8 April 2019

CEPEJ-GT-EVAL (2019)1rev2

European Commission for the Efficiency of Justice (CEPEJ)

Working Group on the Evaluation of Judicial Systems

(CEPEJ-GT-EVAL)

Specific Study of the CEPEJ on the Legal Professions

Contribution of the Council of the Notariats of the European Union (CNUE)

A distinction must be made between Latin-type/civil law notaries and “notaries public”, who do not have the same competences.

Latin-type/civil law notaries are independent and impartial public office-holders who have received a delegation of authority from the State to authenticate legal documents. They are entrusted with the mission of ensuring freedom of consent so that the legitimate interests of all concerned are guaranteed by providing comprehensive legal advice and information. A signature by the notary confers authenticity to legal acts. As providers of legal certainty, notaries play an essential role in helping to limit subsequent disputes. They are therefore major players in the preventive administration of justice.

Latin notaries are generally in charge of drawing up and receiving legal deeds, acknowledging signatures and statements, providing evidence, ensuring that documents comply with the law and, in some states or entities, issuing subpoenas or executing court decisions.

“Notaries Public” are typically not required to be lawyers, but instead are ministerial officers with limited powers and functions[1]. The notaries public are officials who are not authorized to authenticate legal deeds and can only certify signatures[2].  

1.1       Status, number and functions

The notarial profession exists in many European countries. Most of the 48 responding states or entities reported that the notarial profession was a separate profession within their legal system. The vast majority of countries have Latin notaries who act as independent private professionals subject to State supervision (33), and/or public agents[3] (16), for example in Azerbaijan, Belgium, Estonia, France, Germany, Luxembourg and Spain. Notaries in Austria and Spain also practise their profession as liberals under control of public authorities.

This is not the case in UK-England and Wales and Sweden where public authorities do not exercise any control over the exercise of the profession.

In Denmark, the notary is an integrated function of the district courts. In Iceland, the 24 district commissioners act as notarius publicus (Public Notaries).

In most responding states or entities, notaries are appointed by an official act of government as is for example the case in Austria, Belgium, France, Georgia, Germany, Greece, Italy, Luxembourg, the Netherlands, Romania, Serbia and Spain.

Table 1. Status of notaries (Q192)

States/entities		Private professionals (without control from public authorities)	Private professionals under the authority (control) of public authorities	Public agents	Other
Albania
Andorra
Armenia
Austria
Azerbaijan
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Republic of Moldova
Monaco
Montenegro
Netherlands
North Macedonia
Norway
Poland
Portugal
Romania
Russian Federation
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Turkey
Ukraine
UK-England and Wales
UK-Scotland
Israel
Morocco
Nb of Yes		9	33	16	10
Nb of No or NAP		36	14	27	35
Nb of NA		3	1	5	3
Total		48	48	48	48

Between 2014 and 2016, the total number of notaries increased, with an evolution range between -10% (Turkey) and +95% (Switzerland), as the profession’s adaptive response to the needs of states and citizens alike.

An important increase (more than 5 %) can be noticed in Albania, Armenia, Bulgaria, France, Ireland, Israel, Montenegro, the Netherlands, Poland, Portugal, Serbia, Sweden and Switzerland, whereas a significant decrease (more than 5 %) is to be observed in Greece and Turkey.

Examples and comments may be found in the Database CEPEJ-STATof the Council of Europe:

http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2016/STAT/default.asp

Regarding gender equality, recent data on the percentage of men and women in the notarial profession show an important increase in the number of female notaries. In Bulgaria, Croatia, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania, and Slovakia, more than 50% of the notaries are women. Belgium, France, Italy and Spain follow the same pattern with 30 to 40 % female notaries.   

Table 2.  Functions of notaries in 2016 (Q194)
States/entities		Civil procedure	Legal advice	Authentication of legal deeds and certificates	Other
Albania
Andorra
Armenia
Austria
Azerbaijan
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Republic of Moldova
Monaco
Montenegro
Netherlands
North Macedonia
Norway
Poland
Portugal
Romania
Russian Federation
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Turkey
Ukraine
UK-England and Wales
UK-Scotland
Israel
Morocco
Nb of Yes		33	34	48	21
Nb of No		15	14	0	27
Total		48	48	48	48

Like in other sectors, the functions of notaries vary considerably from one state or entity to another. Whereas the “authenticity” in the case of notaries public covers only the signature, the main competence of Latin type notaries lies in the authentication of legal acts. This consists in providing authenticity regarding the identity of the parties, their capacity and their informed consent as well as the lawfulness of the content of the deed. It should be noted that when Latin type notaries certify signatures, the certification might also entail the check of legal capacity of the parties involved and the examination of the content of the proposed transaction, as for example in Austria and Germany.

In more than two thirds of the states or entities (34), notaries can also provide legal advice separately. 33 states or entities entrust notaries with the performance of duties within the framework of civil procedures.

Best practice in the Latin type notariats

Notaries all over Europe are actively developing technologies to simplify the secure communication between the notaries, public registers and clients via electronic channels. However, when implementing new technologies in the area of notarial services, great professionalism and thorough preparation are of utmost importance. It has to be guaranteed, that legal certainty and fostering the reliability of preventive legality control within the justice system will not be impaired. The notarial profession is continuously working on simplifying communication between notaries and citizens while ensuring legal certainty for all parties involved all over Europe.

In most European countries, several public registers are established and administrated in electronic form. For instance, there are registers of wills, of European certificates of succession or succession registers in numerous countries like Austria, Belgium, Croatia, the Czech Republic, Estonia, France, Germany, Hungary, Luxembourg, Malta, the Netherlands, Poland and Romania. Some of these registers are interconnected on a European level. Austria and Belgium also register lasting powers of attorney to be attributed by a person wishing to organise his/her future extrajudicial protection. The communication between notaries and public registers or administrative authorities takes place electronically in a majority of European countries, for instance with the land register in Austria,Belgium, the Netherlands, Estonia, France, Germany, Italy, Latvia, Romania and Slovakia. In Italy, every notarial authentic instrument, either on paper or digitally, is sent to the relevant national administrations in the form of a digital copy, declared authentic by the notary him/herself.

Four European countries use the authentic instrument in a dematerialised form (Austria, France, Italy and Latvia). For example in France, the notarised act itself is produced and signed electronically. The client will attach the image of his/her handwritten signature to a touch screen, because France does not yet have eID, while the notary will sign it electronically using his/her REAL key. This signing operation will also result in the image of the notary’s handwritten signature being attached to the act in addition to his/her electronic signature. In 2018, more than 80% of acts are electronic acts. Since the beginning of 2018, French notaries have even had the means to issue joint acts in several offices simultaneously, with each notary being present with his/her own clients. It is therefore no longer necessary to travel, which in some cases represents a substantial saving. As from 2022, all notarial instruments in Germany will be stored electronically. In countries such as Romania where authentic instruments are drawn up in paper form the copy may be transmitted electronically.

In the Czech Republic notaries may offer the “direct notarial entry” (which means besides standard court proceedings) in the following Registers maintained by the courts: Business Register, Trust Register and Register of Beneficial Owners.

The Austrian notariat developed the electronic document archive “cyberDOC” effectively operating since the year 2000. This electronic document archive is not only used for the secure electronic storage of documents, but also for the secure and simplified electronic transfer of documents (e.g. in key areas of e-government, land and company register proceedings, and generally in electronic legal procedures with judicial authorities).

In Estonia, all notaries use the e-Notary info system. Estonian notaries operate on the basis of a general electronic authentication system, i.e. no special certificates for electronic signatures are issued for notaries. The notaries can use the e-Notary system for performing all their duties through a single platform. More specifically, notaries and their employees can use this system to make reliable inquiries concerning persons and objects to 17 different national and cross-border registers (e.g. matrimonial property register, Estonian Central Register of Securities, European register of wills).

In recent years, notaries in numerous countries have developed the possibility for clients to communicate with the notaries digitally or even via videoconference (e.g. Austria (for the setting up limited companies), Belgium, France, Italy, Latvia and theNetherlands). Furthermore, many countries are working on digital solutions in order to implement a videoconferencing system for their clients. In Latvia, notaries are authorised to use videoconference to prepare authentic acts and attestations, probate proceedings and other documents.

“Start MY Business” is a digital tool developed by Belgian notaries which enables each entrepreneur to found his/her company online. On this platform the user is able to choose which notarial office he/she wants to work with and to whom the encoded data will be transferred. Moreover, for example the Spanish notariat also developed an application for less costly and faster company formations of small and medium-sized businesses, by means of administration of documents and transfer of data at the notary’s office and other bodies involved in the incorporation of a company.

In the case of inheritance proceedings, all (formal) communication between the Czech notary and the court is done electronically through the System of “Data Boxes” (including reports concerning third parties or submission of a final court report).

Since 2017, a new e-apostille register together with a self-service portal has been developed in Estonia. This new digital solution simplifies the process of applying for and issuing apostilles and checking their authenticity. Thus, foreign officials will be able to verify the apostilles and apostilled documents issued in Estonia in the register of e-apostilles. In addition to submitting a digital application, the self-service portal can also be used for paying invoices, managing the apostilles issued from the authority to the applicant and to request that public officials issue and upload documents directly into the electronic environment of apostilles.

Latin-type notaries also use new technologies at European level taking advantage of the technological developments and constantly seeking to improve their service for citizens.

In the framework of the Council of the Notariats of the European Union (CNUE) – the official body representing the civil law notarial profession in dealings with the European institutions – several initiatives improve the service given on a day-to-day basis and offer useful tools for the notaries’ practice.

The European Notarial Network (ENN)

The European Notarial Network (ENN) is a tool for notaries facing practical questions with a cross-border element. It covers the 22 CNUE members. A contact point is available to help notaries in each of these 22 countries and assists them if questions relating to a cross-border matter arise, for example, on the company’s incorporation or a marriage contract.

Civil law notaries in the 22 CNUE member countries can have access to a "one-stop platform", the ENN IT Infrastructure. This infrastructure will enable notaries in Europe to:

·         Open an account with secure access (username and password) to the databases and working documents provided by the ENN

·         Use tools for notarial cross-border practice and for citizens, for example by creating bilingual forms for use in notarial practice

·         Have access to reliable updated and/or new legal information and to various tools for notarial practice, as well as some tools intended for the public

·         Join specialised networks.

More information is available at www.enn-rne.eu

EUFides

EUFides is a shared platform created by the Notaries of Europe. It is a type of secure notarial cloud that makes it easier for European notaries to work together on cross-border files, in real estate, succession and company law files for example.

The EUFides platform is governed by an international non-profit association under Belgian law (AISBL), the founding members of which are the Belgian, French, Italian, Luxembourg and Spanish notariats. The German and Dutch notariats joined the AISBL. Notaries from the member notariats can use the platform and even invite a civil law notary from another European country that is not yet a member to work on a cross-border file.

The European Network of Registers of Wills Association (ENRWA)

The European Network of Registers of Wills Association (ENRWA, or ARERT in French) is an international not-for-profit association governed by Belgian law, created in 2005 by the Belgian, French and Slovenian Notariats.

In compliance with the Basel Convention relating to the establishment of a system for the registration of wills of 16 May 1972, the States which have a register for the recording of wills and which join the ENRWA can interconnect these registers, thus enabling all European citizens to discover the wills left by any deceased person regardless of the country in which such a will was registered.

The ENRWA provides citizens and legal practitioners with useful information on registering and searching for a will in Europe.

The ENRWA is also in charge of the launch of an initiative on the interconnection of registers of European Certificates of Succession (ECS) in the framework of the EU Succession Regulation (Regulation 650/2012 of 4 July 2012). 

More information is available at: www.enrwa.eu

Other examples of good practice/ added value for justice: non litigious legal competences: divorce by mutual consent

A number of best practices are in place in the notariat which illustrate not only the shifting from courts to the notarial profession, but also the shifting from the administration to the notariat. This helps reduce the courts’ workload and implicitly contributes to the efficiency of justice.  

For example, in Latvia, Romania and Spain, spouses that wish to divorce by mutual agreement may do so before a civil law notary.

In Romania, as of December 2010, a change in legislation enabled civil law notaries and officers of the civil registry to ascertain the termination of marriages by way of divorce by mutual agreement,if there were no minor children involved, with the first notarial and administrative divorces being finalised in January 2011. As of October 2011, the spouses were given the option to settle their divorce before a civil law notary, even in situations where minor children were involved. The characteristics of notarial divorce proceedings make it possible for the divorce to be finalized by the civil law notary, without being necessary to involve other legal professionals (lawyers, mediators, etc.) and without the involvement of a judge. Where the law calls for the minor children to be heard during divorce proceedings, the hearing is conducted by the civil law notary. The introduction of notarial and administrative divorce proceedings has been cited as a direct reason of the unburdening of the courts by Romania in the comments accompanying the data provided by the authorities for the CEPEJ's evaluation report on judicial systems (cycle 2016-2018). ^[4].

1.2       Supervision and control of the profession of notary

Control systems of the notary profession (questions 195 and 196)

According to the latest CEPEJ data, authorities supervising notaries exist in 45 out of 46 countries. Speaking of Latin-type/civil law notariats, every notariat mentioned in the latest CEPEJ data is subject to supervision and control (see table 3). 

Supervisory and control competences, structures and tasks differ among the notariats having provided answers. In many cases, national or regional Chambers of Notaries or similar bodies are legally entrusted with control and supervisory duties.

Quite often, competences are shared between professional notarial bodies, Ministries – most of the time Ministries of Justice – and/or courts (for instance in Austria, Belgium, Bulgaria, Germany, Greece, Hungary, Latvia, Luxembourg, Romania, Slovakia, Slovenia, Spain).

More specifically, in Belgium, for example, the Chamber of Notaries as well as the courts ensure that notaries perform their service conscientiously and responsibly and in accordance with the law. In Germany, supervision is carried out by the Land administrations of justice, the court presidents of the Higher Regional Courts and the Regional Courts which report to them.

Another example of the diversity of supervisory and control competences can be found in the Dutch notariat where the authorities responsible for supervising notaries are the disciplinary board and the Financial Supervision Office. The Financial Supervisory office supervises in compliance with the applicable rules and regulations and ensures that a notary acts with integrity and deals in a responsible way with clients’ funds temporarily entrusted to him or her. In addition to this vertical supervision, the Dutch notariat organises mandatory peer reviews as horizontal supervision.

In Latvia, sanctions on notaries who have not fulfilled their legal duties and obligations have to pass an extraordinary qualification test if within a year of the imposition of a disciplinary punishment a repeated disciplinary punishment has been imposed on them.

Table 3 - Existence of authority authorised for monitoring notaries in 2016 (Q195)
States/entities		Yes
Albania
Andorra
Armenia
Austria
Azerbaijan
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Republic of Moldova
Monaco
Montenegro
Netherlands
North Macedonia
Norway
Poland
Portugal
Romania
Russian Federation
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Turkey
Ukraine
UK-England and Wales
UK-Scotland
Israel
Morocco
Yes		45
No		1
Total		46

1.3       Trends and conclusions

·         Latin type notarial activities are exercised in large parts of continental Europe, ensuring effective access to justice for citizens and companies. As an actor of preventive justice, the civil law notary prevents litigation and controls the legality of transactions with importance for citizens’ lives.

·         Civil law notaries carry out general interest missions on behalf of their supervisory authorities in the most varied areas of law, such as real estate transactions, family and succession law. They ensure legality and legal certainty of documents concluded between individuals. By exercising real prerogatives of public authority that they receive from the State, they confer on the documents they draw up a guarantee of authenticity.

·         Important steps have already been taken to lighten the burden of the courts and governments and examples and figures show that more and more competences are transferred to notaries for that purpose. One example at EU level is the adoption of the succession regulation, where many EU Member States transferred the competence to issue the European Certificate of Succession to notaries. Also, an increasing number of notariats are being given competence for divorces by mutual consent.

·         High level of training of the profession, both  initial and continuous training.

·         Many notariats are taking steps to actively promote genuine equality between men and women in the practice of the profession and representation in the profession’s decision-making bodies.

·         In many States and entities, the notarial profession is at the forefront of electronic processing services.

·         The notary also contributes in a significant way to the prevention of money laundering and terrorist financing