Concept and Significance of the Federal Notarial Code
Die Federal Notarial Code (BNotO) is a central law of the Federal Republic of Germany that regulates the legal framework for the notarial office as well as the organization and performance of notarial activities. It establishes the basis for the independent exercise of the notary profession, defines the duties and rights of notaries, and governs appointment, supervision, and disciplinary measures. The Federal Notarial Code is crucial for ensuring the proper, impartial, and lawful certification and authentication of legal transactions and other legally relevant actions within the German legal system.
Subject Matter and Scope of Application
Purpose of the Federal Notarial Code
The BNotO serves the rule-of-law structuring and oversight of the notariat in Germany. It safeguards the integrity and impartiality of notarial acts, which are of fundamental importance for legal dealings, especially regarding real estate transactions or corporate structuring.
Scope of Application
The Federal Notarial Code applies to all notaries in Germany, whether on a full-time or part-time basis. Within the federal states, specific regulations may apply, provided these are consistent with the provisions of the BNotO.
Historical Development
The Federal Notarial Code entered into force on February 24, 1961, and replaced a host of state-specific regulations that had previously governed the notariat in Germany. The objective was standardization and the creation of a nationwide legal basis for the notarial office.
Organizational Structure of the Notariat
Office of the Notary
The BNotO defines the notarial office (§ 1 BNotO) as a public office serving preventative administration of justice. Notaries are independent holders of a public office and act in this capacity impartially and neutrally.
Appointment and Inauguration
Appointment as a notary is carried out by the judicial administration of the respective federal state (§ 4 ff. BNotO). Appointment can be as a full-time (full-time notary) or part-time notary (the so-called lawyer-notary). Requirements are, in particular, eligibility for judicial office, personal and professional suitability, and successful completion of a selection procedure.
Duration of Appointment
Appointment is generally for life, but ends upon reaching the statutory retirement age, by resignation, or through dismissal as provided by law.
Rights and Duties of the Notary
Independence and Neutrality
The notarial office is characterized by the duty of independence (§ 14 BNotO). Notaries do not act on behalf of a party or third party, but to uphold legal certainty and compliance.
Duty of Confidentiality
A comprehensive professional duty of confidentiality (§ 18 BNotO) protects the interests of those involved and is a basic prerequisite for trust in the notariat.
Official Duties and Areas of Activity
The tasks particularly include:
- the certification of legal transactions and statements (for example, purchase agreements, inheritance contracts, wills)
- the authentication of signatures and copies
- the safekeeping and management of documents and funds
Notaries are required to take out professional liability insurance to protect against potential liability cases arising from their activities.
Duties of Participation and Prohibition of Participation
§§ 3, 14 BNotO regulate cases in which the notary is excluded from an official act, such as in the event of conflicts of interest. These include cases where the notary himself or close relatives are affected.
Supervision and Disciplinary Law
Supervision of Notaries
Supervision of notaries is the responsibility of the judicial administrations of the states. They monitor compliance with professional duties, review performance of official duties, and may issue instructions or take action if necessary.
Disciplinary Proceedings
In the event of breaches of professional duties, the BNotO provides for disciplinary proceedings (§§ 75 ff. BNotO). These range from warnings to removal from office and serve to ensure the proper and lawful performance of notarial duties.
Regulations Governing Performance of Official Duties and Official Liability
Official Custody and Document Management
The BNotO obligates notaries to keep registers and properly safeguard documents (§ 50 BNotO). It also regulates access to notarial documents and the handover of certain documents, taking into account the interests of those involved.
Liability of the Notary
For damages resulting from breaches of duty in connection with the exercise of the notarial office, the notary is personally liable. Liability is fundamentally subsidiary to professional liability insurance, in order to protect the interests of the parties involved.
Termination of the Notarial Office
The notarial office terminates upon:
- Reaching the retirement age
- Resignation from office
- Removal from office or dismissal in the case of serious breaches of duty (§§ 47 ff. BNotO)
Significant Reforms and Current Developments
The Federal Notarial Code is subject to continuous adjustments in order to take account of developments in the notariat and digitalization, such as the introduction of the electronic document archive (§ 78n BNotO) or the expansion of digital notarization procedures.
Literature and Further Provisions
Key additional legal sources besides the Federal Notarial Code include:
- the Notarization Act (BeurkG)
- the Service Regulations for Notaries (DONot)
- numerous state-specific regulations
Importance of the Federal Notarial Code for the German Legal System
The Federal Notarial Code is of fundamental importance for legal certainty in the German legal system. It ensures the professionalism, transparency, and legality of notarial activities and thus secures trust in notarial certification procedures as an essential part of preventive administration of justice.
Frequently Asked Questions
What requirements must candidates for the notarial office meet according to the Federal Notarial Code?
The Federal Notarial Code (BNotO) sets clear requirements for appointment as a notary. Candidates must first possess eligibility for judicial office according to the German Judiciary Act, which generally requires successful completion of the first and second legal state examinations. In addition, they must meet personal requirements such as reliability, sound financial circumstances, and health suitability. Professional qualification is usually demonstrated through several years of experience in the notarial field, for example as a notary assessor. Personal suitability also plays an important role, with particular emphasis on integrity, independence, and impartiality. The selection of notaries is generally carried out by the state judicial administration according to objective and transparent criteria, as specified in the application process of the respective federal states. In areas with the so-called lawyer-notary system, being admitted as a lawyer and having a certain level of professional experience is generally sufficient. If there are doubts about suitability, an in-depth examination and possibly a hearing may take place.
How are notaries appointed and sworn in Germany?
Appointment as a notary is carried out by the competent state judicial administration, which is bound by the formal application procedure and the legal requirements of the Federal Notarial Code. After positive assessment of the professional, personal, and health suitability, the candidate is issued a certificate of appointment. This appointment is linked to the oath that every notary must take before a competent authority, usually before the president of the regional court. In this oath, the notary promises to perform his or her official duties conscientiously and, in particular, to act impartially and confidentially. The swearing-in is legally mandatory and a prerequisite for the exercise of notarial duties. Appointment is usually for life, but can be revoked under certain circumstances (e.g. for reasons of age, gross breach of duty, or lack of fitness for office).
What supervisory and control mechanisms does the Federal Notarial Code provide over notaries?
The Federal Notarial Code provides for extensive supervisory and control mechanisms to ensure the proper performance of notarial duties. Supervision is mainly exercised by the state judicial administration, which monitors compliance with professional duties through regular inspections. These include periodic business audits, which check not only the formal and substantive correctness of notarial acts but also the keeping of records and compliance with fee regulations. In case of objections or suspected breaches of duty, the supervisory authority may initiate disciplinary measures, ranging from warnings and fines to removal from office. Notaries are obliged to provide information at any time, present files, and comply with instructions from the supervisory authority. Moreover, they are subject to professional oversight by the notarial chambers, which also have supervisory and sanctioning powers.
What are the main duties of notaries in everyday professional life according to the Federal Notarial Code?
According to the Federal Notarial Code, notaries are obliged to independence, neutrality, and impartiality. They must handle all certification transactions impartially and may not take sides for any party or favor a client. The duty of confidentiality is central: notaries must maintain strict secrecy about all matters entrusted to them in the exercise of their office. There is also an obligation to perform official duties conscientiously. This particularly includes careful assessment of the legal capacity of parties involved, lawful structuring and execution of certifications, and informing the parties about the legal effects of documents. Notaries are also required to pursue continuing education to ensure the quality of their work and must avoid any form of conflict of interest. Other important duties relate to the proper safekeeping of files, secure storage of document collections, and timely reporting of tax-relevant matters.
How does the Federal Notarial Code regulate notaries’ liability for breaches of official duty?
The Federal Notarial Code provides that notaries are personally liable for losses caused to third parties by intentional or negligent breaches of their official duties. This includes in particular incorrect certification of contracts or violations of the duty of neutrality. To protect those who suffer loss, every notary is required to take out professional liability insurance with a minimum sum insured prescribed by law. The insurance covers damages that may arise in the course of performing official duties. In addition to civil liability, serious breaches of duty may also lead to disciplinary proceedings, which can ultimately result in removal from office. In cases of criminal behavior such as forgery or bribery, criminal penalties also apply.
What differences exist according to the Federal Notarial Code between full-time notaries and lawyer-notaries?
The Federal Notarial Code regulates two main types of notariat in Germany: the full-time notariat and the lawyer-notariat. In the full-time notariat (especially in the eastern federal states and some parts of western Germany), notaries exercise their office exclusively on a full-time basis and are not permitted to work as lawyers. In the so-called lawyer-notariat (mainly in western Germany), notaries are admitted as both notaries and lawyers, but for each notarized transaction, they may only act either as notary or as lawyer. The procedures for appointment and the requirements regarding selection and professional experience differ in part: for the lawyer-notariat, many years of practice as a lawyer is required, while in the full-time notariat, specific training and experience as a notary assessor is required. Both types, however, are subject to the same duties under the Federal Notarial Code and are under the same state supervision.
Under what conditions can a notary be dismissed or removed from office?
The Federal Notarial Code contains detailed provisions specifying the circumstances under which a notary can be removed from office. Dismissal usually occurs at the notary’s own request, such as upon reaching the statutory retirement age or for health reasons. Compulsory removal, on the other hand, may occur in cases of serious breaches of duty, gross unreliability, loss of health suitability, or if there is a criminal conviction. In such cases, formal disciplinary proceedings are initiated, during which the notary is granted the right to be heard. Proceedings are conducted by the state judicial administration, with judgments or decisions regarding disciplinary measures also subject to judicial review. In cases of abuse of official position or severe breaches of professional law, immediate suspension may also be ordered to prevent further harm.
