In the recent years, significant progress has been achieved in Poland as regards the use of information and communication technologies in the judicial system, broadly understood, including services performed by legal professionals, among which notaries. A breakthrough in the functioning of Polish notaries was brought about by the enactment of the provisions on the Central Repository of Electronic Copies of Notarial Deeds (Centralne Repozytorium Elektronicznych Wypisów Aktów Notarialnych) in 2018.
According to the Notaries Law Act of 14 February 1991,[1] within the scope of their powers, notaries act as persons of public trust, enjoying the protection of public officers. Actions performed by a notary in compliance with the law are acknowledged as official documents. When performing notarial actions, notaries are obliged to safeguard the rights and legitimate interests of both the parties to the transaction and persons in respect of whom the notarial action may entail legal effects. A notary performs the acts the parties are obliged or are willing to make in the notarial form. Separate provisions of Polish law specify the agreements that shall be executed in the form of a notarial deed (akt notarialny). Examples can be: agreements obliging to transfer ownership of immovable property, marital property agreements and some agreements of commercial companies. Moreover, a notarial deed in which the debtor submits to enforcement on a voluntary basis shall be considered an enforcement title.
Notarial deeds are drawn up in the paper format, and are signed in the physical presence of the notary and the parties. Before being signed, a notarial deed shall be read over by the notary or by a person authorised to do so by the notary in his/her presence. While reading, the notary shall make sure that the persons involved understand the content and the meaning of the notarial deed, and that the notarial deed is conformable to their will.
Until recently, a copy of a notarial deed (wypis aktu notarialnego) has been issued exclusively in the paper format as well. Under the provisions now in force, there is a possibility to draw up electronic copies of notarial deeds, with the use of a qualified electronic signature instead of a notary’s seal. New legal solutions were introduced in Polish law with the entry into force on 9 April 2018 of the Act amending the National Court Register Act and certain other acts of 26 January 2018,[2] envisaging the establishment of the Central Repository of Electronic Copies of Notarial Deeds (hereinafter: the Repository). The legislation was aimed at the implementation of the Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law.[3] In accordance with Article 92a paragraph 1 of the Notaries Law Act, added by way of the above amendment, the Repository shall be maintained by the National Council of Notaries (Krajowa Rada Notarialna)[4] in the information technology data transmission system to store electronic copies of and excerpts from notarial deeds drawn up in the territory of the Republic of Poland. The Repository forms part of the ICT system called “Notarial Registers” (Rejestry Notarialne),[5] allowing for the exchange of data with external institutions. The resources of the Repository are accessible to notaries, courts and other state authorities.
The first phase of the reform covers notarial deeds which contain data constituting the basis of entry to the register of entrepreneurs of the National Court Register (rejestr przedsiębiorców Krajowego Rejestru Sądowego). As follows from Article 92a paragraph 2 of the Notaries Law Act, immediately after drawing up such a notarial deed, the notary shall place an electronic copy thereof in the Repository. The copy shall bear a qualified electronic signature. In addition, upon request of the party, the notary shall place an excerpt from the notarial deed in the Repository (Article 92a paragraph 5 of the Notaries Law Act). By virtue of the amended provisions of the National Court Register Act of 20 August 1997,[6] the application for entry in the register of entrepreneurs and the notarial deed are intended to be technically linked with the Repository. As of 1 March 2021, if a notarial deed the copy of which has been placed in the Repository is required to be attached to the application to the register of entrepreneurs, the applicant shall provide the number of this document in the Repository. Upon registration of the application, the document shall be automatically transferred via the information technology data transmission system from the Repository and attached to the application. In the future, copies of other notarial deeds shall be placed in the Repository as well, if so provided for by separate provisions, and if the organisational and technical conditions so permit (Article 92a paragraph 3 of the Notaries Law Act).
The introduction of the Central Repository of Electronic Copies of Notarial Deeds has contributed to rendering the notarial activity more efficient, and to reducing the number of documents to be submitted by the entrepreneurs. This is evidenced by the fact that already in a few first days of operation of the Repository, over 4000 electronic copies and excerpts were issued.[7] It is also worth noting that the latest achievements in the modernisation of the Polish notarial practice are accompanied by an ongoing debate among legal practitioners and scholars regarding the feasibility of drawing up and signing notarial deeds themselves electronically, which is additionally triggered by the physical constraints resulting from the COVID-19 pandemic.[8]
Maria Kaczorowska, PhD
Research Centre for Legal and Economic Issues of Electronic Communication
Faculty of Law, Administration and Economics
University of Wrocław, Poland
[1] Unified text: Journal of Laws of 2020, item 1192, as amended.
[2] Journal of Laws item 398, as amended.
[3] OJ L 169, 30.6.2017, pp. 46–127.
[4] See https://www.krn.org.pl/.
[5] See https://rejestry-notarialne.pl/.
[6] Unified text: Journal of Laws of 2021 item 112.
[7] See e.g. M. Leśniak (2018), ‘Centralne Repozytorium Elektronicznych Wypisów Aktów Notarialnych – przykład nowego spojrzenia na czynności notarialne’. In A. Dańko-Roesler, M. Leśniak, M. Skory, B. Sołtys (Eds.), Ius est ars boni et aequi. Księga pamiątkowa dedykowana Profesorowi Józefowi Frąckowiakowi, Wrocław: Stowarzyszenie Notariuszy Rzeczypospolitej Polskiej, pp. 675–684; K. Borzemska, M. Niedźwiedzki, K. Rozum (2018), ‘Notariat w obliczu zmian w zakresie funkcjonowania Krajowego Rejestru Sądowego: wyzwania na przyszłość’, Rejent, 9, pp. 9–39.
[8] See e.g. E. Rott-Pietrzyk, F. Zoll, D. Szostek, M. Grochowski (2020), ‘Czynności notarialne online – podstawy de lege lata i uwagi de lege ferenda’, Forum Prawnicze, 4, pp. 38–56; K. Maj (2020), ‘Dopuszczalność składania oświadczeń woli w formie aktu notarialnego przy zastosowaniu komunikacji na odległość w obecnym stanie prawnym – polemika’, Krakowski Przegląd Notarialny, 3, pp. 127–144.