On Wednesday 18 September, the German and Spanish notariats announced at a joint press conference that they were now ready for the creation of companies online in the context of the transposition of Directive 2019/1151 into national law.
This Directive 2019/1151 on the use of digital tools and processes in Company Law was passed in June by the European Parliament and the Council, setting August 2021 as the deadline for its transposition into national law.
The President of the General Council of the Notariat in Spain, José Ángel Martínez Sanchiz, explained this morning that “the notaries of Germany and Spain have common principles and have worked with the European Commission to prepare this Directive, within the context of the Council of the Notariats of the European Union”.
The new Directive, which allows companies to be set up entirely via remote digital channels, “is based on the involvement of notaries to guarantee legal certainty in the process; the identification and verification of the legal capacity of the entrepreneurs; impartial advice, and the prevention of money laundering, terrorist funding and tax fraud,” said Mr Martínez Sanchiz.
For his part Jens Bormann, President of the Federal Chamber of the German Notariat, referred to “the significant role that Europe’s legislators have assigned to notaries in the Directive, placing them at the heart of the online company incorporation procedure. The aim is to guarantee that companies are set up legally, so as to avoid subsequent disputes. At the same time, the reliable identification of the entrepreneur will serve to establish who is behind each company and who represents it, and will be of vital importance for inclusion in the Companies Register, since oversight of the process by a notary provides full assurances that the information is reliable and legal” Mr Bormann added.
The online process of founding a company in Spain
Once the Directive has been transposed into Spanish law, explains Mr Martínez Sanchiz, any citizen wishing to set up a company entirely online will continue to enjoy the advantages of notarial involvement in the process: legal certainty, oversight of legality, impartial advice and prevention of financial offences.
He likewise revealed that the General Council of the Notariat is already working on developing the technical resources that will allow the public instrument of incorporation of a company to be executed online. This process will include:
• Identification of the founding shareholders before the freely chosen notary by means of an electronic national identity document, in accordance with the eIDAS Regulation.
• Confirmation of the true identity of the founding shareholders by the notary by means of the details contained on the electronic national identity document and videoconferencing.
• Legal advice offered by the notary to the future business owner in a digital environment, with the content of the public instrument being agreed.
• Digital confirmation by the notary of the capital contributed to the future company.
• Electronic signature of the notarial instrument, with a digitally certified copy being sent to the entrepreneur.
• Online copy of the authentic instrument sent to the Companies Register by the notary.
In order to provide more detailed information for all those with an interest in the matter, the General Council of the Notariat has prepared an explanatory video: https://www.youtube.com/watch?v=ukhn396DBEM