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COVID-19 - consequences for notarial services

04/08/2020 - Reading time: 3 minutes

Author

Elisa Kaplenig

Attorney at Law

Establishing a public document generally requires the respective party appearing personally before the respective authenticating official/body (notary, court).

In order to prevent the further spread of COVID-19, it is currently necessary to reduce personal contacts with other persons to the absolute minimum required. For this purpose, the government also prohibited assemblies of more than five persons due to the COVID-19 pandemic (www.sozialministerium.at).

This, however, does not change anything about the need for notarial services, before all, in connection with establishing public documents (including certifying documents).

In the field of notarial services, the Fourth COVID-19 Act helps preventing the further spread of COVID-19 by introducing the possibility to carry out notarial certifications electronically.

Digital foundation of a private limited liability company under Austrian law (GmbH)

Already before the breakout of COVID-19, namely in mid 2019, the possibility to sign all documents required for the foundation of a GmbH exclusively via a digital connection to the notary was created within the scope of the Act on the Electronic Establishment of Notarial Deeds (Elektronische Notariatsform-Gründungsgesetz, ENG), Federal Law Gazette I No. 71/2018, in conjunction with the amendment of the Limited Liability Company Act (GmbH-Gesetz, GmbHG); this was possible thanks to the technical possibilities having become available in the meantime ensuring a high level of security.

Pursuant to section 3 GmbHG concluding the Articles of Association is a necessary prerequisite for the company being registered in the company register. The formation documents of a GmbH mandatorily require the form of a notarial deed. This form requirement is meant to ensure that the shareholders are protected by the notary’s obligation to advise and instruct.

Since the ENG’s entering into force, the notarial deed can now, pursuant to section 69b Notarial Code (Notariatsordnung, NO), also be established electronically by using an electronic (tele-)communication option (adequate video conference). Section 69b (2) NO regulates the special measures required for ensuring that the identity of the physically not present parties is verified and determined in a reliable manner. Verifying and determining the identity of these parties can be carried out

(i) on the basis of an official photo ID within the scope of a video-based electronic procedure; or
(ii) by way of a procedure provided for by law within the scope of which the same information as when submitting an official photo ID is made available in a secured manner (electronic ID, which, however, is still being prepared).

It has been set out that when establishing the notarial deed, the parties must be connected with the notary and the other parties without interruption via an optical and acoustic two-way communication in real time by using an electronic communication option. If the connection is temporarily interrupted, the notary must wait and may only proceed with establishing the notarial deed if the connection has been re-established in full.

Signature certifications required in connection with the foundation of a GmbH (i.e. specimen signature(s), shareholders’ resolutions, registration with the company register, powers of attorney, etc.) have also been thought of: These, too, can be delivered electronically via a secure video connection. Hence, for such (special) cases where a handwritten signature (or an electronic signature) needs certifying, the ENG also provides for the possibility that, by way of exception, the notary may certify the authenticity of a signature (or an electronic signature) of a party not physically present.

Extension of the rules for the digital foundation of a GmbH to all kinds of notarial certificates

With a view to preventing the spread of COVID-19, the Fourth COVID-19 Act now provides for this option, which has originally been created only for the foundation of GmbHs, being extended, within the scope of the newly added section 90a of the Notarial Code, to all official acts of notaries required for the establishment of notarial certificates (e.g. notarial deeds, notarial protocols and notarisations) until 31 December 2020, insofar as a legal transaction, a declaration or a legally relevant fact requires the form of a notarial deed or of a different public document to have legal effect.

This provision applies to all notarial certificates irrespective of the original form of their establishment meaning that this option may also be chosen for a document which already exists on paper and has already been personally signed by one party and subsequently – after meeting the prerequisites for its electronic accessibility by using the documents archive of the Austrian Notarial Profession – has to be signed electronically by the other party, with the respective signature being certified by a notary.

Furthermore, the provision also covers certifying the authenticity of a signature or electronic signature of a party not physically present, with the rules for certifying the documents required for the foundation of GmbHs applying mutatis mutandis (section 79 (9) NO). Therefore, in this case, too, the notary must be connected with the party before and while it delivers its (electronic) signature via an optical and acoustic two-way communication in real time by using an electronic communication option without interruption and for a duration which enables the notary to follow the process of delivering the handwritten or electronic signature in an unmistakable and uninterrupted manner.

The new rules set out above will be in place until 31 December 2020 and apply to all documents for which so far physical presence before a notary was required. However, relevant regulations concerning the specific procedure for the implementation of these new rules and ensuring their feasibility are still missing.

There are certain fields were establishing notarial documents electronically is not possible. This applies for example to testamentary dispositions because the provisions of sections 67 and 70 NO as well as of section 4 (2) of the Signature and Trust Services Act (Signatur- und Vertrauensdienstegesetz) have not been amended.

Author

Elisa Kaplenig

Attorney at Law