Page 34 - MONACO LAW REVIEW 2025-2

Nathalie AUREGLIA-CARUSO
Notary
Notaries in Monaco simultaneously exercise the functions of
“public offi cer” and “ministerial offi cer”. In their capacity as
ministerial offi cers, they hold for life a State-granted notarial
offi ce, also referred to as an “offi ce”, conferred by the State.
They practise independently within the framework of a public
service mission. In their capacity as public offi cers, they are
vested with delegated public authority and are the only
professionals empowered to confer authentic form on the
instruments falling within their jurisdiction, the enforceable
and authenticated copies of which must bear their Seal
reproducing the Prince’s coat of arms.
Their principal mission is to prepare and execute all instruments
and agreements for which the parties must, or wish to,
obtain authentic form, to certify their date, to retain them
in their custody, and to issue enforceable and authenticated
copies. Instruments executed before a notary have probative
force before the courts and are enforceable throughout
the Principality. In addition to their role as authenticating
offi cers, notaries also act regularly as legal advisers, providing
expertise on a broad range of matters, including the formation
of companies, commercial contracts and the tax implications of
certain transactions.
The question of the professional secrecy binding Monegasque
notaries is therefore a matter of particular importance, one that
is complex and… remains consistently relevant.
In Monaco, as in France, the existence of the notary’s
professional secrecy dates back several centuries. The
Sovereign Ordinance of 4 March 1886, which established
the modern Monegasque notarial system and has statutory
effect, remains in force.
DOCTRINE
STUDY
The Professional Secrecy
of the Monegasque Notary
Amended only in minor respects, it reproduces—while
adapting it to the specifi c features of the Principality—the
French statute governing the organisation of the notariat
enacted on 25 Ventôse, Year XI (16 March 1803).
Thus, Article 23 of that statute1 appears today as Article 24
of the Sovereign Ordinance of 4 March 1886 (as amended by
Law No. 783 of 15 July 1965), which provides as follows:
“Notaries may not, without an order of the President of the Court of
First Instance, issue an authenticated copy or disclose the contents
of instruments to any persons other than the parties directly
concerned, their heirs or assigns, on pain of liability in damages,
a fi ne of twenty francs, and, in the event of a repeat offence,
suspension from offi ce for two months, without prejudice, however,
to the enforcement of the laws on registration and those relating to
instruments required to be published before the courts.”
Article 23 of the statute enacted on 25 Ventôse, Year XI, is
directly inspired by Article 177 of the Ordinance of Villers-
Cotterêts of 1539, which stated that “all notaries and tabellions
(a now-defunct category of notarial offi cer) are forbidden
to show or disclose their registers, books or protocols, save to the
contracting parties, their heirs and successors, or to others to whom
the rights under the said agreements would manifestly belong, or
where disclosure has been ordered by a court.”
The 1886 Ordinance does not establish a general obligation
of secrecy as such, but rather imposes a restriction on the
disclosure of notarial instruments which, at the time, was
regarded as equivalent to the modern notion of professional
secrecy. This is evidenced by the fact that, to this day, the
professional secrecy of French notaries continues to rest upon
Article 23 of the statute enacted on 25 Ventôse, Year XI, together
with Article 3.4 of the French National Notarial Regulations,
approved by Order of the Minister of Justice dated 22 July 2014.
1 | “Notaries may not, without an order of the President of the Court of First Instance, issue an
authenticated copy or disclose the contents of instruments to any persons other than the parties
directly concerned, their heirs or assigns, on pain of liability in damages, a fi ne of 100 francs, and, in the
event of a repeat offence, suspension from offi ce for three months, without prejudice, however, to the
enforcement of the laws and regulations on registration duties and those relating to instruments subject
to publication. (And also except for commercial companies and insurance companies, any person may
obtain authenticated copies. Law of 24 July 1867, Article 63, and Decree of 23 January 1868, Article 42).”
32