The next major innovation with an impact on the notarial profession in Switzerland concerns the large-scale digitisation of the notarial profession.
At present, the authentic instruments are drawn up on paper and, as soon as they are certified, become the property of the canton in which the notary practises. As such, the notary is responsible for keeping the deeds in paper format (some cantons still require the use of special paper, with a watermark or special weight) in a register. As usual, Switzerland is not the nation in the greatest hurry when it comes to modernising and revising its institutions, although the issue of digitising the notarial profession has been under discussion for more than 10 years.
Since 2012, the cantons have been able to authorise their notaries to issue “expeditions”, i.e. certified and notarised copies of their minutes, in electronic format. Since these copies may be sent to the cantonal land register or commercial register authorities, it was also necessary to allow the registration processes in these registers to be carried out entirely electronically. It has to be said that after 10 years, in the absence of any standardisation of these aspects at Swiss level, the implementation of digitisation in the notarial profession is stagnating and its success varies greatly from one canton to another.
At federal level, the current revision aims to enable notaries to draw up their original documents, or “minutes”, in electronic form. After the Council of States, the National Council approved the launch of this revision by a very large majority in early March 2023, despite opposition from conservative parties sensitive to the cantonal component of the notarial profession.
This revision is welcome, but naturally raises a number of questions, most of which arise from the division of powers between the cantons and the Confederation. For example, the question of maintaining a single central register of electronic authentic deeds has caused a great deal of ink to flow, with some arguing that such a solution would encroach on the cantons’ powers in this area (and seeing it as a first major breach paving the way for a standardised notarial profession at national level). In the end, however, it turned to be the chosen solution, with a central register held by the Federal Office of Justice, which will be responsible for providing the necessary guarantees to protect these electronic deeds from falsification, as well as guaranteeing adequate protection for the data of citizens.
In principle, the aim of this revision is not to abolish or restrict the drawing up of deeds on paper, but merely to provide notaries with an additional option. However, the revision should allow the cantons to decide whether they wish to switch completely to the digital model.
The Swiss legislative process being what it is, this note remains deliberately introductory and we will not fail to keep you informed of any developments with regard to the digitalisation of the notarial profession in Switzerland.
Quentin Bärtschi, Kellerhals Carrard (Berne)
Mathieu Gobet, Acta Notaires (Morges)