With its recent decision dated December 17, 2013 (II ZB 6/13), the BGH has confirmed that a notarization by a Swiss notary is still deemed to be equivalent to a German notarization and therefore valid. The BGH confirmed explicitly its long-established jurisdiction. A notarization – which under German law includes reading aloud the full agreement in front of all parties – may under certain conditions be validly conducted by foreign notaries: (i) the foreign notary needs to have a similar function and education as a German notary and (ii) the notarization procedures must be equivalent to German formalities. These requirements are met by Swiss notaries in Zurich and Basel.
The sale and transfer and pledge of shares in German GmbH require mandatory notarization under German law, i.e. signing the contract in front of a notary after it has been read aloud to the parties. This formal notarization requirement applies regardless of whether the transferor or pledgor is located in Germany or abroad.
In the past (particularly until 2009) it was common practice to avoid significant (non-negotiable) notarial costs by using a Swiss notary in Basel or Zurich. However, a court judgment issued by the District Court Frankfurt am Main in October 2009 (3 – 13 O 46/09) ushered in the preliminary ending of this long-established practice following a change in German corporate law requiring the notary to submit the list of shareholders to the commercial register. Also, the Swiss law of obligations changed and lifted the notarization requirement for share transfers in Swiss GmbH. Following this decision, many voices held that the duty to submit the shareholders' list to the commercial register would only apply to a German notary and that Swiss notarization rules no longer were equal to German requirements.
Although the Higher Regional Court Düsseldorf opposed such decision, specifically allowing a notarization in Basel/Switzerland, another deviating opinion of the Higher Regional Court Munich in 2013 also caused legal uncertainty. With the recent BGH decision, such uncertainty ends. It is likely that the former practice of using Swiss notaries will be revived again – although the introduction of a fee cap to approximately EUR 60,000 (plus VAT and ancillary costs) per notarization will make the trip across the border less attractive. With Swiss notaries, the fees at least are freely negotiable.
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