The appointment of the managing director of a GmbH

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The Geschäftsführer (managing director) is the legal representative and management body of a Gesellschaft mit beschränkter Haftung, ususally abbreviated as GmbH (German equivalent to a company with limited liability).

He is appointed in a resolution by the shareholders’ meeting of the GmbH. If a GmbH is newly established, the appointment is usually made by the shareholders’ meeting at the act of formation before the notary.

Registration of the new Geschäftsführer

Once the appointment has been made, the Geschäftsführer must be registered with the commercial register in publicly certified form (usually by the notary).

The Geschäftsführer must also be legally eligible for his future office. The law provides for several grounds for ineligibility – the so-called negative conditions of eligibility: For example, the Geschäftsführer cannot have been convicted of certain criminal offences (including insolvency offences).

In order to be appointed, the Geschäftsführer is obliged to provide information about this to the registry court, about which he is also instructed in advance by the notary. In addition, he or she must emit a highly personal written assurance that he or she is not subject to any negative conditions of suitability.

Registration of a Geschäftsführer living abroad

The Geschäftsführer does not necessarily have to be a German citizen, may also reside abroad and does not have to travel to Germany for his or her appointment.

In order to ensure the aforementioned obligation to provide information to the registry court and to ensure the highly personal insurance, there are various ways:

  • The Geschäftsführer can be instructed personally in Germany by the notary and provide the assurance there.
  • The declaration can be made before the competent consular officer abroad with his or her signature certified. The consular officer can also carry out the necessary instructions.
  • In addition, the German notary can send the instruction by mail to the managing director living abroad. The latter signs the instruction form and thereby confirms that he or she has taken note of the contents of the document (the instruction) and that there are no negative conditions of eligibility (= assurance). This assurance must be made by means of separate signature certification before a notary public or a comparable office abroad. As a rule, the certification must also be provided with a so-called apostille, which, among other things, confirms the authenticity of the signature. This is a form of certification in international document transactions and is used in legal transactions between states that are members of the multilateral Hague Convention (most countries have ratified the convention)

As soon as the Geschäftsführer has been instructed (in writing) and has submitted the insurance declaration, he or she can then be registered in the commercial register.

Do you have any further questions on the subject of managing directors and the appointment of managing directors? Contact us!

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