Federal Constitutional Court - Press office -
Press release no. 49/2012 of 5 July 2012
Order of 19 June 2012 – 1 BvR 3017/09 –
Notary’s constitutional complaint against instructions issued by the
supervisory authority regarding the documentation of his notarial escrow
services rejected
Notaries are independent holders of a public office and are appointed
for the purpose of notarising legal transactions and performing other
official duties connected with the preventive administration of justice
in the Länder (states). They are subject to the supervision of the
President of the Regional Court (Landgericht), the President of the
Higher Regional Court (Oberlandesgericht) and the Land Department of
Justice (Landesjustizverwaltung) (§ 92 of the Federal Regulation for
Notaries (Bundesnotarordnung – BNotO)). Such supervision includes, among
other things, the regular review and monitoring of notaries’ performance
of their public office. Notaries are obliged to present for inspection
and hand over their files, records and books as well as the deeds held
by them in escrow to the supervisory authorities (§ 93 BNotO). Notaries
are grouped together in societies of notaries, which are obliged in
particular to lay down guidelines in the form of bylaws that are based
on statutory provisions and the regulations issued pursuant thereto.
Such guidelines must define the official duties and other duties of the
members of the societies.
The duties of a notary include, among other things, the holding in
escrow of money and assets that they have been given for safekeeping or
the delivery of same to third parties. The Official Regulations for
Notaries (Dienstordnung für Notarinnen und Notare), which were issued by
the Land Departments of Justice, lay down the rules for documenting
notarial escrow services. The present proceedings concern § 10 of the
Schleswig-Holstein Official Regulations for Notaries
(Schleswig-Holsteinische Dienstordnung für Notarinnen und Notare –
DONot). § 10 provides that notaries must enter every receipt and every
expenditure in respect of third-party funds which they have received or
disbursed in their escrow journal and in their ledger card. In the case
of cashless transactions, entries must be made on the day on which the
notary receives the account statement or notification of credited
interest or bank charges (§ 10.3 DONot).
The complainant, who is a notary licensed in Schleswig-Holstein, instead
entered cashless transactions in his escrow journal and in his ledger
card on the day on which the funds were credited or debited from his
account. Following the complainant’s failure to alter his accounting
practice in spite of the criticisms of it, the President of the Regional
Court instructed him in writing to book entries in the case of cashless
transactions in accordance with § 10.3 DONot. The President of the
Regional Court warned the complainant that he would be disciplined if he
committed any further breaches of the Official Regulations. The
complainant’s appeals to the Higher Regional Court and the Federal Court
of Justice (Bundesgerichtshof) were unsuccessful. The complainant is of
the opinion that the decisions challenged in his constitutional
complaint violate in essence his fundamental right to freely practise a
profession because the Official Regulations for Notaries and the
instruction issued to him pursuant to such Regulations have no statutory
basis and therefore do not satisfy the requirement of a specific
enactment of a statute in Article 12.1 sentence 2 of the Basic Law
(Grundgesetz – GG).
The First Senate of the Federal Constitutional Court rejected the
constitutional complaint as unfounded. The challenged instruction and
the court decisions upholding it do not violate the complainant’s
freedom to practise his profession, which is protected by Article 12.1
GG.
In essence, the decision is based on the following considerations:
1. Notaries practise a profession which is affiliated with the state. As
independent professionals involved in the preventive administration of
justice, they perform state functions which are comparable to judicial
functions. Consequently, the type of work that they do is typically
similar to that of a civil servant. The constitutional guarantee of the
freedom to practise a profession in Article 12.1 GG applies to this
profession just as it does to professions that are part of the civil
service in the strict sense. Due to the proximity of state-affiliated
professions to the civil service, notaries must, however, accept that
the effects of the fundamental right to freedom to practise a profession
are suppressed in their case by special provisions. Since notaries are
active in different professional areas during the performance of their
public office, it is necessary to draw distinctions on the basis of the
exact degree of similarity to the civil service and the permissibility
of special regulations associated with it in a specific case. The
relevant provisions in this case relating to the documentation of escrow
services in accordance with the Official Regulations for Notaries must
be classified as public-sector tasks whose performance has been assigned
to notaries. These are subject to special regulations. They do not
merely relate to the notary’s internal organisation of his or her
office, which is a matter of personal freedom. A necessary part of a
notary’s performance of his or her official duties is the documentation
of escrow transactions using an escrow book and a ledger card. Such
documentation serves not only to ensure that notaries’ offices properly
hold third-party funds and assets in safekeeping, but also to ensure
that these official duties are supervised by the supervisory
authorities.
2. Accordingly, the instruction challenged by the complainant and the
general provision in § 10.3 sentence 1 DONot upon which it is based are
not constitutionally objectionable either in form or content. Even if
the challenged measures have to be evaluated in terms of the fundamental
right to freely practise a profession, which is an issue that the
court’s order does not address, they nonetheless satisfy the
constitutional requirements. This applies both with respect to the
instruction as a means of supervision as well as in respect of the
instruction’s content.
a) The individual instruction issued to the complainant is not
constitutionally objectionable as a means of supervision. It is true
that the law does not expressly provide for a right to give notaries
instructions. However, the grant to the supervisory authorities in the
context of their supervisory powers in § 92 and § 93 BNotO of a right to
give notaries instructions is sufficient to satisfy the requirement of a
specific enactment of a statute in Article 12.1 sentence 2 GG. The right
to give instructions is one of the typical instruments used for public
supervision. The legislature makes use of the possibility and means of
supervision provided for in § 92 and § 93 BNotO for the purpose of
supervising notaries’ performance of their public office. Therefore the
non-constitutional courts are justified when interpreting § 92 and § 93
BNotO in concluding that the supervisory powers of the Land Department
of Justice, which are expressly regulated by statute, presuppose the
existence of a right to give instructions and that such right is
included in the overall system governing the supervision of notaries.
From a substantive perspective, no constitutional objections exist
against an instruction as an instrument as such whether it be in the
form of an individual instruction or in the form of a general
instruction. In both cases the instruction serves the public good,
namely the supervision of notaries’ performance of their public office
and thus the democratic accountability in accordance with the rule of
law of public officials who are outside the state administrative
organisation; in addition, it serves the purpose of ensuring that
notaries act properly in connection with the preventive administration
of justice.
b) The content of the individual instruction issued to the complainant
also satisfies the constitutional requirements. It has a statutory
basis. The provisions in the Official Regulations on the documentation
of escrow transactions can be based on the powers of the Land Department
of Justice to issue general instructions in accordance with § 93 BNotO.
In particular, the statutory provisions authorise the supervisory
authorities to lay down the specific details of individual technical
questions concerning documentation provided that this does not
significantly burden the addressees. This is the case here. The
provisions on documenting escrow transactions contained in the Official
Regulations benefit state supervision. The provision on the accounting
date is, if at all, associated with only a slight increase in the burden
on notaries as compared with other kinds of accounting systems. In
addition, the general instruction in § 10.3 sentence 1 DONot does not
violate higher-ranking law simply because it imposes an official duty
whose establishment is, according to the theory behind the Federal
Regulation for Notaries, reserved to the societies of notaries. It is in
keeping with the proximity of the notary’s profession to the civil
service that the powers of an independently administered body cannot
completely exclude direct state supervision of notaries’ performance of
their public office if for no other reason than the fact that the state
has a continuing responsibility for the administration of justice.
This press release is also available in the original german version.
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