Age limit for lawyers commissioned as notaries
In a judgment pronounced today, the First Senate of the Federal Constitutional Court held that the statutory age limit for lawyers commissioned as notaries (Anwaltsnotare) is incompatible with the Basic Law.
The complainant, a lawyer commissioned as a notary public in North Rhine-Westphalia, indirectly challenges the statutory rule in § 47 no. 2 variation 1 and § 48a of the Federal Notaries Act (Bundesnotarordnung – BNotO), according to which the office of notary public expires upon reaching the age limit of 70 years of age both for notaries practicing primarily as such and for lawyers commissioned as notaries. His constitutional complaint directly challenges the judgment of the Federal Court of Justice that rejected the complainant’s lawsuit for a declaration to continue in the office of notary public beyond this age limit without recourse to appeal. The complainant alleges, among other things, that the age limit violates his occupational freedom under Art. 12(1) of the Basic Law (Grundgesetz – GG).
The constitutional complaint is well-founded insofar as it indirectly challenges the age limit rule. Given the sustained shortage of lawyers commissioned as notaries and the current knowledge on how age influences professional competence, the age limit only achieves the objectives pursued by such rule to a very limited extent. The rule disproportionately interferes in both areas of protection guaranteed by occupational freedom, i.e. obtaining an economic livelihood and developing one’s personality.
The Senate has ordered that the age limit be temporarily kept in place until 30 June 2026. To the extent the constitutional complaint directly challenges the judgment of the Federal Court of Justice rejecting the complainant’s lawsuit, it is rejected. In light of the order on the temporary continuation of the age limit, the challenged judgment is valid.
Facts of the case:
Notaries public are independent holders of a public office. They certify legal transactions and fulfil other tasks necessary for the orderly administration of justice. While the exercise of the office of notary public is as such uniformly governed by federal law, the organisational rules regarding the appointment of notaries differ across regions in accordance with federal law. There are two ways in which this occupation is practiced. Notaries public can either hold such office as their primary occupation (so-called ‘only notaries’) or may concurrently practice as a lawyer and hold the office of notary public (lawyers commissioned as notaries).
Pursuant to § 4 of the Federal Notaries Act, the number of notaries public to be appointed is determined by what is necessary for the administration of justice. Making such determination and appointing notaries public falls within the competence of the Länder; in principle, the number of appointments is left to the duly exercised discretion of the Länder.
The situation with regard to the number of candidates applying for the office of notary public differs depending on the type of notary. For the office of notary public as a primary occupation, there are more than enough candidates in nearly every Land. In the case of lawyers commissioned as notaries, however, the number of applicants has for some years fallen below the number of vacant positions, with some individual localised exceptions.
Pursuant to § 47 no. 2 variation 1 and § 48a of the Federal Notaries Act, the office of notary public expires upon reaching 70 years of age, both for notaries practicing primarily as such and lawyers commissioned as notaries. Those affected must cease practice as a notary public.
The complainant – a lawyer commissioned as a notary in North Rhine-Westphalia – alleges, among other things, that the age limit violates his occupational freedom under Art. 12(1) of the Basic Law. He contends that the age limit is no longer proportionate. According to the complainant, it can no longer fulfil its original function of ensuring an appropriate age structure for notaries public that serves the interest of the effective administration of justice. This is because unlike the situation in the 1990s when the age limit was introduced, there are no longer sufficient applicants for positions as lawyers commissioned as notaries.
Key considerations of the Senate:
A. 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 the Federal Court of Justice and indirectly challenges the age limit in § 47 no. 2 variation 1 and § 48a of the Federal Notaries Act. The complainant’s remaining claims are not sufficiently substantiated.
B. The constitutional complaint is well-founded insofar as it indirectly challenges the age limit of 70 years of age. 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.
I. 1. Art. 12(1) of the Basic Law is a uniform fundamental right that protects the selection and exercise of an occupation. Occupational freedom entails both an economic dimension and a dimension related to the development of one’s personality. 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.
2. The age limit interferes with this area of protection. 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 with regard to whether they can continue to practice as a notary public.
3. This interference is not justified under constitutional law; it is disproportionate insofar as it applies to lawyers commissioned as notaries public.
a) The age limit nevertheless serves constitutionally legitimate objectives. It is intended to ensure an appropriate age structure for notaries public that serves the interest of the effective administration of justice. An age limit is also a means to provide an appropriate distribution of career opportunities among generations; this constitutes a legitimate objective for employment and social policy. Finally, it serves the legitimate objective of protecting the administration of justice from risks that may arise due to age-related diminution of function among notaries public.
Despite changing factual circumstances, the age limit remains suitable and necessary under constitutional law to achieve the legislative objectives.
b) However, the age limit is no longer proportionate in the strict sense with regard to lawyers commissioned as notaries. It places an unreasonable burden on the holders of fundamental rights.
aa) The intensity of the interference is severe. The age limit is a rule that affects the choice of occupation. Upon reaching this limit, the commission as notary public expires. As the decisive criteria is impossible to avoid, the holders of fundamental rights 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 exceptions. The interference affects both areas of protection guaranteed by occupational freedom, i.e. obtaining an economic livelihood and developing one’s personality.
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 substitute (Notarvertreter) or temporary (Notariatsverwalter) notary public or to resume their primary occupation as a lawyer. Nevertheless, the degree of mitigation is very limited.
Seventy years is a substantially later age than the standard retirement age set by law at which civil servants and others may claim full retirement benefits. On its own, however, this does not result in a mitigation of the intensity of the interference. Lawyers commissioned as notaries public – 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. In addition, in looking at society as a whole, career and job application paths have become more flexible and interruptions in the progression from education to a career to retirement have become increasingly more common. The number of older workers has also significantly increased in recent years.
bb) This must be weighed against the interests of the common good, which also have considerable weight. The proper functioning of the administration of justice – namely, providing high quality notarial services carried out by competent, sufficiently experienced notaries of various ages – is of great importance both on an individual level and for society as a whole. Equally important is the social and employment policy objective of the legislator to provide a fair distribution of career opportunities among generations. These objectives also serve to give effect to the rights of potential notaries under Art. 12(1) of the Basic Law to enter into the profession.
cc) With regard to lawyers commissioned as notaries, the age limit provides a very limited contribution towards these objectives.
(1) This applies in the first instance to 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. 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 limited degree.
(a) By introducing the age limit, the legislator intended to free up notarial positions 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. This is now the case for the majority of regions – as determined by area of appointment, each of which is overseen by the respective Higher Regional Court – in which lawyers may be commissioned as notaries.
(b) The diminished effectiveness of the age limit has not been replaced by an alternative measure.
In the underlying 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 revenues previously earned by their older counterparts who leave the profession. According to the Federal Court of Justice, the obstacles presented by the high personal and financial expense involved in passing the notarial examination and the high costs of establishing an office could be offset by the significant economic incentives.
There is, however, no empirical evidence that the ‘freeing up’ of revenues provides any meaningful incentive to apply for a commission as a notary public. Rather, according to the Institute for the Legal Profession (Institut für Anwaltsrecht) at the University of Cologne, several interrelated factors are responsible for the dwindling number of applicants. Each year, the number of new lawyers entering the profession, and therefore also potential applicants for a commission as a notary public, is only around 700 to 900, and young lawyers have changing career preferences. Substantially fewer salaried lawyers have the intention of ultimately establishing their own businesses and, in particular, there is little interest in becoming a lawyer commissioned as a notary.
(c) The evident ineffectiveness of the age limit in achieving the legislative objectives is established and is not projected to change.
Based on available data, a significant lack of applicants can be identified as early as 2012. 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.
An assessment to the contrary is also not justified by considerations of the developments in the revenues earned by lawyers commissioned as notaries. There are no discernible factual indications of a sustained reversal of the current situation.
Adjusting the calculation of the number of appointments necessary for a given region by increasing the presumed workload for each lawyer commissioned as a notary and the resulting reduction in the number of positions advertised has not improved the effectiveness of the age limit in achieving the legislative objectives. Such a measure is not able to increase the number of applicants, which is linked to demographic factors.
(2) The legislative objective of protecting the administration of justice from risks that may arise due to age-related diminution of function among notaries public is also only served to a limited degree by the age limit. In the expert testimony on aging submitted in these proceedings, it was consistently emphasised that the cognitive aging process is strongly influenced by individual factors and that, in the notarial profession, there are no overarching corelations between increased age and professional competency. In this respect, there is a difference between the notarial profession and other professions that involve the rapid cognitive processing of information. 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. 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.
The burdens imposed on the fundamental rights holders by the challenged rule are therefore not in reasonable proportion to the significantly reduced benefits to the common good.
II. The rule imposed by § 47 no. 2 variation 1 and § 48a of the Federal Notaries Act is, to the extent it applies to lawyers commissioned as notaries, 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.
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 rights holders that would arise with a declaration of voidness. It will also allow the justice ministries of the Länder to adapt to the new legal situation. The rights of the complainant and other lawyers commissioned as notaries whose office expired due to the age limit to reapply for vacant positions after the temporary application of the rule expires will remain unchanged.
The legislator is not barred from enacting new rules on a mandatory age limit for lawyers commissioned as notaries. The considerations of the Senate result in the conclusion that there is considerable leeway for a rule that complies with the Constitution.
III. 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.