This note explains the role and position of the Dutch civil law notary (notaris) in the Dutch legal system and abroad in the context of corporate and commercial transactions. It considers the role, responsibilities and obligations of the notary, when a notarial deed is required and the form of such notarial deeds. The note also addresses the legalisation requirements to use a Dutch notarial deed outside of the Netherlands.
Karen Verkerk 04 December 2023 04 December 2023Unless otherwise stated, a reference in this Note to:
Dutch law distinguishes between three types of notaries:
Formal notaries are appointed by Royal Decree. They must have completed professional education (see Assigned (toegevoegd) Notary and Candidate (Kandidaat) Notary) and practised as a candidate notary at a notary’s office for at least six years before their appointment. In general, a formal notary must accumulate around ten years of experience working as a notary before being appointed as a formal notary.
A notary must be self-employed. There is no upper limit on the number of notaries in the Netherlands, however, on their application for appointment as a notary, the applicant must submit a business plan, which must be approved by an advisory committee appointed by the Minister of Justice.
An assigned notary has completed professional education and practised as a candidate notary at a notary’s office for at least six years. The assigned notary is employed by a formal notary, so not self-employed and is authorised to sign deeds in the protocol of the formal notary by whom the assigned notary is employed. No appointment by Royal Decree is required to be an assigned notary.
A candidate notary is also employed by a formal notary but is in principle not authorised to sign deeds in the protocol of the formal notary. The candidate notary must enrol in the notarial professional education course, which is three years in length, during which the candidate notary works at the notary’s office. Once a candidate notary has successfully completed the professional education, the candidate notary is able to act as a substitute of the notary and may sign notarial deeds in the temporary absence of the notary (e.g.holiday, illness). A candidate notary may only sign deeds if the formal notary is absent and the candidate notary has been formally appointed by the notary as his substitute.
The Netherlands Notaries Act (Wet op het Notarisambt) governs the office of the notary. All notaries are members of the Royal Dutch Association of Civil-law Notaries (KNB) (Koninklijke Notariële Beroepsorganisatie), which sets the rules and regulations to ensure the quality of the notaries in the Netherlands.
Notaries can be part of a law firm with lawyers and/or tax advisers, if they comply with strict interdisciplinary rules laid down by the KNB and the Dutch Bar Association. Notaries cannot associate with accountants within one firm to prevent any conflict of interest.
A notary is selected by the parties based on location, fees and/or expertise. All Dutch notaries are authorised to execute their deeds at any place in the Netherlands, although a notary must have its office at its formal place of residence which is determined on their appointment as a notary. Notaries can have a general practice or specialise in particular matters. The parties involved can select any notary of their choice. A notary has a ministerial duty and may in principle not refuse to provide services. A notary may only refuse to provide services if the notary is reasonably convinced (or suspects) that the services would lead to a breach of law or public order, or if the acts have an apparent impermissible purpose or consequence, or if other reasonable grounds for refusion of services exist. This leads to the fact that a notary may for instance not refuse services if the notary also assisted (or assists) a counterparty of the relevant party involved, as opposed to Dutch attorneys-at-law.
A notary can be found on the website of the KNB: www.notaris.nl. Notary offices and law firms that include notaries usually have their own websites.
To find a notary within the EU, see the European Directory of Notaries (EDN), an online database created by the Council of Notaries of the European Union (CNUE) (EDN: Find a notary).
Notarial fees in the Netherlands are not regulated. Normally the fee of the notary will be based on the time spent and their hourly rate. The rates could be higher if it is an urgent matter or specialised advice is required. Notaries sometimes have fixed fees for standard deeds (if applicable). Several disbursements (such as land registry fees and inspection of the trade register) are directly paid by the notary and as such included in the invoice. VAT (at 21%) is applicable to notarial services. Many notaries charge a percentage of the fee with respect to office expenses. The Netherlands does not prescribe any stamp fees, although each notarial deed incurs a small fee (EUR8.22) to be deposited into the Quality Fund for the Notarial Profession (Kwaliteitsfonds Notariaat) which is generally included as a disbursement.
Dutch civil-law notaries have one or more third-party bank accounts (unrelated to the quality fund also generally called quality accounts). These special accounts are intended for payment of monies by parties involved in the notarial deed. The quality account is by law separate from the account of the notary or its firm. This account is a confirmation of the impartial position of the notary in the Netherlands.
If the transaction involves a purchase price to be paid, then this purchase price is transferred to the quality account of the notary involved and retained for the purchaser or the bank or lender involved in the transaction until closing. Once the notarial deed has been executed and the closing has taken place, the notary retains the funds on behalf of the seller and/or third parties from whom existing claims or debts on the seller are to be repaid and whose security rights, such as mortgages and pledges, are to be cancelled. Before transferring the amounts to the seller or other parties, the notary must check the relevant public registers to make sure that the closing has taken place successfully. The role of the notary regarding the payments through the quality accounts is often recorded in a “notary letter” describing the payment process and the position of the Dutch notary for foreign clients.
An authenticated document (authentieke akte) is a document that is drawn up in the required format by notaries, who are ordered by law to give evidence of their observations or acts (article 156, paragraph 2, DCCP). A notarial deed is an authenticated document that is executed by a notary.
The notary (in principle, with due observance of the requirements by law for such legal effect) directly gives legal effect to the transaction contemplated by the notarial deed by executing it which is immediately binding on the parties involved and third parties.
A Dutch notarial deed is subject to strict conditions laid down by law. The (sealed) paper used is issued exclusively to notaries in the Netherlands. The original notarial deed (minuut) will be signed by the parties appearing and the notary. The original deed will be kept by the notary in a notarial safe which must meet sufficient safeguard standards. The notary will provide the parties with a true copy (afschrift) of the original deed, which has the same legal binding evidence as the notarial deed itself.
A Dutch notarial deed may only be executed in front of a notary in the Netherlands and not outside of the Netherlands.
A notary may also execute a notarial record. This is a deed in which the notary records its own (legal) observations. It is used in inheritance law to declare the heirs to an estate (the certificate of inheritance) or, for public and private companies, to record the minutes of a shareholders’ meeting. The recording of minutes of a shareholders’ meeting in a notarial record is often motivated by the wish for an impartial record of observation of the proceedings of the shareholders’ meeting. In some cases, however, a notarial record of proceedings of a shareholders meeting is also required, for instance, as a general rule for mergers and demergers of private companies with limited liability and public limited companies. The rule regarding legally binding evidence does not apply to notarial records, since this is a report of the observation by the notary themselves.
The execution (signing) of the notarial deed will take place in the presence of (one or more) contracting parties before the notary, or by their attorneys appointed under a power of attorney.
Some notarial deeds (for example, wills and testaments) cannot be executed by power of attorney. If a power of attorney is provided by one of the executing parties, usually an employee of the notary will be appointed as attorney and sign the deed on behalf of that party.
Although the notary may require the presence of two witnesses, this is almost never enforced and as such is very rare. The notary shall state the first names, surnames, place and date of birth, address and civil status of the persons appearing or represented in the notarial deed as well as that persons appearing have been identified in accordance with the Notaries Act. The person appearing should present their identity card (or other document evidencing identity, such as a passport) to the notary and if the person is not registered in the Dutch civil registry a confirmation of address (for example, an original utility bill). For legal entities, the name, type, registered office, business address and registration with a Dutch or foreign commercial register shall be stated in the deed. The deed shall also indicate who represents these legal entities. The notary is responsible for ensuring that the signatories have the legal capacity and power of disposition. By executing the deed, the notary will summarise the contents of the deed and its consequences to the persons appearing (either the contracting parties or the attorney). In general, the notarial deed does not have to be read in full, unless parties or the notary, require so. For more detail, see Practice Note, Execution of deeds and documents by companies in the Netherlands under the Dutch Civil Code: Execution formalities for authentic instruments.
As from 1 January 2024 it will be possible to incorporate a Besloten Vennootschap or BV by digital deed, whereby the identification of the appearing persons and the signing of the deed will take place by electronic means.
Deeds of incorporation and amendment of articles of association of legal entities and transfers of registered property must be drawn up and executed in Dutch, with on exemption. If a Besloten Vennootschap or BV is incorporated by a digital deed, that deed may be executed in the English language. Also the amendment of a BV incorporated by digital deed in the English language may be executed in the English language.
All other documents and deeds executed by a Dutch notary can be in a foreign language which the notary and the parties to the deed understand. For example, a notarial deed to transfer of shares in a BV could be drawn up in English. A person executing a Dutch notarial deed who does not understand Dutch must be assisted by a sworn translator (Beëdigd vertaler) if the deed is drafted in Dutch. A person can only become a sworn translator if such person fulfils the requirements under article 3 of the Sworn Interpreters and Translators Act (Wet beëdigde tolken en vertalers). Alternatively, such person can execute under a power of attorney (see Power of Attorney) and will receive a translation of the content of the notarial deed in advance of the attorney executing on their behalf.
As soon as it is possible to incorporate a Besloten Vennootschap or BV by digital deed, that deed may be executed in the English language. Also the amendment of a BV incorporated by digital deed in the English language may be executed in the English language.
A notary will need to see the powers of attorney to check the authority the parties are signing under for notarisation or legalisation of documents by a notary. A power of attorney provided by a foreign contracting party needs to be authenticated by means of a legalisation by a (public) notary and should be provided with an apostille or a legalisation by the embassy of the Kingdom of the Netherlands. If the foreign contracting party is a legal entity, the (public) notary or a lawyer should also issue a statement of authorisation regarding the authority of the signatory.
As notaries are in principle subject to the Dutch Anti-Money Laundering and Financing of Terrorism Act (Wet ter voorkoming van witwassen en financieren van terrorisme), they are required to take Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing into account. Under the Dutch Anti-Money Laundering and Financing of Terrorism Act, a notary must first verify the identity of its client before a service is provided or a notarial deed is executed. This obligation also applies for a natural person who is an Ultimate Beneficial Owner or a designated Pseudo-UBO of a legal entity (client) (see Practice note, Ultimate Beneficial Owner (UBO) Register, The Netherlands)
Notaries have been ascribed a certain gatekeeper function. In this respect, notaries are obliged to check the following:
In addition, the notary must ensure the relevant parties have received the requisite legal advice and understand the consequences resulting from the notarial deed. They must oversee the flowing of all funds in the transaction and establish and verify the source of such funds.
The notarisation process of Dutch deeds for use abroad is the same as for use in the Netherlands. However, for foreign parties to rely on a Dutch notarial deed abroad, the notarial deed, or its certified copy, must either be:
The Brussels Convention of 25 May 1987 Abolishing the Legalisation of Documents within the EU member states has not been ratified by the Netherlands (see Convention abolishing the legalization of documents in the Member States of the European Communities).
Dutch notaries notarise and legalise documents in the Netherlands to establish the identity and to authenticate the signature of a person on notarial deeds and are authorised to take an oath (for instance, with regard to an affidavit to be used in a foreign court).
The identity of the signatory of the notarial deed will be established by means of a valid identification document. The notary verifies through the verification information system that the identification document has not been reported missing or lost. The notary will place its official notarial seal on the notarial deed and will sign such instrument.
In general, the relevance of the notarisation is strictly restricted to the identification of the signatory of the private instrument (for example a power of attorney) and the declaration concerning the authenticity of the signature. No opinion is given concerning the contents and other aspects of the private instrument itself or concerning the authority, power and/or competence of the person signing the private instrument.
If requested, a notary could provide an additional declaration of authorisation in which the latter could be addressed.
The process by which the notary’s signature is authenticated is called legalisation. Legalisation operates like a chain of evidence, verifying each signature in the process, ending with the diplomatic or consular representative of the relevant foreign state in which the document will be used. The legalisation of the notary’s signature will take place through the apostille process of the Hague Convention (see Apostillation), or if the receiving foreign country has not ratified the Hague convention through legalisation by the relevant foreign embassy.
The Dutch notary’s signature and seal are certified as genuine by the embassy or other diplomatic representation of the receiving country, after its signature has been verified by the local court and the Dutch Ministry of Foreign Affairs. This service is customarily obtained at the embassy or other diplomatic office.
The parties can arrange legalisation themselves, but it is usually arranged by the notary.
To avoid the cumbersome and often costly formalities of legalisation by an embassy, more than 100 countries, including the Netherlands, have ratified the Hague Convention of 1961 Abolishing the Requirement of Legalization for Foreign Public Documents (Hague Convention), which provides a “one-stop legalisation” process for its signatories (see Convention abolishing the requirement of legalisation for foreign public documents).
The Hague Convention applies to public documents (including notarial deeds) executed in one state that is a party to the Convention to be used in another state that is party to the Convention.
When used abroad, copies of certain documents can be certified by an apostille if the copy document has first been certified by a notary. Certified Copy or “copy collationnee” is a declaration by the notary that the copy concerned is a copy of the original document. The party involved must present the original document to the notary for them to certify. In general, the notary will not verify the authenticity of the document involved.
The parties should check that the end-user will accept an apostilled certified copy of the document (rather than requiring an apostilled original). Usually, foreign counsel in the relevant jurisdiction can provide guidance on this.
The fee of the notary will be based on the time spent by the notary and the disbursements (such as cost of the apostille, courier). It is possible to agree on a fixed fee in advance. There are no regulated notarial fees in the Netherlands.
The fees and timeframe to legalise a document varies between embassies. It could take anything from 24 hours to around two weeks. Couriers and intermediaries could speed up the process.
Under Dutch law, standard, advanced or qualified electronic signatures cannot be notarised by a Dutch notary and Dutch notarial deeds cannot be executed by electronic signature, with the exemption of the incorporation of a Dutch Besloten Vennootschap as per January 2024.
However, Dutch notaries can use electronic signatures to update public registers, such as the land registry, the trade register, and the central registry of wills.