In response to the COVID-19 pandemic, the Royal Federation for Belgian Notaries (FedNot) has issued strict guidelines on how Belgian notaries should deal with the current situation, in addition to the generally applicable measures, such as social distancing, already in place. These guidelines are relevant for any person or company intending to sign a notarial act in the coming weeks and may make the signing of such acts easier even after the current situation.
In order to limit the spread of the virus, physical contact should be avoided insofar as possible and gatherings at a notary's office kept to a minimum. Therefore, Belgian notaries have been instructed to restrict the scope of their activities and to allow the execution of notarial acts only if the act is extremely urgent or if failure to execute the act would give rise to considerable adverse financial consequences (for example in the case of a capital increase, corporate reorganisation, contribution, etc.). Consequently, the notary involved must assess on a case-by-case basis whether the act is extremely urgent or whether a considerable financial loss could arise in the absence of execution of a notarial act. Needless to say, this arrangement gave rise to some uncertainty and concerns among citizens.
New virtual procedure
In response to these concerns and in order for notaries to remain fully accessible in these challenging times, FedNot and Minister of Justice Koen Geens announced in a press release on 10 April 2020 the concept of a digital power of attorney, which will make it possible to execute notarial acts without physical presence at the notary’s office. This digital solution entails the grant of a power of attorney by way of video conference, combined with specific identification and signing methods, to an employee of the notary or to a trusted person to sign the notarial act.
The new virtual procedure is a welcome alternative to physical presence at the notary's office, given that it will allow non-urgent acts to be executed without endangering the health and safety of the parties involved.
The New Act
The Act of 6 May 2009 containing various provisions, which entered into force on 29 May 2009, introduced a general legal framework for registered notarial acts (authentieke aktes/actes authentiques) in dematerialised form, in connection with the creation of a Notarial Acts Database (Notarieel aktebank / Banque des actes notariés) (NABAN). The Act of 6 July 2017 (Potpourri V Act) sets out the modalities and conditions for the administration of NABAN by FedNot. However, it was not (yet) possible to execute notarial acts by means of an electronic signature.
The Act of 30 April 2020 containing various provisions on justice and notarial acts in the context of the fight against the spread of Covid-19 (the New Act) sets out a number of practical terms and conditions for the recordation and preservation of dematerialised acts and the annexation of private proxies in NABAN. The New Act entered into force on 4 May 2020.
The New Act introduces new Article 18quinques into the Act of 16 March 1803 on notarial practice in order to allow the execution of a digital power of attorney remotely and in official form (authentieke vorm/forme authentique) by means of a video conference set up by the notary. Due to the need for proper identification of the parties involved and for a legally enforceable and undisputable electronic signature, the New Act requires the parties to use one of only two methods for both identification and signing:
- the Belgian electronic ID card or "eID", available to Belgian residents regardless of nationality and Belgian nationals abroad; or
- itsme, a mobile application currently limited to Belgium, but with international aspirations.
The Belgian government could add other methods to this list, but most likely only for “qualified electronic signatures” within the meaning of the eIDAS Regulation (EU Regulation 910/2014). In other words, for foreign nationals residing abroad, this process will not be a full solution, and it may still be necessary to grant a power of attorney to an authorised representative (e.g. a Belgian lawyer).
The notary notifies the parties in advance when the videoconference will take place. The party granting the power of attorney only needs an Internet connection and either (i) a Belgian eID (with an associated PIN) and an eID reader or (ii) the itsme app.
In principle, a digital power of attorney can be granted from any location, including abroad. Before the digital power of attorney is electronically signed, the notary will provide the parties with necessary information about the power of attorney and the notarial act for which it is granted. A digital power of attorney can be granted to an employee of the notary or to a trusted person. Each party can ask questions via the video conference. Afterwards, the parties sign the digital power of attorney with their eID or itsme. Thanks to the use of a recognised (Belgian) qualified electronic signature and the explanations provided by the notary, such a remotely established power of attorney offers the same guarantees as a traditional one and leaves no room for discussion as to its authentic or probative value.
Furthermore, during this exceptional period, the grant of a digital power of attorney by video conference is free of charge for the parties involved: there are no notary's fees, costs, taxes or other expenses.
It will be possible to use a digital power of attorney for most notarial acts, in a wide range of corporate and other transactions: deeds of sale and donation, the instrument of incorporation of a company, capital increases or decreases, etc. Companies will no longer have to justify the urgent nature of a notarial act or prove adverse financial consequences in the absence of execution thereof. In addition, due to the economic effects of the COVID-19 pandemic, many companies are facing economic and liquidity challenges and may therefore seek financial (restructuring) arrangements. The digital power of attorney will also make it easier to grant a mortgage or mortgage authorisation.
One upside of the COVID-19 pandemic is that it has fast tracked the digitalisation processes of many public, financial and other institutions, which will benefit companies in the future and contribute to the steady recovery of the economy.
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