Furthermore, you can appoint a liquidator (or liquidators). If you do not do this, the last managing director(s) is/are deemed to be the "born" liquidator(s) according to § 66 GmbHG.
It should be noted here that the specific power of representation of the previous managing director(s) does not automatically apply to the liquidation. As long as there is only one liquidator, this is usually unproblematic. However, any exemption from the restrictions of § 181 BGB granted to the managing director does not continue to apply, so that it is not possible for the liquidator to conduct business with himself/herself as a private person or representative, e.g. of another company, on the one hand and the liquidation company on the other. This can be a problem if assets from the liquidation company are to be transferred to the liquidator as a private individual in the course of the liquidation. Such a transfer would then not be effectively possible without exempting the liquidator from the restrictions of § 181 BGB.
In order to be able to grant the liquidator this exemption from the restrictions of § 181 BGB - or, if there are several liquidators, the authorisation to always represent the company individually - there must be a corresponding provision in the articles of association granting these possibilities of exemption.
The dissolution and - if it has taken place - the appointment of the liquidator is then registered with the registry court. Thereafter, the liquidator must publish the so-called "call for creditors" in the electronically maintained „Bundesanzeiger“ at www.bundesanzeiger.de. This is the call to any existing creditors. This is an appeal to any existing creditors of the company to contact the liquidator regarding any outstanding claims against the company. With the publication of the call for creditors in the electronic „Bundesanzeiger“, the so-called "blocking year" is set in motion, which is intended to give the creditors the opportunity to assert claims before the liquidation of the company. Only after the expiry of this blocking year can the final cancellation of the company be filed with the registry court - provided that the liquidation has been completed in its entirety, all tax matters have been clarified and the bank account has been closed.
In order to prepare the application for dissolution and, if applicable, the appointment of the liquidator(s), we need: the name of the company, the dissolution resolution and the personal data of the managing director who will sign the application before the notary, as well as a call-back number.
In order to prepare the application for the final cancellation of the company (after the end of the blocking year), we require the name of the company, proof of the publication of the call for creditors in the electronic „Bundesanzeiger“ and the personal data of the managing director who will sign the application before the notary public as well as a call-back number.
If the company already has no assets when the application for dissolution of the company is filed with the commercial register because all existing claims of creditors against the company have already been liquidated and the remaining assets have been distributed to the shareholders, the commercial register will usually also accept an application for cancellation of the company without a blocking year..
However, this is only the case if the liquidator can truthfully affirm the following in the corresponding application to the commercial register: "The liquidators affirm that the company has no assets because the company's assets have been exhausted by distribution to the creditors, a distribution or payment to the shareholders via an ordinary distribution or distribution to the creditors has not been made. The liquidators affirm that the company is without assets because the company's assets have been exhausted by distribution to creditors, no distribution or payment has been made to the shareholders beyond an ordinary profit distribution plan, the shares have been paid up in full, no legal proceedings are pending against the company, there is no case of insolvency or over-indebtedness of the company, the company is not the owner of real property or rights equivalent to real property, the company is not a shareholder in other companies, no assets required to maintain the share capital have been paid out to the shareholders in the last ten years."
In order to prepare the application for the final deletion of the company without a blocking year, we require the name of the company, the declaration of the liquidator that the aforementioned requirements for deletion without a blocking year are met, the personal data of the managing director who will sign the application before the notary and make the aforementioned declaration, and a call-back number.
A change of the business address must be registered with the registry court. You should only do this if the company can already be reached by post at the new address.
To prepare the application we need the name of the company, the new address and the personal data of the managing director who will sign the application before the notary (in a number authorised to represent the company).
Both the transfer of shares (assignment) and the obligation to make such a transfer (e.g. in the context of a sale or a gift) must be notarised. You should check in advance whether your articles of association provide for pre-emption rights or other restrictions on the disposal of shares.
In principle, we require the following documents for the preparation of these deeds - irrespective of whether you wish to transfer shares by way of gift or by way of sale:
The name of the company, the personal data of the seller/donor, the personal data of the buyer/donor or the buyer/donor as well as information on whether the company is the owner of real estate and information on the economic value of the company. If necessary, the most recent annual financial statement can be used to determine the economic value of the company.
In the case of a sale, we also require information on the amount of the purchase price and whether it is to be paid immediately or at a later date.
Amendments to the articles of association (= amendments to the memorandum and articles of association) must be notarised in shareholders' meetings. If all partners appear at the notarisation meeting, this can be done by waiving the deadlines and forms stipulated in the articles of association. Otherwise, the date of notarisation would first have to be coordinated and then the shareholders' meeting would have to be convened at the notary's premises in due time and form and in compliance with the provisions of your articles of association.
After the resolution has been passed, the amendment to the articles of association must be registered with the commercial register by the managing director(s) in the number authorised to represent the company.
In order to prepare both documents (resolution to amend the articles of association and application to the commercial register), we need the name of the company, the personal data of all shareholders, information on which provisions in the articles of association are to be amended and how, and the personal data of the managing director who will sign the application before the notary.
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