What does a notary do?
Austria's legal culture is a cornerstone of its economic stability and social security. Civil law notaries are key players in the legal system. Yesterday's good old notary has become a provider of modern services today.
- Public Deeds
- Court Commissioner
- At the Service of the Citizen
The notarial office
Austrian notaries carry the official title of a notary public. The Federal Minister of Justice is authorised to set up new notarial offices, to close existing ones or to transfer a notarial office to another place by way of official ordinance (sec 9 para 1, NC). Currently (as of December 2013), there are 496 notarial offices, 486 notaries and 452 notarial candidates in Austria. The systematic allocation of notarial offices ensures the provision of comprehensive, nearby-by and nation-wide legal services for the citizens. Notaries are tied to the bounds of their notarial offices, they must attend to their responsibilities and provide legal services to the public at large at the place of their office. Notaries may perform their services out of the bounds of their notarial offices only in exceptional cases if particular urgency is called for. Notaries are bound by their professional code to respect their districts (Code of Professional Conduct 2000, item 2).
The spheres of notarial activity
Notaries furnish legal advice, they determine the parties’ will and authenticate documents, as well as exercise sovereign functions. The Austrian notaries are generalists in nature: On the one hand, every notary is qualified to provide the same legal services and cover all activities described in the following; on the other hand, they may essentially exercise their office all over the national territory. The statutory scope of action of notaries covers the following:
- Notaries are appointed by the state in order to draft authentic acts relating legal declarations and transactions and to facts which create a title. Authentic acts have full probative force in respect of what is officially stated in them or attested to by the certifying officer (cf. sec 292 para 1, Code of Civil Procedure). This means that notaries, when acting as public certifying officers, exercise sovereign powers. (sec 1, NC). The official nature of public certifying officers is to ensure that they exercise their functions in an unbiased, impartial and equitable manner which serves the interests of all parties involved. By being endowed with this certifying function, notaries relieve judges from tasks which strictly speaking do not belong to jurisprudence.
- Pursuant to sec 5 NC, notaries may also draft private documents and represent parties in non-litigious matters in court and vis-à-vis government administration (e.g. in matters related to the Register of Companies or the Land Register). Unless more than two legal counsels have their registered seat in the district in which the notarial office is located, notaries are authorised to represent parties in civil proceedings at district (magistrate’s) court level, even when representation by legal counsel is mandatory (sec 5 para 2, NC).
- sec 5 para 4a NC refers to notaries acting as mediators. When acting as mediators, notaries are equally held to comply with their professional duties. Mediation is understood to mean a voluntary settlement of conflicts relying on the help of a neutral, impartial, unbiased third party who has no authority to take decisions and is bound by secrecy. Mediation aims at achieving an agreement which is reached by the conflicting parties independently and which meets their best interests and needs. (Code of Professional Conduct 2000, item 32). Owing to the duty to instruct and to counsel parties imposed on notaries, this notarial form of mediation differs from commercial mediation, the latter being no more than neutral facilitators in the settlement of conflicts to be negotiated by the parties themselves. Notaries who are registered in the list of mediators maintained by the Austrian Federal Association of Mediators are entitled to practice the profession of mediation and to call themselves ”mediators”. In doing so, they are bound by a comprehensive duty of confidentiality.
- As court commissioners (=acting upon the commission of a court), notaries exercise a special, quasi-judicial function, in particular in probate business (cf. sec 1 para 1 item 1, Act on Court Commissioners). They conduct proceedings more or less independently, leaving the court with decisions of a purely judicial nature to take. Notaries also act as court commissioners (sec 2a, 2b Act on Court Commissioners) when granting rights to inspect the Land Register (sec 7 Land Register Act) and the Register of Companies (sec 35 Company Register Act).
The fees which notaries may command are laid down in the Notarial Tariffs Act. These fees are maximum statutory fees. Under the Guidelines for Notarial Fees issued by the Austrian Chamber of Civil-Law Notaries; when calculating their fees, notaries must take due account of the matter at stake, the scope, complexity and responsibility involved in the provision of service and apply commensurateness in respect of fees charged on average for services of the same kind in due respect of the statutory tariffs. In individual cases, they may grant a discount on their fee due on the grounds of moral obligation, propriety or particular social commitment (Code of Professional Conduct 2000, item 57).