By Anna Engelhard-Barfield
German notaries, Notar (m) and Notarin (f), are highly regarded in Germany. They serve a public function as independent and neutral officers of the court system and a private function as impartial drafter of various agreements and testaments. Excepting courts, only German notaries are authorized to attest the validity of signatures and to certify documents in Germany. Their actions are governed by law, not the needs or demands of an individual or party.
A German notarial attestation is considered an act of public authority and is restricted to German notaries. If a US notary public were to attest the validity of a signature in Germany this would represent a violation of international law in regards to territorial principles. According to Articles 3 and 5 (f) of the Vienna Convention on Consular Relations, notarization is a consular function which is preserved for consular posts. Any notarial function performed by a notary public from a foreign country on German territory is invalid. Furthermore, the foreign notary public would be subject to criminal charges according to § 132 of the German Penal Code (Strafgesetzbuch, StGB) for the unauthorized assumption of authority.
Notaries are governed by the justice department of the individual German states and report to the presidents of the respective local superior courts and the court of appeals. Two-thirds of the German states require that a notary be admitted as notary only. One-third of the states allow notaries to also be admitted as attorney. Those notaries admitted as attorney-notaries are required to strictly separate their impartial notary function from their attorney function. Notaries are appointed for life, but must resign at age 70.
The federal chamber of notaries (Bundesnotarkammer, BNotK)) is a public entity. Its members are the twenty-one (21) local notary chambers (Notarkammern) whose membership consists of the notaries who are admitted in their communities. The BNotK oversees several specific notarial registers, such as the central register for care planning (Zentrales Vorsorgeregister), the central register for testaments (Zentrales Testamentsregister), the electronic communication site (NotarNet) and the German Notarinstitut (DNotI) as a member site.
Notaries are especially qualified and experienced legal officers who must have passed the first and second legal state exams (qualification to serve as a judge), have a minimum of five years experience as an attorney, pass a comprehensive examination (since May 2011) and work 160 hours under an experienced notary prior to being appointed. New notary appointments are dependent on a vacancy in the particular geographic area where the notary resides and are subject to bidding.
There are about 8,000 notaries in Germany. The geographic location of a notary's office is regulated by law in order to assure that the population has convenient access. The average distance between any community and a notar's office is seven to eight kilometers anywhere in Germany, including rurals areas.
Notarization is legally required in many instances to assure that transactions with far-reaching personal and economic consequences are taking place subject to and with the benefit of notarial supervision and intervention. It is the duty of a notary to fully explain the contents of an agreement or document to all parties. He/she is obliged to ascertain that all parties are treated fairly and to assure that inexperienced participants are not disadvanted. The goal is to accomplish a balanced agreement in terms of rights and legal drafting options.
By law, notaries are involved in real estate transactions, marriage and divorce contracts, adoption, last wills, gift contracts, estate distribution, the establishment of a corporation (Gründung einer Gesellschaft), commercial registry entries (Handelsregisteranmeldung), living wills, health care power of attorneys, and various alternative dispute resolution vehicles such as divorce agreements, disputes among heirs, and arbitration. Notaries have the authority to render documents legally enforceable. For example, arbitration awards can be made executable by notarization, thus eliminating the need to have a court issue a writ of execution. Notaries can administer oaths, issue receipts and keep valuables safe. Due the public character of the office, notaries are not allowed to refuse their services unless there is a convincing reason for the refusal.
The fees for notarization are proscribed in the law for costs of non-contentious jurisdiction (Kostenordnung, KostO; Gesetz über die Kosten in Angelegenheiten der Freiwilligen Gerichtsbarkeit). The fees depend on the value of the transaction, but are low compared to fees in France, the U.K., or the US.
Professor Peter L. Murray of Harvard University was commissioned by the Council of EU Notaries (C.N.U.E.) to perform an independent study in 2007. His report stated the average cost for a real estate transaction was less than 1 % of the overall costs and less than in the US. He found that Germany. when compared to the U.K. or the US, had a higher level of reliability concerning real estate register entries, less likelihood of real estate litigation, and no need for the extra expense of title insurance. A simple attestation costs Ten (10) Euros. Most routine attestations, such as the attestation for an entry in the merchants register, cost Twenty One (21) Euros, or Forty Two (42) Euros, if the attestation is supplemented by legal consultation, document drafting and execution of entry.
Overall, the German notarial system has been praised for a high level of transparency, quality of notarial documentation and low risk of litigation due to increased contract adherence. Various German and European legal professionals dispute the World Bank's view (published in Doing Business Reports) that notarial consultation, attestation and certification is no longer feasible and too expensive. The German consensus is that the lawfulness of a country is always measured by the efficiency and validity of its infrastructure involving its citizens' ability to enter into contracts which cannot be questioned and/or broken. Notaries are seen as an essential ingredient towards the prevention of unnecessary litigation and reliability on public registers such as the merchants's register (Handelsregister) and real estate registers (Grundbuch). Good faith (guter Glaube) is seen as the basis for good business and German notaries foster the public's expectation to have good faith in the viability of contracts and register entries.