As early as next year, even under our conditions, it should be possible to establish a limited liability company, possibly also a joint-stock company, or to register a branch fully online, i.e. without the need for a physical presence at any office, notary or bank. In the same way, z should be able to handle "from the comfort of home" the change of data entered in the commercial register or the creation of documents in the collection of documents.
The Czech Republic and the other EU member states are obliged to incorporate the so-called EU digitalization directive (directive no. 1/2021) into their legal systems by August 2019, 1151 at the latest.1. The Digitalization Directive is part of the so-called EU corporate law package from 2018; this is a directive that amends and supplements directive no. 2017/1132 on some aspects of corporate law.
The goal of the digitization directive is to facilitate the creation of companies and the registration of branches in the register, thereby reducing the costs, time and administrative burden associated with these procedures, especially for micro and small and medium-sized enterprises.
In the Czech Republic, the online creation of a company will certainly concern a company with limited liability. However, a still relevant question is whether it will be possible to establish a joint-stock company online in the future, as the directive allows the Czech legislator to exclude its online establishment. The preamble to the directive cites the complexity of establishing this type of capital company as a reason.
Whatever the Czech Republic decides in this direction, it will have to establish not only detailed rules for the online creation of companies, but also on the website of the so-called unified digital gateway2 provide patterns of founding legal proceedings3, as well as all other EU member states for the types of companies created in individual states. Founders of companies should be able to choose between the use of the given model and the use of individualized founding legal proceedings. Member States will have the obligation to publish these models also in an official EU language that is understandable to the largest possible number of cross-border founders (especially in English). The Czech Republic can then decide whether it will allow the establishment of companies using templates in languages other than Czech. If the founders of the corporation use these models, it should be considered as a fulfilled requirement to have the founding legal act drawn up in the form of a public document (i.e. notary record). The mentioned measures will thus significantly simplify the establishment of a company even for cross-border founders in another member state. If then specific companies will be established exclusively by natural persons who will use the mentioned templates for establishment, the establishment of the company online will have to be completed within five working days, in other cases this period will be ten working days.
As for so far participation of notaries on the company formation process, so it should be preserved even in the case of an online procedure. In particular, with the aim of preventing fraudulent actions, it will be necessary to reliably verify the identity of the founders and the legal capacity of persons who want to establish a company or enter a branch in the register. In this context, a draft amendment to the notary code is already being discussed in the Czech Republic4 towards the revolutionary electronicization of notary. According to the proposed amendment, in the future, notaries should be able to make electronic notarial records remotely, i.e. without the physical presence of the participants in the legal proceedings, about which the relevant notarial record will be drawn up. The credibility of the electronic notarial record as a public document should be ensured by using the electronic identification of the participants through a means with a high level of guarantee (e.g. an ID card with a chip), authentication through a video conference, and at the same time by attaching recognized electronic signatures of the participants and a qualified electronic signature of the notary. Unequivocal identification of the founders of business corporations using technical requirements meeting the strictest requirements according to the eIDAS regulation5 according to the government, it is necessary in order to prevent the establishment of corporations by inveterate persons, so-called white horses, and their subsequent abuse for illegal purposes (classical, e.g. tax evasion). In case of indication of fraudulent conduct, it will be possible in certain cases to require the physical presence of the founder of the company in front of a public authority. However, this should not be done systematically, but only in individual cases, such as suspicion of identity falsification by the founder, doubts about the applicant's legal capacity or his authority to represent the company; whereas all other stages of the company or branch establishment procedure should already be completed online.
In the interest of speed, the online establishment of a company, including entry in the register, should not be conditional on obtaining business authorization or license, obtaining such authorization or license should be dealt with only afterwards. This rule has an exception in the case of activities that require increased supervision by the state (e.g. banking, insurance or energy).
As regards fees for online registrations charged by the commercial register, these should not normally exceed the coverage of the costs of providing the relevant services. The mentioned fees can then be paid, for example, by credit card or bank transfer. But more importantly, it will be possible also repay the capital online, by transfer to the bank account of one of the banks operating in the EU. The Directive even allows an online procedure even in the case of repayment of the share capital by making non-monetary deposits, but member states (including the Czech Republic) can exclude this option.
The Digitization Directive also calls for the accessibility of data on registered companies to be improved by making information in the registers of individual member states accessible free of charge. Currently, registries in some EU countries charge different fees for accessing company data. The individual registers of the member states will then cooperate with the help of system of linking registers. The registers will exchange, for example, information that is relevant for the exclusion from the performance of the function of a member of the statutory body. Similarly, if a company is registered in the register of one member state and wants to register a branch in another member state, it should be possible for the company to use documents or data from the register of the state in which it is registered. In a situation where a company is formed in one Member State but has a branch in another Member State, it should be possible for the company to submit some changes to its registered data only to the register where the company is registered, without having to transmit the same data to the register where it is registered branch. Data, such as a change of company name or change of company seat, should be exchanged electronically between the register where the company is registered and the register where the branch is registered. The upcoming online incorporation and registration of companies and their branches in the commercial register, as well as online registration of changes to registered facts or the creation of documents in the collection of documents, will undoubtedly make life easier for many business entities. Entrepreneurs will thus be able to establish a business company roughly as quickly as a bank account. Currently, the process of establishing a company in the Czech Republic is quite lengthy. A personal visit to a notary is necessary in order to draw up the founding legal act, followed by a visit to the trade office and the bank. The trade office then has a deadline of 5 working days to issue an extract from the trade register, and its limited office days do not add to the speed. It is then necessary to go to the notary or to the registry court again with the extract from the trade register, the deposit administrator's confirmation that the deposit obligation has been fulfilled and other necessary documents. With the introduction of the online procedures described above, the entire procedure for establishing a business company will be significantly accelerated and simplified, and at the same time, the administrative costs associated with this procedure will be reduced. In conclusion, it should be mentioned that for entities that do not want or are unable to use this procedure for various reasons, the possibility of proceeding with the establishment of corporations by paper and face-to-face method, as before, will still be preserved.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
Comments:
[1] This deadline can be extended for objective reasons by a maximum of one year in the event that states face specific difficulties in implementing some of the directive's provisions.
[2] The Single Digital Gateway (from the English Single Digital Gateway; SDG) is a project of the European Union, which aims to create a pan-European electronic signpost and through it to simplify access to information, administrative procedures and assistance services that citizens and entrepreneurs need for their movement and activities within the European Union.
[3] The founding legal act is the articles of association for a joint-stock company, the articles of association for a limited liability company, and the memorandum of association for a company founded by a single founder.
[4] In March 358, the draft amendment to Act No. 1992/2020 Coll., on notaries and their activities (notary code), was submitted to the parliament for comments as parliamentary press 793/0.
[5] Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust-building services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
