28 Feb Berlin appellate court accepts foreign notarisation of a GmbH formation

On 24 January 2018 the Higher Regional Court of Berlin (Kammergericht Berlin) decided that the notarisation of the formation of a German GmbH (limited liability company) by a Swiss notary in Canton Bern is valid and must therefore be registered in the German Commercial Register (case no. 22 W 25/16). The final and binding judgment was issued in connection with the – in comparison to Germany – significantly more flexible notary fees in Switzerland and the discussion of what extent the notarisation of German agreements can be transferred to Switzerland. The relevant norm for the notarisation abroad is Article 11 (1) EGBGB¹. It considers a transaction as valid if it complies with the form requirements of the so-called transaction law (that is the law applicable to the transaction itself = lex causae) or the form requirements of the state where it is consummated (so-called local law).

The court considered the notarisation in front of the Bern notary equivalent to the one before a German notary and therefore recognised the Swiss notarisation pursuant to the transaction law. This is as such not surprising because the Federal Court of Justice (Bundesgerichtshof) in the past approved multiple times notarisations in Switzerland as equivalent (last in 2013 even after the coming into force of the MoMiG² and the Swiss GmbH-reform)³. It is worth noting, however, that the Berlin decision dealt with the formation of a GmbH and not only the transfer or pledge of shares in a GmbH. The appellate decision therefore goes, with its approval,  beyond prior judgements.

The decision strengthens the notarisation in Switzerland. Under certain conditions one may now even contemplate the notarisation of transactions which affect the constitution of the GmbH (like the formation, transformation, amendments to the articles) in certain Cantons of Switzerland, in particular when the involved values are particularly high.