Insights

In its ruling of 14 April 2026, the German Federal Court of Justice (BGH) sharpened the criteria for the validity of contractual penalty clauses (Vertragsstrafen) in commercial contracts between businesses.

The decision concerns the question of when a penalty clause in general terms and conditions used between businesses can be deemed an unreasonable discrimination of the contractual partner under § 307 BGB. The court tightened the standards: the absolute amount, the relation to the actual damage, and the cumulative effect of multiple penalty triggers must all be considered together.

For drafting practice the ruling has direct consequences. Penalty clauses in supply, cooperation and service contracts must henceforth be drafted with a clearly defined cap and a transparent reference point. Boilerplate "blanket" penalty wording without an objective ceiling is increasingly likely to be struck down by the courts.

Our firm reviews existing supply and cooperation agreements of our corporate clients on request and adapts penalty clauses to the new standard. The review is part of our ongoing contract maintenance service.

Effective 1 May 2026, adjustments to the German Court and Notary Costs Act (GNotKG) will enter into force. We summarise the changes for our corporate clients and adjust our fee calculation accordingly.

The reform mainly concerns the notarial fee tables for high-value corporate transactions: shareholder resolutions, share transfers and articles-of-association amendments above EUR 5 million in transaction value receive a recalibrated fee curve. For small and medium-sized transactions the fee structure remains essentially unchanged.

Newly added are explicit fee items for the notarial certification of qualified electronic signatures and for fully digital notarial acts (online notarisation under § 16a BNotO). These had previously been billed by analogy to the closest fixed-fee item.

For ongoing mandates with a notarial component we will reach out individually before 1 May 2026 to outline the practical effect on the next billing cycle. New mandates initiated after 1 May 2026 will be calculated according to the new tables from the outset.

The eIDAS Regulation has been updated regarding qualified electronic signatures. We outline what businesses need to take into account when concluding contracts via qualified electronic signature.

With the amendment of the eIDAS Regulation, the legal equivalence of qualified electronic signatures (QES) and handwritten signatures has been further strengthened — including for cross-border B2B contracts within the EU. This is particularly relevant for supply, cooperation and framework agreements that previously required wet-ink signatures at multiple sites.

Items to check before signing electronically:

• Is the QES provider listed in the official EU Trusted List?
• Are all signatories using a QES? Mixed signature levels create legal uncertainty.
• Is the audit trail of the signature procedure stored and reproducible?
• For contracts requiring notarial form (e.g. share transfers): the QES does not replace notarial certification.
• Have internal signing rights and signatory authorities been formally documented?

Our firm advises corporate clients on the integration of QES into their ongoing contract workflow, including the drafting of internal signing policies and the assessment of which contract types are eligible for full electronic execution.