Judgment of 23 September 2025

R e a s o n s :

A. 

1

The proceedings concern the question of whether the statutory age limit of 70 years for notaries pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries (Bundesnotarordnung – BNotO) is compatible with the Basic Law (Grundgesetz – GG) insofar as it concerns lawyers commissioned as notaries (Anwaltsnotariat).

I. 

2

1. The legal framework governing the profession of notary is laid down in the Federal Code for Notaries (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 98), last amended by Art. 12 of the Act of 23 October 2024 (BGBl I no. 323 p. 9).

3

a) Pursuant to § 1 of the Federal Code for Notaries, notaries are independent holders of a public office. They are appointed in the Länder to certify legal transactions and to perform other tasks in the field of the administration of justice. Their functions include notarial acts pursuant to §§ 20 to 22 of the Federal Code for Notaries in particular. These include notarial recording and authentication (§ 20 Federal Code for Notaries), certain certifications (§ 21 Federal Code for Notaries), the administration of oaths and declarations in lieu of oath (§ 22 Federal Code for Notaries). The office of notary also encompasses the provision of custodial services, in the form of the safekeeping and delivery of valuables (§ 23 Federal Code for Notaries), and the provision of other advisory services in the area of the administration of justice to the parties involved, in particular the drawing up of draft documents and providing advice to the parties involved (§ 24 Federal Code for Notaries).

4

b) Notaries are not part of the public service. While they practise a public profession, they perform their tasks as officeholders in private practice (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 131, 130 <139>).

5

c) The practice of a notary is localised. Notaries are assigned to a specific location where they must maintain their office (§ 10 Federal Code for Notaries). A notary’s jurisdiction is the district overseen by the Local Court in which that notary has their office (§ 10a(1) Federal Code for Notaries), and their official district is the district overseen by the Higher Regional Court in which that notary has their office (§ 11(1) Federal Code for Notaries). Notaries are to perform their notarial acts within their jurisdiction (cf. § 10a(2) Federal Code for Notaries). Outside their official district, they may only operate under strict conditions (cf. § 11(2) Federal Code for Notaries). That said, the notarial acts performed by notaries need not be linked to their jurisdiction or official district; clients are generally free to choose a notary anywhere Germany ([…]).

6

d) While the exercise of the office of notary is as such uniformly governed by federal law, the organisational rules regarding the appointment of notaries differ across the Länder in accordance with federal law; there are two types of notaries.

7

aa) Pursuant to § 3 in conjunction with §§ 114 and 116 of the Federal Code for Notaries, notaries can either hold such office as their primary occupation (notaries only) or may concurrently practice as a lawyer and hold the office of notary (lawyers commissioned as notaries). The Länder in which notaries can only hold this office as their primary occupation include Bavaria, Brandenburg, Hamburg, Mecklenburg-Western Pomerania, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt and Thuringia. The system of lawyers commissioned as notaries is used in Berlin, Bremen, Hesse, Lower Saxony and Schleswig-Holstein. In Baden-Württemberg, notaries who hold this office as their primary occupation are appointed (§ 144(1) first sentence Federal Code for Notaries); lawyers who were commissioned as notaries as of 31 December 2017 remain in office (§ 116(1) Federal Code for Notaries). In North Rhine-Westphalia, in the district overseen by the Cologne Higher Regional Court and in parts of the district overseen by the Düsseldorf Higher Regional Court, notaries must hold this office as their primary occupation; for all other districts – like in the complainant’s Local Court district– lawyers are commissioned as notaries.

8

bb) The two types of notaries are not subject to different professional regulations when it comes to the exercise of their office. However, the Federal Code for Notaries provides for legal differences relating to the organisational rules.

9

(1) Notaries who hold such office as their primary occupation may not practise any other occupation, they may also not be admitted to the bar (§ 8(2) first sentence Federal Code for Notaries). According to the legislative concept, for lawyers commissioned as notaries, the office of notary is only a secondary occupation in addition to their primary occupation of lawyer (§ 3(2) Federal Code for Notaries). Lawyers commissioned as notaries must therefore always be members of the bar (cf. § 3(2) Federal Code for Notaries, § 47 no. 4 Federal Code for Notaries) and may practise certain other occupations (§ 8(2) second sentence Federal Code for Notaries).

10

(2) One important difference concerns admission to the profession. Both types of notaries must have the personal and professional aptitude for the office (§ 5(1) Federal Code for Notaries). The maximum age for the initial appointment as notary is 60 years for both types of notaries pursuant to § 5(4) of the Federal Code for Notaries. The other prerequisites differ. […]

11

(3) A newly appointed notary who holds this office as their primary occupation usually succeeds a notary who left office and takes over their personnel and resources. Often, they also take over their predecessor’s clients. By contrast, in accordance with administrative practice for lawyers commissioned as notaries, such notaries do not have a successor. Their notary practice is liquidated when they leave office ([…]).

12

(4) […]

13

e) The number of notary positions is determined by § 4 of the Federal Code for Notaries. Pursuant to that provision, the number of notaries to be appointed is determined by what is necessary to meet the needs of the orderly administration of justice (§ 4 first sentence Federal Code for Notaries). In particular, it must be ensured that those in need of legal services are adequately supplied with notarial services and that an appropriate age structure of the members of the profession is maintained (age structure clause; § 4 second sentence Federal Code for Notaries).

14

In accordance with § 1 and § 12(1) of the Federal Code for Notaries, making such determination and appointing notaries falls within the competence of the Länder; with the number of appointments left to the duly exercised discretion of the Länder (cf. BVerfGE 73, 280 <294>; Federal Court of Justice, Order of 20 July 2020 - NotZ (Brfg) 5/19 -, para. 4). The need for appointments is regularly determined by the Land departments of justice based on the volume of notarial transactions in the respective Local Court district. They use reference values to determine such need. […]

15

In the past few years, it has been determined that the need for lawyers commissioned as notaries has risen in some Länder. […]

16

2. Pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries, the office of notary expires upon reaching 70 years of age, both for notaries practising primarily as such and for lawyers commissioned as notaries. These provisions, which the constitutional complaint has indirectly challenged, read as follows:

§ 47 of the Federal Code for Notaries – Expiry of office

The office of notary expires upon (...)

2. reaching retirement age (§ 48a) or death (…).

§ 48a of the Federal Code for Notaries – Age limit

Notaries reach retirement age at the end of that month in which they reach the age of 70.

17

3. The legislator inserted these provisions with the Act Amending the Professional Regulations for Notaries and Lawyers of 29 January 1991 (BGBl I p. 150). At the same time, the age limit for the initial appointment as notary (presently § 5(4) Federal Code for Notaries) and the age structure clause in § 4 second sentence were inserted into the Federal Code for Notaries.

18

a) The original version of the Federal Code for Notaries contained neither age limits nor other age-related provisions. However, pursuant to § 113(II) subsection (1) of the Federal Code for Notaries, a notary practising primarily as such in the area of activity of the Notaries’ Fund (Notarkasse) in Bavaria and in the then administrative district of Palatinate could be removed from office once they had turned 70. The administrative practice of some Länder to set age limits for applicants for a commission as notary was ended by a decision of the Federal Constitutional Court because there was no statutory basis for such a practice at the time (cf. BVerfGE 80, 257).

19

The Ordinance of the Council of Ministers of the German Democratic Republic on Notaries in Private Practice of 20 June 1990 (Law Gazette, Gesetzblatt – GBl. I no. 37 p. 475), which continued to apply in the East German Länder until 7 September 1998 in accordance with the Unification Treaty, likewise did not provide for an age limit for the expiry of the office of notary, even though it did exclude applicants over 60 pursuant to the conditions of § 5(2) second sentence of the Ordinance.

20

b) The 1991 amendment was based on a draft act by the Federal Government, according to which the prerequisites to become a lawyer commissioned as notary were to be revised in view of demographic developments. Given the marked increase in the number of lawyers, the legislator saw a risk that there would be an excess of lawyers commissioned as notaries in the foreseeable future, which would be incompatible with the public office (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 11/6007, p. 1).

21

aa) The legislator argued that while the departments of justice could, pursuant to § 4(2) of the Federal Code for Notaries in the version of 24 February 1961, make the appointment as a lawyer commissioned as notary contingent on the formal criterion of the expiry of a waiting period, controlling access almost exclusively through waiting periods had turned out to be problematic. According to the legislator, the approach of generally granting any lawyer a commission as notary after the expiry of the waiting period could not be continued. Otherwise, individual lawyers commissioned as notaries would receive such a small number of notarial transactions that they would be practising in the essential areas of a notarial office without adequate experience and could no longer generate the financial basis for the performance of notarial duties. According to the legislator, this would endanger the proper administration of justice. Therefore, § 4 of the Federal Code for Notaries should be amended in such a way that the waiting period in itself would no longer be a suitable criterion to determine the need for appointment. However, it was to remain the standard prerequisite for the appointment of lawyers commissioned as notaries (cf. BTDrucks 11/6007, p. 8 f.). The possibility of making the appointment of lawyers commissioned as notaries solely contingent on the expiry of a waiting period, which had previously been set out in § 4(2) of the Federal Code for Notaries, was eliminated in the draft act submitted in 1991.

22

bb) In addition, the draft act contained an age limit for the initial appointment as notary (§ 6(1) second sentence government draft of the Federal Code for Notaries; cf. BTDrucks 11/6007, p. 4). The explanatory memorandum states the following (BTDrucks 11/6007, p. 10):

Based on the practice of several Länder (North Rhine-Westphalia: 60 years of age, Hesse, 62 years of age, Lower Saxony: 62 years of age), the second sentence provides for an age limit for the appointment as notary. The introduction of an age limit of 60 years serves to ensure continuity by counteracting frequent changes in the notarial office, including in consideration of the greater difficulties of adjustment to the profession of notary associated with advanced age. At the same time, the provision serves to address the risk of an ageing profession. Since the aspect of adjustment is not relevant in cases where a former notary wants to be reappointed, or wants to be appointed in a different location, the age limit is only to apply to initial appointments.

23

c) In the parliamentary deliberations, members of Parliament expressed the concern that the stricter rules for entering the profession provided for in the draft act could block access to the position of lawyer commissioned as notary for a considerable time (cf. Bundestag Minutes of plenary proceedings, BT-Plenarprotokoll 11/194, pp. 14895 f.).

24

aa) For this reason, the recommendation of the Committee on Legal Affairs that was ultimately adopted by the German Bundestag added to the draft act an age limit of 70 years, after which the notarial office would expire, pursuant to § 47 no. 1 first alternative of the Federal Code for Notaries (former version) and § 48a of the Federal Code for Notaries (cf. BTDrucks 11/8307, p. 7). The reason given for the introduction of a maximum age for practising the profession of notary as a public office was the objective of maintaining an appropriate age structure, in particular for lawyers commissioned as notaries (cf. BTDrucks 11/8307, p. 18).

25

According to a transitional provision (Art. 3 Amendment Act), notaries who were 58 when the act entered into force could remain in office for another twelve years.

26

bb) The recommendation also added the age-related provision of § 4 second sentence of the Federal Code for Notaries to the draft act, according to which the objective of maintaining an appropriate age structure must be taken into account when notaries are appointed. The explanatory memorandum to the recommendation specifically emphasised the objective of an appropriate age structure to address the concern that the new rules for entering the profession would block access to the profession of lawyer commissioned as notary for a considerable time (cf. BTDrucks 11/8307, p. 17).

27

At the same time, the possibility of making the appointment of lawyers commissioned as notaries solely contingent on the expiry of a waiting period, which had previously been set out in § 4(2) of the Federal Code for Notaries in the version of 24 February 1961, was eliminated, as provided for in the Federal Government’s draft act.

28

d) The provisions entered into force on 3 February 1991 in the territory in which the Federal Code of Notaries had previously applied, i.e. the former federal territory and the Land Berlin, including former East Berlin. In the East German Länder, the Federal Code for Notaries replaced the Ordinance on Notaries in Private Practice with effect from 8 September 1998 (cf. Art. 13(1) of the Third Act Amending the Federal Code for Notaries and Other Acts of 31 August 1998; BGBl I p. 2585), which meant that the provisions also applied in this area as of the same date. However, a transitional provision stated that notaries appointed in the East German Länder who were 58 when the Act entered into force could remain in office for another twelve years (Art. 13(9) of the Act). Due to subsequent changes in the numbering of the grounds for expiry in § 47 of the Federal Code for Notaries, the retirement age is now set out in § 47 no. 2 first alternative (cf. BGBl I 2017 p. 1121 <1146>).

29

4. The new age limit under § 47 no. 1 first alternative of the Federal Code for Notaries (former version) and § 48a of the Federal Code for Notaries was the subject of a constitutional complaint. By order of 29 October 1992 - 1 BvR 1581/91 -, the Second Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision. It held that the interference with occupational freedom under Art. 12(1) of the Basic Law was constitutionally justified. The provision served to further an especially significant interest of the common good – achieving an appropriate age structure within the notarial profession in the interest of the proper functioning of the administration of justice. Clients should be able to choose from notaries of different ages who have a minimum level of professional experience gained through the number and types of notarial transactions conducted by them in all areas of notarial practice.

30

5. a) In Germany, 6,346 notaries were practising as of 1 January 2025, of whom 1,700 worked as notaries as their primary occupation and 4,646 were lawyers commissioned as notaries. The number of notaries practising primarily as such is largely stable. As of 1 January 2012, this number was 1,535, as of 1 January 2018, it was 1,719, with the increase resulting from the fact that, on 1 January 2018, approximately 300 notaries practicing in Baden-Württemberg were appointed as notaries for whom this is the primary occupation due to a change in the law (cf. § 114(2) Federal Code for Notaries). By contrast, the number of lawyers commissioned as notaries has dwindled. On 1 January 2012, 6,122 lawyers were commissioned as notaries, on 1 January 2018, the number was 5,469; currently (see the above considerations), there are 4,646 lawyers commissioned as notaries.

31

b) Among the notaries for whom this is the primary occupation, 23% were 60 to 69 years old, 32% were 50 to 59 years old, 31% were 40 to 49 years old, and 14% were younger than 40 in 2024. Among the lawyers commissioned as notaries, 31% were 60 to 69 years old, 35% were 50 to 59 years old, 28% were 40 to 49 years old, and 5% were younger than 40.

32

c) The number of candidates applying for the office of notary differs depending on the type of notary.

33

For the office of notary as a primary occupation, the number of applicants for the position of trainee notary is the determinative factor. There are more than enough applicants in nearly every Land. In several Länder where notary is a primary occupation, the number of applicants considerably exceeds the open positions for trainee notaries, for example in Hamburg, where in 2024 there were 54 applicants for three positions. The situation is different in Brandenburg, Saxony, Saxony-Anhalt and Thuringia, where the number of applicants has dwindled, with the number of applicants falling below the number of open positions in some years.

34

bb) In the case of lawyers commissioned as notaries, the number of applicants has for some years fallen below the number of open positions. As early as 2012, there was a shortage of applicants in the majority of districts overseen by the respective Higher Regional Court.

35

In subsequent years, this shortage became further entrenched and intensified […].

36

In 2024, the shortage of applicants continued […].

II.

37

1. The complainant, who was born in 1953, was admitted to the bar in 1983. In 1992, he was appointed as a lawyer commissioned as notary. He was assigned an office in Dinslaken, in the district overseen by the Düsseldorf Higher Regional Court. His notarial office expired on 30 November 2023 due to the statutory age limit of 70. In the meantime, the complainant has been appointed as the permanent deputy notary (Notarvertreter) for his law partner, who is also a lawyer commissioned as notary.

38

2. a) In 2021, the complainant filed a lawsuit with the Cologne Higher Regional Court against the President of the Düsseldorf Higher Regional Court as the supervisory authority. He applied for a declaration that his notarial office had not expired upon his reaching the age limit. He asserted that the statutory age limit violated Art. 21(1) of the Charter of Fundamental Rights of the European Union and the prohibition of discrimination on grounds of age under Art. 1 and Art. 2(2a) of Directive 2000/78/EC. He argued that the age limit was no longer necessary, and therefore not justified, due to a shortage of applicants for notary positions that had occurred in recent years. By judgment of 10 February 2022, the Cologne Higher Regional Court rejected the lawsuit as unfounded.

39

b) The Federal Court of Justice rejected the complainant’s appeal against this decision by judgment of 7 August 2023. […]

40-44

[…]

45

c) The complaint seeking remedy for a violation of the right to be heard (Anhörungsrüge) lodged thereupon was rejected as unfounded by the Federal Court of Justice in its order of 13 November 2023.

46

d) The action for annulment lodged against the judgment on the grounds that the Federal Court of Justice failed to comply with its duty to refer the matter to the Court of Justice of the European Union (CJEU) under Art. 267(3) of the Treaty on the Functioning of the European Union (TFEU) was dismissed as inadmissible by the Federal Court of Justice in its order of 24 July 2024. […]

47

3. The constitutional complaint directly challenges the judgment and the orders of the Federal Court of Justice and the judgment of the Cologne Higher Regional Court. It indirectly challenges § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries.

48

The complainant asserts that the judgments of the Federal Court of Justice and the Cologne Higher Regional Court directly violate his rights under Art. 12(1) of the Basic Law, and that § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries indirectly violate these rights. […]

49

Moreover, in accordance with his submissions regarding Art. 12(1) of the Basic Law, the complainant asserts that his rights under Art. 15(1) of the Charter of Fundamental Rights, or, subsidiarily, Art. 16 of the Charter, have been violated. He also claims that the challenged judgments and the provision violate the prohibition on discrimination on grounds of age guaranteed in Art. 21(1) of the Charter and specified in the area of employment and occupation by Directive 2000/78/EC. The complainant asserts that he is subject to unjustified unequal treatment due to his age.

50

He also claims that the judgment of the Federal Court of Justice violates his right to his lawful judge under Art. 101(1) second sentence of the Basic Law. He contends that the Federal Court of Justice would have had to request a preliminary ruling under Art. 267(3) TFEU. […]

51

He also alleges that the judgment of the Federal Court of Justice violates his right to be heard under Art. 103(1) of the Basic Law. […]

52

The complainant extends his claim of a violation of Art. 101(1) second sentence and Art. 103(1) of the Basic Law – rights that are equivalent to fundamental rights – to the judgment of the Cologne Higher Regional Court. He also considers the orders of the Federal Court of Justice of 13 November 2023 and 24 July 2024 to be in violation of Art. 103(1) of the Basic Law.

III.

53

The complainant lodged an application for a preliminary injunction pursuant to § 32 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) together with his constitutional complaint, requesting that the expiry of his notarial office be provisionally suspended until a decision was rendered in the principal proceedings. By order of 18 October 2023, the Third Chamber of the First Senate of the Federal Constitutional Court rejected the application for a preliminary injunction because the complainant had not substantiated grounds of such special weight as to justify the suspension of a law.

IV.

54

The opportunity to submit statements was given to the German Bundestag, the Bundesrat, the Federal Government, all Land governments, the Federal Court of Justice, the defendant in the initial proceedings, and – as expert third parties within the meaning of § 27a of the Federal Constitutional Court Act – to the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes), the Federal Association of Notaries (Bundesnotarkammer), the Federal Bar Association (Bundesrechtsanwaltskammer), the Institute for the Legal Profession (Institut für Anwaltsrecht) at the University of Cologne, the Federal Association of Corporate Law Firms in Germany (Bundesverband der Wirtschaftskanzleien in Deutschland e.V.), the German Bar Association (Deutscher Anwaltsverein e.V.), the German Association for Gerontology and Geriatrics (Deutsche Gesellschaft für Gerontologie und Geriatrie e.V.), the Association of German Notaries (Deutscher Notarverein e.V.), the German Centre for Age-Related Questions (Deutsches Zentrum für Altersfragen e.V.) and the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.). In preparation of the oral hearing, the Senate sent a questionnaire to certain parties entitled to submit a statement and expert third parties. The following entities submitted a statement:

55

[…] The Federal Ministry of Justice on behalf of the Federal Government, [the Land governments of Bavaria and Saxony, several Land governments from Länder where lawyers are commissioned as notaries, the defendant in the initial proceedings, the Federal Association of Notaries, the Federal Bar Association, the Federal Association of Corporate Law Firms in Germany, the German Bar Association, the Association of German Notaries, the Federal Anti-Discrimination Agency, the Institute for the Legal Profession at the University of Cologne and the German Centre for Age-Related Questions and the German Association for Gerontology and Geriatrics].

56-71

[…]

V. 

72

The Federal Constitutional Court conducted an oral hearing on 25 March 2025. The complainant supplemented and expanded upon his submissions. The Federal Government, the Land government of Lower Saxony and the defendant in the initial proceedings were also heard. The expert third parties who made a statement at the oral hearing were the Federal Anti-Discrimination Agency, the Association of German Notaries, the Institute for the Legal Profession at the University of Cologne, the German Centre for Age-Related Questions and the German Association for Gerontology and Geriatrics.

B.

73

The constitutional complaint is admissible to the extent that the claimed violation of Art. 12(1) of the Basic Law directly challenges the judgment of 7 August 2023 of the Federal Court of Justice and indirectly challenges § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries. With regard to the other asserted fundamental rights violations, the complainant failed to sufficiently substantiate that he has standing. The constitutional complaint is inadmissible to the extent that it is directed against the judgment of 10 February 2022 of the Cologne Higher Regional Court and against the orders of 13 November 2023 and 24 July 2024 of the Federal Court of Justice.

I. 

74

In addition to the directly challenged decisions of the Federal Court of Justice and of the Cologne Higher Regional Court, the constitutional complaint indirectly challenges the age limit under § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries, but only insofar as it applies to lawyers commissioned as notaries (see 1. below). The provision can be divided in this way (see 2. below).

75

1. The limitation of the indirect challenge in the constitutional complaint results from the fact that the complainant expressly asserts the unconstitutionality of the rule for lawyers commissioned as notaries only, claiming that it should be partially invalid in relation to lawyers commissioned as notaries.

76

2. The challenge can be limited in this manner because the application of the rule can be divided between notaries for whom this is the primary occupation on the one hand and for lawyers commissioned as notaries on the other.

77

a) The Federal Constitutional Court has recognised in its case-law that provisions can also be declared void or incompatible with the Basic Law with regard to specific applications only (cf. BVerfGE 12, 296; cf. regarding Art. 12(1) of the Basic Law BVerfGE 117, 163). The only case in which a provision may not be declared void or incompatible in part is if this would lead to a law that is by its own terms incomprehensible and thus does not satisfy the principles of legal certainty and clarity (cf. BVerfGE 113, 273 <315 f.>) or if the continued application of individual provisions cannot be considered due to the uniform legislative concept (cf. BVerfGE 111, 226 <273>).

78

The rule imposed by § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries can be divided in such a way that it can be declared void or incompatible with the Basic Law to the extent that it applies to lawyers commissioned as notaries. This does not affect legal certainty and clarity because it can be clearly determined which notaries are lawyers commissioned as notaries, and are thus affected by a partial declaration of voidness or incompatibility. The possibility of dividing the provision is also not precluded by a uniform legislative concept. It is true that the legislator, in the historical development of notary law, sought to harmonise the many different regional notarial codes. Accordingly, the Federal Code for Notaries is based on the assumption of the uniformity of the notarial profession. However, the legislator has only fully harmonised the exercise of the notarial office. By contrast, the age limit forms part of the organisational rules governing the profession, which differ considerably for the two types of notaries (cf. para. 6 ff.).

II. 

79

The Federal Constitutional Court has jurisdiction to review the indirectly challenged provisions on the basis of the fundamental rights of the Basic Law. It is true that the age limit falls within the scope of application of a legal act of the European Union: Directive 2000/78/EC, whose purpose, according to its Art. 1, is to combat discrimination on the grounds of age among others. This directive is also applicable to the profession of notary (cf. CJEU, Ministero della Giustizia, 3 June 2021, C-914/19, EU:C:2021:430). However, the age limit is not a provision that implements binding EU law (regarding the standard cf. BVerfGE 155, 119 <162 ff. para. 83 ff.> – Subscriber data II; 156, 11 <35 ff. para. 63 ff.> – Counter-Terrorism Database Act II; 158, 170 <183 para. 23> – IT security vulnerabilities; 169, 332 <356 para. 53> – Federal Criminal Police Office Act II). § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries does not implement fully harmonised EU law on the basis of an implementation order, nor does it serve to adapt German legislation to binding EU law. While the directive prohibits discrimination on grounds of age, it neither precludes statutory age limits for certain occupations, nor does it impose obligations to introduce age limits or design them in specific ways. Rather, according to the established case-law of the Court of Justice of the European Union, Art. 6(1) of the Directive affords Member States broad leeway to determine age limits for entering and practising an occupation (cf. CJEU, Fuchs und Köhler, 21 July 2011, C-159/10, C-160/10, EU:C:2011:508, para. 61; Rechtsanwältin und Notarin, 17 October 2024, C-408/23, EU:C:2024:901, para. 36).

III. 

80

The complainant has standing to the extent that he asserts that the judgment of the Federal Court of Justice of 7 August 2023 directly violates his fundamental right under Art. 12(1) of the Basic Law, and that § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries indirectly violate this right. The rest of the complainant’s submissions do not meet the substantiation requirements.

81-96

[…]

IV. 

97

1. The complainant has exhausted the legal remedies within the meaning of § 90(2) first sentence of the Federal Constitutional Court Act. He has duly exhausted all avenues of appeal before the ordinary courts.

98

2. Moreover, the constitutional complaint satisfies the principle of subsidiarity.

99-100

[…]

V. 

101

Complainants must have a recognised legal interest in bringing constitutional complaint proceedings at the time the Federal Constitutional Court renders its decision (cf. BVerfGE 81, 138 <140>; 159, 223 <272 para. 97 f.> – Federal pandemic emergency brake I); this is the case here. In particular, the complainant does not cease to be affected after the expiry of his notarial office upon reaching the age limit. The constitutional complaint has not become moot on the merits. The interference with fundamental rights persists, because the rule in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries does not just result in the office expiring, but also blocks the affected notary from being reappointed ([…]).

C. 

102

The constitutional complaint is well-founded insofar as it indirectly challenges the age limit of 70 years set out in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries. This limit is incompatible with Art. 12(1) of the Basic Law insofar as it relates to lawyers commissioned as notaries. The age limit disproportionately interferes with the occupational freedom of lawyers commissioned as notaries. The constitutional complaint must be rejected to the extent that it directly challenges the judgment of the Federal Court of Justice that is based on the challenged rule. In light of the order on the continued applicability of the age limit, the challenged judgment is valid.

I. 

103

1. Art. 12(1) of the Basic Law is a uniform fundamental right that protects the selection and exercise of an occupation (cf. BVerfGE 7, 377 <400 f.>; 161, 63 <89> – Wind farm participatory companies). Occupational freedom entails both an economic dimension and a dimension related to the development of one’s personality (cf. BVerfGE 7, 377 <397>; cf. also BVerfGE 50, 290 <362>; 110, 226 <251>). It gives definition to the fundamental right to the free development of one’s personality in the area of individual achievement and creating and earning a livelihood. The aim of this guarantee is to have the least amount of regulation of occupational activity possible (cf. BVerfGE 163, 107 <134 para. 73> – Veterinary prescription requirement). Occupational freedom also protects secondary occupations (cf. BVerfGE 110, 304 <321>) and also encompasses public occupations. The work of lawyers commissioned as notaries, which, pursuant to § 3(2) of the Federal Code for Notaries, is carried out alongside the profession of lawyer and constitutes a public profession, falls within the scope of protection of occupational freedom under Art. 12(1) of the Basic Law (cf. BVerfGE 131, 130 <139>).

104

2. The age limit under § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries interferes with this fundamental right. It is a direct restriction on the freedom to choose one’s occupation, as the affected persons are no longer able to work as lawyers commissioned as notaries. As a result of the law, their occupation ends upon reaching the age limit. They have no choice as to whether they can continue to practise as a notary (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 29 October 1992 - 1 BvR 1581/91 -, juris, para. 5).

105

3. The interference is not justified under constitutional law. Art. 12(1) second sentence of the Basic Law contains a general limitation clause, i.e. this right may be interfered with only pursuant to a law (cf. BVerfGE 141, 82 <98 para. 47 with further references>; 145, 20 <67 para. 121>; established case-law). In order to be justified under constitutional law, the indirectly challenged rule in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries must be formally and substantively constitutional (cf. BVerfGE 6, 32 <41>; 163, 107 <136 para. 77>).

106

The challenged provision is formally constitutional; in particular, it was enacted in accordance with the legislative competences under Art. 74(1) no. 1 of the Basic Law. However, the interference with occupational freedom is disproportionate; it is therefore incompatible with Art. 12(1) of the Basic Law in substantive terms to the extent that the provision applies to lawyers commissioned as notaries.

107

The principle of proportionality requires that the challenged provision pursues a legitimate purpose, that the interference is suitable for achieving that legitimate purpose and does not go further than is necessary in the interests of the common good, in other words, no equally effective but less intrusive means are available. Moreover, the provision may not impose unreasonable burdens on fundamental right holders (cf. BVerfGE 141, 121 <133 para. 40>; 148, 40 <52 para. 30>; 155, 238 <278 para. 99>; 163, 107 <138 para. 83>). Even a provision that was initially constitutional can become unconstitutional if circumstances change in such a way that the proportionality requirements are no longer met (cf. BVerfGE 132, 334 <358 para. 67>; 150, 1 <90 para. 176>; 158, 282 <346 para. 155, 366 para. 200).

108

Based on these standards, the indirectly challenged rule in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries is no longer constitutional under the present circumstances. The age limit of 70 years does serve legitimate purposes (see a) below) and is in principle still suitable (see b) below) and necessary (see c) below) for achieving these purposes. However, the rule is not proportionate in the strict sense because, under the present conditions, it imposes unreasonable burdens on fundamental right holders (see d) below).

109

a) The age limit in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries pursues constitutionally legitimate purposes.

110

aa) Legislative interference with fundamental rights can only be justified if the legislator pursues constitutionally legitimate purposes. It is for the Federal Constitutional Court to review whether this is the case. In this respect, the Court is not limited to considering only the purposes expressly named by the legislator itself (cf. BVerfGE 159, 223 <298 para. 169> with further references; 161, 163 <269 para. 291> – Economic costs of child-raising; 163, 107 <138 para. 86>; 167, 163 <212 para. 115>). The legislative purpose is typically derived from the objective intent of the legislator (cf. BVerfGE 150, 244 <276 para. 74>; 161, 63 <93 para. 57> – Wind farm participatory companies; 167, 163 <212 para. 115> – Contergan II) and is to be determined by recognised methods of legal interpretation, i.e. based on the wording, the legislative materials and legislative history, the systematic approach and the spirit and purpose. These methods are not mutually exclusive, but instead complement one another (cf. BVerfGE 144, 20 <212 f. para. 555>; 161, 63 <93 para. 57>). Based thereon, purposes that must be taken into account in constitutional review are in particular – but not exclusively – those that are plausible based on the legislator’s intent or that have been named by the bodies involved in the legislative process during the proceedings before the Federal Constitutional Court (cf. BVerfGE 112, 226 <244>; 120, 82 <115>; 140, 65 <79 f. para. 33>; 163, 107 <139 para. 87>). By contrast, unnamed purposes or purposes that only came into play after the law was adopted cannot be taken into account where such purposes would fail to meet or would distort essential aspects of the clear legislative objective (BVerfGE 167, 163 <212 para. 115>).

111

bb) Based on these standards, the age limit in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries pursues legitimate purposes. The age limit serves to achieve an appropriate age structure within the profession of notary in the interest of the proper functioning of the administration of justice (see (1) below), a fair distribution of career opportunities among generations (see (2) below), and the protection of the administration of justice from risks that may arise from age-related facultative decline among notaries (see (3) below). By contrast, the age limit does not serve to facilitate personnel planning by the Land justice departments for lawyers commissioned as notaries (see (4) below).

112

(1) The determination of a maximum age for practising as notary serves to guarantee the proper functioning of the administration of justice. The explanatory memorandum to the recommendation of the Committee for Legal Affairs focuses on the objective of ensuring an appropriate age structure within the profession of notary (cf. BTDrucks 11/8307, p. 18). However, this in itself is not the purpose of the law. Rather, it is a means for ensuring the proper functioning of the administration of justice. Clients should be able to choose from notaries of different ages who have a minimum level of professional experience gained through the number and types of notarial transactions conducted by them in all areas of notarial practice. By contrast, an ageing profession would mean that clients could increasingly only engage older notaries (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 29 October 1992 - 1 BvR 1581/91 -, juris, para. 7). This would jeopardise the proper functioning of the administration of justice in two respects. First, the successors of retired notaries would have little professional experience because of their later admission to the profession. Second, it would be difficult for clients to engage a notary of their preferred age group, even if their personal trust in the notary might be based precisely on that notary belonging to a certain age group.

113

The age limit is thus functionally linked to further age-related provisions inserted into the law by the 1991 amendment, namely the age structure clause under § 4(2) of the Federal Code for Notaries and the maximum age for the initial appointment as notary (today § 5(4) Federal Code for Notaries). These provisions are also aimed at achieving an appropriate age structure among notaries, as set out in the wording of § 4 second sentence of the Federal Code for Notaries, and addressing the risks of an ageing profession. Guaranteeing the proper functioning of the administration of justice in the sense of ensuring both the greatest possible diversity and a minimum of professional experience among notaries is a legitimate legislative aim.

114

(2) The age limit of 70 years also aims to achieve a fair distribution of career opportunities among generations (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 5 January 2011 - 1 BvR 2870/10 -, juris, para. 13). According to the legislative materials on the 1991 amendment, the legislator sought to enact stricter rules for entering the profession, while at the same time keeping the profession open for younger people (BTDrucks 11/8307, p. 17). This constitutes a legitimate purpose for employment and social policy.

115

(3) The age limit in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries also serves the legitimate purpose of protecting the administration of justice from risks that may arise from age-related facultative decline among notaries.

116

While this aim cannot be ascertained from the legislative materials, it constitutes an objective purpose in principle. It is based on the assumption that a person’s faculties deteriorate as they age. The ability of older officeholders to properly practise their occupation may therefore be impaired, jeopardising legal interests that are affected by their work. The Federal Constitutional Court has held in several cases that the prevention of such risks was a legitimate purpose of statutory or collective age limits for the practice of an occupation (cf. BVerfGE 9, 338 <345> – Midwives; 64, 72 <83> – Test engineers; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 4, 219 <221 f.> – Airline pilots; 10, 227 <233> – Airline pilots; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 31 March 1998 - 1 BvR 2167/93 inter alia -, juris, para. 30 – Doctors).

117

This purpose is not contradicted, in terms of the systematic approach, by the fact that the age limit pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries does not apply to deputy notaries within the meaning of § 39 of the Federal Code for Notaries or to administrators for notaries (Notariatsverwalter) within the meaning of § 56 of the Federal Code for Notaries (cf. Federal Court of Justice, Order of 31 July 2000 […]). This is because the law entails lower performance requirements for these tasks than for the office of notary as such. Deputy notaries only stand in for absent notaries (cf. § 39 Federal Code for Notaries). Administrators for notaries only temporarily exercise the office of notary and typically only liquidate ongoing notarial business (cf. § 56(1) and (2) Federal Code for Notaries). Therefore, the prerequisites for being appointed as deputy notary or as administrator are generally lower than those for being appointed as notary (cf. § 39(3), § 56(6) Federal Code for Notaries).

118

This purpose is also not contradicted by the fact that the Federal Code for Notaries also contains a legal mechanism by which the administration of justice can be protected in individual cases of notaries who can no longer fulfil the requirements of office. It is true that a notary can be removed from office pursuant to § 50(1) no. 7 of the Federal Code for Notaries if they are unable to properly exercise their duties for health reasons. This also includes the inability to exercise notarial duties due to age-related general weakness of body or mind ([…]); a notary can also be temporarily suspended for these reasons (cf. § 54 Federal Code for Notaries). However, in systematic terms, such an exclusion based on specific grounds does not rule out a further-reaching rule based on typification such as an age limit.

119

The purpose does not lose its legitimacy because it risks stereotyping by age by reinforcing the view that older people are generally seen to perform less well in physical and cognitive terms (cf. in this regard the statement of the Federal Anti-Discrimination Agency, p. 10 ff.). The fact that ageing is an individual process (cf. para. 129 ff.) does not call into question the legitimacy of the purpose as such, at most, it may call into question the suitability, necessity and reasonableness of the age limit.

120

(4) By contrast, the age limit does not serve to facilitate personnel planning by the Land justice departments for lawyers commissioned as notaries, despite the assertions in several statements submitted in the present proceedings, which assume that the age limit provides the justice departments with information as to when each notary will leave office at the latest. According to the statements, this makes it easier to fill vacant notary positions in a timely manner. However, such purpose cannot be derived from either the wording of the Federal Code for Notaries or from the legislative materials. It is also not objectively ascertainable that there is a need for facilitated personnel planning. In the case of lawyers commissioned as notaries, the activities of the justice departments are essentially limited to determining the need for the appointment of notaries at regular intervals pursuant to § 4 of the Federal Code for Notaries and, when necessary, to advertise open notary positions. This is necessary regardless of whether an age limit is in place. The situation for lawyers commissioned as notaries thus differs from the situation of those serving as notaries as their primary occupation, because in the latter case, the number of positions for trainee notaries (cf. § 5a and § 7 Federal Code for Notaries) must be based on the number of notary positions that will later become vacant; it also differs from the situation in the public service.

121

b) Despite changing factual circumstances, the age limit pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries remains suitable under constitutional law to achieve the legislative purposes. The suitability requirement is satisfied if there is a possibility of achieving the legislative purpose with the statutory provisions. A provision can only be found to be unsuitable if it cannot further the legislative purpose in any way or even counteracts this purpose (BVerfGE 158, 282 <336 para. 131>; 163, 107 <149 para. 111>; established case-law).

122

aa) The age limit helps maintain an appropriate age structure in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities among generations (cf. para. 114).

123

(1) The statutory age limit of 70 years is based on the fact that new notaries can only enter the profession when and insofar as a sufficient number of notary positions becomes vacant. This is because the number of positions is fixed by law in order to prevent the development of notarial offices that are not economically viable (cf. § 4 Federal Code for Notaries). The age limit accelerates the creation of vacancies by continuously forcing older notaries to retire and limiting the length of time they can remain in the profession. It can thus serve to open up the profession to younger people and thereby rejuvenate it.

124

(2) Changing factual circumstances, namely the shortage of applicants for the position of lawyer commissioned as notary that has arisen in recent years, mean that the age limit is only constitutionally suitable to a limited extent, but these changes do not render it completely unsuitable.

125

In introducing the age limit in 1991, the legislator was acting in response to considerable increases in the number of licensed lawyers. Between 1980 and 1990, the number of lawyers had risen from 36,077 to 56,638. By 2000, it had risen to 104,067. In light of the oversupply of candidates for the position of lawyer commissioned as notary across Germany, the age limit significantly improved younger candidates’ prospects of entering the profession. For each notary who left the profession due to the age limit, a younger notary could start to practise. Consequently, in order to be able to enter the profession, potential young notaries had to rely on older notaries leaving the profession when they turned 70.

126

This situation has changed profoundly. The overall number of lawyers is stagnating, and the number of lawyers in private practice who are not licensed as an in-house lawyer or have a double license, i.e. those who could be commissioned as notaries, is in substantial decline. In most regions, there is a permanent shortage of candidates for the position of lawyer commissioned as notary (cf. para. 34 ff.).

127

Nevertheless, the age limit for lawyers commissioned as notaries has not completely ceased to have the effect originally intended by the legislator. Rather, there are clear regional differences. In the Local Court districts affected by the shortage of applicants, lawyers commissioned as notaries leave office upon reaching the age limit, but there is an insufficient number of younger lawyers to take their place. A considerable proportion of open positions remains vacant. Thus, in terms of the economic viability of their notarial practice, those entering the profession are not reliant on positions becoming vacant as a result of the age limit (in more detail para. 170 ff.). In these regions, the age limit thus fails to achieve its purpose – creating vacancies to achieve an appropriate age structure in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities among generations. On the other hand, there are a few Local Court districts, mostly in big cities, that have a surplus of applicants. In these districts, the age limit continues to help achieve the legislative purposes of maintaining the proper functioning of the administration of justice and creating career opportunities for younger notaries. This residual ability of the age limit to achieve its purpose is sufficient for it to meet the constitutional criterion of suitability.

128

bb) The age limit of 70 years is also suitable for protecting the administration of justice from risks that may arise due to age-related facultative decline among notaries. Current knowledge on how age affects professional faculties does not completely rule out the suitability of the age limit. According to the statements submitted in the proceedings and the discussions in the oral hearing, the situation is as follows:

129

(1) According to the assessment in the statements of both the German Association for Gerontology and Geriatrics and the German Centre for Age-Related Questions, empirical studies have shown that the cognitive ageing process is highly individualised. There are therefore no overarching correlations between higher age and professional faculties. This does not apply to work that relies on high processing speed, such as that of airline pilots.

130

As people age, cognitive skills that are based on rapid processing of information, such as the quick identification of dangerous traffic situations as well as decision-making and action based thereon (so-called fluid intelligence […]), decline; these declines may begin as early as one’s 30s. By contrast, other cognitive skills are less susceptible to age-related decline and can compensate for the lower processing speed. So-called crystallised intelligence is based on acquired knowledge and comprises skills and abilities based on experience and stored in long-term memory. Studies have shown that crystallised intelligence tends to increase into old age or at least remain stable, as the German Centre for Age-Related Questions has submitted. This notwithstanding, according to the German Association for Gerontology and Geriatrics, in view of the risk of dementia, there are serious doubts as to the cognitive abilities to practise as notary for approximately one-eighth to one-sixth of those over 70. Although this is put into perspective by the fact that this assessment also includes people with only mild cognitive impairments, it is still not entirely negligible.

131

(2) In light of these scientific findings, the age limit still meets the constitutional criterion of suitability. It is true that the age limit is a crude instrument which, to a considerable extent, affects persons in respect of whom there is no indication that their professional faculties are limited. From a gerontological perspective, rigid age limits are therefore not recommended. Nevertheless, the provision can further the legislative purpose by also including notaries who, once they have turned 70, can no longer fulfil the requirements of office due to ageing.

132

c) The age limit of 70 years is also constitutionally necessary to achieve the purposes pursued.

133

Interferences with fundamental rights must not go further than is necessary to protect the common good. A measure falls short of this standard if an equally effective means is available that would be less intrusive for the affected fundamental right holders and would not entail greater burdens for third parties or the general public. It must be clearly established that the alternative measure is equally effective in every respect for achieving the purpose pursued. A less intrusive means in this sense is not available in the present case.

134

aa) A higher age limit – for example an age limit of 75 or 80 – does not constitute a less intrusive means to achieve the purposes pursued. While such an age limit would amount to less serious interference with occupational freedom, it would not be equally effective with regard to all three purposes. Older lawyers commissioned as notaries would leave office at a later time, which would mean a decrease in the number of vacant positions available for younger notaries, at least in regions where there is still a surplus of applicants. Likewise, fewer notaries who are no longer able to fulfil the requirements of office due to ageing would be affected by the age limit.

135

bb) The same considerations would apply as a starting point if the age limit were not raised generally and instead continued practice for notaries over 70 were contingent on continued ability to fulfil the requirements of office. Such a provision would also lead to less severe interference, because the expiry of notarial office in case of a loss of faculties is less severe than an absolute obligation to leave office as a result of a rigid age limit. This assessment of the severity of interference is not refuted by the fact that the ability to fulfil the requirements of office would have to be reviewed at regular intervals.

136

However, a review of such ability in individual cases would not be equally effective with regard to the purposes of achieving an appropriate age structure in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities among generations. Based on the statements submitted by the German Centre for Age-Related Questions and the German Association for Gerontology and Geriatrics, the proportion of notaries over 70 who would be unable to fulfil the requirements of office due to ageing would be rather low. Thus, such a provision – similar to measures pursuant to § 50(1) no. 7 of the Federal Code for Notaries – would probably only result in a relatively small number of notaries leaving office. This would result in fewer vacant positions compared to the current rigid age limit.

137

It is true that such a provision could provide more targeted protection from risks that may arise from age-related decline in faculties among notaries. However, it would impose additional financial burdens on the general public, because regular performance reviews for older lawyers commissioned as notaries would likely require significant administrative efforts.

138

cc) A restriction of the age limit to those Local Court districts in which a surplus of applicants exists could be based on a provision under social law – now repealed – that provided for regional exemptions from age limits for doctors based on need (cf. § 95(7) of the Fifth Book of the Code of Social Law, Fünftes Buch Sozialgesetzbuch – SGB V in the version of 22 December 2006, BGBl I p. 3439). However, this does not constitute an equally effective means that would be less intrusive for the affected fundamental right holders and would not entail greater burdens for third parties or the general public.

139

It is true that the severity of interference would be lower in that a smaller number of persons would be affected because the age limit would only continue to apply in a few regions. However, this would mean that the legislative purpose of protection from the risks arising from age-related decline in faculties among notaries could only be realised to a limited extent unless an obligation to subject to performance reviews was also introduced. Such provision would be equally effective with regard to the purposes of achieving an appropriate age structure in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities among generations. Yet it is within the margin of appreciation of the legislator to consider that such a provision would entail greater burdens for notaries, clients and departments of justice. This is because the relationship between the number of applicants and vacancies can vary greatly from region to region, even in times of an almost nationwide shortage of applicants. This would make it difficult to set long-term and reliable regionally differentiated age limits. It would entail considerable uncertainties for the career prospects of older lawyers commissioned as notaries and would significantly complicate their planning – for example with regard to their membership in law firms. Clients, too, would face uncertainties if they engaged older notaries whose practice depended on unclear localised rules. Finally, regularly reassessing the need for notaries in a way that ensures legal certainty in each individual Local Court district would require significant administrative efforts.

140

dd) Facilitating access to the profession of lawyer commissioned as notary by lowering the requirements for entering the profession in order to increase the number of applicants, as was proposed in some of the statements and in the oral hearing, also does not constitute a less intrusive means under constitutional law.

141

This would include amendments to the Federal Code for Notaries to broaden the appeal and increase the economic viability of the profession of lawyer commissioned as notary. For example, the time limits for previous practice as a lawyer or the restriction to specific jurisdictions, set out respectively in § 5b(1) nos. 1 and 2 of the Federal Code for Notaries, could be abolished or made less restrictive. The notarial examination pursuant to § 5b(1) no. 3 of the Federal Code for Notaries, the further training obligation after the examination and the practical training pursuant to § 5b(4) of the Federal Code for Notaries could also be abolished, simplified or made less restrictive. It would also be possible to combine several of these measures.

142

While such reforms would be less intrusive for fundamental right holders than the age limit, they could not, from the outset, achieve the purpose of protecting the administration of justice from risks that may arise from age-related decline in faculties among notaries. There is no need to decide whether these reforms could achieve the other purposes – maintaining an appropriate age structure in the interest of the functioning of the administration of justice and a fair distribution of career opportunities among generations – in the same way as the age limit. This is because making it easier to enter the profession would probably entail burdens for clients in the form of the deterioration of notarial services. Ensuring high-quality notarial services is also within the margin of appreciation of the legislator. The legislator has made use of this margin by integrating the age limit into an overall concept that aims to ensure high-quality notarial services. As early as in 1991, with the Act Amending the Professional Regulations for Notaries that introduced the age limit, the legislator restricted access to the profession of lawyer commissioned as notary to ensure high quality within the profession (cf. BTDrucks 11/6007, pp. 1, 9). The 2009 Act Amending the Federal Code for Notaries (BGBl I p. 696) made the notarial examination a prerequisite for appointment as notary in order to guarantee certain minimum standards (cf. BTDrucks 16/4972, p. 1). When the legislator adopted the Act Modernising the Professional Regulations for Notaries of 25 June 2021 (BGBl I p. 2154), it was known that certain regions were faced with a shortage of applicants (cf. BTDrucks 19/26828, pp. 113 f.). Nevertheless, the legislator generally refrained from making it easier to enter the profession. It merely modified the requirement of a local waiting period with the newly inserted § 5b(3) of the Federal Code for Notaries. Instead, the legislator took other measures to broaden the appeal of the profession of notary, such as the possibility to temporarily resign from office for family reasons – in particular to care for children or to provide nursing care (§ 48b Federal Code for Notaries). The constitutional criterion of necessity does not require the legislator to depart from these quality standards.

143

ee) Finally, raising the fees for notarial services is also not a less intrusive means under constitutional law. While raising fees could make working as a notary more attractive and thus further the interest of younger candidates, it would impose additional financial burdens on clients. This could make access to the administration of justice more difficult and would thus run counter to the public interest. Moreover, such a measure would not be equally effective in providing protection from risks that may arise from age-related decline in faculties among notaries.

144

d) The age limit of 70 pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries is no longer proportionate in the strict sense with regard to lawyers commissioned as notaries. It places an unreasonable burden on the fundamental right holders.

145

For a measure to meet the constitutional criterion of appropriateness, and thus proportionality in the strict sense, the purpose pursued by the measure, and its likelihood of achieving that purpose, may not be disproportionate to the severity of the interference (cf. BVerfGE 155, 119 <178 para. 128> – Subscriber data II; 161, 299 <384 para. 203> – Proof of vaccination <COVID-19>; 166, 1 <71>; established case-law). In an overall assessment balancing the severity of the burdens against the importance and urgency of the reasons invoked to justify them, the limits of what is reasonable must be observed (cf. BVerfGE 152, 68 <137 para. 183> – Sanctions imposed under social law). It is for the legislator to strike a balance between the extent and severity of the interference with fundamental rights, on the one hand, and the provision’s importance for achieving legitimate purposes on the other (cf. BVerfGE 159, 355 <413>; 166, 1 <71 f. para. 155>). The prohibition of excessive measures (Übermaßverbot) requires that the more severely individual freedom is restricted, the more significant the pursued interests of the common good must be. In qualitative terms, the severity of interference is determined by the extent to which the actions and legal positions protected by fundamental rights, including the associated economic consequences, are curtailed (cf. Federal Constitutional Court, Order of the First Senate of 24 October 2024 - 1 BvL 10/20 - Law on names; adult adoption, para. 64; BVerfGE 166, 1 <65 para. 144> – Child marriages – in relation to the criterion of necessity).

146

In order to correctly assess the severity of interference, the different protective dimensions of Art. 12(1) of the Basic Law must be taken into account. Occupational freedom entails both an economic dimension and a dimension related to the development of one’s personality (cf. para. 103). Art. 12(1) of the Basic Law thus gives definition to the fundamental right to the free development of one’s personality in the area of individual achievement and creating and earning a livelihood and aims to have the least amount of regulation of occupational activity possible (cf. BVerfGE 82, 209 <223>; 163, 107 <134 para. 73>).

147

Based on these standards, the rule imposed by § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries is no longer proportionate in the strict sense, to the extent it applies to lawyers commissioned as notaries. The age limit of 70 years results in serious interference with the fundamental right to occupational freedom of lawyers commissioned as notaries (see aa) below). This must be weighed against interests of the common good, which also have considerable weight (see bb) below). However, given that the degree to which the age limit achieves its purposes has decreased over time (see cc) below), the outcome of the weighing of interests is no longer constitutionally appropriate (see dd) below).

148

aa) The interference with occupational freedom is serious, even when attenuating factors are taken into account.

149

(1) The intensity of the interference is considerable. The age limit is a rule that affects the choice of occupation (cf. BVerfGE 7, 377 <406>). Upon reaching this limit, the commission as notary expires. As the decisive criterion of age is impossible to avoid, the fundamental right holders have no influence on the end of their career nor can they change it to suit their own circumstances. The law does not provide for exemptions from the age limit or a gradual transition to retirement. The interference equally affects both areas of protection guaranteed by occupational freedom, i.e. obtaining an economic livelihood and developing one’s personality (cf. para. 103).

150

(2) The interference is mitigated to some extent by the possibility for those that must forfeit their office due to the age limit to remain active in the same field as a deputy or administrator or to resume their primary occupation as a lawyer. Nevertheless, the degree of mitigation is limited.

151

The practice as deputy or administrator is not remotely the same as the regular activities of a notary. Deputy notaries only carry out duties in the absence of the notary (§ 39(1) Federal Code for Notaries); notarial administration is a temporary position from the outset that mainly concerns liquidation activities (§ 56 Federal Code for Notaries, cf. also para. 117). These functions thus lack the specific qualities of a liberal profession with corresponding latitude. Moreover, a notary who had to forfeit their office can only practise as a deputy or administrator if there is a need for such services and they are appointed to the position. They have no control over this, and there is no right to being appointed.

152

The possibility of continuing to practise as a lawyer does not mitigate the interference with the right to practise as a notary in order to freely develop one’s personality. The severity of interference may be mitigated when it comes to securing one’s economic livelihood. However, this only applies insofar as a lawyer commissioned as notary who had to forfeit their office of notary has actual prospects as a lawyer.

153

The loss of economic livelihood incurred through the expiry of the commission as notary is also compensated by pension entitlements in part. Lawyers commissioned as notaries are compulsory members of a lawyers’ pension fund (cf., e.g., § 2 of the Act on Pensions for Lawyers in North Rhine-Westphalia, Gesetz über die Rechtsanwaltsversorgung Nordrhein-Westfalen). Moreover, they can prepare for the age limit and make private provision (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 29 October 1992 - 1 BvR 1581/91 -, juris, para. 10). However, this only mitigates the severity of interference to a limited extent, since it does not affect the protection afforded to the free development of one’s personality and pension entitlements are typically lower than the income of active notaries.

154

(3) Seventy years is a substantially later age than the standard retirement age set by law at which civil servants and employees may claim full retirement benefits. On its own, however, this does not result in a mitigation of the severity of the interference. While the Federal Association of Notaries claimed in its statement that this leaves notaries a sufficiently long time period to practise their occupation and realise ‘economic and other benefits’, this consideration has not been supported by facts.

155

Lawyers commissioned as notaries – much like professionals in higher positions in the civil service and other occupations requiring higher education – generally begin this occupation at a relatively late age. The reason for this is that § 5b(1) no. 1 of the Federal Code for Notaries provides for a waiting period of five years. Thus, only approximately 5% of lawyers commissioned as notaries are under 40 when they are appointed (cf. para. 31).

156

In addition, in looking at society as a whole, career and employment paths have become more flexible and interruptions in the standard progression from education to a career to retirement have become increasingly more common. This is reflected, for example, in the increase in part-time work and more frequent interruptions of employment by child-raising periods (cf. Federal Statistical Office […]). The number of older workers has also increased significantly in recent years. While in 2013 50% of 60 to 64-year-olds were in employment, that proportion rose to 65% in 2023. Among 65 to 69-year-olds, it rose from 13% to 20%. Self-employment becomes ever more common as people age. In 2023, 31% of over-65-year-olds in employment were self-employed. This proportion was many times higher than the average for all persons in employment (9%) (cf. Federal Statistical Office […]). These developments are driven by demographic changes that can also be traced back to higher life expectancies and improved performance of older people, as emphasised by the German Association for Gerontology and Geriatrics in the present proceedings.

157

Moreover, the perception of age in society has changed and become more differentiated, as pointed out by the Federal Anti-Discrimination Agency. Previous perceptions of age, which generally associated old age with deteriorating faculties, little openness to change, or illness, are increasingly replaced by perceptions of age highlighting the diversity and individuality of life in old age (cf. […] BTDrucks 17/3815).

158

The typically late entry into the profession of lawyer commissioned as notary, the increasingly individualised progression of career and employment paths and changing perceptions of age argue against the normative determination of an age after which an interference with occupational freedom is less serious.

159

(4) Contrary to the view stated in the legal opinion submitted by the Federal Association of Notaries, a notary’s income does not merit less protection than income from private commercial activities, and the interference is not rendered less serious on this account. It is true that the fees levied by notaries on the basis of the Act on Court and Notary Fees (Gesetz über Kosten der freiwilligen Gerichtsbarkeit für Gerichte und Notare – GNotKG) do not constitute remuneration for services rendered, but are paid on the basis of the principle of cost recovery and equivalence instead. For reasons of the common good, transactions of a lower monetary value are subsidised by transactions of higher value ([…]). However, the fact that notarial activities are guided by the common good does not mean that the income generated thereby merits less protection under constitutional law. Notaries, who by law may only generate income through fees, do not merit less protection in this respect than members of other occupations.

160

bb) The interference with occupational freedom must be weighed against protected interests of the common good of considerable weight that are pursued by the age limit in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries.

161

(1) The proper functioning of the administration of justice – namely, providing high-quality notarial services (§§ 20 through 24 Federal Code for Notaries) carried out by able, sufficiently experienced notaries of various ages – is of great importance both on an individual level and for society as a whole. This follows from the fundamental legislative decisions on substantive law and the administration of justice, because the legislator requires certain legal transactions and legal acts to be certified by a notary. Due to the formal requirements of substantive law, property transactions in particular are reliant on certification by notaries (cf. §§ 311b and 873 Civil Code, Bürgerliches Gesetzbuch – BGB). Similarly, several other legal transactions in contract, inheritance and family law and in corporate law are subject to formal requirements requiring the involvement of a notary (cf., e.g., §§ 518, 1410, 2276 Civil Code, § 2 Act on Limited Liability Companies, Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG; §§ 23, 30, 33, 37, 130, 181, 235, 248 Stock Corporation Act, Aktiengesetz – AktG). The interests at stake for the persons concerned are typically also protected by fundamental rights, namely by Art. 6(1), Art. 9(1), Art. 12(1) and Art. 14(1) of the Basic Law. On the other hand, with regard to the application of the law, the legislator has largely removed this aspect of the administration of justice from direct oversight by the state and entrusted it exclusively to notaries as independent holders of a public office (§ 1 Federal Code for Notaries). Since persons concerned generally have no equally suitable alternatives to formalised legal transactions, nor to their certification by a notary, they are reliant on the proper functioning of the notarial system in many areas of the exercise of fundamental rights that are significant in personal and economic terms. It is therefore not only critical that notarial services be offered, these must also be high-quality services provided by able notaries.

162

(2) Equally important is the social and employment policy objective of the legislator to provide a fair distribution of career opportunities among generations. This purpose also serves to give effect to the rights of potential notaries under Art. 12(1) of the Basic Law to enter the profession.

163

cc) With regard to lawyers commissioned as notaries, however, the age limit provides only a very limited contribution towards these objectives.

164

(1) This applies in the first instance to maintaining an appropriate age structure in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities among generations. While the age limit was effective in achieving these objectives at the time of its introduction, today this is only the case to a considerably more limited degree.

165

(a) By introducing the age limit, the legislator intended to free up notarial positions for younger people and open up career opportunities. For lawyers commissioned as notaries, however, this intended purpose has become meaningless in those regions in which there are too few applicants for such positions. Any applicant that meets the statutory requirements can obtain a position in these regions. This is now the case for the majority of Higher Regional Court districts in which lawyers may be commissioned as notaries (cf. para. 34 ff.).

166

(b) The diminished effectiveness of the age limit also cannot be remedied by any alternative means of implementing this measure.

167

In the initial proceedings, the Federal Court of Justice assumed that the function of the age limit could still be fulfilled even with an insufficient number of applicants by having younger lawyers commissioned as notaries take over the transactions and revenues previously handled by their older counterparts who leave the profession. The court argued that it is only when older notaries leave the profession that younger notaries would have sufficient prospects of an appropriate number of transactions to generate sufficient revenues, and thus be willing to take on the considerable burdens associated with entering the profession (cf. para. 42). The Federal Government and several expert third parties endorsed this view in their statements. This is based on the assessment that potential candidates for notarial office are deterred from seeking a commission as a notary by the significant financial burden and time required to pass the notarial examination and by the high costs for establishing an office. This obstacle could be overcome through considerable economic incentives.

168

The need for such incentives appears doubtful, at least with regard to those regions in which lawyers are commissioned as notaries and a great number of notarial positions are vacant due to lack of applicants. There is no empirical evidence that the ‘freeing up’ of revenues provides any meaningful incentive to apply for a commission as a notary. The widespread vacancies that already exist suggest that the incentives would be minimal at best. Furthermore, the view that the aforementioned incentives are necessary is based on the assumption that the shortage of applicants for a commission as a notary does not have demographic causes, but is a structural problem only. However, this assumption is not sufficiently plausible. Rather, according to the Institute for the Legal Profession at the University of Cologne, several interrelated factors are responsible for the dwindling number of applicants.

169

(aa) One factor is the demographics of the profession of lawyer as the prerequisite for the commission as a notary, because it reduces the number of potential lawyers who can be commissioned as notaries.

170

While the number of licensed lawyers has remained relatively stable since 2015, with annual increases or decreases of less than one percent, only lawyers in private practice who are not licensed as in-house lawyers or have a double license can be commissioned as notaries. This is because in-house lawyers typically do not meet the requirement of § 5b(1) no. 1 of the Federal Code for Notaries, according to which only lawyers who have worked for various clients on a not insignificant scale can be commissioned as notaries (cf. Federal Court of Justice, Judgment of 23 November 2015 - NotZ (Brfg) 2/15 -, Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 208, 39 <45 para. 15>). According to information provided by the Institute for the Legal Profession, lawyers with a double license typically do not perform much work as practising lawyers in addition to their work as in-house lawyers for their employer and therefore also do not meet the aforementioned requirement. In addition, the proportion of lawyers who work in private practice has decreased considerably due to the considerable reduction in the number of new licenses and due to the increasing number of younger lawyers who completely forego their license after a few years in the profession or become in-house lawyers. As of 1 January 2017, the number of lawyers in private practice without a license as in-house lawyer or a double license was 60,456 in the regions where lawyers are commissioned as notaries; by 1 January 2025, this number had fallen to 54,270. The decline over this period was below average (under 5%) in big cities, such as in the districts overseen by the Frankfurt/Main and the Berlin Higher Regional Courts and above average (13% to 14.7%) in the districts overseen by the Celle, Hamm, Schleswig, Bremen and Brunswick Higher Regional Courts.

171

According to the plausible and uncontested calculations of the Institute for the Legal Profession, the number of new lawyers entering the profession each year, and therefore also potential applicants for a commission as a notary, is only around 700 to 900. Given that only a fraction of lawyers even considers becoming a notary, according to information provided by the Institute for the Legal Profession based on empirical studies, this number is insufficient to replace the notaries leaving office.

172

(bb) Furthermore, young lawyers have changing career preferences. According to studies regarding the career paths of young lawyers, 30% of lawyers with six years of professional experience had their own practice or co-owned a practice in 2012, whereas by 2024 this number had fallen to 11%. Substantially fewer salaried lawyers have the intention of ultimately establishing their own businesses and, in particular, there is little interest in being commissioned as a notary. According to a survey among younger lawyers from 2023/24, only 18% wish to be commissioned as a notary at some point. The reasons given for this result were lack of interest in the work (66% of respondents), the considerable time required to qualify (39%), and, to a lesser extent, the slim chance of obtaining a notarial office (34%), the high costs of qualification (16%) and the lack of economic attractiveness (4%). This is in line with the considerable decline in the number of persons who have taken the notarial examination, which was communicated by the Institute for the Legal Profession.

173

Based on this data on demographic developments and career preferences, the shortage of applicants for a commission as notary has multiple causes. While the age limit may have certain effects in increasing the local attractiveness of notarial positions as transactions and revenues are ‘freed up’, these effects are limited, given that such greater attractiveness cannot influence demographics nor override all personal preferences; the lack of economic attractiveness also is not, according to the aforementioned studies, one of the main reasons for not seeking a commission as a notary. Furthermore, in many regions where lawyers are commissioned as notaries, there is such a large number of vacancies even today that sufficient revenues would be available, which means that the creation of more vacancies through the age limit does not offer additional career prospects.

174

(c) The evident ineffectiveness of the age limit in achieving the legislative purposes is established and is not projected to change.

175

Based on available data, a significant shortage of applicants can be identified as early as 2012 (cf. para. 34 ff.). There are no factual indications that this situation will improve in the future, as the determinative demographic factors and career preferences will continue to develop in the same direction. According to forecasts by the Institute for the Legal Profession at the University of Cologne, an increase in the number of new licenses for lawyers cannot be expected in the medium and long term. While the number of graduates with a law degree is expected to rise over the next few years, there will be a huge decline in the number of graduates by 2040, which will be accompanied by a great need to replace lawyers born between 1968 to 1975, who will be entering retirement. Therefore, it must be expected that the demographic factors will become even stronger. The trend of young lawyers not establishing their own businesses will, according to the assessment of the Institute for the Legal Profession, likely become even more pronounced in the future. The Institute emphasises the increasing share of women in particular, who are statistically more likely to prefer salaried employment than men.

176

An assessment to the contrary is not justified with reference to the developments in the revenues earned by lawyers commissioned as notaries. It was asserted in the present proceedings that the number of notarial transactions is expected to decline. Given the mechanisms of the needs assessment pursuant to § 4 of the Federal Code for Notaries, this would lead to fewer notarial positions being created (cf. para. 14). Under these circumstances, the age limit could once again achieve its purposes to a greater degree. However, there are no discernible factual indications of a sustained reversal of the current situation. According to the data available, the annual number of notarial transactions is subject to regular fluctuations. The overall number of certifications conducted by lawyers commissioned as notaries amounted to between approximately 2.8 to 2.9 million every year from 2015 to 2022. In 2023, it decreased to 2.5 million, however, according to the Federal Association of Notaries, this was based on the generally weak economy rather than on lasting factors.

177

Adjusting the calculation of the number of appointments necessary for a given region to reduce the number of positions advertised, as the Federal Association of Notaries has proposed and some Land justice departments have considered or even already implemented, would not improve the effectiveness of the age limit in achieving the legislative purposes. Such a measure is not able to halt the decline in the number of applicants, which is linked to demographic factors. Moreover, the number of younger lawyers who are commissioned as notaries and take the place of older notaries is insufficient. Thus, adjusting the calculation of the number of appointments necessary does not lead to the appointment of a greater number of notaries nor to younger notaries, at least not to a notable degree. What is more, the legislator’s leeway for raising the number of appointments is limited from the outset, given that it must be ensured, pursuant to § 4 second sentence of the Federal Code for Notaries, that clients are adequately supplied with notarial services. This includes ensuring that notaries are available close to someone’s place of residence or business (cf. Federal Court of Justice, Order of 20 July 2020 - NotZ (Brfg) 5/19 -, para. 13 with further references), which requires a certain density of notarial practices, particularly in more sparsely populated rural regions. Moreover, it must be ensured that lawyers commissioned as notaries can practise as notaries as their secondary occupation (cf. § 3(2) Federal Code for Notaries). It would be impermissible under ordinary law for the justice departments to take measures that would lead to this type of notary resembling notaries who exercise the office as their primary occupation.

178

(2) The legislative purpose of protecting the administration of justice from risks that may arise from age-related decline in faculties among notaries is also only served to a limited degree by the age limit in § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries.

179

In the statements submitted by the German Centre for Age-Related Questions and the German Society for Gerontology and Geriatrics, it was consistently emphasised that the cognitive ageing process is strongly influenced by individual factors and that, in the notarial profession, there are no overarching correlations between increased age and professional faculties (cf. para. 129 ff.). In this respect, there is a difference between the notarial profession and other professions which involve the rapid cognitive processing of information, such as that of an airline pilot.

180

The age limit is not justified under these circumstances, in which all officeholders must forfeit their positions upon reaching age 70 without regard to their individual abilities. While it can be assumed, based on the empirical evidence, that the age limit also concerns individual lawyers commissioned as notaries who experience age-related facultative decline and thus achieves its purpose in the individual case (cf. para. 131), this is not the typical case. Rather, the majority of officeholders are forced to give up their office at age 70 even though they are still able to competently exercise their notarial duties. Conversely, the age limit does not apply to officeholders who experience an age-related decline in faculties before they turn 70.

181

dd) Under the given circumstances, the age limit of 70 years pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries is no longer appropriate with regard to lawyers commissioned as notaries and violates occupational freedom (Art. 12(1) of the Basic Law).

182

The age limit constitutes a grave interference with the fundamental right to occupational freedom. It means that lawyers commissioned as notaries are completely prevented from further practising their occupation, notwithstanding the possibility of sporadic work as deputies and administrators.

183

At the time of its introduction, the age limit could considerably further the purposes pursued – achieving an appropriate age structure within the profession in the interest of the proper functioning of the administration of justice and a fair distribution of career opportunities – due to the increasing number of lawyers who sought to be commissioned as notaries at the time. However, this is no longer the case today. The factual circumstances have changed. It is still true that the age limit pursues protected interests of the common good of considerable weight, and that it is constitutionally suitable for achieving these interests. A less intrusive means than the age limit is not ascertainable. However, its significance for the purposes of the proper functioning of the administration of justice and of a fair distribution of career opportunities has evidently declined due to the shortage of applicants for a commission as notary in almost all regions. The shortage of applicants is sustained; as set out above, it has become entrenched over many years and has been known to the legislator for some time (cf. BTDrucks 19/26828, p. 113 f.). The number of notarial transactions for the needs assessment can only be adjusted to a limited extent, and it cannot fundamentally change the situation. Due to these developments, which were not foreseeable when the law was created, the assumptions on which the introduction of the age limit was based are no longer correct. This means that the assessment of the legislator at the time is now called into question and is no longer plausible (cf. BVerfGE 158, 282 <346 para. 155>). The burdens imposed on the fundamental right holders by the challenged rule are no longer in reasonable proportion to the significantly reduced benefits to the common good.

184

A different assessment on the grounds that the age limit continues to provide protection from risks arising from officeholders with age-related facultative decline is also not warranted. The additional consideration of this further purpose does not qualify the rule as appropriate. In this respect, too, the degree to which the purpose is achieved is low, as set out above. While the legislator is in principle entitled to create statutory age limits for typical cases, an age limit of 70 years does not reflect the standard case of a notary who performs inadequately, regardless of the fact that other considerations may apply to other occupations.

185

Overall, the age limit of 70 for lawyers commissioned as notaries pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries is no longer appropriate and imposes unreasonable burdens on fundamental right holders. It is unconstitutional as a result of its violation of Art. 12(1) of the Basic Law.

II. 

186

1. The finding that a statutory provision is unconstitutional in principle results in that provision being declared void. However, pursuant to § 31(2) second and third sentence of the Federal Constitutional Court Act, the Federal Constitutional Court may limit its decision to declaring that an unconstitutional provision is merely incompatible with the Constitution. It then merely objects to the unconstitutional provision without declaring it void. The Court may combine the declaration of incompatibility with a temporary order to continue to apply the unconstitutional provision. This may be considered in cases where the immediate invalidity of the objectionable provision would eliminate the statutory basis for protecting exceptionally significant interests of the common good, and if a balancing of these interests against the affected fundamental rights requires that the interference be tolerated for a transitional period (cf. BVerfGE 141, 220 <351 para. 355>; 165, 363 <440 para. 174> – Automated data analysis; established case-law).

187

2. The rule imposed by § 47 no. 2 first alternative and § 48a of the Federal Notaries Act is, to the extent it applies to lawyers commissioned as notaries, merely incompatible with the Constitution rather than void. The age limit will be temporarily kept in place until 30 June 2026. It may no longer be applied after that date.

188

Declaring the rule incompatible with the Constitution avoids serious impairments to the functionality of the administration of justice and to the rights of the affected fundamental right holders that would arise with a declaration of voidness. In particular, it avoids legal uncertainty with regard to the status of those lawyers commissioned as notaries who have already forfeited their office due to the age limit. The continued application of the provision on a temporary basis until 30 June 2026 protects the rights of those lawyers commissioned as notaries and officeholders associated with them (cf. § 9(2) Federal Code for Notaries) who have already made legal and economic arrangements in the expectation that the age limit will continue to apply. It will also allow the justice departments of the Länder to adapt to the new legal situation.

189

3. The rights of the complainant and other lawyers commissioned as notaries who had to forfeit their office due to the age limit pursuant to § 47 no. 2 first alternative and § 48a of the Federal Code for Notaries to reapply for vacant positions after the temporary application of the rule expires will remain unchanged. Insofar as these persons do not meet the statutory requirements of § 5b of the Federal Code for Notaries, because such requirements were only introduced after they first entered the profession, the justice departments of the Länder will have to take into consideration that this provision establishes target or standard requirements (cf. § 5b(1) and (4) second sentence Federal Code for Notaries), and that they may deviate from these requirements in the individual case.

190

4. The legislator is not barred from enacting new rules on a mandatory age limit for lawyers commissioned as notaries. It follows from the considerations above that the legislator is afforded broad leeway for designing such an age limit in conformity with the Constitution. For example, the legislator may introduce an age limit that only applies to certain regions, a higher age limit or a provision that ties the continued exercise of notarial office to the faculties of the officeholder.

III. 

191

Despite the incompatibility of the current age limit rule with Art. 12(1) of the Basic Law, the judgment of the Federal Court of Justice challenged by the constitutional complaint is still valid, as the rule will continue in place subject to the aforementioned conditions (cf. BVerfGE 158, 282 <388 Rn. 261>; 166, 196 <289 Rn. 247> – Remuneration of prisoner labour II). The constitutional complaint is therefore unsuccessful to the extent that it is directed against that decision (cf. BVerfGE 115, 276 <319>).

IV. 

192

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