NOTAIRES IN FRANCE
An unassailable profession. Or are they ?
AN ARTICLE BY
PROF. GISELA SHAW
[Please
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Author Posting.
© Taylor & Francis, 2007. This is the author's version
of the work. It is posted here by permission of Taylor
& Francis for personal use, not for redistribution. The
definitive version was published in International Journal
of the Legal Profession, Volume 13 Issue 3, November 2006.
doi:10.1080/09695950701192228
(http://dx.doi.org/10.1080/09695950701192228)
The
Challenge
Professions
in the Western World generally have traditionally thrived
on the privilege of some degree of freedom from competition
and regulatory autonomy within certain defined parts of the
professional services market, having persuaded their
government that reserved areas of activity and professional
independence are essential to a well-functioning society.
Sociologists of the professions have offered varying
explanations of professions’ origin, role, impact,
and future. Following early emphasis by scholars on the
civilising effect of professions’ high ethical
standards of self-regulation (Durkheim, 1992; Parsons,
1954), the notion of market domination based on
exclusionary strategies vis-à-vis other professional groups
became a prime focus of sociologists’ attention from
the 1960s (Larson, 1977; Abel and Lewis, 1988). From the
1970s, a number of American and British sociologists, the
main interlocutors in the debate, became aware of their
Anglo-American bias. A new and more sophisticated approach
emerged which took account of the role of history in the
evolution and nature of professions, of their relations
with their respective states, as well as of issues of
social and political status and power. This for the first
time opened up perspectives that could fruitfully be
applied to professions in continental Europe. (Johnson,
1972; Rueschemeyer, 1973; Geison, 1984; Halliday, 1987;
Siegrist, 1988; Abel, 1989; Torstendahl & Burrage,
1990; Burrage & Torstendahl, 1990; McClelland, 1991;
Jarausch, 1990; Burrage, 1996; Karpik, 1995; Malatesta,
1995; Halliday & Karpik, 1997).
The profession of notary, although the oldest and arguably
most venerable of the legal professions in Europe as well
as of continuing importance within Continental European
civil law systems, has featured only marginally, if at all,
in any of these debates. Exceptions are Ezra
Suleiman’s remarkable book on notaires in France
(1987), as well as a few shorter studies of the profession
in Germany (Shaw, 1997; 2003a; 2003b; 2004; 2006) , Italy
(Santoro, 1995), England and Wales (Shaw, 2000; forthc.),
and Central Europe (Shaw, 2004). Suleiman focuses on the
historically grown and firmly established intertwining of
the profession’s corporate interests with those of
the French state and of a number of French institutions. He
interprets the French notariat’s resilience and
ability to survive and even thrive on serious crises as a
result of notaires’ fundamentally ambiguous status as
providers of both public and private legal services: as
public servants, they enjoy government protection and a
statutory monopoly; as members of a liberal profession they
are free, in fact encouraged by their government, to engage
in profit-making activities in the open market. This dual
position, Suleiman argues, provides them with wide scope
for political negotiation and the option to play either
card as the need arises. Although most notariats in civil
law countries to some degree share this dual nature, the
tension between the profession’s two functions and
its effect on its socio-political and economic standing are
far more pronounced in France than elsewhere. Notaries in
France enjoy a uniquely close relationship with the state
(represented by the Ministry of Justice), an exceptionally
high degree of professional autonomy, an uncommonly wide
range of privileges, and the built-in potential for
enviable levels of prosperity. (For details see Moreau,
1989; Moreau, 1999)
Social and political status and the striving for
self-regulation have been a major factor in determining the
notariat’s political strategies. Economic prosperity,
on the other hand, has merely been a highly welcome
by-product, not the result of a corporate strategy to
expand the profession’s share of the legal services
market. On the contrary, the last fifty years have seen a
process of contraction and concentration on reserved
activities, particularly on the property market, leaving
areas of activity in the open market into which they might
have expanded to their competitors without a struggle.
This approach is not dissimilar to that of solicitors in
England prior to the abolition of their conveyancing
monopoly. It was only the impact of deregulation under
Margaret Thatcher’s government which forced them to
abandon their preoccupation with status and honour and
operate in the open market under a strengthened state and
market control (Burrage, 1996), a process which is now
being rounded off in the wake of the Clementi report of
2002. At the time Richard Abel (1989), from a background of
close familiarity with developments in the American legal
services market, accurately projected as likely next steps:
increasing concentration and mergers, elimination of
smaller units, loss of traditional markets, greater
reliance on and competition for qualified staff,
multidisciplinary partnerships, specialisation, efforts to
stimulate demand, shift towards direct employment, loss of
professional unity and autonomy and, at worst, loss of
identity. Abel also sounded a note of caution regarding the
risks involved in giving market forces free reign and
losing sight of the fundamentally normative quality of
legal work. Almost a decade later, Michael Burrage (1996)
broadly welcomed these developments as the transformation
of a ‘gentlemen’s profession’ into a
‘public profession’, a move towards greater
market-orientation and competitiveness, more openness and
accountability to the public, and freedom to adopt a more
independent and even adversarial posture vis-à-vis the
state.
The fate of solicitors following the loss of their
conveyancing monopoly may seem worlds away from the
situation of notaires in France, where no government has
seriously considered removing the barriers shielding them
from competition by other domestic professions, and where
enlightened self-interest on both sides continues to
provide a powerful incentive to
reach mutually
acceptable solutions to any problems arising, making the
position of French notaires appear almost unassailable.
However, in recent years one essential premise has changed:
the fate of the notarial profession has ceased to be
determined purely within a national framework. Economic
globalisation and the liberalising initiatives of the
European Commission have introduced a new factor into the
equation, moving the problem, or at least a crucial aspect
of it, to a higher and previously unknown level. Two major
directives, the Directive on the Recognition of
Professional Qualifications (Directive 2005/36/EC adopted 7
September 2005) and the Directive on Services in the
Internal Market (expected to come into effect by the end of
2006), both aiming to open the services market in Europe,
have been looming over the profession, threatening to wipe
out any protection from competition. By a hair’s
breadth notaries, as opposed to other lawyers, ultimately
escaped application of the Professional Qualifications
Directive, as, after protracted tough negotiations,
professions connected, even occasionally, with the exercise
of official authority, were excluded from its scope. As for
the Services Directive, it now looks as if, once again
notaries may be able to breathe a sigh of relief as
specific activities undertaken by them on behalf of
national governments are likely to be excluded. However,
even if French notaires are not directly affected by these
reforms in their core work, the impact on any of their
operations in the open market is likely to be considerable,
as the world around this tiny profession is swiftly moving
into a new era of intensified competition at all levels. In
addition, should the housing market take a downturn or
should the French government ever decide to restructure or,
indeed, abolish the notarial monopoly in this area, the
profession of notary would be at serious risk of suffering
the fate of other small groups of lawyers in the past who
were easily absorbed by either advocate or accountant
firms.
For the first time in the profession’s history,
therefore, old corporatist ties and intertwinings of
interests of administration, government, banks and
profession can no longer guarantee its continued survival
and prosperity. Competitors at home and abroad are getting
ready to pounce, and fractures within the profession itself
are beginning to appear, with some groups (still a
minority) embracing with enthusiasm the prospect of a freer
market and calling for a more pragmatic approach, while
others (still the majority) are unwilling or unable or both
to consider the possibility of radical change and insisting
on the immutability of the status quo. Any assessment of
the profession’s actual and possible responses to
this novel challenge requires insight into its current
situation and workings. This is what this paper attempts to
provide. It does so by focusing on selected key features of
the profession today, and analysing them in the light of
concepts from the sociology of the professions sketched out
above, most particularly the role of history, the
relationship between profession and state, and the tension
between professional aspirations for socio-political status
and the need to face up to competition in the open market.
As up-to-date facts and figures on notaires are not easily
found and sociological analyses of the French notariat do
not exist (apart from Suleiman’s very specifically
focused study of 1987), the factual base of my argument
relies mainly on information available from the
profession’s journals and websites, as well as a
number of personal semi-structured and informal interviews
with professional leaders conducted since autumn 2004.
The journals in question are: Conseil supérieur du
Notariat, Notaires. Vie professionnelle; Assemblée de
Liaison des notaires de France, LejournAL (prior to 2004:
Liaison); Mouvement Jeune notariat, Mouvement Jeune
notariat; also associated with Mouvement Jeune notariat:
Revue Pompadour Notariat 2000. Revue indépendante
d’informations et d’opinions. The reports of
the annual conferences of the Assemblée de Liaison des
notaires de France provide a great deal of carefully
researched information on specific topics. The same is true
of the reports of the annual conferences of the Mouvement
Jeune notariat, which are available on the internet
(www.mjn.fr).
Specific references will only be referred to in
exceptional cases to avoid an overload of notes.
I am grateful to those who have been willing to give up
their time for interviews: three members of the executive
of the Conseil supérieur du Notariat, among them a recent
President who had also recently been President of the
European Union of Notariats (CNUE); the President of the
Mouvement Jeune notariat as well as a number of the
group’s most active members, including notaires
assistants and notaires stagiaires; the Director General of
the CRIDON de Paris; key representatives of the DG
Competition and DG Internal Market of the European
Commission in Brussels; the Head of the CNUE and one of her
colleagues in Brussels. I also want to express my
appreciation to the Head of the Documentation and Archival
services at the Conseil supérieur who has greatly assisted
my search for information.
Profession and state
Having been abolished in 1791 as an institution of the
hated ancien régime, the French notariat was revived in
1803 in a new guise by Napoleon, as part of his ambition to
ensure political and economic stability. Anciens notaires
were replaced by notaires publics - the model for (and
often envy of) civil law notaries in the rest of
continental Europe. A major political victory was won by
the French profession when in 1816 their former status as
officiers ministériels and the accompanying droit de
présentation (essentially the right to choose their own
successor and to treat their office as part of their
personal assets) was reintroduced by the backdoor, a
restaurational measure that sits uncomfortably with the
otherwise modernised professional profile and has remained
a bone of contention ever since. Notaries are defined as
public officers called upon to receive all acts and
contracts to which parties have to or wish to give the
character of authenticity. Their function is that of
impartial arbiter, counsellor of individuals, businesses
and collectives, and guarantor of the morality and legal
security of contractual relationships - a corner-stone of
any civil law system. As members of a liberal profession
they are in control of their own finances, practice and
staff, as well as engaging in activities in the open
market.
As Suleiman’s masterful study shows, the relationship
between the notarial corporation and the French state has
been a close, but multifaceted one, a mixture of hostility
and complicity. Generally speaking, the Ministry of Justice
which legally exercises tutelle over the profession has
allowed its relationship with the profession to acquire a
symbiotic character and to act in a generally protective
role, as its actual control over the profession is limited
to confirming notaires to the office they have purchased.
No annual meeting of the profession passes without the
Minister of Justice and Keeper of the Seals being reminded
by professional leaders of his duty to promote the
profession’s well-being, and the Minister reassuring
them of his faith in their important contribution to
society and his unwavering continued support. Regular
meetings in the Ministry are set up by the leadership,
often with the aim of suggesting and preparing the ground
for new legislation they would like to be brought in. The
Ministry of Justice’s support is needed particularly
vis-à-vis the Ministry of Finance that keeps a close eye on
and has to approve any changes in the notarial fees system,
the tarif.
The state benefits in a number of very tangible ways from
the activity of notaires. Firstly, notaires calculate and
collect state taxes and legal charges (now also including
VAT) for each and every transaction performed. The
profession views this arrangement with mixed feelings: on
the one hand, it represents an unpaid additional
responsibility and, more importantly in today’s
climate, a source of suspicion on the part of the public at
large which tends to assume that the sums collected by the
notaires all flow into their own pockets (in fact, only
around 20 per cent do); on the other hand, it can and has
come in extremely handy as an invaluable bargaining chip in
negotiations with the government on other issues. Secondly,
the state also benefits from the institution of the Caisse
des Dépôts et Consignations, a public institution created
at the initiative of a member of the profession, Duclos
Dufresnoy, through which every notarial office’s
income and expenditure has to be channelled, with the
exception of rural areas where the Caisse de Crédit
Agricole may also be used. Capital accumulated by the
former is used for state-directed projects of public
interest, while capital flowing into the latter serves to
support agriculture.
Professional organisation
Representing the French notariat’s interests
vis-à-vis the government, the public, and, increasingly,
the international community is the task of its national
organisation, the Conseil supérieur national du Notariat
(CSN), established by statute in 1945 - suprisingly late,
given the country’s otherwise essentially centralised
structure, but still relatively early in the light of the
fact that French avocats remained without a national body
to represent the totality of the profession’s
membership until appropriate legislation was passed in
1990. Funded entirely by the profession itself, the large
and bureaucratic National Council enjoys remarkable
economic and political clout, appropriately reflected in
its recent move from modest rented premises in the 8th
arrondissement to its own large purpose-built edifice in
the 7th arrondissement, covering 6000 square metres and
presented to the profession as a long-overdue symbol of its
national standing, as well as a prudent collective
investment in its future, in spite of occasional grumbles
from the grass-roots. Considerable efforts have gone into
strengthening the CSN’s position, a strategy much
helped by the membership’s awareness of real threats
to the profession both from within and from without, and an
acceptance of the need to improve their services to society
and strengthen the profession’s solidarity.
33 regional councils have, since 1945, been charged with
functions relating to representation, training and
communication, a brief to which have recently been added
disciplinary powers, which has deprived the 92 departmental
(or, in some instances, interdepartmental) chambers of what
has traditionally been their core function. Both of these
institutional layers have old historical roots. This is
particularly true of the exclusive and powerful Chambre des
Notaires de Paris which combines interdepartmental and
regional responsibilities. Its Parisian headquarters’
façade proudly proclaims a thousand-year history and
long-standing closeness to government and courts -
closeness, that is, in all senses, including geography. In
this venerable and proud institution, concern with social
status and political power is tangibly in evidence, as is
its claim to be the (historically legitimated)
representative of the profession at large. Along with
status has come economic strength. In 2005, the
Chamber’s membership of 500 (5.9% of the
country’s total) had 220 offices (7.6% of the total),
employed 5000 staff (10% of the total) and had an annual
turnover of 600 mill. euro (10.3% of the country’s
total). Compared to their rivals, the avocats, almost 40%
of whom (2002: 15,541 of a total of 39,454) are
concentrated in Paris, the notarial group in Paris looks
modest enough, but this is due to the formula by which the
Ministry of Justice creates new offices and does not
adequately reflect the economic and political clout of
Parisian notaires. Although the Chambre des Notaires de
Paris initially found it difficult to accept the creation
of a national body, the two organisations have since
succeeded in gradually settling into a mutually beneficial
relationship, with the Paris notaries being granted special
privileges and considerable say in national
decision-making, and the National Council benefiting from
the Parisians’ centuries-old experience and political
influence.
A highly original professional organisation, the Assemblée
de Liaison des notaires de France, provides a direct
channel of both ascending and descending communication, a
bridge, between the national body and the general
membership. A voluntary body without statutory base, it was
initiated in 1950 by the 49th annual congress of French
notaries in La Baule as the profession’s
‘parliament’, a forum for elected grass-roots
representatives to debate and formulate proposals to be
submitted to the National Council, as well as a platform
for direct communication between the council and
grass-roots members. All key figures of the notarial
establishment are invited to the annual two-and-a-half day
themed conference in early December at the Palais des
Congrès in Paris: members of the CSN, presidents of
departmental chambers and regional councils, and delegates
of notarial trade unions and professional associations. One
session is specially set aside for the CSN’s
executive committee to respond to questions put to them
from the floor (admittedly, some of these having been
subjected to prior screening). On the last day, a series of
proposals are voted upon and, once passed, transmitted to
the CSN for discussion and decision by one of its standing
committees, half of whose membership are, in fact, elected
representatives of the Assemblée de Liaison. A conference
report is published every year, complementing the
Assemblée’s monthly journal Le journAL.
The other voluntary organisation of note is the Mouvement
Jeune notariat (MJN), a loosely organised group founded in
1960 by Louis Reillier (1913-99), an avant-garde and
idealistic notaire in Pompadour, Corrèze, who was
determined to modernise and reinvigorate the profession
both economically and socially. This group, which still
adheres to its self-defined brief to be inclusive, open and
future-orientated (un notariat sans frontières), has
maintained a refreshingly critical stance and provided a
fertile breeding ground for novel ideas, many of which have
been skilfully adopted by the CSN once they had proved
successful. The same is true of the deliberately
unconventional and occasionally mildly provocative journal
entitled Notariat2000. Revue indépendante
d’informations et d’opinions, also founded by
Louis Reillier. The group has a publicly accessible
website, and organises annual themed congresses which are
increasingly held abroad (including China in 2005).
(see
www.mjn.fr)
Comprehensive published reports consist of carefully
orchestrated contributions intended to stimulate debate and
move the profession forward. A deliberately provocative
step which raised a lot of hackles with the National
Council has been the election in 2004 of a President from a
country other than France, the Belgian notary Olivier
Jamar.
A prime example of a successful MJN initiative has been the
annual day at the Palais des Congrès at the Porte Maillot
in Paris, where notaires gather from all over the country
to offer free advice to anyone who wishes to come along - a
project the CSN initially refused to be associated with,
let alone support, and which has now become one of its
major marketing tools. Similarly, the MJN provided the
ideas for the so-called Université du Notariat, an annual
week of lectures, seminars and discussions organised near
Paris - now a highlight in the professional calendar of
events. Finally, an annual cycling tournament of notaries
projects the image of a profession that is young, energetic
and forward-looking. This group and its publications
represent a kind of barometer of the progressive and
liberal forces within the profession.
Image issues
Concern with the profession’s traditional public
image - somewhat dusty and archaic, patriarchal, elderly,
focused on self-enrichment (and, which goes without saying,
white) - is a relatively recent but now increasingly
pressing item on the National Council’s agenda, as
consumers’ views are recognised as an important
factor in the profession’s justification of its role
in society. Considerable efforts have been made by the CSN
to project a more positive image of a profession keen to
meet the needs of individuals, families and companies, and
uniquely placed to do so on account of a long established
basis of trust and the legal security provided by its
authentic acts. Occasional highly critical media reports
including allegations of greed and financial irregularities
have made it hard to get their message across.[1]
Purely statistically, the average age of French notaries
(49 in 2005), although gradually going down, is relatively
high compared to for instance that of their main
competitors, the avocats (44.6 (men)/ 38.9 (women) in
2002). In time, this problem will be diffused, as by 2014,
35 per cent of those practising today (members of the
post-war baby boom generation) will have retired - a unique
opportunity for rejuvenation from the reservoir of some
4,000 notaires assistants waiting for appointments.
Three major obstacles stand in the way of a smooth
hand-over to a younger generation: firstly, the rampant
inflation in the price of offices demanded by retiring
members; secondly, the reluctance of existing notarial
firms to appoint additional partners - an option open to
French notarial firms (as opposed to their colleagues in
other countries), as the numerus clausus applies only to
offices, not to the notaries working within them; and
thirdly, the profession leadership’s reluctance to
push for the creation of additional offices. The national
body has adopted various strategies in order to ease the
situation. It is running a campaign to remind retiring
notaires that the notarial office is not primarily a
commercial enterprise and that prices demanded for their
offices should be kept at more modest levels - an
undertaking which is unlikely to bear much fruit. The CSN
is also considering forcing notarial firms to take on
additional notaires associés if their annual income or
number of acts exceed a certain maximum, but how precisely
this can be done has yet to be revealed. The need to
accelerate the process of appointing notaires has been
formally acknowledged by the Ministry of Justice and the
CSN, and will be acted upon by a reduction of the waiting
period from currently 3 months to 5 weeks. And, finally, an
undertaking has been given that the overall number of
offices is to be steadily increased by about 2000 over the
next 10 years to reach a total of 10,000.
The profession’s predominantly male profile
represents another potential image problem. Women were only
legally admitted to the notariat in 1948.[2] Early female
pioneers were mostly widows and daughters of notaries
killed in the war, and for quite some time the number of
women in the profession remained extremely modest. (1968:
36; 1973: 73; 1980: 130; 1999: 1000 (=13.46% of total)) In
Paris, the first two female notaires were appointed in
1977. Tangible change set in from the 1980s, with larger
numbers entering the profession and the first women being
appointed to higher office. Yet, even today over three
quarters of French notaires are men, with women making up
21%. Ironically, by West European standards generally, even
21% represents something of an achievement, as there are
national notariats that do not even reach a female
participation rate of 10 per cent.[3] Looked at more
closely, though, the figure disguises a somewhat less
favourable picture, as only 16% of independent notaries are
women, while their share among employed notaries (notaires
salariés) is 55%. Given that over half of today’s
trainees are female and the percentage of women is
significantly higher among younger notaries than among
those over fifty, a certain degree of
‘trickling-up’ can be expected. But there is
also evidence that the move to becoming an independent
office-holder represents a hurdle of sufficient dimensions
to deter many a female trainee from aspiring to this goal.
Intriguingly, neither this fact nor the persisting
gender-based inequalities of pay - female notaires salariés
in Paris may take home up to 25% less than their male
counterparts - appears to raise many eyebrows within the
notarial establishment. On the contrary, the contrast with
the strongly feminised bar (2002: 44.8%) was put forward in
conversation with a representative of the CSN leadership as
a plus (‘we don’t want to become like
them!’). Generally, only modest concessions have been
made to gender equality with the occasional appointment of
a woman to the presidency of a departmental or regional
chamber (the Paris Chamber elected its first female
President in 2002). Since 1998, the otherwise male steering
committee of the National Council has had one female member
- a fact that is proudly quoted as unambiguous evidence of
the profession’s commitment to the equality of women,
accompanied by comments to the effect that women do not
come forward as candidates as they simply lack in
confidence. As for racial equality, this is a topic that
has not yet been approached in any public form.
Training
Autonomy in the context of training has become central to
the French notariat’s strategic planning. While
traditionally anyone could step into his
predecessor’s shoes without worrying much about
formal qualifications, a university education became the
norm from 1972 as an important part of a programme of
reforms, after a thorough internal survey had provided
evidence of a serious credibility crisis. The introduction
of structured training offered a welcome opportunity to the
national leadership to make its mark vis-à-vis more
venerable regional and local organisations, while also
diplomatically accommodating an impressive, and by
international standards unusual range of alternatives dear
to various subgroups within the profession.
The bulk of those undergoing notarial training - some 500 a
year - come through two routes: either the
‘professional route’ of a three-year degree in
law, or the much more specialised and therefore less
flexible ‘university route’ providing for a
three-year notarial diploma. In both cases, a further three
years of notarial theory and practice are required. But it
is also possible for jurists from other fields with only
one year’s notarial experience to enter the
profession sideways (some 5% of applicants a year), or even
for office clerks without a university degree but with
significant practical specialised experience and some
notarial theoretical training to rise to a post via
internal promotion - traditionally a very common
occurrence, now relatively rare. Finally, notaries from
other countries may, in theory, be admitted after passing
an aptitude test, although in practice this route is still
blocked by the nationality requirement which operates for
notaires in France and, indeed, in all but three European
civil law countries. (Spain, Portugal and Italy gave in to
pressure from the European Commission in 2002 and undertook
to abolish their nationality requirement, although this
undertaking has so far remained without any practical
consequences.
From the 1970s, the profession’s leadership has
worked hard to acquire and retain a central role in the
funding, design and delivery of both initial and continuing
notarial training, occasionally in competition with
regions. Their collective achievements are remarkable by
any standard. Continuing training - to the regret of many
still not obligatory - is offered by Regional Councils as
well as at five training centres set up by the National
Council, each of these specialising in a major area of
notarial activity [4], as well as at the so-called
Université du Notariat, the annual training programme
organised by the National Council in Jouy-en-Josas near
Paris.
A very recent indication of the significance attributed by
the National Council to the control of initial notarial
training as well as to the government’s
disinclination to go against their striving for autonomy in
this area came with the political challenge to meet the
Bologna criteria for higher education. A careful balance
has been struck between accommodating the
government’s wishes on the one hand and ensuring the
profession’s continuing authority over the process on
the other. Negotiations with the Ministries of Justice and
of Education have resulted in a compromise agreement: the
structural framework of undergraduate diploma,
master’s degree and doctorate will be introduced in
return for an undertaking that the profession’s
training autonomy will not be adversely affected and the
diplôme supérieur du notariat will remain untouched.
Centralisation has proved out of the question in the
context of the five autonomously funded and run regional
centres for research, information and documentation
(CRIDON) at Lyon, Paris, Lille, Bordeaux and Nantes, each
of them taking great pride in their respective
achievements. Created in the 1960s, they were set up to
improve the quality of notarial services by providing ready
access to information and advice, especially to those
working in isolation in more remote parts of the country.
So great has been their success that both Germany and
Switzerland have used them as models for similar
institutions of their own. The largest centres (Lyon and
Paris) employ some 30 specialist consultants ready to
answer any questions put to them by notaires in their
specific regions (and only those). Cultural differences
between regions were vividly described to me at the Paris
CRIDON, for instance in terms of communication cultures:
‘Here in Paris everything gets written down and used
and reused later: a note becomes a conference becomes a
book. In Lyon and Bordeaux they talk to each other.’
As for recruitment cultures, Lyon, the oldest of the
CRIDONs as well as the model for all others (established in
1962), was said to recruit lawyers with an established
professional reputation ( ‘les gens
installés’); in Paris consultants are hand-picked
(‘The CRIDON is the Institut Pasteur.’): either
young people who are given their first job and will rise to
becoming university professors later, or specialist
professionals head-hunted over a period of 18 to 24 months,
who are experts of the ‘German’ rather than the
‘French’ kind (‘They must have answers in
their heads rather than need books to find them.’);
while the centre in Nantes was referred to rather unkindly
as a ‘pension des Jésuits’. Calls for a
co-ordination or even merger of the work of these five
centres can occasionally be heard, but nobody would
seriously expect more than marginal concessions in this
direction.
Access
The number and location of notarial offices is strictly
controlled by the Minister of Justice and Keeper of the
Seals, in consultation with the profession. Candidates for
office are proposed by chambers and normally accepted by
the Minister without queries. The justification given for
the need for a numerus clausus is that competition in an
open market would detract from notaries’ commitment
to public service and endanger the quality of their work.
As a concession to transparency and fairness, a special
commission, the Commission de localisation des offices des
notaires (CLON), has since 1986 been in charge of
monitoring and, if necessary, adjusting the number and
location of offices. On average, of the 500 or so young
people who qualify as notaries every year, only some 300
end up ‘taking the oath’ and being admitted,
the remainder having the choice between waiting for their
chance (which can take a long time), offering their
services as notaire salarié, or joining the ranks of the
competition (the bar) instead.
An appointment to notarial office can come about in four
ways. Three of these apply to the bulk of the country, the
fourth only to the regions of Alsace Lorraine where the
German system was retained after the territory’s
return to France in 1919. Firstly, candidates may be chosen
by retiring notaires as their successors. Secondly, they
may apply for a vacancy, subject themselves to a highly
competitive examination, and, if successful, produce the
funds to indemnify their predecessor. Thirdly, it is
possible to apply for one of the (very rare) newly created
offices and sit appropriate highly competitive
examinations.
A burning and very immediate issue amongst the
profession’s membership is the current (low) ceiling
placed on the number notarial offices by the Minister of
Justice. This has increasingly come under fire, especially
amongst the younger generation frustrated by the
difficulties put in their way, but also from those who see
the profession’s tiny size as a serious hazard in a
growing and increasingly competitive legal services market.
While throughout the nineteenth and the first half of the
twentieth centuries, the number of notaires had been
regarded as too high and had been allowed consistently to
decline [5], a first wave of office creations occurred in
1964 in order to accommodate 101 notaires returning from
Algeria. A second wave followed ten years later when 109
offices were established in the context of the introduction
of sociétés civiles professionnelles. Had all these new
offices survived, they would by 2005 have accounted for 13
per cent of the total of 4503, but quite a few, especially
of those created in the 1970s, did not. (Lemoine, 2000;
Urvoy, 2005) Yet much more would be needed to meet
applicant and market demands. Rebellious voices can be
heard asking for a comprehensive overhaul of the
appointment system, including offering all applicants the
chance to open their own office as well as some choice of
location. (Moreau, 2005)
In 2005, a first step towards improving the situation and
moving towards the figure of 10,000 offices originally
promised was taken as government and profession agreed to
set up 2000 new offices over the next ten years. Not all
members are happy with this plan for fear of greater
competition. But overall such fears are outbalanced by the
realisation that the profession needs to increase its
visibility and clout, esp. in the light of the rapid growth
of the bar. The urgency of this argument is underlined by
the prospect of a further strengthening of the bar by a
merger with in-house company lawyers (juristes
d’entreprise). This would allow the creation of a
specialised business bar and move the legal professions
closer to its vision of la grande profession juridique.
(Boigeol & Willemez, 2005; Conseil d’État, 2001)
A unique feature of the French notariat is the fact that an
appointment to notarial office requires evidence not only
of subject expertise and experience but also of the
candidate’s sound financial position. Permission to
take out a loan is tied to evidence being provided by the
applicant that enough capital is available for a
substantial down payment. This goes even for those with the
prospect of a newly created office, as they have to find
the resources needed to compensate neighbouring offices for
alleged loss of income. On the basis of a recent internet
survey among aspiring notaires, it has been calculated that
this down payment, representing 25% of the ultimate
purchase price plus some other costs, amounts to a minimum
of 126,383 euro, requiring a newly qualified notary with no
personal means to save up for twenty-eight years before
being able to consider running his own office.
(Notariat2000, 2005)
This system starkly contrasts with the system operating in
the three departments of Haut-Rhin, Bas-Rhin and La
Moselle, where the German admissions system has remained in
operation. Here no money changes hands and appointments are
based on purely meritocratic criteria. Nor have any major
financial scandals (sinistres) - the bane of the profession
in the rest of France - ever come to light in these parts
of the country. Yet, the adoption of a meritocratic
principle has found little favour among the profession
where everyone already installed would stand to lose.
A survey among some 900 notarial offices conducted early in
2005 by the journal Notariat2000 (which is associated with
the Mouvement Jeune Notariat) did find considerable
sympathies with a meritocratic system. But in this
particular context the traditional system for existing
offices was not drawn into question and opinions were only
sought on the topic of newly created offices. Not
surprisingly, the institution of the droit de présentation
and sale of offices has been a frequent target of attack
(for a recent example from the camp of avocats see
Redoutey, 2006). It is the basis for the disproportionate
degree of prosperity that marks out a significant section
of the French notariat, most particularly in Paris but also
in other urban centres, where notarial offices have been
handed down in the same family from generation to
generation. Average prices quoted for 2002 were 50,000 to
700,000 euros. (Schützeberg, 2005, p. 142).
So far, nothing has shifted. Why should that be so? Apart
from the strength of the notarial lobby on the one hand and
the lack of political will on the part of the French
government on the other, there is a shatteringly simple
economic reason, summed up most succinctly in a
comprehensive report commissioned by the French government
under de Gaulle in the late 1950s on the subject of
obstacles to the country’s economic expansion.
Amongst the key obstacles identified by the authors of the
report were rigid professional structures and regulations,
exemplified by a number of case studies, one of them on
professions classified as officiers ministériels, in
particular the notariat. However, the report’s
recommendations on how to liberalise these professions for
the benefit of the national economy prefaces the section on
notaires by the following bland statement: "The Committee
has not judged it possible to propose the suppression of
the traditional system of the venality of offices due to
the expense the state would incur in indemnities for some
6,370 notaires in metropolitan France." (Armand-Rueff,
1960, p. 43 - my transl.)
To this day, in any debate about the profession’s
role in society, its ambivalent dual status of public
officer and member of a liberal profession (seen by its
critics as having its cake and eating it), the droit de
présentation has remained the main sticking point. To quote
from a book by one of the system’s more brilliant
critics, at the time (1970s) the youngest judge at the
court of appeal in Paris, Michel Jeol: "Is it acceptable in
a republican system that one should come to a public office
by purchasing it ? Admittedly, the government gives its
agreement and the profession its views on each occasion of
transmission of office. But those checks do not ensure
democratic access to the function. On the contrary, they
lend themselves to discrimination when to the obstacle of
money can be added exclusion on political and social,
indeed also on racial and religious grounds." (Joel, 1977,
p. 98) Joel’s suggested solution was a gradual
phasing out of the numerus clausus by limiting office
holders’ ownership to their own lifetime so as to
spread the costs of compensation over time and make the
process manageable. But to this day, neither this nor any
other proposed strategy to remove this eyesore left over
from the ancien régime has received serious consideration
by the French government. Representatives of the profession
itself, when questioned on the subject, tend to play down
its significance, emphasising variously the difference
between droit de présentation and vénalité, the fact that
the final say on the choice of a notary’s successor
and the price to be paid for his office rests with the
Minister of Justice, and the analogy with other liberal
professions (lawyers, doctors etc.) who also own and sell
their offices (but, of course, do not also claim to be
officers of the state). Notaries in other countries look
upon this state of affairs with mixed feelings,
occasionally tinged by a touch of envy, as it adds further
to their difficulties in explaining convincingly to their
own critics the benefits to society of the
profession’s dual role as public officer and member
of a liberal profession.
Income and activities
Having gone through economically uneven times in the 19th
century, French notaries have, since World War II,
developed into a truly prosperous profession, largely due
to the profession’s intimate link to the property
market. In 2005, their clientel numbered some 20 million
(i.e. roughly one third of the country’s population),
and their annual turnover was 5800 million euro. In June
2005, the periodical L’Expansion published ‘the
truth about the liberal professions’, showing
notaries to have the second highest average income of all
liberal professions in France, well above avocats. From
2002-2003 their income level rose by 17.1% to a national
average net income of 187,000 euro per notary, compared to
an increase by 6.3% to a national average income of 62,605
euros for avocats for the same year. These average figures
hide huge discrepancies between the highest earners in
Paris and other big cities and low earners in economically
deprived rural areas. However, no notaire has ever been
forced into real financial hardship as the profession
collectively funds its own insurance system as a safety-net
for anyone getting into serious financial trouble, be it
through financial mismanagement, personal misfortune, or a
downturn in the respective region’s economy.
The profession’s prosperity is mainly anchored in a
generous range of monopolies in the legal services market
given over to them by law, most particularly in the context
of property registration. Their (quasi-)monopoly regarding
access to the land register, the outcome of a reform of
land registration in 1955, is the source of over half of
their average annual income - enthusiastically referred to
by one of their members as ‘the notarial hen of the
golden eggs’ (‘la poule aux oeufs d’ore
notariale’). (Bigot (2005, p. 15) Another quarter
comes from activities in family law and estate management,
the remainder stemming from work concerning loans and
mortgages, company law work, general counselling etc.
Notaires have been alerted by their leadership that,
although in absolute terms their market looks healthy, it
is actually shrinking in relative terms from year to year,
as the legal services market overall as well as the number
of providers are exploding.
By their own admission, notaries collectively have become
rather complacent and are making little or no effort to
retain other traditional areas of activity, let alone
expand into new ones. The seemingly unstoppable increase in
the value of property has given them a sense of security
which many regard as a high-risk approach. Admittedly,
every increase in the price of housing automatically
increases their income. But even if the property market
continues to expand, competitors are always looking out for
a chance to get their own slice of the cake. Already the
journal L’Expansion has alerted its readers to the
possible savings if, in selling a house worth over 1
million euros, they involve an avocat and the courts rather
than a notaire.
Property agents are major opponents in property sales
transactions in urban areas, as notaires have allowed their
share to slip from 9% to a mere 6% in the four years since
2002. Property agents now hold 70% of this market, having
consistently worked on improving their position. Not only
have they made sure that their tools are the most advanced
possible (specialist training, deontological code,
websites, computer technology, research and working
networks). They have also set up chains, often owned by
banks and attracting clients through optimal efficiency.
Inheritance planning is another traditional notarial
activity which is gradually slipping into a marginal
position as notaires are concentrating more and more on
authentication work, shunning the need for the specialist
training that would be required in this ever changing and
increasingly complex field, or simply finding it difficult,
particularly in small firms, to release sufficient staff
capacity. Although some 80% of those replying to a recent
small survey stated that their office still did some
inheritance planning, three quarters of these referred to
giving ‘simple’ (and often unremunerated)
advice rather than getting involved in complex financial
matters. The latter are increasingly dealt with by banks
and insurance firms equipped with the latest tools and
offering teams of specialist advisers capable of providing
a one-stop shop.
Finally, newly emerging areas of activity in the legal
services market are mostly left without a struggle to other
legal service providers, i.e. lawyers and accountants. A
recent example has been the refusal to get involved with
PACS (pacte civil de solidarité), the legal provision
established in 1999 for two people (either of the same or
of different sex) to set up a contractual partnership for
life. In this case, the beneficiaries were the former
conseils juridiques who then became avocats
d’affaires, who had already occupied the area of
commercial law spurned by notaries and who are now only too
happy to take advantage of this expansion of their terrain.
Another area not yet tapped is the rapidly growing field of
mediation. By 2003, France had a total of 1,850
conciliators and 2,000 mediators, comprising avocats,
social workers, psychologists and even medics, but notaires
have so far not got seriously involved, although mediation
by its very nature is acknowledged to be fully in tune with
their role in the non-adversarial judiciary.
Fees
The bulk of notaries’ work is remunerated on the
basis of a statutory fees scale. Fixed fees were introduced
as late as 1896 to curb fraudulent behaviour on the part of
notaries following a period of notorious financial
scandals. This was initially done on a regional basis to
take account of differences amongst regions, but met with
considerable resistance from the profession. It was only in
1945, that fees scales were harmonised on a national basis,
an important step in the process of professional
unification. (Moreau, 1989, 99) They then became a bastion
which the profession has successfully defended ever since,
with full government support. The justification put forward
is that ad valorem charges, that is fixed fees based on the
value of a transaction irrespective of the work and
complication involved, allow for a more socially just
distribution of costs, as clients engaged in major
transactions are effectively cross-subsidising the costs
arising from transactions of minor financial value. If a
client has no choice whether to see a notary or not, it is
argued, notarial services must remain accessible even to
the economically disadvantaged.
It was only in 1986 that the notariat used its acceptance
of the lifting of the fees scale for commercial work not
covered by their monopoly as well as the negotiability of
fees in transactions of above 500,000 francs as a
bargaining chip to fend off worse governmental
interference. The impact of this reform has remained
modest, as the fees income from authentic notarial acts
accounts for an average of around 90% of notaires’
earnings, although a minority of members in economically
disadvantaged regions (especially in central France) have
to be satisfied with a mere 70% and are therefore forced to
generate further income from additional services - by any
standards, nationally or internationally, still not a bad
position to be in.
The institution of fixed fees has, however, not prevented
French notaries from steadily expanding their scope for
commercial pricing even in the context of authentication.
As since 1986 negotiated fees have been officially
permitted for the exceptional event that a notarial act is
not required by law but nevertheless requested by a client,
there is a loophole for a more liberal application of the
norm. Negotiated fees have become perfectly common in areas
where there is competition with other professions, as for
instance in company law matters. Here rebates are offered
on fees that would otherwise exceed 80,000 euros, and on
occasion fees are waived altogether. (Schützeberg, 2005,
pp. 157ff.) The National Council’s warnings of the
political risks of this trend don’t appear to be
heeded.
Grass roots’ calls to press the government to raise
fees are discouraged by the profession’s leadership
as unwise in the present climate. Members have been urged
to let sleeping dogs lie and to heed evidence from a number
of other countries where highly unwelcome developments have
already occurred: Quebec and Switzerland have abandoned the
fees scale altogether, the Netherlands are phasing it out,
and Belgian notaries are fearing the worst; Italy now
merely sets maximum and minimum fees levels, and Spain has
introduced severe fees reductions. Rather than pressing for
more generous fees for French notaries, members are
exhorted to resist the temptation to deviate from the
official fees scale in order to avoid offering their
enemies - the bar, the EU Commission, the Ministry of
Finance - the exact weapon they need to justify the
abolition of the entire system. Rocking the boat would be
highly unwise, the CSN President warned them at their
conference in 2003, given the profession’s almost
total reliance on fees-based income. Nor could they, in his
view, expect much sympathy from the Ministry of Finance
whose figures for the year 2000 had just shown notaries to
be the highest earners amongst French liberal professions.
(Roth, 2003) What was really needed, the CSN President
insisted, was a simplification of the existing fees
structure, providing (a) greater transparency for clients
and (b) adequate safeguards for notarial offices in
non-favoured regions, but without increasing overall costs
to society. If this antagonised the country’s very
few high earners (who would lose out), so be it.
This diplomatic balancing act on the part of the
profession’s leadership has since paid off. By 2004,
the CSN had started discussions with the Ministry of
Justice about a ‘modernisation’ of the
remuneration system, the profession having been reassured
by the Minister that the fixed fees scale for their work as
public officers would not be called into question, as it
served social justice and equality amongst clients and
amongst members of the profession.
Business structures
Notaries everywhere in the world are a small group compared
to their main rivals, the advocacy. Traditionally, they
have worked each in their own office and in relative
isolation. Today, France, with the possible exception of
the Netherlands, is the country where the profession has
moved furthest away from this mode of working and has made
the greatest strides in adapting organisational structures
to modern market requirements.
On 1 January 2006, France had 8299 independent notaires
(around one fifth of the number of avocats), making for a
ratio of 7308 per head of population - a relatively high
density by Western European comparison [6]. Only roughly a
quarter (2184) still operate as sole notaries [7], almost
half of these in rural areas which take up some 70% of the
country’s territory. For some years now, thinly
populated rural regions, where fully fledged offices have
ceased to be viable, are provided for by bureaux annexes
attached to a fully functioning office in the same region.
The majority of notaires (6115) are members of groupings of
different types and sizes. The option of partnerships,
which was first made available in 1966/67 and was further
expanded in the early 1990s, has opened the door to
entrepreneurial thinking and management, encouraged
rationalisation, and made it possible for individuals to
specialise (although as yet very few do). Notaries may opt
merely to share office facilities (société civile de moyens
- S.C.M), an option rarely taken up (a total of 10 by
December 1999); or to set up or join one of two types of
société civile professionelle (S.C.P) which is itself a
legal person - the choice of the majority since the late
1960s; or (an option available to the notariat since
1990/1993) to join one of three possible forms of an
incorporated company (société d’exercice libérale
– S.E.L), a route which has been taken by a small
number (50 by 30 June 2003), but which is having
significant impact in terms of shifting the profession
towards an entrepreneurial culture. The size of notarial
firms, though still tiny compared to that of law firms, is
rising well beyond the level found anywhere else, with the
sole exception of the Netherlands whose notariat is the
most liberalised on the continent of Europe. In France in
early 2005, the largest notarial firm counted a staff of 8
partners, 8 salaried notaires, and c. 100 office staff, of
whom 11 were fully qualified notaries awaiting appointment
to offices of their own (notaires diplômés).
Monoprofessional and even multiprofessional networks,
albeit of low profile and local or regional rather than
national in character, have been around in France in the
field of law since the 1970s, the decade during which two
large accounting firms (that later became KPMG and Coopers
and Lybrand respectively) first took roots in France. Ten
years later, the ‘Big Eight’ turned their
attention to France. By the late 1990s they had
consolidated to form the ‘Big Five’ and had
captured around one third of the legal services market for
businesses. The fusion of avocats and conseils juridiques
in 1990 which had been intended to create a strong
counterweight of French lawyers in the field of commercial
and company law had backfired in that it sparked off
numerous controversies between avocats and
experts-comptables leaving no time for discussions about
multiprofessional groupings. The issuing in 1998 by the
national organisation of bars (Conseil national des
barreaux) of highly restrictive regulations intended to
apply to such groupings involving lawyers, led to protest
among a number of more progressive members of profession,
and resulted in the government-sponsored Nallet report of
1999 on multidisciplinary networks and the legal
professions, recommending the setting up of
multidisciplinary groupings by French lawyers and
accountants to counteract the work of the ‘Big
Five’. (Nallet, 1999; Bpoigeol & Willemez, 2005).
If the French bar resisted the involvement of avocats in
multidisciplinary networks, the same applied to the
notarial leadership. In 1993, the CSN put an early break on
developments in this direction by setting up a Network
Committee (Comité des Réseaux, CORES) supposed to register,
vet and control such groupings, which was however left
without any means of enforcement, as disciplinary powers
remained with departmental chambers who would have to
inform the CORES of any irregularities. Unsurprisingly, the
CORES ended up simply registering those who volunteered to
come forward and has been unable to fulfil the function it
was initially set up to perform, with many of those on the
register having ceased to function actively. As for the
Nallet report, the Conseil supérieur national had
successfully lobbied the report’s author and his
commission not to include the notaires in his study in
recognition of their special status of public officers,
fearing the eventual loss of the profession’s
separate identity.
Larger notarial networks of national status still tend to
be monoprofessional ones. An outstanding example, as well
as among the first of its kind, is the Groupe Monassier.
(www.groupe.monassier.com)
Established in 1992 by the Parisian notaire Bernard
Monassier who had read the signs of the times and was
determined to keep up with market developments and the
requirements of enterprises, it currently comprises 24
notarial firms with a total of 86 notaires and 650
staff. The network projects the image of a modern
enterprise, committed to cutting-edge expertise
supported by relevant research. An executive committee
of 9 members is responsible for implementing the
strategies agreed on at their general annual meeting,
ensuring a common approach to methods of working,
organisation and communication. Having initially focused
on commercial law and inheritance planning, the network
now offers a comprehensive range of services, covering
family and inheritance law, international law, company
and commercial law, and property law, with an emphasis
on complex financial and tax issues. Members are chosen
from across the country to ensure full geographical
coverage, and they are carefully vetted according to
certain criteria: they have to have and be prepared to
develop expertise in the network’s areas of work,
be members of an SCP or SEL, achieve a certain minimum
annual turnover, pay a fee to join as well as annual
membership fees, and be approved by existing members.
In recent years, a first move on the part of Groupe
Monassier in the direction of breaking out of the
monoprofessional structure has been the institution of
corresponding membership, which has made it possible to
include foreigners - not only notaries but also lawyers.
Corresponding members require approval by the executive
committee, pay a fixed fee, and are allowed to use certain
of the association’s services. Non-French members
currently are mainly from Western Europe (Germany,
Luxembourg, the Netherlands, Belgium, Spain, Great Britain
and Switzerland), but also from francophone Africa and
Canada. The Group is committed to continuing staff
development and research, requires its members to acquire
ISO 9001 certification, and employs the most up-to-date
methods of communication.
More recent national monoprofessional groupings have tended
to focus on one specific area previously neglected by
notaries and requiring a high degree of specialisation. The
best known of these is Pharmétudes, a network created to
engage with all aspects of legal advice required by
pharmacists, that is to go beyond the normal notarial act
of authenticating the purchase or sale of a pharmacy.
(www.pharmatudes.com).
The network is funded by its members, runs a constantly
updated database of acquisitions and sales of pharmacies
nationally, is regularly represented at pharmacist
conferences, has a carefully placed national membership,
is committed to keeping up with all developments in the
field and to continuing training for both notaries and
their staff. A more recent network, Nôtel, created in
1998 for the hospitality industry (hotels, bars,
restaurants), was modelled on Pharmétudes. But in
contrast to its model, it is a closed network,
accessible only to members, with a much larger market
and a more rapid turnover, as ownership is subject to
frequent change. There is a third national grouping,
Jurisvin, which caters for all legal needs of
winegrowers. (www.jurisvin.fr)
In 2000, the annual conference of the Assemblée de liaison
des notaires de France was devoted to the topic of
organisational structures of notarial firms. The published
report (Assemblée de Liaison des notaires de France, 2000)
presented a detailed picture of the profession’s
precarious situation and urged members to take seriously
the need to modernise its structures. One suggestion from a
politically active Parisian notaire was to make more
efficient use of the statutory relaxation provided in
1990/1993 by creating holdings. These would, he argued,
facilitate the setting up of international as well as
interprofessional networks able to respond to new market
requirements, while also representing a truly proactive
response to the Nallet report and its reflexions on the
conditions necessary to modernise the juridical professions
- the notariat included. (Humbert, 2000) The only condition
for the notariat to get involved would have to be that all
those participating belong to regulated professions,
therefore strictly excluding banks.
Another advocate of networks of all types appealed to his
colleagues to remember how the bar ultimately benefited
from their exposure to liberalisation in the context of
their struggle with the five big accountants firms. Putting
one’s head into the sand is not an option, he
claimed, urging instead to plan for the worst possible
scenario, that is the termination of their special status
and protection from competition. After all, what had
happened in Quebec and in the Netherlands, could
conceivably happen in France. And if interprofessional
associations worked in the medical field, why should they
not work in the field of law? (Lecuyer, 2000)
Multiprofessional groupings that do exist tend to be
smaller in scope than monoprofessional ones. They are
typically local and regional in character, based on joint
interests and personal relations amongst notaires, avocats,
experts-comptables, banquiers-assureurs etc., and often
arise from social groupings such as the Lions or Rotary
Clubs - developments encouraged by the growing pressure of
European and global forces on the liberal professions in
general and on the legal services market in particular. An
impressive recent example of interprofessional co-operation
was the first ever joint congress of 7 liberal professions
in Lyon in June 2006. It was the brain-child of the Ordre
des experts-comptables de Rhône-Alpes who had invited a
number of prestigious speakers including a prominent member
of the European Parliament. Around 400 professionals
attended, including notaires and avocats, all keen to
present a united front in the face of the European
Commission’s liberalisation measures. No doubt,
further multiprofessional initiatives will result from this
event.
An issue closely linked with that of networks is the need
for greater specialisation within the profession - a notion
inherently alien to the traditional notaire who regarded
his generalist label as sacrosanct and essential to his
role as personal counsellor for the whole family and,
ideally, from one generation to the next. In a way, of
course, the bulk of the profession have already become
specialists, i.e. specialists in property law, though not
by strategic planning but by default. In structural terms,
the specialist does not officially exist, although in
larger offices in urban areas, especially in Paris, a
degree of specialisation has naturally evolved. The more
progressive elements of the profession argue that just as
there is room and need for general practitioners and
specialist surgeons in medicine, so there is room and need
for generalist and specialists notaries. (Rose, 2005) But
they are as yet in a minority.
Management culture
Promoting the need to transform notarial offices into
efficiently managed enterprises has become a priority for
the Conseil supérieur. Members are urged to ensure that
their offices are organised on proper business principles,
paying particular attention to personnel management,
quality control systems, and the use of technology.
Predictably, achievements in this context vary greatly,
with larger city firms having obvious advantages over small
and isolated rural ones.
Improvements in personnel management have become
particularly important given the French profession’s
striking reliance on support staff, both notarial and
administrative, a feature unknown in most other civil law
systems. Office holders are constantly reminded by the
National Council that the age of patriarchal regimes is
over and that they need to take seriously their role as
employers, entrepreneurs and managers. From 2004, annual
staff interviews for developmental purposes have become a
statutory entitlement of all employees (la loi Fillon), and
written accounts of these are required to be handed to
interviewees and be available for annual inspections. A key
outcome of these interviews is to be an agreement between
employer and employee on her or his staff development plan,
given that the new legislation entitles every employee in
France to around 20 hours of training a year, a good deal
of which can be taken during working hours without loss of
pay (Droit individuel de formation (Dif)). Notarial
employers, on whom rests the onus of setting up the annual
interview, are taking some time to absorb and act on the
new regulations,. But so, it seems, are their staff who
would have to take the initiative to make use of their
right. Small offices with fewer than 10 staff are finding
it particularly difficult to comply, both in practical and
in psychological terms, one of the more frequently heard
objections being, Why and how conduct formal interviews
when you are working with these people day in day out? And
how can you spare them when there is nobody to replace them
?
Until a few years ago, ready availability of qualified
applicants for jobs in notarial firms could be taken for
granted. But this has now changed, as young people prefer
more glamorous and less specialised careers, better
remuneration and a city environment. Both, qualified
notarial and qualified administrative staff, are in short
supply nationally and will increasingly become so over the
next 5 years, as a wave of retirements amongst baby-boomers
of both categories is setting in. Nearly 1000 notaires will
have retired by 2008. Replacements can come from three
groups: either the current pool of notaires stagiaires
(trainees in their final stage of training), or from among
notaires assistants (those who have completed training and
are waiting for opportunities for appointment to
independent notarial status), or from notaires salariés
(fully qualified notaries with all the rights and duties of
a notary, but salaried rather than self-employed), all of
which also need to be replaced. Success in recruiting such
collaborators varies greatly, with rural offices
experiencing most difficulties while those in Paris have
all the choice. A particular headache to the profession is
caused by the fact that not infrequently those fully
qualified as notaires (by a process which involves the
profession in not inconsiderable expense) end up opting for
another career, either because they cannot come by an
office of their own or because competing professions who
are very happy to absorb young lawyers with additional
notarial expertise are making them more attractive offers.
The post of notaire salarié, a notion regarded in most
civil law systems as a contradiction in terms as it would
seem incompatible with the essential feature of
independence, was created in 1990 and initially intended
not only as a safety-valve to ease the pressure brought
about amongst aspiring notaries by the numerus clausus on
the one hand and financial constraints on being appointed
to an office on the other, but also as an option for
conseils juridiques whose profession was being disbanded
and whose membership would have provided the notariat with
welcome access to the fields of company and commercial law
[8]. There had been the hope that the notaire salarié might
facilitate flexibility and modernisation without any risk
to the existing tight regulatory framework. (Lefalher,
2000) However, the result so far has been disappointing.
The take-up has been distinctly hesitant (2004: 200
notaires salariés, i.e. 2.5% of the total) and the status
of notaire salarié has generally come to be regarded with
suspicion, a kind of second-class notaire. As for the
conseils juridiques, they mostly moved straight into the
advocacy, strengthening its position in the area of
commercial and company law and thereby reinforcing rather
than easing pressures on the notariat.
Possibly the greatest human resource problem facing the
French notariat is a looming shortage of qualified
administrative and technical staff, on whom the success of
any notarial office heavily depends. While during the last
thirty years demand for jobs has generally outstripped
supply, a wave of retirements in coming years will create
gaps which nobody can quite see how to fill. To pre-empt
serious problems, the CSN set up an Observatoire des
collaborateurs which in 2003 conducted a survey and
produced the first comprehensive national picture of
administrative staff on permanent employment contracts in
notarial offices, covering a wide range of different
facets, including employees’ functions,
specialisations, and retirement plans. (Assemblée de
Liaison des Notaires de France, 2004) It emerged that of
the total of 41,108 staff in post by the end of 2002, a
quarter, that is over 11,000, would have retired by the
year 2010. The detailed profile of those retiring has
provided the CSN with a clear overall idea of what training
needs to be put in place in preparation. Most of this will
concern women, as these already make up 82% of
administrative and technical staff, and their share is
likely to rise in future. Significant regional variations
will require a good deal of fine tuning, with support
needed for the most economically disadvantaged regions
where recruitment of staff has been problematic at the best
of times.
Quality control is a relatively new concept for French
notaires and sits awkwardly with the profession’s
traditional self-image. As recently as 2001, the then
President of the CSN referred to ISO as a very Anglo-Saxon
notion not suited to French culture (‘ce que nous
sommes’), and warned anyone trying to use it for
publicity purposes. Instead he recommended simple
certification of services. By 2003, the CSN had changed
President and position. The mere certification of services
was declared to be unsuitable as it was not entirely under
the profession’s control, but partly in the hands of
consumer organisations and the national competition
authority. Nor were their methods, involving surprise
visits and the direct questioning of clients, compatible
with the profession’s ethical code. Generally
speaking, certification methods were said to lack
sophistication and to be unsuited to the individual
character of offices. Instead, the ISO system was
recommended to the membership. They were reminded that
quality control of some form had become essential, be it
only to fend off competition, especially in the European
context.
At the start of 2004, a two-year quality plan (la démarche
qualité notariale, DQN) was launched by the CSN, based on
15 ways of improving the quality of notarial services.
Those willing to participate were promised financial
support. The plan involves three stages: the first focuses
on improving the running of the office (e.g. reception
services, filing, and archiving systems), the second on
management issues, while the third prepares for
certification ISO 9001 (2000). The target for the end of
2006 was set at 1200 firms being involved in some form.
Progress during the first two years had been rather slower
than hoped. Only around 650 had got involved. However, 21
departmental chambers and 9 regional councils had launched
their own plans, which promised to speed things up, while a
good number of (mostly southern) regions had not even
begun. Ahead of the pack were 28 firms who already held the
ISO certificates, amongst them 15 members of Groupe
Monassier.
The high profile given over to quality is reflected in a
structural reform introduced in 2004. Departmental chambers
have been relieved of their disciplinary powers
(traditionally their key role), which have been moved up to
regional level to introduce an element of distance between
the parties, make the process a more transparent and
objective one, and silence the profession’s external
as well as internal critics accusing it of laxness and
attempts to cover up disciplinary offences committed by
those same 10% who regularly run up an annual record of
client complaints well above the average level. This reform
has been presented by the leadership as a bold one. Yet,
more progressive elements within the profession -
admittedly, still a minority - consider it to be no more
than a reformette and would like to see further measures in
this direction. Why, some have been asking, does the
notariat not have the courage of the Paris bar which
publishes in its internal bulletin an annual list of
sanctions and the reasons for them? As things are, there is
not even a binding obligation on the part of the regional
council to inform the complainant of the outcome of the
procedure. The number of critics of the traditional secrecy
surrounding disciplinary offences as well as the lack of
rigour in applying the existing scale of possible sanctions
is growing, as is awareness that today a poor public image
can no longer be shrugged off but is likely to have serious
economic consequences which affect everyone in the
profession.
Greater transparency and disciplinary rigour require a
tightening up of annual inspections of notarial offices,
which are generally accepted to have become rather lax,
with the result that in some instances turpitudes have been
allowed to be committed for many years without being
spotted. Inspections are carried out by members of the
profession accompanied by experts qualified to assess the
state of accounts and the handling of client moneys,
normally accountants (experts-comptables). Emphasis has
traditionally been on financial aspects, although legally
all aspects of office management are supposed to be subject
to critical scrutiny, including the use of modern
technologies. In their efforts to sensitise members to the
crucial significance of quality control, the profession's
leaders are emphasising the need for the profession to
retain its control over the procedure. Occasionally, the
need for training for inspectors is mentioned, but as yet
no action appears to have been taken.
The French notariat has made considerable strides over
recent years in making use of new technologies to improve
notarial services. As early as 1979, they were asked by the
government to establish a national data base of last wills.
This has now been computerised and can be accessed
electronically by notaires to find out whether a will
exists, when it was registered and in which notarial office
it has been deposited. The French data base is linked with
a similar one in Belgium. Then there is the electronic
network REAL, a secure intranet for the transmission of
data among notaires, and the REAL card, issued by the
National Council to each notaire and their qualified
collaborators, which allows them to access confidential
data stored in the profession’s electronic data
bases. Work on electronic storage and archiving of acts is
in progress. Thirdly, the profession has developed a
constantly updated national data base of all types of
property on the market, listing precise information on
location, key features, technical details, and price (la
Base B.I.E.N.), thereby improving the speed and quality of
advice given to clients as well as providing more accurate
information on developments in the property market.
Finally, the five regional research centres (CRIDONs) have
computerised their materials, and the Parisian Chamber has
created a system allowing clients confidential access to
their files as well as to communicate with their notaire on
line.
Full use of these tools by all requires individual offices
nation-wide to be up to speed with their own technological
equipment. A good deal still remains to be done in this
context. As yet, ignorance of the existence and nature of
these tools, lack of awareness of the growing importance to
make use of them, and outdated and incompatible equipment
are anything but uncommon.
All in all, considerable efforts are being made by the
leadership towards nudging the profession into a new era of
entrepreneurial accountability and openness, as an urgent
measure to maintain credibility in an environment where
both these qualities are regarded as a sine qua non.
Ironically, this coincides with an enhanced political
emphasis on the official nature of the profession,
including all its facets and activities, in the hope that
this might shield it from the harsh winds of
‘ultra-liberalism’ blowing from Brussels and
finding a worrying echo within France. In the words of the
President of the CSN on the occasion of the 2004 annual
meeting of the Assemblée de Liaison des notaires de France:
"The notariat finds itself once again at a turning-point in
its history. Having, in the 1980s, successfully stood up to
those advocating a position of ‘all state’
(‘tout Etat’), it is now confronted with those
unconditionally favouring the ‘without state’
(‘sans Etat’). Between the two, there is
another path, there is the notariat, the notariat which
combines social usefulness and economic efficiency, a
notariat that combines public service and service to the
public - but, beware, that path is a narrow and demanding
one". (Dejoie, 2005, p.18)
What
future ?
The French notariat’s strategy has been shaped by its
determination to maintain and consolidate its autonomy and
status. This has been achieved by means of occasional minor
concessions to pressure for change from within and without
while remaining firmly in control of its own destiny. In
this it has been able to count on the unwavering support of
the Ministry of Justice which has shown no appetite to
upset its historically grown and structurally robust
relationship of interdependence with the profession.
However, this constellation is now at risk, as economic
globalisation and the growing weight of the European Union
have shifted the focus away from a purely national to a
European and even world level, and economic arguments have
been gaining predominance over all others. The World
Bank’s reports Doing Business of 2004 and 2005 have
left notaires in no doubt that their very raison
d’être is being questioned. (www.doingbusiness.org)
Nor can they draw much comfort from the European
Commission’s approach to the liberal professions.
As an institution deeply rooted in the system of civil
law, the notariat has additional reason to feel
vulnerable, as competition from common law and common
law lawyers is getting ever more threatening [9].
Faith in its own strengths backed by solid government
support has, it seems, for quite some time clouded the
profession’s awareness of the reality and precise
nature of the threats ahead. Only the last five or six
years have seen the start of serious efforts at a
systematic and coherent defence of its position. The French
government is still firmly behind the notariat, insisting
on the need for the traditional regulatory regime to remain
in place, including all the pet targets for attack by those
advocating a liberalisation of the legal services market:
nationality requirement, numerus clausus, fixed fees, ban
on advertising, and limitations on permissible
organisational structures. After all, an attack on the
nation’s officiers ministériels and public officers,
and on their statutory rights and duties also represents an
attack on the French government’s authority to
regulate the liberal professions as it sees fit. The
National Council of Notaries and the Minister of Justice
have been united in their defence of the French notarial
system, presenting it as not only viable but the ideal
model for a well-functioning economy. In the words of the
Minister, in March 2003: "The organisational principles of
the notariat and the mission of the authentification of
acts represent exportable values. Their efficiency can be
demonstrated. The prominent characteristics of continental
law make a great contribution to legal security. ... The
notarial profession finds its proper place in this
construction in re-enforcing mutual trust amongst the
various parties, guaranteeing the reliability of legal acts
and investing their content with certainty. This strategy
is in tune with economic developments in all countries."
(Boucher, 2003, pp. 43-4)
The profession’s newly designed strategies vis-à-vis
the European Commission’s policies have been closely
associated with the person of Armand Roth, Vice-President
of the CSN in 2002, its President in 2003, and President of
the Organisation of European Civil Law Notariats (CNUE) in
Brussels in 2004. Under his leadership, a three-pronged
approach has been adopted and implemented. Firstly and most
importantly, a range of internal reforms have been set in
motion to put the profession’s own house in order,
generally modernising its workings and enhancing
transparency, accountability, quality of services and the
robustness of disciplinary procedures. Secondly, the first
serious efforts have been made to assess the nature and
possible impact on the profession of Brussels’
liberalisation project. Armand Roth never tired of rallying
his troups to engage in the fight for their culture,
language, legal system and their own profession, and made
every effort to raise the profession’s profile and
get the national public on its side by demonstrating its
contribution to society and of the quality of its services.
Finally, under his leadership, the French notariat began to
look beyond the country’s frontiers, to engage in
discussions with European notarial organisations, to foster
the solidarity with other civil law notariats in Europe and
in the world at large, and to get actively involved in
shaping developments in the evolution of the European legal
space.
His successor, Laurent Dejoie, appears determined to follow
in his predecessor’s footsteps. The CSN itself has
undergone a restructuring to meet the new demands made on
it. (D’Oysonville, 2005) In 2005, the post of
Vice-President for European affairs was created within the
National Council, and an office set up in Brussels,
following the example of Austria and Germany who had been
on the alert for some time.
So far, the precise outcome of EU liberalisation efforts in
relation to the profession of notaries is still in the
balance. Should notaires’ public officer status
eventually be confirmed (as appears likely), the two most
contentious directives relating to the liberal professions
would not immediately apply to their core activity, i.e.
the creation of authentic acts, as it is an integral part
of the French non-contentious judicial system. What would
remain uncertain, however, is the answer to the question
what will happen to the remainder of their activities, that
is those not covered by their official status but part of
their role as providers of legal services in the open
market. In contrast to, for instance, German notaries whose
activities are limited to authentication work and who do
not engage in ordinary commercial transactions, French
notaires are after all active on both fronts and are
constantly urged by their leaders to widen their expertise
and range of services offered, whether in the context of
property transactions preceding the actual drawing up of
the authentic act (la négociation immobilière), inheritance
planning and management (la gestion de patrimoine), or
legal advice to businesses. Also, somewhere in the
background, there always lurks the nightmare scenario of a
change of legislation regulating property registration,
which currently accounts for over half of notaires’
average income. There already exist studies funded by the
Spanish government claiming that mandatory intervention by
notaries or, indeed, any other lawyers, in land and company
registration should be abolished as changes in the nature
of transactions and methods of registration make such
intervention redundant. (Arruñada, 2004a; 2004b).
Given their political and commercial savvy and historical
record of successful crisis management, notaries in France
should be better placed to face future uncertainties and
threats than their counterparts in most other West European
countries. But status and close links with their government
and other national organisations have ceased to be
guarantors of the notariat’s continuing identity,
relevance and economic prosperity. It is now economic
considerations that must take centre stage if this tiny
profession largely unused to having to cope within a
competitive market is to hold its own: against their
fiercest competitors, the ever growing number of avocats
who have long learnt to embrace the culture of an open
national and global market and are keen to see the notariat
stripped of its privileges (Pierre Redoutey, 2005); against
ever more powerful banks, insurance companies and
accounting firms who are well prepared to take over as soon
as the opening is there; and not to forget, against
competitors from abroad, most particularly Anglo-American
law firms (Law Gazette, 2006), and even a minute, but
vociferous and effective lobby of British notaries, which
has been putting pressure on the European Commission to
ensure the abolition of the nationality requirement to
allow them access to the lucrative notarial market in
France (Kober-Smith, 2006).
However confident their official pronouncements, French
notaires may, in the medium to long term, find themselves
isolated and dependent on their very narrow (though
currently most lucrative) field of official expertise,
unless they follow the example of groupings such as the
Groupe Monassier and adopt a radical strategy to modernise
their organisational and client structures, management
style, service range and delivery so as to meet the
expectations of an increasingly demanding national and
international market.
NOTES
1.
For a recent example that caused the CSN a good deal of
headache, see Notaires. Succession d’embrouillles,
Que Choisir? (ed. by the Union fédérale des Consommateurs),
no. 426, 26 April 2005.
2. Loi 48-460 permettant aux femmes l’accession à
diverses professions d’auxiliaires de justice (JO 21
mars 1948); this came into force with the publication by
the Minister of Justice of the Circulaire relative à
l’accès des femmes aux fonctions d’officier
public ou ministériel on 15 July 1948.
3. Austria (2002): 3.6%; West Germany (2003): 6.1%
(notaries only) and 9% (solicitor notaries); the
Netherlands (2001): 9.1%; Spain (2005): 30% . The picture
is very different in central and eastern Europe, where
women represent the majority. Greece (2004) boasts a record
of 83% women.
4. Institut Notarial de l’Entreprise (INE), Institut
Notarial de l’Immobilier (INDI), Institut Notarial du
Patrimoine (INP), Institut Notarial de l’Espace
Rurale et de l’Environnement (INERE), Institut
Notarial des Collectivités Locales (INCL).
5. The total number of notaries in France on the eve of the
French Revolution is estimated to have been 16,000 to
18,000 - twice today’s number, for a population of 26
million, i.e. less than half of today’s. (Moreau,
1989, p.51)
6. Austria: 17,122; Spain: 14,080; Luxembourg: 13,015;
Italy: 11,620; the Netherlands: 11,394; Germany: 8995;
Greece: 4962.
7. This was the norm until the 1960s. - 1970: 95.4%; 1990:
39.9%; 1999: 28.2% (Eric Lefalher, 2000).
8. September 2004: 2000 titulaires de 3° cycle notarial
(mostly notaires stagiaires), 5000 diplomés notaires
(notaires assistants), and 200 notaires salariés
(www.mjn.fr).
9. For a spirited response to the Doing Business reports
and a defence of the merits of civil law in promoting
economic development, see Association Henri Capitant
(2005). A carefully structured argument leads up to the
tongue-in-cheek question whether Doing Business might
perhaps be most aptly described as ‘le Da Vinci Code
du droit comparé’: "The year 2004 was marked by the
success of a novel which, at the price of hasty
comparisons, hazardous hypotheses and a number of untruths,
has pretended to reveal the key to 2000 years of history.
Delving into the reports Doing Business, one cannot help
asking oneself whether this genre is perhaps not limited to
popular literature." (p. 33, my transl.)