New statutory requirements entered into force on 1 January 2023 regarding the assurance to be given a new managing director or board member upon notification of their appointment to the commercial register.

General

When a new company is formed or the composition of its management or board changes, the appointment of the new managing director or board member needs to be notified to the commercial register.

As a basis for such notification, the law requires under Sec. 8 Para. 3 of the German Act on Limited Liability Companies [GmbH-Gesetz – GmbHG] and Sec. 39 Para. 3 GmbHG, or under Sec. 37 Para.2 of the German Stock Corporation Act [Aktiengesetz – AktG] and Sec. 81 Para. 3 AktG, respectively, that the managing director or board member give an assurance that there are no factors in their character, background or circumstances that would pose an obstacle to their appointment. The intention behind this is to ensure that the company is managed by persons suitable for this task.

If the assurance is not given correctly, this generally results in the notification to the commercial register not being accepted in the first place. Subsequent correction is, of course, possible, but takes extra time.
Some minor changes to the procedure have been made recently, which are worth knowing to prevent errors in form in making the notification.

New requirements

1. Sec. 6 Para. 2 Sentence 2 No. 1 GmbHG and Sec. 76 Para. 3 Sentence 2 No. 1 AktG

The assurance often includes the statement that the new managing director is not under conservatorship and does not require the consent of his or her conservator under any arrangement of this nature. Up to now, reference was made in this context to Sec. 1903 of the German Civil Code [Bürgerliches Gesetzbuch – BGB]. It is not clear whether this is indeed necessary because Sec. 8 Para. 3 Sentence 1 GmbHG and Sec. 37 Para. 2 Sentence 1 AktG do not expressly refer to such a requirement. But such an assurance is nevertheless normally given to be on the safe side.
Since 1 January 2023, however, this reference has to be made to Sec. 1825 BGB, because the German Act on the Reform of Guardianship and Care Law [Gesetz zur Reform des Vormundschafts- und Betreuungsrechts – VBRRefG] moves the requirements of what used to be Sec. 1903 BGB to Sec. 1825 BGB with effect from 1 January 2023.

2. Sec. 6 Para. 2 Sentence 2 No. 3 d) GmbHG and Sec. 76 Para. 3 No. 2 and Sentence 3 AktG

Another requirement used to be that the managing director or board member concerned had to confirm that they had not committed any criminal acts as referred to in Sec. 313 of the German Transformation Act [Umwandlungsgesetz – UmwG]. The German Act transposing the EU Transformation Directive, expected to enter into force in late February 2023, transfers Sec. 313 UmwG in its entirety to Sec. 346 UmwG.

That means that, in order to comply with the statutory requirements, reference will then have to be made to Sec. 346 UmwG.

3. Sec. 6 Para. 2 Sentence 2 No. 2 and Sentence 3 GmbHG and Sec. 76 Para. 3 Sentence 2 No. 2 and Sentence 3 AktG

Most recently, the transposition of the EU Digitalisation Directive added Sec. 6 Para. 2 Sentence 3 to the GmbHG and Sec. 76 Para. 3 Sentence 3 to the AktG. These provisions expand the assurance that the new managing director is not banned from his or her profession to include bans from profession which may be in place in the EU and the EEA.

Although they are already included in the wording of the respective Act, these two provisions will only enter into force on 1 August 2023 (Art. 11 Para. 1 of the Introductory Act to the German Act on Limited Liability Companies [Einführungsgesetz zum GmbH-Gesetz – EGGmbHG] and Art. 26m of the Introductory Act to the German Stock Corporation Act – Einführungsgesetz um Aktiengesetz – EGAktG]).

Practical note

As long as it is not certain when exactly the notification to the commercial register will be submitted, it may be advisable to make the assurance already in the expanded form described above as a matter of precaution.

Moreover, experience has shown that templates that are available for free are often used for notifications to the commercial register. If such templates are to be used, they should be thoroughly reviewed, checked as to whether they are up to date and adapted, if necessary.

This can help prevent (unnecessary) delays in notifications to the commercial register.