Notaries in Austria

Notaries in Austria

Legal Framework

The profession of Notaries in Austria

Austrian notaries, like many of their European counter parts on the continent, belong to the “latin-type” of the notarial profession, often referred to as the “civil law notary”.

This means that they are independent professionals who advise private parties and draft contracts on their instruction, as well as partake in the issuing of public documents, and fulfil quasi-judicial duties. Whilst they are appointed by the state, entrusted with public functions and hold a public office, they are not civil servants, remain independent from the state and are economically self-reliant.

Essential entry (academic and professional stages) requirements

To begin notary training:

  • the applicant has to be of full age (Article 6 paragraph 1 subparagraph a Notaries Act) but not older than 35 years (Article 117a paragraph 2 Notaries Act),
  • candidates have to hold Austrian nationality (Article 6 paragraph 1 subparagraph a Notaries Act),
  • candidates must have completed their legal studies (article 6 paragraph 1 subparagraph b Notaries Act); and
  • bankruptcy or dishonourable behaviour disqualifies from the commencement of training.

Prospective notary candidates have to be accepted by a notary for training, who, in turn, has to notify the local Chamber (Notariatskammer). If the candidate meets the legal requirements s/he will be entered into a register of Notary Candidates/Trainee Notaries (Notariatskandidaten). With the commencement of training the notary candidate is automatically a member of the Group of Candidates (Kandidatengruppe) who, together with the Group of Notaries, form the Notariatskollegium.

Upon registration, the notary candidate gains “on the job” experience and training in the various responsibilities of a notary within the respective notary’s office. She or he also has to sit and pass notaries’ exam, which consists of two parts and has to be completed within a set period of time.

Continuing practice and continuing education requirements

Notary candidates have to take part in mandatory classes and seminars, and are trained in all aspects of a notary’s field of practice.

To become a Notar, the applicant has to fulfill the criteria as listed for Notariatskandidaten as well as the following requirements:

  • The applicant has passed the notary’s exam, (Article 6 paragraph 1 subparagraph c Notaries Act). The first part of the exam may be taken after 18 months of training. Does the candidate succeed he may take the second part after a further 12 months of practice.
    S/he has not yet completed his 64th year of age.
  • The candidate is able to prove 7 years of professional experience (Article 6 paragraph 1 subparagraph d Notaries Act), of which at least three years after the completion of the notary’s exam are spent as notary candidate. The remaining years may be spent as notary candidate, judge, prosecutor, solicitor, attorney etc (Article 6 paragraphs 2 Notaries Act).

Notaries are also required to participate in continuous training courses and they are further under an obligation to update their knowledge in the fields of law and technology.

Basic functions

Austrian notaries, as their colleagues in several other European countries, belong to the “latin-type” of the notarial profession. An exact translation of the title into the English language might seem difficult, due to the different historical and professional roots in the English speaking world. Sometimes the term “civil law notary” is used when referring to the latin type of notaries to accentuate the difference. For reasons of greater ease, the term notary is used throughout the remainder of this text.

The notary, as a professional with a high standard of ethics and professional conduct, is under an obligation to give impartial advise and to reflect the intentions of all involved parties in the drafted contract. Their duties embrace three basic functions:

  • The drafting and issuing of public documents and certificates. This means, that the notary, as an independent professional, is bestowed with a public function and authority (Article 1 paragraph 1 Notaries Act). The state extends sovereign powers to the notary in the sense that s/he may draft documents of “factual character” which are taken to be undisputed evidence in court cases, before public and private institutions, and generally any instances where publicly witnessed documents are required.
  • The drafting of private contracts, wills, and certificates and the representation of parties in non-contentious matters before courts and administrative bodies, e.g. land registry and registry of companies.
  • The acting as Court Commissioner / GerichtskommissĂ€r (Article 1 paragraph 2 Notaries Act). This is a quasi- judicial function, whereby the notary acts as proxy of the courts, albeit on their instruction, to execute, for example, non-contentious inheritance cases.

In general, the notary’s duties reach from counselling and legal advise, to the investigation of the will of the parties involved; from the authentication of documents, to the interaction with the state as a non- civil servant for sovereign tasks. Given the high standards and obligations the notary is to adhere to, his/her documents and certificates are taken as “undisputed evidence”, which is also the basis for entry of data into public registers like land register, register of companies etc.

Qualification Process

The training for the legal profession in Austria takes place in two steps; first a theoretical training at one of the five law faculties, after that comes the practical training.

To study law at university you need a certificate of higher education, the so-called Matura, from a secondary school and the proof of the knowledge of Latin.

Organisational important forms for notaries

Notaries and notary candidates in Austria amounted to about 760 professionals in 1998. Notaries usually have their own office, but they may enter into partnerships with other notaries and notary candidates (Article 22 paragraph 1 Notaries Act). The notary’s responsibilities, however, rest with the individual notary, not with the partnership, and the notary has to be at all times independent and self-reliant (Article 22 paragraph 2 Notaries Act).

Inter or Multidisciplinary activities

Joint practice

Notaries may set up joint practice only with other notaries and notary candidates (Article 22 paragraph 1 Notaries Act), a so-called Notar-Partnerschaft. The formation of a joint practice does not, however, invalidate the obligation of the individual notary to comply with professional standards and to be independent. In joint practice, as well as in single offices, it is the individual notary who is instructed by a client, not the partnership itself (Article 22 paragraph 3 Notaries Act). Notaries and notary candidates may only belong to one partnership (Article 22 paragraph 8 Notaries Act).

Practice with other professions

The profession of the notary is both universal and exclusive, and may not be practised in conjunction with any other paid legal profession. The only exception is the right of the notary to engage in teaching/academic occupations (Article 7 paragraph 1 Notaries Act). This regulation is meant to ensure that the notary does not have any other interests which may interfere with, or have an influence on, his/her professional conduct.

Practice with foreign lawyers

As the world has become increasingly more “global”, so have relationships between individuals become more complex and international. This change is also reflected in the legal profession, as there is an increasing need for international contracts, purchase of property abroad etc. Austrian notaries are empowered to issue documents that are valid throughout their state, and additionally, they may issue internationally valid contracts and documents. In the latter case, however, local rules and regulations are of crucial importance as are the existing bi-lateral agreements between Austria and most European and many non-European states. Various other inter-state agreements regulate the international recognition of signatures, and official documents.

The Austrian notary who has been asked by a party to act as adviser on an international level, remains at all times accountable to the Austrian Notariatsordnung.

International professional practice

Over the past years notaries have become more and more involved in the drafting of agreements and contracts in an international context. The major international practice areas are the following:

  • Transfer of property
  • Corporate law (forming of companies, transfer of assets)
  • Inheritance
  • Estate planning
  • Private trusts
  • Issuing of powers of attorney in foreign languages.

The law foresees that if the Austrian notary has been requested to act as advisor in international matters, s/he defers to the local notarial law as well as the Austrian notarial law.

Essential entry (academic and professional stages) requirements

To begin notary training:

  • the applicant has to be of full age (Article 6 paragraph 1 subparagraph a Notaries Act) but not older than 35 years (Article 117a paragraph 2 Notaries Act),
  • candidates have to hold Austrian nationality (Article 6 paragraph 1 subparagraph a Notaries Act),
  • candidates must have completed their legal studies (article 6 paragraph 1 subparagraph b Notaries Act); and
  • bankruptcy or dishonourable behaviour disqualifies from the commencement of training.

Prospective notary candidates have to be accepted by a notary for training, who, in turn, has to notify the local Chamber (Notariatskammer). If the candidate meets the legal requirements s/he will be entered into a register of Notary Candidates/Trainee Notaries (Notariatskandidaten). With the commencement of training the notary candidate is automatically a member of the Group of Candidates (Kandidatengruppe) who, together with the Group of Notaries, form the Notariatskollegium.

Other relevant information

Notaries, like state institutions also, are confined to the particular territorial boundaries of their jurisdiction. This means that the profession of the notary is state-bound, and notaries are not internationally mobile in their professional capacity. The notary’s services and “products” however, i.e. the public and private documents, are internationally portable within the confines of existing international agreements between states. The validity of foreign documents, however, is pending on an individual state’s recognition thereof. It is in this area that future international development is especially desirable, possibly along the lines of the 1968 Brussels Convention (European Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters).

Other Issues

Mobility

Notaries are covered by the general Directives on mutual recognition of diplomas, unless they can show that their activities are exempt under the Treaty exceptions to free movement to be found in Articles 39 (4) or 45 EC. They have argued for this exemption (exercise of official authority) to be applied to them. This is unlikely to be accepted now however as the European Commission reportedly (Law Society Gazette) has recently decided (November 2000) that notaries are not to be considered as immune from the effects of the free movement articles of the Treaty. Member States that do not remove the nationality requirement will face Article 226 enforcement action.

Legal Training

After finishing the Diplomstudium each graduate has a right – but it is not a duty – to continue his training for a legal job as Rechtspraktikant (trainee) at a court and to test and deepen in that way his knowledge of law.

This training at a court as Rechtspraktikant is required for at least nine months if someone wants to become a Rechtsanwalt, a Notar or a judge. But nearly all law graduates take part in this training at court (Rechtspraktikum) because, although it is not compulsory, one is required to do so (as a matter of practice) if one wishes to enter any other job.

The admission for this training is regulated by the PrÀsident des Oberlandesgerichtes. Such a training place at court is normally granted for one year. The Rechtspraktikant is not employed by the state but merely taking a training course. The advantage of this is that to get a place at court there is no need for an established post and therefore the training can be started monthly (on the first day of the month). The Rechtsprakitkant must take a solemn oath.

Governing Bodies

All notaries and notary candidates are organised within their respective region (Bundesland), as a Group of Notaries and a Group of Notary Candidates. Together, these two groups form the College of Notaries (Notariatskollegium) within their respective region. All members of the Notariatskollegium elect their respective Chamber of Notaries/Notariatskammer (Article 128, paragraph 1 Notaries Act). The regional Chamber of Notaries is to uphold the standing of the profession and to oversee the conduct of the respective notaries and notary candidates (Article 134, paragraph 1 and 2 Notaries Act).

All six Austrian chambers of notaries, which are public bodies, form together the Austrian Chamber of Notaries/Österreichische Notariatskammer. The Österreichische Notariatskammer is a public body with primarily co-ordination and representational tasks (Article 140, paragraph 2 and 3 Notaries Act), and is not superior to the individual Chambers of Notaries. This structuring of the chamber system reflects the federal structure of the Republic of Austria.

Since 1995 the Austrian Chamber of Notaries is a full member in the Conference des Notariats de l’Union EuropeĂ©ene/Konferenz der Notariate der EuropĂ€ischen Union (CNUE) to which it sends representatives. Internationally, the Austrian Chamber of Notaries is member of the Union Internationale du Notariat Latin/Internationale Union des Lateinischen Notariats (UINL) since 1958 to which it sends delegates as well.

See below:

  • Bodies dealing with education/training
  • Bodies dealing with conduct (ethics/discipline)

Bodies dealing with education/training

The notaries essentially provide notary training themselves. The respective Chamber of Notaries is responsible for controlling the quality of notary training. In addition, training for notaries and notary candidates is provided by the Austrian Notarial Academy (Österreichische Notariatsakademie), which is funded by the Austrian Chamber of Notaries. The training consists of seminars, lectures, colloquia, conferences, and symposia.

The notary’s examination is held before a board of four examiners which is composed either of the President or the Vice President of the Higher Regional Court (Oberlandesgericht), another judge and two senior notaries of the Higher Regional Court’s district.

Bodies dealing with conduct (ethics/discipline)

The on the job training of notary candidates is permanently evaluated by the notaries who have employed them and are in charge of their training. If a notary candidate, or indeed a notary, does not meet the high professional standards and expectations with regard to his/her social conduct, he may face disciplinary action (Article 117a, paragraph 2 Notaries Act). At national level, the professional bodies, i.e. the respective notary chambers are generally scrutinising professional behaviour and conduct. On a European level, the Austrian Chamber of Notaries ratified the Code Européen de Déontologie Notariale/EuropÀischer Kodex des notariellen Standesrechtes in 1995.

Author: J Lonbay (A), 2008

Professional activities

The professional activities of notaries are chiefly characterised by their independent yet public and sovereign capacity. It is also of importance, that Austrian notaries are generalists in nature, and that all rules and regulations are applicable to each member of the profession. In other words, rules and regulations on fees, advertising, accounting, professional conduct etc. are all interactive in the sense that they are meant to contribute to the high moral, professional, and ethical standards pursued by the profession.

Reserved activities

The Notaries Act bestows the notary both with authority and responsibility. The notary draws up public and private documents, certificates and wills, and may also act as Court Commissioner (GerichtskommissĂ€r). It is the notary’s duty to produce a factual, impartial reproduction of the involved parties’ intentions and declarations and to give counsel to the parties to find solutions to conflicts by entering into contracts.

As an expression of the sovereign powers deferred to the notary by the state, the notary holds a public seal, which shows the coat of arms of the state as well as the notary’s name.

Professional titles

Austrian notaries bear the title Öffentlicher Notar, which is a registered professional title with exclusive sovereign powers and clearly stipulated training and entry requirements. The notary’s sovereignty extends to the entire Austrian territory (Article 8, paragraph 1 Notaries Act). The function of a notary is incompatible with other paid legal professions, such as attorney and solicitor, and may solely be combined with an academic/teaching position (Article 7, paragraph 1 Notaries Act).

As part of the public functions, notaries also carry the title of GerichtskommissÀr as and when the are acting as proxy of the courts, for example in non-disputed inheritance cases.

Advertising/Publicity

The notary, comparable to a public institution, may not engage in marketing and advertising, but s/he may provide factual information as to which services are rendered.

Client confidentiality/Professional privileges

The notary, and any staff employed in his/her office, is sworn to silence (Article 37, paragraph 1 Notaries Act). This silence is to allow all represented parties to be open and truthful, and thus enables the notary to draw up documents of “factual character”. The duty to secrecy only subsides when information has already become public knowledge (Article 37, paragraph 2 Notaries Act), or when the notary is under an obligation to prevent criminal activity like money-laundering, or when the involved parties free the notary of his/her duty to silence.

Clients’ money

Clients’ monies, or items of monetary value, are only to be held by the notary if the client specifically instructs the notary to safeguard the money, and if they are directly related to a public or private document the notary is drafting (Article 107, paragraph 1 Notaries Act). The notary acts as trustee in this respect, and the entrusted monies have to be deposited on a separate trustee account/Anderkonto. As trustee, the notary has two basic duties: (1) to ensure the safekeeping of the money, and (2) to assure that the monies are passed on to the relevant institution or beneficiary as intended by the contract. All entrusted goods are to be listed in a register.

Fees

Notaries receive set fees for their professional services rendered to the public and the private sector. Tariffs are detailed in the Notaries Tariffs Act/Notariatstarifgesetz and are universally applicable always indicating a set maximum charge. The standardisation of charges reflect the level, content, and value of services rendered, and ensures that notarial services are also available to socially and financially disadvantaged clients (Article 1 paragraph 14 Notaries Act).

General rules of conduct

The notary is sworn to silence, has to be impartial and independent and is bound by the prevailing law alone (Article 37, paragraph 1 Notaries Act). S/he is to pursue his duties with effort and good intention and is to adhere to a high moral code (Article 5, paragraph 3 Notaries Act). The notary has a duty to supply services to the public and is thus to adhere to the usual office hours. The local chamber of notaries has to be notified with respect to long periods of absence (Article 35, paragraph 1 Notaries Act), and in such cases a substitute notary is to supply the services in lieu. Provided a notary continues to fulfil the criteria for notaries and notary candidates, and further provided s/he adheres to the professional standards for ethics and conduct, s/he may not be removed from office or be restricted in their duties.

Accounting

The regional Notariatskammern are under an obligation to periodically check on the book keeping and accounting of trustee accounts held by notaries within their jurisdiction (Article 154 paragraph 1 Notaries Act). The chamber is further required to issue a reminder to those professionals who have shown to have inadaquate or faulty book keeping (Article 154 paragraph 2 Notaries Act); in serious cases the chamber is to notify the PrÀsident des Gerichtshofes Erster Instanz/ President of the Court of First Instance.

The Austrian Chamber of Notaries has adopted additional regulations on book keeping and accounting, the Richtlinien der Österreichischen Notariatskammer fĂŒr die BuchfĂŒhrung und Kassagebarung der Notare, which prescribe in more detail how accounts are to be kept and how any entrusted objects of value are to be safe guarded.

Professional insurance

As part of the appointment procedure a notary is to show evidence of personal public indemnity insurance amounting to a minimum of AS 5.600.000/ about 407.000 Euro to provide cover for cases where a client has been ill advised or if the notary is proven to have acted negligently. In addition to their private insurance, notaries are also covered by the notarial chambers’ fidelity insurance, which protects clients and their assets in case a notary is proven to have caused intentional damage.

Specialist practitioners

Austrian notaries are essentially generalists. On the one hand this means that each professional member is able to supply the same services, and is thus able to function within the three sub fields of the profession (see 1.3); on the other hand it means that the notary’s authority extends to all of Austria. The law stipulates that the provision of notarial services to the public ought to be evenly geographically spread throughout the country (Article 9, paragraph 1 Notaries Act). The Bundesminister fĂŒr Justiz/Federal Minister of Justice has the power and authority to regulate the number and location of notary offices. There are currently about 400 posts .

The notary may, however, specialise in addition to his/her general duties. Additional qualifications may, for example, be acquired in the drafting of contracts in foreign languages (Article 62 paragraph 1 Notaries Act) or tax law. Under certain circumstances, e.g. when there is no legal obligation of representation through an attorney; the notary may represent his/her party in non-contentious matters before courts and administrative bodies (Article 5 paragraph 1 Notaries Act).

Author: J Lonbay (A), 2008

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Notaries in other European Countries

Resources

Notes

See Also

Further Reading

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