Dr. Barbara Mayer, Fachanwältin für Handels- und GesellschaftsrechtDr. Jan Henning Martens, Fachanwalt für Handels- und Gesellschaftsrecht

Is Certification by Swiss Notaries Permitted in Corporate Law?

Notarial certification is less expensive in Switzerland than in Germany. However, whether and to what extent Swiss notaries can certify corporate law transactions, in particular company foundations, conversions, and transfers of shares for Germany companies is controversial. The District Court of Charlottenburg recently decided that a Bern notary could not certify the foundation of a GmbH.

This decision of the District Court of Berlin-Charlottenburg on 22 January 2016, ref. 99 AR 9466/10, clearly illustrated the German Federal Court of Justice's (Bundesgerichtshof – “BGH”) case law on the certification of German corporate law transactions in Switzerland.

Certification by a foreign notary is always permissible if the notary is equivalent to a German notary, and if the certification procedure corresponds to German procedures. The equivalency of many Swiss cantons is confirmed for marriage contracts - with the consequence that it is possible avoid considerable costs in such cases. For most corporate law transactions, however, the equivalency is problematic.

    • There is still legal uncertainty regarding the certification of sales of shares in German limited liability companies (Gesellschaft mit beschränkter Haftung – “GmbH”). In a recent judgment, the BGH declared the submission of a list of shareholders by a Basel notary to be permissible (judgment dated 17 December 2013, ref. II ZB 6/13), but did not address the question whether it would accept certifications in Basel city.
      • According to a very recent BGH judgment (judgment dated 21 October 2014, ref. II ZR 330/13), General shareholders' meetings of a German stock corporation may take place abroad, and may be certified by (equivalent) foreign notaries. This means that particularly certification in many Swiss cantons is permitted.
        • In the case of company foundations and changes to articles of association, the equivalency of certification in foreign countries is predominantly rejected. In these cases, the notary has extensive informational duties, which a foreign notary can hardly fulfill, lacking an appropriate education in German law. The situation is different than in the case of recording a German AG (German stock corporation), where the notary essentially only has a recording function, and no verification or instructional duties.

          In cases of company foundations and changes to articles of association, formal defects in certification are cured by registration. Insofar as registry courts (such as currently in Freiburg im Breisgau) accept certifications from Swiss notaries and enter the transactions, foundations and changes to articles of associations can be certified in Switzerland and then submitted to the registry court electronically. In such cases, it is recommended to inquire first with the responsible commercial register as to whether the foreign certification will be accepted or not, as commercial registers differ in their decisions. E.g., Berlin is farther from Switzerland than Freiburg, in more than just a geographical sense.

          There is no possibility for corrections to be made during a transfer of shares. To avoid the risk of the transaction being deemed invalid, the safest choice is certification from a German notary. This is true for all of Germany.

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