Online formation of companies

1. Member States shall ensure that the online formation of companies may be carried out fully online without the necessity for the applicants to appear in person before any authority or person or body mandated under national law to deal with any aspect of the online formation of companies, including drawing up the instrument of constitution of a company, subject to the provisions laid down in Article 13b(4) and paragraph (8) of this Article.

However, Member States may decide not to provide for online formation procedures for types of companies other than those listed in Annex IIA.

2. Member States shall lay down detailed rules for the online formation of companies, including rules on the use of templates as referred to in Article 13h, and on the documents and information required for the formation of a company. As part of those rules, Member States shall ensure that such online formation may be carried out by submitting documents or information in electronic form, including electronic copies of the documents and information referred to in Article 16a(4).

3. The rules referred to in paragraph 2 shall at least provide for the following:

the procedures to ensure that the applicants have the necessary legal capacity and have authority to represent the company;

the means to verify the identity of the applicants in accordance with Article 13b;

the requirements for the applicants to use trust services referred to in Regulation (EU) No 910/2014;

the procedures to verify the legality of the object of the company, insofar as such checks are provided for under national law;

the procedures to verify the legality of the name of the company, insofar as such checks are provided for under national law;

the procedures to verify the appointment of directors.

4. The rules referred to in paragraph 2 may, in particular, also provide for the following:

the procedures to ensure the legality of the company instruments of constitution, including verifying the correct use of templates;

the consequences of the disqualification of a director by the competent authority in any Member State;

the role of a notary or any other person or body mandated under national law to deal with any aspect of the online formation of a company;

the exclusion of online formation in cases where the share capital of the company is paid by way of contributions in kind.

5. Member States shall not make the online formation of a company conditional on obtaining a licence or authorisation before the company is registered, unless such a condition is indispensable for the proper oversight laid down in national law of certain activities.

6. Member States shall ensure that where the payment of share capital is required as part of the procedure to form a company, such payment can be made online, in accordance with Article 13e, to a bank account of a bank operating in the Union. In addition, Member States shall ensure that proof of such payments can also be provided online.

7. Member States shall ensure that the online formation is completed within five working days where a company is formed exclusively by natural persons who use the templates referred to in Article 13h, or within ten working days in other cases, from the later of the following:

the date of the completion of all formalities required for the online formation, including the receipt of all documents and information, which comply with national law, by an authority or a person or body mandated under national law to deal with any aspect of the formation of a company;

the date of the payment of a registration fee, the payment in cash for share capital, or the payment for the share capital by way of a contribution in kind, as provided for under national law.

Where it is not possible to complete the procedure within the deadlines referred to in this paragraph, Member States shall ensure that the applicant is notified of the reasons for the delay.

8. Where justified by reason of the public interest in ensuring compliance with the rules on legal capacity and on the authority of applicants to represent a company, any authority or person or body mandated under national law to deal with any aspect of the online formation of a company, including the drawing up of the instrument of constitution, may request the physical presence of the applicant. Member States shall ensure that, in such cases, the physical presence of an applicant may only be required on a case-by-case basis where there are reasons to suspect non-compliance with the rules referred to in point (a) of paragraph 3. Member States shall ensure that any other steps of the procedure can nonetheless be completed online.

DIRECTIVE (EU) 2019/1151 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 June 2019 amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law ANNEX ‘ANNEX IIA