The recommendations of the Bundesnotarkammer serve to protect the trust granted to the notary and to preserve the reputation of the notarial profession. Notwithstanding organisational differences, they are a reflection of the uniform notariat in Germany.
In accordance with Section 78 (1) No. 5 Federal Code for Notaries (Bundesnotarordnung; BNotO), the Bundesnotarkammer shall make recommendations regarding the guidelines (only available in German) to be issued by the chambers of notaries pursuant to Section 67 (2) BNotO. These guidelines were enacted by resolution of the Assembly of Representatives of 29 January 1999 (Deutsche Notar-Zeitschrift 1999, p. 258) and, most recently, amended by resolution of 28 April 2006 (Deutsche Notar-Zeitschrift 2006, p. 561).
I. Maintenance of independence and impartiality of the notary
1.1. The notary is the impartial legal adviser and service provider to all parties involved.
1.2. The notary shall maintain their impartiality when advising, drawing up drafts or offering expert opinions upon the request of only one party involved. The same applies to the lawful representation of a party during procedures, especially in land register and other register matters, in procedures regarding the issuance of inheritance certificates, in land transfer tax, inheritance tax and gift tax matters as well as approval procedures before authorities and courts.
2. All professional activities of the notary as well as ancillary activities, which are authorised or not subject to authorisation, must not compromise their independence and impartiality.
3. At the beginning of their engagement, the attorney-notary shall make clear to the parties whether they are acting as attorney or notary, and shall do this in a punctual manner.
II. The conduct to be observed pursuant to Section 14 (3) BNotO
1. The notary shall organise the authentication procedure in such way that the objectives of the authentication requirement pursued by law are met, in particular, that the protection and instruction function of the authentication is complied with and that the appearance of dependence or partiality is avoided. This applies especially when numerous similar legal transactions, in which the same person is involved or through which this person acquires economic advantages, are authenticated. This also means that the parties must be given sufficient opportunity to deal with the subject matter of authentication. Accordingly, the following practices are in general inadmissible:
a) systematic authentication with representatives without power of attorney;
b) systematic authentication with authorised representatives, unless ensured through prior authentication with the principal that the latter was sufficiently instructed about the content of the legal transaction to be concluded;
c) systematic authentication with employees of the notary as representatives, except completion activities (Vollzugsgeschäfte); the same applies to persons with whom the notary is associated for joint professional practice or shares business premises;
d) systematic splitting of contracts into offer and acceptance; as far as the splitting is justified on objective grounds, the offer shall be tailored to the party with greater need of legal instruction;
e) simultaneous authentication of more than five written records with different parties.
2. Abusive outsourcing of agreements that are essential to the transaction provided in reference acts (Bezugsurkunden) is also inadmissible (Section 13 a German Authentication Act (Beurkundungsgesetz; BeurkG)).
III. Safeguarding third-party asset-related interests
1. The notary shall treat assets entrusted to them with special diligence and carry out escrow orders carefully.
2. The notary must not tolerate that their office is being used to feign the existence of collaterals. In particular, the notary may not accept money, securities and valuables which the parties hand over to them for safekeeping or for delivery to third parties if this creates the impression of the existence of collaterals granted by the safekeeping. There are especially grounds for a corresponding audit if the safekeeping is not carried out in connection with an authentication.
3. The notary must not use knowledge that has been confided to them during the course of their work for their own benefit at the expense of the parties involved.
IV. Duty to personally exercise the office
1. The notary shall exercise their office personally and autonomously.
2. The notary must not allow employees or third parties to use the signature unit of the access card and access code (secure signature creation device) to generate their electronic signature. They must protect the signature unit from misuse.
3. The notary may only delegate preparatory, accompanying and executive activities. At all time, it must remain possible for those involved to be able to contact them directly. There must be no doubt that the notary themself is responsible for all activities carried out by their employees.
4. The notary must organise employment relationships in such a way that the personal exercise of their office is neither impaired nor compromised.
5. Representations of the notary must not have the effect of increasing the scope of their official activity.
V. Establishment, conduct, continuation and termination of the joint professional practice or other admissible forms of professional cooperation and on the sharing of business premises
1. Joint professional practice, other admissible forms of professional cooperation as well as sharing of business premises must not impair the personal, autonomous and independent exercise of the office of notary, their independence and impartiality as well as the right to choose a notary freely.
2. This must also be guaranteed by the agreements to be made in writing between the involved professionals. (Section 27 (2) BNotO)
VI. The types of precautionary measures to be taken pursuant to Section 28 BNotO
1.1. Before accepting an official activity, the notary shall make sure in a reasonable manner that there are no cases of conflict in the sense of Section 3 (1) BeurkG.
1.2. As precaution within the meaning of Section 28 BNotO, the notary must keep lists of the parties involved or other appropriate documentation to allow documentation of the persons concerned.
2. The notary shall ensure that a disclosure requirement necessary for compliance with the obligations under Section 3 (1) BeurkG and Section 14 (5) BNotO is subject to a corresponding written agreement, on which the joint practice or sharing of business premises are based.
3.1. The notary shall demand payment of fees within a reasonable period of time and, as a rule, seek to recover them in case of non-payment.
3.2. The promising and granting of advantages in connection with an official function as well as any sharing of fees with third parties is not permissible. In particular, the notary shall be prohibited from
a) reimbursing any fees due to them;
b) paying brokerage fees to a third party for arranging notarial business or
c) paying fees for draft acts;
d) granting payments for expert opinions or other services provided by third parties to compensate notarial fees or renouncing payment due to them from other activities.
3.3. It must be made clear in the agreement on a joint practice that the other members of the joint practice do not grant advantages which the notary is not allowed to, pursuant to no. 3.2.
VII. Public appearance of the notary and advertising
1.1. The notary may inform the public of their tasks, competences and areas of activity through publications, lectures and statements in the media.
1.2. Forms of advertising are forbidden to the notary insofar as it is likely to raise doubts about the notary’s independence or impartiality or is not compatible for other reasons with their position as a holder of a public office in the preventive administration of justice.
1.3. Certain types of conduct of the notary are incompatible with their public office, especially if
a) it is aimed at obtaining a specific mandate or at acquiring a specific client;
b) it gives the impression of commercial use, in particular if it highlights the notary or their services in an advertising manner;
c) it contains an evaluative self-promotion of the notary or their services;
d) the notary approaches persons seeking justice in an unsolicited manner;
e) it is related to misleading advertising.
1.4. The notary may not tolerate advertising by third parties which is contrary to the public office.
2.1. The notary may use academic degrees, the title of Judicial Counsel and Professor in connection with their official designation.
2.2. References to other activities within the meaning of Section 8 (1), (3) and (4) BNotO and to honorary functions are inadmissible in relation to the exercise of the notarial office.
3. The notary may only be included in generally accessible directories that are open to all local notaries. The same applies to electronic publications.
4. The notary’s public announcements may not by their form, content, frequency or in any other way serve for the purpose of advertising which is incompatible with the public office.
5. The notary may take part in information events organised by the media at which he comes into contact with the public seeking justice. In doing so, provisions of no. 1 and 2 must be observed.
6. The notary may produce brochures, leaflets and other means of information on his activities as well as on the tasks and competences of notaries in their office. This information can also be made available on data networks and generally accessible directories. The unsolicited distribution or transmission of information is only permissible to previous clients and requires an objective reason.
7. The notary may not use terms in Internet domain names that are similar to other notaries and are not easily distinguishable by additional personalised information. This applies in particular to Internet domain names which contain generic notary-related terms without distinguishable information or which combine with the names of municipalities or other geographical or political units, unless the indicated municipality or unit is not within the jurisdiction of any other notary.
VIII. Employment and training of employees
1. The notary shall manage relations with their employees in such a way that their independence and impartiality are not compromised.
2. In addition to providing their employees with expert knowledge, the notary shall also convey to them the principles and particularities of professional law and ensure appropriate working conditions.
IX. Principles on authentications beyond the notary’s jurisdiction and office
1. Notaries shall only perform their notarial acts (Sections 20 to 22 BNotO) within their own jurisdiction (Section 10a BNotO), unless the specific justified interests of the persons seeking legal justice require the performance of such acts beyond the bounds of that jurisdiction. In particular, persons seeking legal justice have legitimate interests where
a) there is danger in delay;
b) the notary has drawn up a draft of the authentic instrument upon request and it subsequently transpires that the authentication has to be carried out beyond the office;
c) the notary performs a notarial act according to section 16 of the Federal Act on notarial fees (Kostenordnung; KostO);
d) in individual cases, a special relationship of trust between the notary and the parties involved is justified and it is deemed unreasonable for the parties involved to come to the notary’s office. The importance of this special relationship of trust between the notary and the parties involved must be highlighted by the nature of the official activity to be carried out.
2. The notary may perform notarial acts beyond their office if there is an objectively justifiable reason.
3. The performance of notarial acts beyond the office are inadmissible if it creates the appearance of advertising incompatible with the notarial office, of dependence or partiality or if the protective purpose of the authentication requirement is compromised.
1. The notary has the duty to preserve the qualifications they have acquired through training under their own responsibility and to take appropriate measures to ensure that they meet the requirements for the quality of their official activity through continued training.
2. At the request of the chamber of notaries, the notary is obliged to report on the fulfilment of their duty of continued training.
XI. Special professional obligations in relation to other notaries, courts, authorities, attorneys and other advisers of their clients
1.1. The notary shall behave in a cooperative manner and take due account of the legitimate interests of their colleagues.
1.2. Notaries shall attempt to reach an amicable settlement of disputes among themselves. If this attempt is unsuccessful, they shall seek an amicable settlement through the chamber of notaries before the supervisory authority or a court is invoked.
2. If the office of a notary has expired or if their office is relocated, the holder of the office to whom the judicial administration of the Land has handed over the notary’s files and books and documents is obliged to continue official business which the notary had already begun (Section 51 BNotO).
3.1. A notary whose office has expired is obliged to provide the administrator for the notary (Notariatsverwalter) with the furniture, library and IT equipment (hardware and software) on reasonable terms for administration purposes.
3.2. If a notary whose office has expired or whose office has been relocated has also kept their books and files by means of electronic data processing, they are obliged to allow the administrator and the notary to whom the judicial administration of the Land has transferred the safekeeping of their books and files (Section 51 BNotO) access to the stored data (files) free of charge. The transfer of the data carriers or provision of the data (files) to be transferred to another system must also be free of charge. Any costs of a necessary data conversion need not be borne by the notary providing the data.
3.3. For a notary temporarily removed from office, no. 3.1. and 3.2. apply accordingly.
4. If the notary travels abroad in accordance with Section 11a BNotO, if they assist a notary appointed abroad or if they make use of the collegial assistance of a notary appointed abroad, they shall inform their colleague to the extent necessary of the professional regulations to which they are subject themselves.