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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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