Passive representation
If only a passive act is required, for example when receiving unilateral declarations of intent such as termination or contestation, but also when receiving an offer, this declaration only needs to be made known to one authorized signatory, even with general power of attorney, in order to act against the principal. The attribution then takes place according to established case law according to § 161 BGB and in analogy to §§ 26 Abs. 2 S. 2 BGB, 125 Abs. 2 S. 3 HGB, 35 Abs. 2 S. 3 GmbHG.
Restriction of the power of attorney in the internal relationship
In the internal relationship, however, the power of attorney can be restricted almost at will. For example, it is possible to give HR manager A full power of attorney so that she can act independently and legally secure vis-à-vis temporary employment agencies and the employment agency, but restrict her scope of action internally to personnel matters. If A then sells your boss’s service Porsche for 1,000 euros to the unsuspecting B, this legal transaction is effective in the external relationship. However, A then makes itself liable for damages to the company.
Who can become an authorized officer?
Any natural person with full legal capacity can be appointed as an authorized signatory. Certain professional or personal requirements as well as a certain legal relationship with the company do not have to be present. It is therefore also possible to grant a GmbH partner who, according to § 6 GmbHG or because of a trade ban according to § 35 GewO, cannot be a managing director, to grant full power of attorney. Spouses, relatives or other external employees as well as freelance employees can also become authorized signatories.
Only the members of the executive body and the members of the supervisory board are excluded from this function. The executor and the insolvency administrator cannot be authorized signatories at the same time. In addition, the general partners (full partners) of a limited partnership who are excluded from the management are prohibited from being appointed as authorized signatory.
How does an authorized signatory sign?
Authorized representatives must identify themselves as such in legal transactions. Section 51 of the German Commercial Code (HGB) stipulates that the authorized signatory, when subscribing by name, adds his own name to the company of the company he represents with an addition indicating the power of attorney. In practice, the following form is common:
“XY GmbH
Lisa Müller
Authorized Representative “
The abbreviation “ppa” (per procuration), which is placed before or after the name , is also widespread .
Who appoints the authorized signatory?
According to Section 48 (1) of the German Commercial Code (HGB), power of attorney can only be granted by the owner of the business or his legal representative. For the appointment of authorized signatories, the managing director is responsible for the GmbH and the UG, the board of directors for the companies that fall under stock corporation law and the cooperatives, and the personally liable partners for the commercial partnerships, provided they are not excluded from the management. Granting power of attorney is therefore a matter for the boss!
Sub-power of attorney
An authorized officer may not appoint another authorized officer or extend his power of attorney to another. The so-called sub-power of attorney is legally excluded in Germany.
How is the power of attorney granted and when is it effective?
Section 48 (1) of the German Commercial Code (HGB), which has already been cited, stipulates that the power of attorney can only be transferred by means of an express declaration. This means that an order by coherent action or toleration alone is not enough. Instead, the person entitled must expressly submit a declaration of appointment, which can also be made orally.
The appointment as authorized signatory is effective immediately upon submission of the declaration of appointment. The legally required entry in the commercial register (§ 53 HGB) only has a declaratory effect. Third parties who have already been informed about the power of attorney, as well as the newly appointed proxy himself, may refer to the order and rely on it.
As soon as the entry has been made, it applies to any third party, but only in the form entered. This means that business partners may not assume that an authorized signatory has sole power of representation if only one general power of attorney is entered in the commercial register.
Entry of the power of attorney in the commercial register
The obligation to enter the power of attorney falls on the business owner or his legal representative (Section 53 (1) sentence 1 HGB). Since the registration requires notarial certification, the entire process is usually handled by a notary. The authorized signatory himself is not involved, he does not even have to be informed about the granting of the power of attorney, which can also be declared effective against a third party. Since 2007, he no longer has to deposit a sample signature or appear at the notary’s appointment. At least temporarily, an appointment as an authorized signatory can also be made without the knowledge or will of the person concerned.
