On the basis of two rulings by the German Bundesgerichtshof from 1981 and 1989, the belief arose that deeds under German law can be executed by civil-law notaries not practising in Germany. In particular, it would be possible to transfer shares in German companies or incorporate legal entities under German law. The relevant rulings of the Bundesgerichtshof dealt after all with the possibility of an amendment to the articles of association of a GmbH as well as a transfer of shares of a GmbH. In both situations, the deeds were executed by a Swiss civil-law notary.
In a ruling by the Amtsgericht Berlin Charlottenburg of 22 January 2016, it appears that this opinion was based on wrong assumptions and therefore could not be upheld.
The starting principle adopted in the rulings by the German Bundesgerichtshof was that a Swiss civil-law notary must comply with equal formal requirements in the performance of his profession as a German civil-law notary and that in legal matters he occupies the same position as a German civil-law notary. In respect of the first point, it appears that the Bundesgerichtshof had assumed that Swiss law, just as German law, included the obligation that a deed must be read out in full during its execution. This appears not to be the case. A Swiss civil-law notary is able to execute a deed without the obligation to read out in full. It is possible to have an abridged reading for certain parts of the text. In addition, this can differ from canton to canton. This, according to the Amtsgericht, is already an assumption that was not properly understood by the Bundesgerichtshof. The execution of a deed in Germany in this manner will mean that there will be nullity. Any decision to as yet read out the deed in full will not rectify this. According to the Amtsgericht, it is a principle choice that reading the deed in full is not an option but an obligation.
The Amtsgericht also considers it important that an equal position with a German civil-law notary can only be reached if one has a good knowledge of German law. It cannot be expected from a foreign civil-law notary that he has the same knowledge as a civil-law notary in Germany who has had to complete various studies and state exams. The Amtsgericht puts forward the example of the Notary-Public in the United States. If such a civil-law notary were to notarise German deeds, he would take on a mere descriptive role without having any understanding of the content.
Finally, it is observed that the monopoly position of the German civil-law notary is not in conflict with the rules of European Law. A properly operating and functioning notarial profession is in the public interest.
Since the eighties, the Bundesgerichtshof, as the highest legal institution in Germany, has not been in a position to give its view on the possibility of foreign civil-law notaries executing deeds under German law. In general, due to the wrong starting principles applied in the rulings from the eighties, it is expected that the Bundesgerichtshof would in the appropriate case come to a different conclusion.
In the case before the Amtsgericht, the judge therefore refused the registration of the incorporation of a GmbH in the Commercial Register.