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134 T. Antenreiter, National Report Austria Notarius International 3-4/2002 National Report Austria Table of Contents 1. Notarial Law p. 134 2. General civil law p. 136 3. Property law p. 136 4. Family law p. 137 5. Law of succession p. 138 6. Company law p. 141 7. Private international law p. 145 8. Tax law p. 147 A bibliography may be found on page 133. The legal position is stated as at 1.1.2003. 1. Notarial Law 1.1. Professional law 1.1.1. General In Austria there is only one type of notary; the “Öffentlicher Notar” or notary public exercises a public office and is appointed by the state to a particular notarial post. Like a judge he cannot be moved or removed 1 . The notary exercises his profession as his sole professional activity and not as an additional occupation, and he is independent as regards the state and the parties. In Austria there are at present around 470 notaries. It is possible for several notaries to join together to form a set of chambers or a notarial partnership 2 . In these cases also each notary is appointed to a particular official post, so that the total number of notaries is unaffected by such associations. The individual notary continues to have the rights and responsibilities of his office. 1.1.2. Sources of law The most important source of law for the Austrian notary is the Law on Notaries Public of 1871 (Notariatsordnung: NO), which was last amended with effect as from 1st June 1999. Other important statutory sources are the Law on Court Commissioners (Gerichtskommissärsgesetz: GKoärG) and the Law on Notarial Instruments (Notariatsaktsgesetz: NAG) 3 . In addition, the activities of the notary are specified in greater detail in rules which can be issued by the Austrian Chamber of Notaries (Österreichische Notariatskammer) or the respective regional Chambers of Notaries. There are important rules governing inter alia the following areas of notarial activity: bookkeeping and cash management for notaries, dealing with notarial trusteeships, the Austrian Central Wills Register (Österreichische Zentrale Testamentsregister), the Austrian Notaries’ Document Archive (Urkundenarchiv des österreichischen Notariats) together with rules relating to the training of notaries. 1.1.3. Entry to the profession In Austria there is a specific number of notarial positions. This number is adjusted by the Federal Minister of Justice (Bundesjustizministerium) in consultation with the competent Chamber of Notaries to provide the population with a comprehensive network of legal services from notaries. A public notary is appointed for a particular district by the Federal Minister of Justice on the recommendation of the competent Chamber of Notaries 4. The most important prerequisites for appointment as a notary public are Austrian nationality, completion of a law course at an Austrian university, passing both parts of the two part notarial examination and a seven year period of professional training as a trainee notary 5 . 1.2. The notary’s functions The functions fulfilled by the notary are differentiated into, on the one hand, activities in relation to which, in the exercise of his office as authenticator of documents or as Court Commissioner, the notary has sovereign powers (so-called Art. 1 NO Activities) 6 and on the other hand other professional activities such as, in particular, the drawing up of private documents, representing parties, acting as a mediator etc. (so-called Art. 5 NO Activities). In these areas of activity the notary is also under a duty to comply with rules of professional etiquette for notaries, to maintain confidentiality and to act impartially in relation to the parties for whom he is acting. Most Austrian notaries are primarily involved, on the one hand, in acting as Court Commissioner (in particular carrying out probate proceedings as representative of the competent local court (Bezirksgericht) and inspecting the public registers, the Land Register and the Companies Register), in authenticating documents and in various certifications and, on the other hand, in property law and company and commercial law. 1.3. Notarial documents The notary draws up notarial documents either in the form of a notarial instrument (Notariatsakt) for proceedings establishing a legal right or as a notarial re- 1 Art. 10 Law on Notaries Public 2 Art. 22 ff. Law on Notaries Public 3 Austrian Laws can be consulted free of charge on the Internet at: www.ris.bka.gv.at For the foreign notary the following site contains comprehensive information about Austrian notaries and additional links: www.notar.at 4 Art. 10 Law on Notaries Public 5 Art.6 Law on Notaries Public 6 Art. 1 of the Austrian Law on Notaries Public reads: „(1) Notaries are appointed by the state and are responsible for public certification in that, in accordance with this law, they record and execute public documents concerning legal declarations and legal transactions, and also concerning facts from which it is intended to derive rights, then keep in safe custody the documents entrusted to them by the parties and accept money and documents of title for transmission to third parties or for lodging with official authorities. (2) It is also incumbent upon notaries to carry out official duties as representative of the court in accordance with special statutory provisions. (3) In so far as the notary carries out activities under public law on the basis of statutory provisions, he is exercising public authority.’
Notarius International 3-4/2002 T. Antenreiter, National Report Austria 135 cording for proceedings attesting a legal right. Legally relevant facts and declarations are officially recorded pursuant to special provisions 7 . This includes, for example, authentication of signatures, official recording of agreement to the making of copies and transcripts, as well as the issuing of life certificates and of official confirmation of entries in the public records (Companies Register and Land Register) and official recording of factual proceedings. The notarial instrument contains a legal declaration given in written form or a legal transaction concluded in written form and must be signed by all the parties, whose identity the notary has checked in advance. The notarial report is drawn up by the notary about the legal proceedings taking place in his presence and is signed by the notary and, if applicable, by witnesses. In principle all notarial documents are drawn up in German; however, a notary who is authorised to act as an interpreter for a particular language can also draw up notarial documents in this foreign language or confirm the accuracy of translations 8 . In the notarial instrument in principle all numbers and abbreviations, even those written out in full have to be repeated and empty spaces in the text have to be crossed through with a line 9 . The notary must read over the whole notarial instrument to the parties and advise and caution them impartially about the legal implications of its content 10 . Austrian law also affords the notary the possibility of notarially confirming a private document brought in by the parties. In this case the notary draws up his own notarial instrument and appends the private document to the so-called covering instrument (Mantelakt) (formalisation of private documents) 11 . In such cases the notary must also thoroughly check the contents of the private document and fully advise the parties about the legal implications. The notary further has the possibility of making a notarial instrument concerning a precisely defined duty to render a service or to refrain from doing something immediately enforceable. In this case the notarial instrument is itself title for execution and constitutes the basis, without the need for any further formalities, for enforcement proceedings against the party liable, who submitted himself in the notarial instrument to immediate enforceability through execution 12 . Formalities necessary in the drawing up of a notarial instrument, in the recording in a notarial report or with regard to the authentication of signatures are more or less distributed throughout the whole of the Austrian legal system. The most important legal sources, which are mentioned by way of example, are: the Law on Notaries Public for pre- and post-nuptial agreements, certain legal transactions between spouses, legal transactions by disabled persons and gifts without actual delivery; the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch: ABGB) for renunciations of inheritance, purchase or gift of an accrued inheritance and gifts in contemplation of death (donatio mortis causa); the Law on Private Limited Companies (Gesellschaft mit beschränkter Haftung (GmbH)-Gesetz) for the company contract and acceptance of new capital contributions, for contracts of assignment and certain re-organisation procedures; the Law on Public Limited Companies (Aktiengesetz) for merger agreements and shareholders’ resolutions and almost throughout in relation to making entries in the Land Register and Companies Register. 1.4. Notaries’ fees For the provision of notarial services there are various different legal bases depending on the nature of the activity, the most important of which is the Law on Notaries’ Scale Fees (Notariatstarifgesetz: NTG). In principle the charges applicable are fees based on the value of the transaction; alternatively time charges can be levied. The scale charges in Austria are now, since the new Code of Professional Conduct 2000, to be considered more as maximum rates: less may be charged but the rates may not be exceeded. This means that fees for notarial services are in practice largely open to be agreed with the client. For the notary’s activities as Court Commissioner, particularly in probate matters, there is the Law on Court Commissioners’ Fees (Gerichtskommissionstarifgesetz: GKTG), in accordance with which the notary’s fees are checked and fixed by the court. 1.5. Professional organisation Austrian notaries are members of the Austrian Chamber of Notaries and their regional Chamber of Notaries 13 . The Chambers of Notaries are statutory bodies whose fundamental duties are representing the interests of their members, supervising the management of the members of the profession, participating in the legislative process, involvement in the filling of notarial posts and collaboration with notarial organisations on a bilateral and international level. In addition to the organisation of the profession into chambers the Austrian Notaries’ Chamber has arranged various facilities for its clients and for its members, such as, for example, the Notary Trust Bank (Notartreuhandbank) and the Austrian Chamber of Notaries’ Trustees Register (Treuhandregister des österreichischen Notariats) (for handling notarial trusteeships), the Central Wills Register (for the storage and easier traceability of testamentary dispositions), the cyberDOC/Urkundenarchiv (document archive) (for the electronic storage and utilisation of notarial documents) as well as the Aus- 7 Art.76 ff. Law on Notaries Public 8 Art. 43 Law on Notaries Public 9 Art. 44 Law on Notaries Public 10 Arts. 52 and 53 Law on Notaries Public 11 Art. 54 Law on Notaries Public 12 Arts. 3, 3a and 4 Law on Notaries Public 13 There are the following regional chamber of notaries: a) Chamber of Notaries for Vienna, Niederösterreich and Burgenland, b) Chamber of Notaries for Oberösterreich, c) Chamber of Notaries for Steiermark, d) Chamber of Notaries for Salzburg, e) Chamber of Notaries for Kärnten, f) Chamber of Notaries for Tirol and Vorarlberg
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