In addition to many challenges, the coronavirus pandemic has also brought further developments. For example, the digital possibilities in the notary’s office. These were originally limited to 31.12.2020, but the law was finally passed permanently.
The possibilities of digital official acts of a notary are regulated in § 69 b in conjunction with §§ 79 para. 9, para. 10 and 90a Notarial Code (NO). With the Federal Law Federal Law Gazette I No. 157/2020, the initially temporary possibility of comprehensive use of an electronic communication option for official notarial acts, which was aimed at preventing the spread of COVID-19, was transferred to permanent law by amending Section 69b (1) NO and a new version of Section 90a NO. Pursuant to section 90a NO, notaries may perform official notarial acts using an electronic communication option (section 69b NO).
Notarial services can thus be used from home or the office. It is also no longer necessary to travel just for a signing appointment or the time-consuming process of obtaining powers of attorney (including notarization and, if necessary, apostille).
Which services can also be provided “online”?
are possible (pursuant to § 69 b in conjunction with §§ 79 (9f), 90a NO):
- Digital notarization of signatures
- Digital notarial file
- notarized minutes / digital general meetings
Until now, however, it was only possible to draw up a notarial deed either in paper form or in electronic form. It was not possible to draw up a “mixed” deed, in which the parties were partly physically present in front of the notary and partly electronically connected to the notary (and the other parties).
On 01.07.2022, an amendment to the Notarial Code came into force in Austria. The insertion of Section 69b (4a) NO and Section 79 (10) NO made it possible to draw up hybrid notarial deeds as well as deeds that contain both certified signatures and certified electronic signatures. This means that the parties now also have the choice of whether they want to sign “conventionally” or electronically when drawing up a deed together.
Which services cannot be provided “online”?
Wills and other testamentary dispositions are exempt from digitization. They can still not be drawn up electronically (see Section 70 NO).
It is also not possible to produce a certified copy digitally, as the notary must always have the original in order to carry out such an official act.
How do the “online” official acts work?
Before a notarial deed or notarization can take place online, the identity of the parties must be established digitally. For this purpose, all persons who sign a document digitally must undergo a video identification procedure (video identification procedure), which must meet the requirements of Section 69b (2) NO and the Notarial E-Identification Ordinance (NEIV).
The parties who sign digitally need an e-mail address and must go through the video identification process themselves. This usually takes 10-15 minutes. An official photo ID is required for this, which must then also be presented at the signing appointment (held up to the camera). If the party does not yet have a qualified electronic signature (e.g. cell phone signature), an electronic signature is created for the party during the certification process, which is then used to “digitally sign” the documents in a data room.
Once all parties have gone through this video identification procedure and the documents have been prepared, the notary and the parties “meet” in a video conference. During the video conference, the qualified electronic signatures are affixed under the supervision of the notary. The notary then adds the certification clause and notarization signature to the notarizations.
The notaries in our network naturally have the relevant technical capabilities and know-how, which means that our clients can also enjoy the benefits of the new digital possibilities. For example, real estate transactions can be handled completely digitally. If one of the parties is located abroad, there is no need for costly and climate-unfriendly travel for the signing appointment. The exact procedure can be outlined in advance depending on the technical requirements of the client (e.g. existing cell phone signature, PC or only tablet/mobile phone, etc.) and which provider the respective notary uses for the video identification procedure. If you have any further questions, please contact us at office@toplaw.at.
Sources:
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10001677