Cybersecurity and Online Formation of Companies in the Netherlands, Belgium, and Germany

Salemink Tom (), Wolters Pieter () and Hans De Wulf ()
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Salemink Tom: Tom Salemink is Associate Professor of Company Law at the Radboud University, Radboud Business Law Institute. Pieter Wolters is Associate Professor of Private Law at the Radboud University, Radboud Business Law Institute. Hans De Wulf is Professor of Company Law at Ghent University, Financial Law Institute.Radboud UniversityRadboud Business Law InstituteNijmegenNetherlands
Wolters Pieter: Radboud University Radboud Business Law Institute Nijmegen Netherlands
Hans De Wulf: Ghent University Financial Law Institute Gent Belgium

European Company and Financial Law Review, 2024, vol. 21, issue 1, 67-103

Abstract: 67Within the European Member States, it should now be possible to establish a limited liability company fully online. This study compares how the Directive which mandates online formation, has been implemented in the Netherlands, Belgium, and Germany. In particular, it examines whether and, if so, how these countries approach the various cybersecurity risks involved in online formation. The Directive considers these cybersecurity risks, however, the focus is mainly on the requirements regarding the availability of online formation and to a lesser extent the requirements pertaining to the authentication of the founders, as well as the authenticity and integrity of electronic documents. The primary emphasis of the Directive is strongly placed on achieving the objective of facilitating easier, quicker, and more time- and cost-effective company formation. The approach taken by the Netherlands, Belgium, and Germany in implementing the Directive and enabling online formation demonstrates a notable level of similarity. All have made sure to safeguard the traditional role of notaries in company formation in these countries. Despite the Directive’s emphasis on availability, the primary concern for these Member States lies in ensuring the security of online formation. All impose strict requirements regarding cybersecurity and opted for the highest standards regarding authentication (assurance level ‘high’) and authenticity (qualified electronic signatures).

Date: 2024
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DOI: 10.1515/ecfr-2024-0003

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