Published by There have been notaries ever since mankind was able to write – our colleague Diehn in Hamburg even goes back to the scribes in ancient Egypt and the quick typists in the Roman Empire (here ). Today's Federal Notarial Regulations have existed since 1961, replacing the Reich Notarial Regulations of 1937 issued during the National Socialist era (Federal Law Gazette No. 10 of February 27.02.1961, XNUMX).
From today's perspective, the requirements for being appointed as a notary were mild at the time. You had
- be a fully qualified lawyer (§ 5),
- be suitable in terms of personality and achievements (§ 6) and
- have worked as a lawyer for a number of years (federal states with a notary public, Section 3 (2)) or have completed a three-year traineeship as a trainee notary (federal states with a notary public only, section 7).
The appointment was made by simply handing over an appointment document (§ 12).
Older colleagues told me how it was with you. One day they were called by the chamber and asked if they wanted to become a notary. They agreed and were sent an order document. From then on they were notaries. That was as long as they wanted, because there was no age limit.
The lack of an age limit turned out to be a problem 30 years later, both in terms of the quality of the notarial services and the number of possible vacancies. To remedy this, an age limit of 1991 years was introduced in 70 (§ 48a BNotO). At the same time, selection criteria were developed for several applicants for the office of notary and for the selection process. In view of the rapidly increasing number of lawyers, access to the legal notary's office, which was possible until 1991, was eliminated solely through waiting times in the legal profession (Legislation of the BT pressure. 11/6007). The criteria for appointment as a notary public were now (Federal Law Gazette I 1991, 150 of January 29.01.1991, XNUMX):
- Fully qualified lawyer (as before)
- Admitted to the bar for at least 5 years (§ 6 Para. 2 No. 1)
- have been working full-time as a lawyer for at least 3 years in the prospective office (§ 6 Para. 2 No. 2)
- personally and professionally suitable, with the applicants with the better exam grades being given priority; the assessment could be improved through participation in preparatory courses and participation in notarial activities (§ 6 Para. 3).
This regulation focused more on the professional qualifications of the candidates than the previous one, but was too imprecise and was declared unconstitutional by the BVerfG (1 BvR 838 / 01). The reason given by the court was that the regular application of these requirements, specified in the essentially identical administrative regulations of the federal states, as well as the interpretation and application of the norm by the courts, provided the necessary equal opportunities best selection to fill vacant notary positions to miss. A new regulation is therefore necessary.
With a draft law in the Bundesrat in December 2006 (BR printing. 895/06), tabled in the Bundestag in April 2007 (BT pressure. 16/4972), this criticism was accepted and a notarial examination one, which lawyers today refer to as the third state examination. The new regulations came into force in May 2011. Since then, the appointment of a notary has also included the above criteria
- passing a notarial examination (see here ) and
- subsequent at least 160 hours of practice in a notary’s office (§ 5b paragraph 4)
in advance. In this context, regulations on the examination regulations, the weighting of the written examinations and the oral examination and an ordinance authorization for the federal states for details of the implementation were issued, which can be found today in the §§ 6 to 7i BNotO .
I took the written exams at the end of 2018 and the oral exam at the beginning of 2019 and I can report that they were really difficult. A significant proportion of the qualified lawyers with two state exams and professional experience who competed failed. The selection required by the law is seriously enforced here. The reputation of the professional examinations also precedes them among colleagues: some would rather write a dissertation and acquire a doctorate than undergo such a procedure again as a seasoned lawyer with professional experience and then possibly realize that it wasn’t enough after all.
In hindsight and with my experience in notarial practice, I have to say that the hard path I have taken is helping me today. Preparing for the exams kept me busy throughout 2018; This was only possible because an employed lawyer relieved me of a large part of the office work and appointments and my family declared that they would temporarily suspend all expectations of me and my time. Learning every evening and every weekend with course files, comments, textbooks, courses in Berlin and Hanover, the DNotZ and the DNotI report and intensive work on the law in preparation for the exams have led to a broad knowledge base that helps me as a notary to do good content work. Also the (far more than 160h) practice that I have in the notary's office of the colleague Harald Nieber was allowed to complete were certainly useful. I find it difficult to imagine how the older colleagues, who did not go through such a focused training, were able to get through the early years of their work without an accident.
After all this, I can say that reservations about fellow notaries who have not been in office for long are unfounded. They may even be better qualified than some older colleagues who did not have to take any exams, but who can of course compensate for this with their professional experience today.