Notaries in France
- Notaries in France
- Professional activities
- APPOINTMENT AND CONDITIONS OF PRACTICE
- Other Legal Professionals
- Notaries in other European Countries
The notaire is a public officer appointed by the Garde des Sceaux, Minister of Justice. He has a monopoly on documents that must be authenticated by deed, i. e. wills, marriage, contracts, document dealing with transfer of real property, and conveyancing. Furtherthemore he is allowed to give advise in these fields, normally on a high and secure level. Although he is a public servant the notaire runs his office in his own economic responsibility as his enterprise. Since there are notaires spread over the whole country, they are considered as a good service of justice by the people. They act professional and show a unity and solidarity of the profession in the départments, regional and national.
He will typically assist those constructing properties:
- in the purchase of land suitable for construction,
- advise on the value of land,
- provide the appropriate legal form of tenancies, and
- deal with mortgage arrangements.
- They also has some duties in the field of company law (as to declare the subscription of the capital of private companies).
- There are 7,500 notaires.
- Entry into the profession can be done by different routes and requires the completion of a professional examination process (see below).
Authentication of legal acts
The notary is to receive the titles the parties have or want to have authenticated; so authenticity is compulsory for certain acts, and only optional for others.
Among the acts which have to be authenticated are:
- marriage contracts
- creations of mortgages
- sales of buildings, and
- any act subject to landed publicity.
In practice, any convention can be certified by an acte notarié.
Notaries’ mission does not ony consist in acts drafting. It also envolves a duty of advise which has been widely interpreted by the tribunals, and which gives large security to notaries’ mediation. Notaries ought to help parties, to check whether their interests are protected, to tell them what their rights and duties are, and to explain to them all the consequences of the obligations they undertake.
Clients’ confidentiality is a fundamental duty of notaries. It justifies the trust customers put on them, and it is the condition of it a the same time.
The remuneration fixed by the notaries’ legal scale of charges is called ‘émoluments’.
Emoluments include contractually:
- the remuneration of any care, advise, serutiny of documents linked to the drafting of the acts;
- the reimbursement of any accessory expenses.
Fixed émoluments apply to simple acts. Proportional émoluments are calculated on the basis of the capital expressed in the acts, divided into portions to which decreasing rates are applied.
It is forbidden for notaries to collect other émoluments than those which are fixed by these tariffs, partial remits on émoluments are not allowed without the Chamber of Notaries’ authorization.
For the services provided by notaries in the exercise of activities which are not dealt with by tariff, and which are consistent with notaries’ function, fees are fixed with one accord with the parties. In that case, the client must be previously notified in a written way that the provision of the services will be subject to payment, and must be given either an estimated amount or the way the remuneration to foresee will be calculated.
Notaries have got some obligations towards their clients:
- They have to draw up a valid deed.
- They have to give adequate advise about the way to set up the convention in order to protect the parties’ interests.
- They must ensure the total efficiency of the conventions.
Under these various obligations, notaries may have a criminal, disciplinary and civil liability.
The legislator wanted to go a step further and, to ensure the goodwill’s security, make the whole profession guarantor for the indemnification of this goodwill setting up a Caisse Nationale de Garantie Collective. This is an insurance, for any bone fide client, to recover the totality of the sums deposited with a notary.
Client confidentiality/Professional privileges
Author: J Lonbay (A), 2008
APPOINTMENT AND CONDITIONS OF PRACTICE
Fulfilling the conditions of aptitude required to be appointed as a notary, the candidate can become a notary either:
- as a holder of office individuel (see below),
- as a partner in a société professionelle (see below),
- in an office créés ou vacants (see below),
- or as a notaires salariés (employed notary) (see below).
Most of the time, the applicant to an individual office is appointed on the basis of the presentation the holder of the office draws of him to the Garde des Sceaux. The agreement of transfer, which may be either subject to payment or free of charge, and the assignor’s resignation are joined to the candidate’s appointment application. In fact the application is submitted to the Procureur de la République of the tribunal within the competence of which the office is located. An opinion is asked by the Procureur in the Chamber of the Notaries about the candidate’s morality, professional skills and financial possibilities, then the file is transmitted to the Chancellerie, with the Procureur’s reasoned opinion.
Notaries can incorporate sociétés civiles professionnelles between themselves; they are also able to practice their profession within sociétés d’exercice libéral.
Office créés ou vacants
The appointment to an office either created or vacant is made by a competitive examination. The Garde des Sceaux appoints the new holder on the proposal submitted by a jury who gives a rank to the candidate, according to their results at an examination.
The appointment of a employed notary is delivered by the Garde des Screaux, on the joint request of the office holder and of the applicant. A copy of the employment contract is joined to the request.
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.
There are different routes the intending notaire may follow to qualify. The first one is the university route, the others are professional.
The traditional university route, followed by the university graduate with a maitrise en droit or Master 1, requires the candidate to prepare and pass specialised Master 2 in notarial law (previously the Diplomes d’études superieures specialisées de droit notarial (DESSN)) and two years of practical training in a notarial office (four semesters) in conjunction with further university studies. So this requirement also involves studying at the same time as undertaking the stage (training period) . At the end of each semester the intending notaire must sit and pass one or more examinations, both written and oral. The areas of law and practice relevant to the notarial profession are of course exhaustively covered, with particular emphasis on civil law and commercial law. Only public law subjects are completely omitted. Progression to the next semester is dependent upon success in the examination. At the end of the training the successful candidate must present a training report or a dissertation. If this regarded as satisfactory the candidate is awarded the diplôme supérieur du notariat. He can then present himself to the Minister of Justice to be accepted as joining the notarial profession. If successful he gains the title notaire assistant and can work in an office of a notaire and can eventually become a notaire..
Another route is provided by article 7 of the Decree 73-609, as amended, which has the policy of encouraging the staff working in a notarial office, although not possessing a law degree, to seek to qualify as notaires. The group of people for which this second method is designed includes those staff who have had considerable experience in positions of some seniority:
- First they must pass an examination organised by the Centre national de l’enseignement professionnel notarial (CNEPN). This is organised once a year, and candidates can make a maximum of three attempts.
- Those with a law degree and Master 1 can join in here, without passing the examination.
- Then they must follow a one year course, passing the final exam, (gaining the diplôme d’aptitude aux fonctions de notaire) and then undertake a two year stage (professional training period), whilst also following a series of seminars and present finally a training Report.
- On completion they will have a certificat de fin de stage and a diplôme d’aptitude aux fonctions de notaire.
(Editor’s note; this item is being checked) A school-leaver route is possible.This involves having a baccalauréat, following a four year course at a Notarial School (école de notariat). They must then have at least nine years of “notarial” experience, six of which follow their achieving the diplôme de 1er clerc ou du diplôme de l’Institut des métiers du notariat (IMN). If they pass an exam they gain the diplôme d’aptitude aux fonctions de notaire.
There is a final “parallel” route for entry into the profession, provided by article 4 of the Decree 73-609, as amended. This method is intended to facilitate entry by persons who have a law degree and have gained experience in parallel or complementary careers. It includes former judges of the ordinary courts, former law academics, former avocats aux conseils, former avocats and former avoués, the three later having at least two years’ experience in their original practice. Finally, the list also includes persons who have had at least eight years’ experience in the legal or tax service of a public or private firm employing at least three lawyers. They normally must pass an exam and a stage, which varies according to their experience.
- French nationality.
- Good character.
- No actions contrary to honesty, honour or good morals; nor resigning or being disciplined on account of any such actions.
- No bankruptcy.
- A maitrise en droit (law degree) or equivalent.
- Have the notarial educational qualifications (i.e. diplôme supérieur du notariat, or diplôme d’aptitude aux fonctions de notaire with a certificat de fin de stage).
- Have followed special training in notarial office management, deontology (ethics), and the disciplinary code (since 1 January 2008).
The governing bodies are elected and have public character. The statut du notariat has established the following bodies:
- the Chambres des notaires (see below),
- the Conseils régionaux (see below), and
- the Conseil Supérier du Notariat (see below).
Chambres des notaires
The members of the Chamber are appointed by the general meetings for a three year term. One third are replaced every year.
The members of the Chamber nominate a chairman, one or several syndics, a reporter, a secretary, and a treasurer among them. The chairman is appointed for two years.
The legal attributions of the Chamber do not exclude other actions that chambers lincreasingly carry out: education of notaries and collaborators, public relations, communication … .
Among its legal missions, the Chamber has to:
- set up the regulation of the Compagnie, which will be submitted to the Garde des Sceaux’s approval;
- deliver or propose disciplinary measures;
- prevent, adjust, solve professional disputes between notaries from the same jurisdiction;
- scrutinize any third person’s complaint against notaries in the exercise of their duties;
- check the keeping of the books of the offices (inspection procedure);
- give its motivated opinion in case of the assignment of a notary; and
- prepare the budget including the contributions of the Conseil Régional and the Conseil Supérieur.
There is one Conseil régional for one Court of Appeal. Conseil régionaux are formed of the Chairmen of the Chambers of the Notaries of their jurisdiction, and of representatives who are elected for four years and replaced by half every two years. The members of the Conseil régional nominate a chairman, a vice-chairman, a secretary, and a treasurer.
The Conseil régional represents all the notaries from its jurisdiction, concerning their common rights and interests. It prevents, adjusts and solve all the professional disputes between notaries who do not practise in a same départment.
It appoints the members of the Caisse régionale de garantie, the representative called to be part of the Conseil Supérieur du Notariat, and serves in the capacity of the notaries accountancy inspection commission … .
Most of the Conseils régionaux play a more and more important role in the animation and the promotion of the profession: they contribute to the information and the education of the notaries and of their collaborators, to the development of the notaries’ activity, and to the management of the offices. Most of the time, they keep up relations with media through notaries in charge of communication.
Conseil Supérieur du Notariat
The Conseil Supérieur du Notariat is composed of representatives elected (one representative for each Conseil régional). These representatives are elected for four years by the members of the Conseil régional and by the members of the Chambers of Notaries from the jurisdiction of this Conseil régional. They are replaced by half every two years.
The Bureau du Conseil Supérieur is composed of seven members, among whom a chairman, two vice-chairmen, a secretary and a treasurer are. The members of the Bureau are elected for two years.
The first and main attribution of the Conseil Supérieur du Notariat is to represent the profession as a whole beside the public authorities, and to give its opinion to the Garde des Sceaux any time it is required. Its representation mission also consists in the right to interfere spontaneously by the public authorities to defend the interests of the profession and to suggest any statutory measure in order to improve citizens’ legal practise, and economic and fiscal situation.
It is also required to:
- solve disputes between Chambers subordinated to different Conseils régionaux;
- set up a national and inter-courts Regulation;
- organize and ensure a permanent mission of inspection of notaries’ études;
- propose to the Garde des Sceaux any measure that could improve offices implentation;
- set up its budget and distribute the charges … .
The Conseil Supérieur has largely developed its actions in all the fields where it seemed necessary to promote notariat. Institutes are commissioned to express the opinion of the profession about legal problems (Institut d’Etudes Juridiques), to promote the notaries’ activity in business law, in land law, or in advise in patrimony management. Development plans have been set up in most of the regions.
The Association pour le Développment du Service Notarial is charged with economic actions of the notariat, and in particular, with the publicaton of information ‘Conseils par des Notaires’ and with the management of the Fichier des Dispositions de dernières Volontés.
Décret 73-609 du 5 juillet 1973.
Author: J Lonbay (A), 2008
Other Legal Professionals
The avocat has exclusive rights of audience in all courts of general jurisdiction. He also has the exclusive right to represent a client in the pre-trial stage of a criminal case and may complete acts of procedure on his behalf. Information about lawyers in the European countries is provided here.
The Huissier de Justice solves conflicts between landlords and tenants, difficulties related to separation or divorce procedures. Information about Bailiffs in the European countries is provided here.
Notaries in other European Countries
- Information on notaries in Austria
- Information on notaries in Belgium
- Information on notaries in Denmark
- Information on notaries in Finland
- Information on notaries in Germany
- Information on notaries in Greece
- Information on notaries in Ireland
- Information on notaries in Italy
- Information on notaries in Luxembourg
- Information on notaries in the Netherlands
- Information on notaries in Poland
- Information on notaries in Portugal
- Information on notaries in Spain
- Information on notaries in Sweden
- Information on notaries in the United Kingdom