It is well known that the formal status in Germany, in contrast to the view of the Spanish Supreme Court ruling of 19 June 2012, which could be described as näif, is to a large extent linked to the formality of the notarisation by its own notaries. However, this formal German rule, which is based on the interpretation of its courts rather than on a clear regulation, is necessarily bound to be open-ended. In the civil sphere, it will be tempered by the implementation of EU Regulation 650/2012 on international successions, which imposes the acceptance of foreign authentic instruments as well as the circulation, ad nutum, of European certificates of inheritance, which are so reminiscent of their national Erbschein. The implementation of the Regulation in Germany has already been announced with a legal reform that will be closely monitored by the Commission.
However, in the corporate seat, the formal corporate statute and the deed that is admissible in its commercial registers (Handelsgericht) is subject to a strict formal framework, based on the one hand on the monopoly of its own public documents and on the other hand on the formal declarations of its directors on whom the sole responsibility for the corporate aspect rests.
But openness is a requirement for the internationalisation of SMEs in Europe, despite the failure of the EU legislative project on the European private company. This failure is largely due to the decision of the German and Austrian delegations, based on the defence of their employee participation system and the consequences of a free choice of seat. And in Germany, the opening is also due to its jurisprudence.
In an important ruling a few months ago (17 December 2013), the German Federal Supreme Court interpreted the reform law on the modernisation and deregulation of the law on limited liability companies (GmbHG), known as MoMig, passed in 2008, with regard to the transfer of company positions - §§ 14.2 and 40 GmbHG.
The important corporate modernisation carried out in Germany, among other relevant aspects, was aimed at strengthening the internal register of shareholders (intra societatem) and at the same time favouring the registration of changes of shareholders in its commercial court registers, partly following international recommendations. The MoMig also adapted domestic legislation to the doctrine derived from the judgments of the CJEU: Centros, Uberseering and Inspire Act, which limited the existence of so-called pseudo-foreign companies, which, while working exclusively in Germany, have a registered address in other states, which are more beneficial in the labour or tax sphere, such as Switzerland or the Netherlands. Hence the German suspicion of the European private company and the failure of the directive on the relocation of registered offices. The forced relocation of these companies, together with the deregulation of the status of company shareholder claims, forced the adaptation of their conflict rules from the lex societatis - which leads to the law of the company register - to a material one, which could lead, if necessary, to the lex fori concursus and thus to German law.
Hence, the way in which the company guarantees the identity of its members and their decision-making as well as its publicity is of great interest in that country.
The significance of the judgment, which concerns a transfer made before a Swiss notary, is that the Federal Supreme Court holds that the reform of the company law framework does not prevent the transfer from being authorised by a non-German notary and that the commercial register cannot refuse registration on the grounds that a foreign notary acts as a notary, provided that the notarial involvement is equivalent to that of a German notary.
This refers to the value of the authentic instrument in the country of origin and its equivalence of effect.
In Spain, perhaps due to the desire to enhance the effects of inscriptions in public registers by limiting the quality of the deeds - a phenomenon unknown in the territory of the European Union - we find, as has been indicated, a decision of our Supreme Court of 19 June 2012 which, referring to the sale of a property in Spain authorised by a German notary, the formalisation of which, due to the substantive effects that it entails in the specific case, could never have taken effect in Germany, nevertheless allows its inscription in a Spanish register.
This ruling has subsequently been cited by numerous decisions of our DGRN, establishing a dubious split between contract and right in rem under the protection of Regulation 593/2008 (Rome I, especially arts. 3 and 4), forcing its interpretation and scope to the detriment of the principle, enshrined in the Union, of equivalence of form and effects.
In Germany, the acceptance of the Swiss notary's deed - whose property system is certainly similar, given the reform of its Code of Obligations at the same time as the MoMig, especially in relation to the good faith of the acquisition - nevertheless opens up an interesting avenue for opening up, bearing in mind the substantive approximation of the Spanish limited company regime, which could facilitate the investment between the two countries.