Definition and Significance of the BNotO
The Bundesnotarordnung (BNotO) is the central law of the Federal Republic of Germany that regulates the organization and position of the notariat. It forms the foundation of notarial professional law and regulates, in particular, the appointment, conduct, and supervision of notaries as well as their rights and obligations. The abbreviation BNotO stands for ‘Bundesnotarordnung.’ The BNotO is an independent law and holds central significance in the field of public law and the administration of justice in Germany.
Historical Development of the Bundesnotarordnung (BNotO)
The Bundesnotarordnung was enacted on February 24, 1961 (BGBl. I p. 97) and has been amended several times since. The aim was to unify the previously fragmented regulations concerning the notariat, ensure equal opportunities and legal certainty, and adapt the notariat to the requirements of a modern administration of justice.
Scope of Application of the BNotO
The BNotO generally applies to all notaries in Germany, with the exception of Baden-Württemberg, where so-called lawyer-notaries were still active due to a historical special regulation until the year 2022. Since the transition to the exclusive notariat system, the BNotO applies uniformly nationwide.
Field of Application
The BNotO governs all questions relating to the notariat, from appointment and exercising of office to the termination of the notarial office. It applies to lifelong notaries as well as notaries appointed on a revocable basis or as interim representatives.
Appointment and Requirements for Notaries
Requirements for Appointment
The BNotO, in Sections 5 to 8, stipulates the requirements for appointment as a notary. The central requirement is qualification for judicial office in accordance with the German Judiciary Act. Additional requirements include personal suitability, professional qualifications, and the applicant’s orderly financial circumstances. Trustworthiness, characterized by independence, neutrality, and integrity, is strictly required.
Selection Procedure
The selection of notaries takes place through a formal procedure that includes a pool of applicants under Section 6 BNotO. The selection process is intended especially to ensure independence and professional competence. The notarial chamber decides on the appointment upon proposal by the state judicial administration.
Rights and Obligations of Notaries
Official Duties
Notaries must ensure an impartial, responsible, and conscientious performance of their duties. This includes, in particular:
- Certification Activity
- Duties to Advise and Inform the Parties Involved
- Duty of Confidentiality pursuant to Section 18 BNotO
- Obligation for Professional Development and Conscientious Administration of the Notariat
Official Independence
Notaries, as independent holders of a public office, are not bound by instructions and carry out their work under their own responsibility. The BNotO explicitly guarantees this independence to ensure the highest level of legal certainty and neutrality.
Remuneration and Liability
Remuneration is in accordance with the Court and Notary Fees Act (GNotKG) and is not subject to free negotiation. In the event of culpable breaches of duty, the notary is liable under the public official liability provisions (Section 19 BNotO) for any damages caused.
Supervision, Disciplinary Procedures and Termination of Office
Supervision of Notaries
Supervision of notaries is exercised by the state judicial administrations. They have extensive control and supervisory powers to ensure lawful conduct in office.
Disciplinary Law and Sanctions
Breaches of official duties may result in disciplinary measures such as warnings, reprimands, fines, or, in serious cases, removal from office. Disciplinary procedures are provided for this, and their processes and legal bases are set out in the BNotO.
Termination of Notarial Office
The office of notary ends with the expiry of the term of office, resignation, revocation of appointment, reaching the age limit, or death. Statutory regulations on resignation and dismissal are laid out in detail in Sections 47 et seq. BNotO.
Organizational Principles and Professional Practice
Single Notariat and Exclusive Notariat
In Germany, the system of single notaries predominates; this means each notary is independently responsible for organizing their own notariat. The introduction of the exclusive notariat has largely abolished overlapping activities of lawyer-notaries.
Office Location and Office Premises
The office location and office premises of the notary are determined by the state judicial administration. Business operations generally take place in premises of their own, whose accessibility and neutrality must be ensured.
Significance of the BNotO for Legal Practice
The BNotO forms the central legal basis for all notarial services and procedures in Germany. It ensures consistency, transparency, and quality assurance in the area of official acts. Notaries play an essential role in preventive legal care, particularly in fields such as real estate law, inheritance law, family law, corporate law, and certifications.
Literature and Further Information
- Bundesnotarordnung (BNotO), consolidated version in the Federal Law Gazette
- Court and Notary Fees Act (GNotKG)
- Commentaries on the Bundesnotarordnung (for example, Eylmann/Vaasen, BNotO)
Note: This article provides a comprehensive overview of the BNotO and its regulated subject areas, but does not claim to cover every detail. For specific questions, the relevant version and further specialist literature should be consulted.
Frequently Asked Questions
What are the requirements for appointment as a notary under the BNotO?
Appointment as a notary in accordance with the Bundesnotarordnung (BNotO) requires that an applicant possess the qualification for judicial office under the German Judiciary Act (§ 5 DRiG). In addition, the person must demonstrate personal suitability and professional competence. This particularly includes reliability of character, orderly financial circumstances as well as physical and mental fitness to exercise the office of notary (§ 6 BNotO). Furthermore, applicants are required to prove at least three years of professional experience as a lawyer or in another legal position, with periods of practical employment—such as notary assessor—also being credited. Further provisions concern age limits: the applicant must not have reached the age of 60 (§ 6 para. 1 sentence 2 BNotO), although exceptions are possible. There are also restrictions in the case of previous disciplinary or criminal convictions. The appointment is ultimately made by the competent state judicial administration, which must take into consideration the need for new notarial positions and the supply in the relevant district. For the selection of competing applicants, the principle of selection based on merit applies, with official assessments, results of the notarial specialist examination, and professional experience being decisive.
What are the obligations of notaries under the BNotO?
According to Sections 14 et seq. BNotO, notaries have a wide range of official obligations. They are required to perform their duties independently, impartially, and on their own responsibility. When certifying legal transactions, they must provide comprehensive legal advice and guidance to all parties involved, strictly observing their duty of confidentiality (§ 18 BNotO). They may not undertake matters subject to a participation ban under Section 3 BNotO, for example when they or close relatives are involved. In addition, notaries are obliged to maintain proper record and file management (§ 17 BNotO) and to exercise due care in holding assets belonging to others. Special attention is given to the obligation of continuous further education (§ 14 para. 6 BNotO) to ensure quality in the performance of their duties. Breaches of these duties may lead to disciplinary measures up to the loss of office.
In which cases can appointment as a notary be revoked under the BNotO?
Section 50 BNotO sets out a number of grounds on which appointment as a notary may be revoked. Revocation occurs in particular if the appointment was obtained by deception, threats, or bribery, or if circumstances occur subsequently that would have led to denial of appointment, such as loss of qualification for judicial office or unreliability. Serious breaches of duties or persistent failure to fulfill continuing education requirements may also be reasons for revocation. Removal from notarial office is also possible if the notary has been finally convicted of a felony or offense and sentenced to at least one year’s imprisonment, § 50 para. 2 BNotO. Revocation must always be made in writing and must be justified with an appealable administrative order.
How does the BNotO regulate the secondary employment ban for notaries?
According to Section 8 BNotO, notaries are generally prohibited from any commercial activity and the exercise of another profession, to the extent that it is incompatible with their notarial office. In particular, holding influential or dependent positions in companies or public functions is not permitted, as this could endanger the independence and impartiality of the office. Certain secondary activities, such as academic employment or occasional lecturing, are permitted if limited in scope and not impairing the orderly exercise of official duties. Taking up secondary employment must be reported to the notarial chamber and, in most cases, requires prior approval by the relevant supervisory authority. Violations of the prohibition on secondary employment may have disciplinary consequences.
How is the procedure for the transfer of a notary position regulated by the BNotO?
The procedure for the transfer of a notary position is regulated in Sections 4 et seq. BNotO and is subject to strict supervision and a selection process by the state judicial administration. After the determination of an existing or anticipated need for notaries, the position is publicly advertised; interested parties must submit their application within the deadline. Selection among competing applicants is based on the criteria of suitability, competence, and professional performance (performance principle, Section 6 para. 3 BNotO). The procedure involves the notarial chamber and, in some cases, the notarial committees in an advisory capacity. The selection process includes the assessment of official evaluations, the outcome of the notarial specialist examination, and other professional experience. After the selection process is completed, the judicial administration makes the decision and formally appoints the best qualified person to the notarial office. There is generally no legal entitlement to be appointed to a notarial position.
What types of professional liability does the BNotO regulate for notaries?
According to Section 19 BNotO, notaries are liable for damages caused by intentional or negligent breaches of their official duties. Liability extends to financial as well as possible non-financial losses caused in the course of performing their duties. Liability is limited to acts connected with the exercise of office and particularly covers faulty notarizations, breaches of confidentiality, and duties to advise and inform. In order to protect the interests of those involved, every notary is required to take out and maintain professional liability insurance with sufficient coverage (§ 19a BNotO). The minimum coverage amount is set by statutory regulation. Claims arising from official liability can be settled by the supervisory authorities, although personal liability cannot be ruled out.
How does the BNotO relate to other professional regulatory provisions, especially the BRAO?
The Bundesnotarordnung (BNotO) is the relevant professional regulatory framework specifically for notaries in Germany, whereas the Federal Lawyers’ Act (BRAO) mainly applies to lawyers. In the case of lawyer-notaries (so-called exclusive notaries and lawyer-notaries), overlaps may occur. In principle, Section 1 sentence 2 BNotO provides that, in the event of conflict, the more specific rules of the BNotO prevail over the general provisions of the BRAO. This applies in particular to obligations of independence, impartiality and the specific prohibitions on certain activities. The BNotO also regulates disciplinary law, the requirement for appointment, notary supervision and many details of the office more specifically than the BRAO. While certain provisions of the BRAO may apply additionally, the priority of the BNotO with regard to notary-specific matters always remains unaffected.
