Keeping your distance and avoiding meetings are the order of the day. We are also constantly working to avoid the need to physically visit a notary (e.g. to notarize a signature). Physical contact has no longer been required to form a GmbH since 2019.
The GmbH Act stipulates that a partnership agreement must be drawn up in the form of a notarial deed as part of the formation process. For this purpose, the notary must read out the text of the agreement in the simultaneous presence of all shareholders (or their authorized representatives). Since 01.01.2019, a GmbH can also be established using an electronic communication option (Section 69b NO). Since then, the presence of all shareholders before the notary is no longer mandatory.
However, the notary must also be able to establish and verify the identity of the persons involved in such a company formation. This must be done “by means of an official photo ID using a video-supported electronic procedure”. Furthermore, this is possible “by means of a procedure provided for by law with which the same information is made available in a secure manner as with the presentation of an official photo ID (electronic ID)”.
The guidelines of the Austrian Chamber of Notaries regulate the more detailed technical requirements for these procedures. The image and sound quality of the technical aids used must ensure that it is possible to establish the authenticity of the official photo ID, visually check the party and the official photo ID itself, record the conversation acoustically and make a screen copy.
The shareholders receive an invitation (by email and cell phone) to register via the Videoident procedure and confirm their identity using an official photo ID. Once registration has been completed, the notarial deed is drawn up in the same way as for a normal formation. The notary reads out the text of the contract using an optical and acoustic two-way connection in real time (video conference). If the connection is temporarily interrupted, the notary must pause the drafting of the notarial deed and only continue when the connection is fully restored.
In accordance with § 3 of the Notary E-Identification Ordinance, a screenshot of the parties’ faces must also be taken. In addition, the audio must be recorded for the entire duration. The stored data must be secured in such a way that it cannot be viewed or altered by third parties.
To date, only a few notary’s offices are equipped with the technical tools to carry out an online incorporation. If you are interested in founding a company in this way, please contact us. In addition to advice on drafting the contract, we also take care of the organization and selection of the appropriate notary. Send us a written request to office@toplaw.at or call us on 01/505 77 00.