Notaries in Portugal

Notaries in Portugal

Professional activities

This profession is not a free liberal legal profession, but is considered to be exercising a public function. It is regulated by the public administration. In Portugal, notaries are public/civil servants with an appointment for life. Notaries are, according to the professional hierarchy, subordinated to the Minister of Justice, through the General-Director of the Registry/Records and of the Public Notary.

The notarial code of 1967 regulates the competence of notaries in Article 5, lists the following activities:

to draw up public wills, instruments of approval, the deposit and the opening of closed wills;
to draw any other public instruments in the notarial books and outside them;
to register terms of identification in particular documents of the recognition of the authorship of the letter with which those documents are written by or the signature written down;
to draw Certificates of Life and Identity, as well as of the performance of public duties, of management or of any administration of companies and firms;
to draw Certificates of any other effects which have been duly verified;
to certify or to make certified, circulation of documents written in a foreign language;
to draw Certificates of Public Instruments and of any other registered documents, or to draw public forms of documents which, to their purposes, are presented to or by interested parties;
to issue copies of instruments and any other documents, or to check with the respective original the photocopies claimed by interested parties;
to intervene in jurical extra-judicial acts (actos juridicos extrajudiciais) which the interested parties aim to give special guarantee of certainty.

Access to the Profession

To be a Notary (or conservador) one must:

Hold a degree in Law taken in a Portuguese University or an equivalent qualification according to the Portuguese Law
Fulfilled the general requirements for admission in the public office/ civil service
To have finished with good results the estagio as Adjunct-trainee ( adjuntos estagiarios).

The candidates to the estagio shall petition the Minister of Justice for entry. There are only a very limiteed number of positions. The estagio consists of eight months in the Notary’s Office, six months in the Property Registry and four months in the Civil Registry. At the end of the estagio the Notary and conservadores grade the trainees performance and send this to the Director General of Registrars and Notaries. Those with the best results will become adjuncts to the conservadores or notarios. They must then sit a competitive state examination, comprising both practical and theoretical problems, at the next opportunity. The resulting top candidates will then get official appointments.

The admission proceeding for the career of notary is regulated by the “Law-Decree Number 206/97”, of 12th June, published in I Série-A, of the “Official Gazette of the Republic”.

Reserved activities

Professional titles

Advertising/Publicity

Client confidentiality/Professional privileges

Clients’ money

Fees

Accounting

Professional insurance

Specialist practitioners

Author: J Lonbay (A), 2008

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 Education

Access to higher education in Portugal is open to all who successfully complete secondary education course or its equivalent and who can demonstrate their ability to attend. Universities generally set an entrance examination. There are special procedures for mature candidates. A law granting Universities autonomy was passed in 1988 (DL 108/88). This will allow them more control over their own courses. As the powers granted by this law are exercised the contents of law degrees is bound to diverge.

Law Degree (licenciatura em Direito) The licenciatura is an undergraduate degree. The degree takes a minimum of five years to complete. There are nine Law Faculties in Portugal. The basic curriculum was established by the central authorities, though Universities are likely to flex their new found autonomy. Appendices 1 and 2 detail the subjects taught at the Univerities of Lisbon and Coimbra. For the purpose of entry to the profession of advogado official Portuguese law degrees are automatically recognised. Foreigners holding Portuguese law degrees are treated equally on the basis of home state reciprocity. Non-Portuguese law degrees have to be recognised as equivalent before they are valid for professional purposes, except for Brazilian holders of law degrees from either Brazil or Portugal which are reciprocally recognised.

Legal Training

Governing Bodies

Notaries are public officials.

Relevant Legislation

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

The main provisions regulating the profession of Advogado are contained in the Decree law No.49/84 of 16 march 1984 (Estatuto da Ordem dos Advogados). Information about lawyers in the European countries is provided here.

Bailiffs

In Portugal judicial officers are civil servants that either work in courts or in the Public Ministry. There are different categories of judicial officers. 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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