Notarisation in Switzerland: Heading for Legal Certainty one small Step at a Time
 
Notarial fees in Germany increase according to the value of the transaction being notarised up to a maximum amount currently of EUR 53,170.00 per matter, and are non-negotiable. Even if a notary wanted to do so, he / she is not permitted to charge lesser fees by law. In Switzerland, on the other hand, notarial fees may be freely negotiated (e.g. on an hourly basis) and are therefore often lower. This has in the past frequently led to share purchase agreements being notarised in Switzerland. In the case of transfers of shares in German limited liability companies (Gesellschaft mit beschränkter Haftung; GmbH), the German Federal Court of Justice used to recognise notarisation by Swiss notaries in certain Swiss cantons (e.g. Basel) as equivalent to those of German notaries. Since the 'Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen' ("MoMiG" - Law modernising the law on limited liability companies and combatting abuses) came into effect in 2008, however, the position in this regard has been doubtful, among other things because the notary is now responsible for submitting the amended list of shareholders in the case of transfers of shares notarised by him / her.
 
The Federal Court of Justice has now held that an amended list of shareholders may not be rejected by a German commercial register merely on the grounds that it was submitted by a Basel notary (Federal Court of Justice 17/12/2013, File No. II ZB 6/13). Rather, a foreign notarisation remains a possibility even after the MoMiG, provided that it is equivalent to a notarisation in Germany. To this end it is required that the foreign notary must hold similar qualifications and a similar position to his German colleague, and must be bound by a procedural law governed by principles corresponding to the German ones. Unfortunately, the Federal Court of Justice has not decided whether this continues to be the case with Basel notaries. This is partly in doubt since under Swiss law transfers of shares in limited liability companies no longer require notarisation. Notarisation in Switzerland will therefore remain risky until the Federal Court of Justice specifically determines that notarisation by e.g. a Basel notary is equivalent to that of a Germany notary.
 
Gerhard Manz