Notarial deed, notarial attestation and certification explained

Protection against hasty decisions and a warning function are top priorities for the legislator, which is why the general freedom of form is often set aside and an appointment with a notary is made mandatory. There is often confusion about the differences between a notarial deed (Notariatsakt), a notarial certification (Beglaubigung) and a notarial attestation (Beurkundung). In this article, we shed some light on these terms and explain how they differ. At the end, we also explain the difference between a signature certification and a certified copy. What is clear is that notaries are essential in all of these cases. Today, you can save yourself the trip to a notary’s office by booking your notary appointment quickly and easily online via notarity with a partner notary.

In principle, Austrian law follows the principle of freedom of form. This means that the legislator leaves it to the parties to decide in which form they want to conclude a legal transaction and which form they want to be bound by. However, there are many exceptions to this rule. In some cases, the law departs from the freedom of form and prescribes a specific form.¹

1. Notarial deed

A notarial deed (Notariatsakt)² is a written instrument drawn up by a notary at the request of the parties involved, relating to a legal transaction or a legal declaration. When reading out the notarial deed, the notary also explains the meaning of the individual provisions of the deed and their effects. The involvement of the notary makes the deed a public instrument, which gives it special probative value.³

A notarial deed is required, for example, for the formation of an AG or a GmbH with several shareholders, the transfer of GmbH shares, syndicate agreements, marriage contracts, exchange agreements, loan agreements between spouses, or gift agreements without actual handover of the gift.⁴

2. Notarial attestation

Notarial attestations (notarielle Beurkundungen) must be distinguished from the notarial deed. A notarial attestation takes place when a notary records findings of fact, declarations of knowledge that have been made, or other processes that are intended to have legal effects.⁵ These attestations have the probative force of public instruments.⁶

Notarial attestations are of great importance both legally and in everyday practice. The term covers the following attestations:

1. on the conformity of (i) paper copies with paper documents, (ii) paper printouts with electronic documents, and (iii) electronic copies (electronic images) with paper documents (known as “Vidimierung”);
2. on the accuracy of translations;
3. on the authenticity of signatures (known in Austria as “Legalisierung”);
4. on resolutions; and
5. on entries in public books and registers.

Notarial attestations serve to increase legal certainty and the trustworthiness of certain legal matters. Involving a notary ensures that the parties understand the meaning and consequences of their actions and that the document can later be used as evidence in the event of a dispute.

2.1 Certified copy (Vidimierung)

The certification of a copy, also called Vidimierung, confirms that a copy matches the original document. This can be done either by comparing the copy with the original word for word or by making a copy of the original under the supervision of the notary.

Partial copies and extracts can be certified if it is clear where omissions have been made and the certification clause explicitly states that it is an extract.⁷ Notaries will usually refuse to certify a copy of a copy that has already been certified, as this could give the impression of greater credibility even though it says nothing about the authenticity or credibility of the original document.

Examples include copies of ID documents and certificates.

2.2 Certification of translations

Notaries or their deputies may be appointed as generally sworn and court-certified interpreters for a foreign language, or may have passed the diploma examination for interpreters or the professional examination for translators. Translations can also be certified by certified interpreters. In these cases, notaries or their deputies can attest the accuracy of translations into the relevant language that they have prepared or checked themselves.⁸

2.3 Notarial certification of signatures

In what is known as Legalisierung (the certification of a signature), the notary certifies that a handwritten signature (company signature) on a paper document or an electronic signature (company signature) on an electronically created document is genuine, i.e. that the signature comes from a specific person.⁹

The requirements for certification are:

1. proof of identity and, where applicable, of the date of birth,
2. where an electronic signature is used, proof that the electronic signature belongs to the party, and
3. signing before the court or the notary, or the express acknowledgement that the handwritten or electronic signature comes from the party.¹⁰

The notarial act only covers the authenticity of the signature and the time of signing. If, on the other hand, the content of the signed document is to be publicly attested, a notarial deed or notarial record is required.

For a document to be eligible for registration in the land register, the signatures of the parties must be certified. The certification takes the form of a clause that the notary places directly on the document. If there is no room for it on the document, a separate sheet is used and attached to the document with a seal.

Examples include powers of attorney, company register applications, commercial register applications, property purchase agreements, pledge deeds and statutory declarations.

2.4 Attestation of meetings and resolutions (notarial record)

If the proceedings of a meeting (such as a shareholders’ meeting) are to be attested, the notary instructed must draw up a record.¹¹ The notarial record (notarielles Protokoll) is a written record attesting facts that take place personally and directly before the notary and declarations made in their presence. Drawing up a notarial record (“notarial attestation”) is a mandatory requirement for the validity of a resolution to amend the articles of association, to dissolve the company or to approve a merger. Under Section 120 (1) AktG, every resolution of the general meeting of a stock corporation requires, in order to be valid, “attestation by a record of the proceedings drawn up by a notary”.

The notary attests the facts they have observed themselves as well as legally relevant processes (for example the chair’s statement on how the meeting was convened and whether it has a quorum). To make it possible to verify that certain legal requirements have been met (proper convening, voting rights, quorum), the notary must also record the relevant facts. This means that not only all declarations and observed circumstances must be attested, but also all other legally relevant events. The notary may therefore count the votes themselves and record the result. However, they may not draw any conclusions themselves, for example that a motion has been rejected. Such conclusions are reserved for the chair of the meeting and are attested by the notary as the chair’s declarations.¹²

Examples: amendments to the articles of association of a GmbH and GmbH capital increases.

2.5 Attestation from public books or registers

Under Section 89a NO, a notary can attest: (i) that copies of and extracts from public books or registers match the entries in them, and (ii) facts that result from them (including the associated indexes, card files, plans and document collections and related court and administrative files).

In practice, these are usually attestations of the registered existence of a company, its appointed corporate bodies and their power of representation, confirmations of the current legal successor of a rights holder entered in a register who has since ceased to exist, the amount of registered share capital, the name of the owner registered in the land register or the ranking of a mortgage. Such attestations are often requested by foreign parties in company law matters. If the power of representation is already attested in the notarial instrument, there is no need to obtain additional extracts or official court confirmations (for example, when certifying a power of attorney to be used abroad, the notary can attest the power of representation of the corporate body signing the power of attorney after inspecting the company register).¹³

However, the notary only confirms facts that “result” from the registers. The notary may not draw conclusions from their inspection and confirm them. The notary is not permitted to attest facts that, in their opinion, can be inferred from the public books or registers. So if it is attested “after inspection of the company register” that a managing director has sole signing authority, this merely reproduces the information registered in the company register. It does not confirm whether the entry is actually correct.¹⁴

Examples include register extracts (company register, land register, commercial register).

2.6 Attestation from public documents

While Section 89a NO is limited to attestations relating to public books or registers, under Section 89b NO a notary can quite generally attest facts that result from public or publicly certified documents or from court and administrative files. Regardless of the wording of the law (the Notarial Code speaks of attestation), these are confirmations.

3. Difference between a notarial deed and a notarial attestation

The content of a notarial deed differs from that of a notarial attestation in that a notarial deed records legal declarations and legal transactions (Section 52 NO). The notarial deed must be read out by the notary personally. A record, by contrast, attests facts that take place personally and directly before the notary and declarations made in their presence. So although the law does not expressly require the word “Notariatsakt” to be used, the notary’s attestation of a general meeting in a record cannot replace the execution of a notarial deed.

4. Difference between a certified copy and a signature certification

A certified copy is a confirmation by a person entrusted with public authority (a notary), the district court or the issuing authority that a copy of a document matches the original. This type of certification serves to confirm the authenticity of a copy.

The certification of a signature (public certification), on the other hand, relates to a private document. Here, the notary or the district court confirms that the signature of a specific person is genuine and comes from the person who signed before the notary or the district court or acknowledged their signature there. This type of certification is intended to confirm the authenticity of the signature.

5. Conclusion

It is important to note that notaries in Austria are independent legal professionals who carry out their work as a public function. Their task is to ensure legal certainty and clarity and to inform the parties about their rights and obligations. Notarial acts therefore often provide additional protection against legal disputes and uncertainty in connection with legal transactions.

You can have all of the notarial acts mentioned above carried out quickly and easily online by a partner notary on the notarity platform.

Disclaimer: Please note that the information provided here is of a general nature.

For comprehensive advice on specific legal matters, we recommend consulting a notary or lawyer.

Footnotes

1. Section 883 ABGB ↩

2. https://gesetzefinden.at/bundesrecht/bundesgesetze/no/para-52 ↩

3. https://www.oesterreich.gv.at/lexicon/N/Seite.991259.html ↩

4. Section 1 NotaktsG ↩

5. Section 76 NO; Wagner/Knechtel, NO6 § 76 NO Rz 1. ↩

6. Kisser, Best Practice – Formvorschriften und Beglaubigung (2013) ↩

7. Wagner/Knechtel, NO6 § 77 NO Rz 6 ↩

8. Section 78 NO ↩

9. Kisser, Best Practice – Formvorschriften und Beglaubigung (2013) ↩

10. Kisser, Best Practice – Formvorschriften und Beglaubigung (2013) ↩

11. Section 87 NO ↩

12. Kisser, Best Practice – Formvorschriften und Beglaubigung (2013), p. 17 ↩

13. Wagner/Knechtel, NO6 § 89a NO Rz 1. ↩

14. Wagner/Knechtel, NO6 § 89a NO Rz 2 and 3. ↩