This article is also available in German. Click here to read the German version.
What is a certificate of existence and representation?
A certificate of existence and representation (Existenz- und Vertretungsbescheinigung) is a document that confirms the legal existence/good standing of a company and the authority/powers of its representatives to act for and on behalf of it.
Why might you need a certificate of representation?
Whenever a company engages in a legal transaction in Germany, it is normally necessary to demonstrate its existence and the legal authority of its representatives. This is particularly true for issues involving a public register (s. 378(1)1. of the German Family and Civil Matters Act), e.g. the registration of a new director or the amendment of a company’s articles of association in the commercial register (s. 12(1) of the German Commercial Code). It is equally necessary to provide a certificate of representation for the German land register whenever a proprietary right granted in favour of a company is to be extinguished or amended (s. 873 et seq. of the German Civil Code)
In the case of a German company, the evidence can often be provided in the form of a (certified) extract from the commercial register or a notarial certificate issued pursuant to s. 21 of the German Notaries Ordinance. However, the situation is more complicated for an English limited company (or its related forms, such as an LLP, a PLC or an LP). Unfortunately, owing to the Registrar’s acceptance of documents for filing in good faith and on account of the fact that the register contains no information about a director’s individual signing authority, it is not possible simply to produce an extract from Companies House by way of proof, nor can one rely on a notarial certificate issued by a German notary in accordance with s. 21 of the German Notaries Ordinance.
There are, therefore, two possibilities to demonstrate the existence of an English company and the powers of its director to bind it:
- If the signatory is a director, and the articles contain appropriate provisions about the execution of documents, then the evidence can be supplied through production of the articles and, if necessary, the minutes showing that director’s appointment; or
- Equally, though, an English notary may issue a certificate of representation to confirm the existence of a company and the authority of its representative(s) to bind it.
Option 1 is not generally advisable because there are high costs associated with translating the, often lengthy, articles of association and other documents into German (pursuant to s. 184 of the German Courts Constitution Act, the official language of proceedings in Germany is German). So, it is recommend to seek assistance from an English notary.
Overview of case law relating to certificates of existence and representation for a UK limited company
German judges are continually revising and refining the requirements for notarial certificates of representation. As a general rule, however, such a certificate must be based on an inspection of the company’s memorandum, articles of association and minute book (Berlin Appellate Court, Decision of 20th April 2010, Case No. 1 W 164-165/10). The length of time a certificate of representation is valid varies from case to case, although it should not normally be more than six weeks old from the date it is issued (District Court of Berlin, Decision of 3rd February 2003, Case No. 86 T 325/03; Upper District Court of Dresden, Decision of 12th April 2010, Case No. 17 W 306/10).
Despite the fact that, under German law, a certificate issued by an English notary is considered a public act [‘öffentliche Urkunde‘] within the meaning of s. 415(1) of the German Civil Procedure Rules, a certificate of existence and representation produced by an English notary is not equivalent to one issued by a German notary pursuant to s. 21(1) of the German Notaries Ordinance. This is because it does not simply reproduce verbatim information found in the commercial register (after all, Companies House does not record details of a director’s signing authority); rather, it contains conclusions drawn by the notary about an individual’s authority to represent the company. For this reason, the certification issued by an English notary is treated as a “legal opinion” and, as such, must contain “justified reasons for the assessment made by the notary” in order that the registrar may consider the evidence to reach his or her own conclusion (Upper District Court of Nuremberg, Decision of 25th March 2014, Case No. 15 W 381/14).
Our notaries are very familiar with the strict requirements of German registrars and regularly issue certificates of existence and representation that satisfy them.
Contact us today to discuss how we can help or click here to find out more about the services we offer for the German-speaking market.