Can a German GmbH Share Deal Be Notarised in Basel?

A German GmbH share deal can be notarised in Basel.

Section 15 GmbHG requires the transfer of GmbH shares, as well as the obligation to transfer them, to be executed in notarial form. The notary does not necessarily need to be based in Germany.

The German Federal Court of Justice has confirmed that notarisation by a foreign notary can satisfy German form requirements where the foreign procedure is equivalent to German notarisation.

There is clear precedent for Basel. The Federal Court of Justice accepted the validity of a GmbH share transfer notarised by a Basel notary. It also held that the German commercial register could not reject the updated shareholders’ list solely because it had been submitted by a notary based in Basel.

What does this mean for M&A deals?

For a straightforward GmbH share deal, Basel can be a genuine signing option.

More complex transactions require a closer look at the full signing package. Capital measures, amendments to the articles or other transactions subject to specific form requirements may require additional analysis.

Costs should also be part of the assessment. The Basel Stadt notarial fee schedule generally provides for a fee of 0.25% of the transfer value for the transfer of a GmbH interest.

CLIQ Takeaway

A German GmbH share deal can be notarised in Basel.

For deal teams, Basel is an option worth considering early in the signing process.