Notaries in Germany

Notaries in Germany

Professional activities

Reserved activities

he recording of a statement made before the official in the form required by the law; authentication; all recordings of declarations of intent or contracts that are to become official documents.

Professional titles

These are Notar (men) and Notarin (women) (§ 2 BNotO).

Advertising/Publicity

The prohibition of advertising or publicity can be deduced from § 14 BNotO and is set out in § 29 BNotO which prohibits any advertising that could appear to be a breach of the notary’s independence and impartiality.
Further more the Bundesnotarkammer recommendations for directives to be issued by the Notarial Associations (RLE, Richtlinienempfehlung der Bundesnotarkammer) set out in further detail in section VII notarial conduct and the question of advertising.

Client confidentiality/Professional privileges

The Notar must be aware of discretion (§ 18 BNotO).

Clients’ money

According to § 54a BeurkG (Beurkundungsgesetz – Statute on authentication and recording) the notary may only hold clients’ money if the client gives him concrete instructions, the asset actually exists and is not misleading in any way.

Fees

§ 17 BNotO; see Kostenordnung (KO): In this Fees Order, fees are fixed according to a schedule, discounts cannot be given and hourly rates do not exist.

Accounting

German Notaries have to account for each account movement. Client’s money has to be paid into a separate account and the clients receive detailed accounts on the respective file.

Professional insurance

§ 19a BNotO regulates the professional insurance. Like advocates and tax advisers, notaries have professional indemnity insurance. However such insurance generally excludes responsibility for intentionally caused damage. Contrary to other advisory professions, the clients of a notary are protected in these rare situations: every Notarial Association has fidelity insurance, which covers such damages. In addition to this, a fund has existed in Cologne since 1981 into which every notary contributes. If a client suffers intentional damages because of a “black sheep” in the profession, this fund will cover the financial consequences.

Specialist practitioners

The German notary is a specialised lawyer. Specialised notaries do not exist.

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.

Entering the profession

Common requirements for access to the different branches of a notarial profession:

passed the second state examination in law (except for the state-employed notaries in the district of the Higher Regional Court of Stuttgart, who receive special legal training), undergoned practical training attaining above average grades
be German nationals.
there must be local demand for them
demonstrate that their personality and achievements make them suitable to exercise the notarial profession.

If there are several applicants for a Nurnotar notarial office vacancy, the Minister of Justice for the relevant federal state will make a decision according to merit (General geographical limitations). The third requirement helps to explain why RechtsanwÀlte sometimes have to wait for up to fifteen years before being granted their further admission as Notare.

Specific requirements include:

Nurnotare must pass the Second State Examination with particularly good grades in order to be admitted to the three years of preparatory training as a trainee notary, during time which they have to prove their practical suitability for the profession.

Anwaltsnotare must have practised successfully at the bar for five years, without any complaints. During this time they must undergo continuing education through acting as locum notary and attending courses in order to acquire the professional knowledge especially relevant for notarial work. Their marks in the Second State Examination are also taken into consideration when they are appointed.

Both Nurnotare and Anwaltsnotare are required to take an oath of loyalty to the constitution, and impartiality, after they have received the document confirming their appointment.

Amtsnotare/Bezirksnotare are selected in accordance with the principles applicable to civil servants.

Legal Training

Governing Bodies

The notary’s role is that of an impartial third party. Therefore he must be independent from any directions of a public authority and is only bound by the law.

This notarial independence is traditionally reflected in their self-governing bodies, the Notarial Associations. These represent the interests of the profession vis-Ă -vis third parties, and at the same time operate as a regulatory authority for their members. In this way the Associations oversee professional compliance within their districts, and are authorized to issue binding professional ethical guidelines. The umbrella organisation for all the Associations is the Bundesnotarkammer (Federal Association of Notaries) in Cologne. It issues common guidelines on notarially relevant questions, develops new practice concepts and acts on behalf of notaries, in particular with regard to political and economical institutions.

In relation to bodies dealing with education/training and conduct (ethical rules-discipline), according to § 67 (2) No. 10 BNotO it is the task of the Notarial Associations to make rules concerning the education and training of notaries. Law and statute are the notary’s only law of conduct. Each notary must to be personally and professionally qualified and must swear an oath that he will conscientiously conduct his office. The Bundesnotarordnung (BNotO) can be seen as a compilation of the rules of conduct. Primarily, it is the law governing notarial activities, their organisations and related matters.

Under § 67 (2) BNotO, the Notarial Associations control the reputation of their members and support the supervisory authorities specified in § 92 BNotO. The work of this supervisory authority is limited to the question of legality of administrative activities (§ 93 BNotO). In the case of complaints, a disciplinary procedure can be instituted, and for very grave offences the notary may be dismissed from office.

Relevant Legislation

Bundesnotarordnung (BNotO) vom 24. Februar 1961 (BGBl. I S. 98), zuletzt geÀndert durch. Gesetz vom 31. August 1998 (BGBl. I S. 2585)

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

An independant agent and consultant on all legal matters who may be approached directly by members of the public. RechtsanwÀlte often work in the smaller cities, and are not concentrated exclusively in a few large areas, as is the case with the English Bar.

Although a Rechtsanwalt may give legal advice in any town, in the past he could not do so on a permanent basis. There were territorial limitations on legal representation and jurisdiction in civil matters but these did not extend to local courts of first instance (Amtsgerichte), tribunals, criminal or other matters.
Information about Bailiffs in the European countries is provided here.

Bailiffs

The Gerichtsvollzieher has to perform his office in a neutral way, has to observe not only the interests of the creditor but those of the debtor as well and has to proceed strictly according to the legal provisions (in particular those of the code of civil procedure [Zivilprozeßordnung].

Information about Bailiffs in the European countries is provided here.

Notaries in other European Countries

Resources

Notes

See Also

Further Reading

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