German Civil Law Notaries and how they are organised
Information provided by the Bundesnotarkammer (Federal Chamber of German civil law notaries)
Tel.: (+49) (30) 3 83 86 60
Fax: (+49) (30) 38 38 66 66
I. Figures and Functions
Approximately 9,500 lawyers work as civil law notaries in Germany today. They are state-appointed officials who provide independent, impartial and objective advice for important legal transactions. In roughly two thirds of the country civil law notaries practise as single-profession civil law notaries. In the other areas, civil law notaries exercise the profession as an additional office alongside with their activity as attorneys. For historical reasons, there are also state-employed civil law notaries in some parts of the State of Baden-Württemberg. However, the same professional rules apply to all civil law notaries. Procedural provisions, ethics and fees of the civil law notaries are governed by federal law and are therefore the same all over Germany.
II. What do you need a Notary for?
German civil law notaries play a key role in real estate law, the law of mortgages, the law of contracts, corporate law as well as family and succession law. Within the German system of “preventive justice” the civil law notaries’ function is complementary to the role of a judge. The intervention of a notary is required by the law in cases of important transactions with long-term effects and a particular economic or personal significance for the parties concerned. Such cases are, among others, the sale of land, the establishment of a mortgage, the incorporation of a limited liability company (GmbH) or a public limited company (Aktiengesellschaft), certain corporate share deals or asset deals and matrimonial property agreements.
Civil law notaries act as independent, impartial and objective advisers to all parties to a transaction. They examine the intentions of the parties, draft the contracts and instruments necessary to carry out the intended transaction and ensure that the contractual provisions are in full compliance with the law. Civil law notaries also verify that the parties have full (mental and legal) capacity to enter into the intended agreement and that they have fully understood the legal implications of their commitment. Otherwise, the civil law notary is required by law to refuse his participation. The idea underlying this system is to establish a preventive legal control in order to avoid costly and time-consuming litigation about the validity and the meaning of contractual provisions in the aftermath of a transaction.
Apart from the legal certainty and correctness, a transaction in the form of an authentic instrument offers additional advantages to the parties. By law, authentic instruments are vested with an increased value of evidence and with so-called immediate enforceability. This means that an authentic instrument establishes full proof of the fact that the persons mentioned in the heading of the document have accepted the commitments undertaken therein with the content stated therein. Furthermore, the debtor of a claim for money can declare in an authentic instrument a so-called “submission to immediate enforcement into his assets”. In this case, the creditor can seize and exploit the assets of the debtor without filing a lawsuit. In fact, for enforcement purposes the authentic instrument established by a notary is equivalent to an enforceable court judgment. However, an authentic instrument does not have res judicata or collateral estoppel effects.
III. Admission to the profession and disciplinary control
Civil law notaries hold a public office and are therefore subject to special rules concerning appointment and admission. Civil law notaries are selected and appointed by the State Minister of Justice according to a merit-based system. Regardless of the type of civil law notary, whether “single-profession notaries” or “attorney-notaries”, they are fully qualified to work as judges and attorneys and have undergone additional practical training. Admission to the notarial profession is highly competitive. As well as in other areas of public service, there is a strict selection of the best applicants. Civil law notaries are usually selected among the top law graduates. “Single-profession notaries” generally have to serve at least three years as “notarial candidates” (Notarassessoren) under the supervision of an experienced notary before they can apply to the State Minister of Justice for appointment. Receiving a “training on the job”, “notarial candidates” also work as “officially appointed representatives” of a notary who is temporarily absent or prevented from exercising his function. “Attorney-notaries” are likewise required to work as “officially appointed representatives” before their official appointment as well. Furthermore, they have to take part successfully in special training classes in various areas of notarial practice.
In order to ensure independence and impartiality of the civil law notaries, their number is limited. It is fixed for each state by the State Ministry of Justice within its discretion based on the relevant requirements and demands. Today, approximately 1600 “single-profession notaries”, approximately 7500 “attorney-notaries” and some 500 state-employed notaries practise in some 2000 German cities and municipalities. In order to provide easy access to a notary even in rural areas, each notary is assigned a certain district for his activity. In larger cities several notaries practise in the same district. Notwithstanding the fact that the notary is bound to the district he is assigned to, people are free to choose any notary in the country and the authentic instruments established by a notary are effective and valid everywhere.
Once officially appointed, the civil law notary does not receive a salary from the state. Instead, he or she charges fees to the parties. Such fees are fixed by law and depend on the value of the case. As an exception, in the State of Baden-Württemberg there are also notaries who are state-employed and enjoy the status of civil servants. In turn, the State is entitled to the bulk of the fees.
In case of negligence, a notary is personally liable for all damages caused. Liability insurance is mandatory for all notaries. Furthermore, the regional chambers have established a special fund for damages that are not fully covered by the liability insurance.
All civil law notaries are further subject to the supervision by the President of the competent district court. Negligence and non-compliance with the law can also result in disciplinary sanctions. In addition, all notaries are subject to a regular control of their files and their practice by the supervisory authority.
IV. About us - How German Civil Law Notaries are organised
The Bundesnotarkammer is a body established and governed by federal law representing the German civil law notaries as a whole in the process of political decision-making at the national level. The Bundesnotarkammer also coordinates the activities of the regional chambers. It is lead by a seven-men steering committee and officially represented by its president, elected for a term of four years. Members of the Bundesnotarkammer are the 21 regional chambers of civil law notaries usually operating on a state-wide basis. However, for historical reasons in some states there are two or three regional chambers covering only a part of the state’s territory. For each civil law notary, membership in the regional chamber is mandatory, i.e. each civil law notary becomes a member of his regional chamber upon his appointment.
The regional chambers represent their respective members and ensure the compliance with professional ethics. In addition, they advise their members on disciplinary matters and ensure continuing education. Furthermore, they cooperate closely with the respective state government (Department of Justice and competent courts as supervisory authorities) regarding the appointment and the supervision of notaries.
The Deutsches Notarinstitut (German Notaries’ Institute), based in Würzburg, is a highly recognized legal think tank founded by the Bundesnotarkammer in 1993. All German notaries can rely on its support in more complex cases.
Continuing education in all fields of notarial activity is the purpose of the Fachinstitut für Notare (Institute of Advanced Training for Notaries) organised as a branch of the Deutsches Anwaltsinstitut (German Advocates’ Institute of Advanced Training) based in Bochum.
V. Notaries at international and European level
In addition, the Bundesnotarkammer represents the German notaries at the European and international level. It is a member of the Conférence des Notariats de l’Union Européenne, the umbrella organisation of the civil law notaries in Europe. The Bundesnotarkammer runs its own office in Brussels and takes part in European discussions and consultations in all relevant fields of notarial activities such as consumer law, law of contracts, law of succession and family law. On a world-wide scale, the Bundesnotarkammer is a member of the Union Internationale du Notariat Latin – U.I.N.L., a world-wide forum of notaries for the exchange of information, experiences and ideas, based in Rome and uniting more than 70 national notaries’ organisations, including those of France, Spain, Italy, China, Mexico or Japan.