Negotiating German notary fees may end up with conviction for bribery

Notary fees in Germany depend on the value of the notarized matter and sometimes appear to be quite high when it comes to high-priced real estate or company investments, for example. However, German notary fees are regulated by law and therefore also not "negotiable": according to Art. 1 German Federal Notarial Act (Bundesnotarordnung), notaries are public officials and obliged to charge the fees provided for by law. This is intended to prevent predatory competition due to price undercutting between notaries. Nevertheless, competitive pressure is also increasing among notaries and with it the need to stand out from the competition; however - in contrast to other professions - differentiation cannot take place via price.

The Federal Court of Justice (BGH) once again made this very clear in a recent ruling: In the decided case, a real estate agent offered a notary to provide him regularly with notarization matters in the future if he would meet him in return for the fees. That wasn't a good idea. If a notary waives part of his fees, for example because he or she wishes to secure future notarization „business“, this can be assessed as corruption in office in accordance with Art. 332 German Criminal Code (BGH, judgment of 22 March 2018 – Ref. 5 StR 566/17). The levying of the legally prescribed fees in accordance with Art. 17 para. 1 Sentence 1 German Federal Notarial Act is an official act within the meaning of corruption offences. The advantage within Art. 332 German Criminal Code is to be seen in the award of a further notarization assignment, to which the notary has no legal claim.

The ruling of the Federal Supreme Court will not only bother notaries. Because in the case decided, not only the notary was charged, but also the real estate agent, who had promised the notary the preferential assignment in return for lower fees. He was accused of bribery. Whether the defendants will actually be convicted, however, remains to be seen. The BGH has referred the proceedings back to the Regional Court for a new hearing and decision.