For his work the notary, as a public official, must adhere to strict rules laid down in the code of ethics and the law to ensure that:
– notarial deeds are in accordance with the will of the parties;
– notarial deeds are valid, meaning in compliance with the law;
– the legal effects of deeds are not affected by any encumbrances or rights of third parties (such as mortgages, foreclosures, easements, pre-emption, etc.) that the notary did not warn the parties about.
If the notary fails to perform his professional duties he is responsible under the law in several cases:
– civil: if he has caused damage to the parties through non-performance of his professional duties, the notary is obliged to make good the damage;
– criminal: if he has committed crimes;
– disciplinary: if he has violated the ethical standards of the profession, the notary must pay pecuniary fines or be suspended from the profession for a specified period of time or, in serious cases, he may be struck off.
In view of these responsibilities, notaries were the first profession in Italy to have set up, in 1999, compulsory insurance that by law covers every notary in the case of civil liability for error. There is also a guarantee fund for damages resulting from criminal offences.
By law, notaries are liable to continual State control: all deeds are subject to periodic inspection (every 4 months) by the Tax Department and the Ministry of Justice (every 2 years).
The District Notarial Councils also oversee the proper conduct of the notary. In case of irregularities, he is judged by a regional disciplinary commission, independent of the District Notarial Council and presided over by a senior magistrate. This ensures absolute impartiality in the decisions and cuts the ground from under any possible form of “in-house justice” among members of the same profession.
Anti-money laundering controls
Under the law on money laundering, the notary must ensure the identification of clients, the beneficial owner of the operation and report any suspicious transactions to the UIF (Financial Information Unit) at the Bank of Italy.
According to data provided by the Guardia di Finanza (Financial Police), about 90% of the suspicious transaction reports received from professionals come from notaries, even though all professions are subject to reporting requirements. This aspect helps to understand how the notary serves the public side-by-side with the authorities in checks on legality.
In recent years, the Notariat has been very active on this front and it was the first profession in Italy to assume the role and responsibility of interposition authority in this field. Here are the main steps:
In 2009, the Financial Intelligence Unit (UIF) at the Bank of Italy and the National Council of Notaries signed in Rome a memorandum of understanding governing the electronic exchange of information on suspicious transaction reports using methods that ensure the anonymity of the notaries reporting.
In 2014, the Notariat presented its “Guidelines on the subject of client due diligence in accordance with Article 8, Paragraph 1, of Legislative Decree 231/2007”, prepared by the Anti-Money Laundering Group of CNN after checking with the Ministry of Economy and Finance, the Financial Intelligence Unit of the Bank of Italy and the Guardia di Finanza. The aim was to develop a document providing notaries with criteria for customer profiling and guidance on the procedures to be followed to carry out technical and operational requirements to combat money laundering, just as the Bank of Italy has recently done with banks to bring them into line with national and international regulatory standards. The notariat is the first professional order in Italy to have this tool.
In 2014, CNN established a network of delegates for anti-money laundering activities in order to ensure the notarial profession is ever better trained in the complex and delicate question of guidelines for the prevention and combating of money laundering and consequently to facilitate the contribution of Notaries in the fight against this criminal phenomenon.
Watch the video of the Congress: “Notariato e antiriciclaggio. Le nuove linee guida e gli aspetti operativi”