The French notary11.08.14
How do you become a notary in France?
There are two different ways of acquiring the professional title as a notary in France. The basic requirement for both is to obtain a Master’s degree in law (called a “Master 1”).
Students must then pursue their legal training either in a local school for notaries (“Centre de formation professionnelle notariale”) or at the university.
The training in university requires that the candidate achieve a second Master’s degree (“Master 2”). However, the admission criteria for this Master 2 program are very strict. After academic training, the candidate begins a two-year practical training program in a French notary firm. Besides this practical training, the student goes to classes and is required to sit exams at the local school for notaries.
For those who start their training directly in a local school for notaries, the program starts with one year of theory. At the end of the first year, the candidates have to pass an exam to obtain a degree called the “Diplôme d’aptitude aux fonctions de notaire”. This degree entitles the students to be admitted as a notary. After having obtained this degree, the candidates must enter a two-year practical training program (“notaire stagiaire”) under the supervision of the local school for notaries.
What is the role of a notary in France?
The main activity of a notary in France is to provide legal advice as well as draft and record legal documents in civil law outside of litigation, especially in the fields of real estate, family and inheritance law as well as corporate law (e.g., last will and testament, matrimonial agreements, incorporation of companies, real estate purchase agreements, etc.).
However, the assistance of a notary is only mandatory for real estate purchase agreements. In corporate law, French lawyers are entitled to undertake incorporations of companies, transfer of shares and registration in the trade register without the assistance of a notary.
Notaries in France also have the authentication power of signature, especially for the authentication of a signature in France in the aim of concluding a notarial agreement in Germany.
The advice of a notary, his authentication power and the fact that in some cases the assistance of a notary is mandatory serves different purposes: the assistance of a notary is necessary in particular for proving the validity of a legal act. Furthermore, it helps the client understand the consequences and legal effects of the documents he or she intends to sign. This prevents the client from taking actions that go against his or her own interests. The authentication by a notary also shows evidence that a copy is conform to the original document. It can therefore be a legal requirement for some legal acts, such as for the registration in the cadastral register.
What status does a notary have in France?
Even though a French notary has a public authority mission, he works as a self-employed professional. A notary has to respect his professional duties of assistance, neutrality, probity, impartiality and secrecy. Once a year, an unannounced control of the accounting and the legal activities of the notary is organized by the Public Prosecutor. The report of this control is handed in to the President of the Chamber of Notaries as well as to the Public Prosecutor.
French notaries are paid by their clients pursuant to the rates fixed by the September 3, 2013 amended version of the compensation act dated March 8, 1978.
The compensation paid to the notary actually includes much more than the fees alone:
- Taxes collected for the Treasury. The notary is required by the French State to collect specific taxes from his clients in order to transfer that payment to the Treasury;
- Disbursements (“débours”): disbursements, as they are known, are sums that the notary pays on behalf of his or her clients (cadastral register fees
- Fees of the notary (known as “émoluments”).
As the notary has a duty towards public interest (“une function d’intérêt public”), his or her fees are fixed by legal provisions. The fees fixed by the above mentioned compensation act are composed of a fixed rate and a proportional rate. However, for some tasks, such as commercial lease agreements, notaries are entitled to negotiate their fees freely and directly with their clients.
The fees for the legal acts listed in the above mentioned compensation act are determined according to the value of the legal act (“unite de valeur”). The fees are determined by the regulation and vary according to the value of the act. The fees for the legal formalities in relation to the concerned legal act are also determined according to the value of the act.
How is the profession organized in France?
Some 9,300 notaries are registered in one of the 80 Chambers of notaries (“Chambre des Notaires”) in France.
The activity of a notary in France is deemed incompatible with some other professions. For instance, a notary shall not exercise the profession of a lawyer in France, even though it is possible in some federal states in Germany. Just like in Germany, a notary in France shall not exercise any commercial profession either. When a notary is required by law, it is perfectly possible for clients who want the additional assistance of a lawyer to appoint them both.
The number of notaries admitted into the district of a High court is determined by a report of the Minister of Justice corresponding to the needs of the population. The appointment as a notary results from an act of state by the French Minister of Justice.
Notaries are assisted in their everyday work by a clerk (known as a “clerc de notaire”). The one known as a first clerk (“premier clerc de notaire”) plays a special role among the clerks and requires special training. Under the supervision of a notary, the first clerk is entitled to draft contracts and legal acts and to advise their clients. In Germany, a function similar to first clerk does not exist.
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By Françoise Berton, French business lawyer