Founding a Company in the Blockchain and Crypto Sector

Legal forms requiring notarisation

• GmbH (sec. 2 (1) GmbHG) – articles of association must be notarised; minimum share capital EUR 25,000.
• UG (haftungsbeschränkt) – notarisation also with the model protocol (sec. 2 (1a) GmbHG); incorporation from EUR 1.
• AG (sec. 23 (1) AktG) – notarisation of the statutes.

Since August 2022, GmbH and UG incorporations can also be carried out by notarial online procedure (sec. 16a BeurkG, sec. 2 (3) GmbHG) – participants join by video via the Federal Chamber of Notaries' platform. A significant simplification for founder teams in different locations or abroad.

The business purpose: precision pays off

Commercial register courts examine whether the business purpose is sufficiently specific and not evidently subject to licensing. Wordings such as "trading in crypto assets", "operating blockchain infrastructure", "mining and staking" or "developing decentralised applications" need careful drafting: they must describe the model accurately without inadvertently covering licensable activities. As notary, I ensure a register-proof wording and certify the register filings.

Regulatory classification

Certain business models are supervised: crypto custody has been a licensable financial service in Germany since 2020 (sec. 1 (1a) sent. 2 no. 6 KWG); since the end of 2024, the European MiCAR regulation adds its own authorisation regime for crypto-asset services. The regulatory classification shapes both the articles and the register filing. The supervisory analysis itself is not part of the notarial function – I recommend consulting specialised counsel on financial regulation.

Contributing crypto assets in kind

Contributing Bitcoin or other crypto assets as a contribution in kind to a GmbH is possible in principle (sec. 5 (4) GmbHG) but demands care: the articles must specify object and amount, a formation report is required, and value must be demonstrated to the register court. Overvaluation triggers liability for the difference (sec. 9 GmbHG). Volatility between valuation and registration is a real structuring issue – a cash incorporation followed by acquisition of the crypto assets is often the simpler route. For the UG, contributions in kind are excluded (sec. 5a (2) sent. 2 GmbHG).

After incorporation

Later measures also require notarisation or certification: capital increases, amendments of articles, share transfers (sec. 15 (3) GmbHG – including tokenised business models), changes of managing directors and reorganisations. Continuous notarial support keeps the structure consistent.

Crypto as business assets: a different tax regime

Where crypto assets are held in a GmbH, the private holding period of sec. 23 EStG does not apply: gains are subject to corporation and trade tax, distributions additionally to taxation at shareholder level. Whether holding via a corporation is advantageous depends on the investment horizon, reinvestment intention and personal situation and must be reviewed for tax purposes – particularly against the backdrop of the planned reorganisation of private crypto taxation from 2027. The corporate implementation (formation, articles, contribution in kind) is carried out notarially. More: The end of the holding period from 2027.

Tokenisation and share transfer

For business models that "tokenise" participations or assets, a careful distinction must be drawn between the technical token level and the legal level. The transfer of GmbH shares requires notarisation regardless of any tokenisation (sec. 15 (3) GmbHG); a token cannot replace the share without form. Anyone planning such models should align the corporate structure with the technical implementation early to avoid later problems of form.

Shareholders' agreements and vesting

Particularly with crypto and blockchain start-ups, provisions on share vesting, leaver clauses, consent reservations and the treatment of the company's crypto assets are advisable. Such shareholders' agreements complement the articles and create clarity among founders. Elements requiring notarisation – such as share-transfer obligations – I integrate into the notarial structure with legal certainty.