Brussels, 14/09/2010 (Agence Europe) - Delivering his conclusions in a series of cases on Tuesday 14 September, the Advocate General backed the Commission in its view that six member states (Austria, Belgium, France, Germany, Greece and Luxembourg) have failed to fulfil their obligations under the Treaty by limiting access to the profession of notary to their nationals. He says that the fact that the profession of notary is connected with the exercise of official authority cannot provide justification for direct discrimination on grounds of nationality.
According to the Advocate General, a notary is a public official who, in authenticating legal transactions, represents the state, and the Treaty provides that activities which are connected, even occasionally, with the exercise of official authority do not fall within the scope of the freedom of establishment. At the same time, his activity is also regarded as an independent profession. Thus, the Advocate General says, it is necessary to examine depending on the extent to which the exercise if public authority is involved in the activity of notary, how far the nationality clause is necessary to attain the desired objectives. He concluded that, in all the states concerned, the profession of notary is directly and specifically connected with the exercise of official authority. However, he notes that direct discrimination on grounds of nationality appears disproportionate, since among the guarantees and special characteristics which surround the profession of notary, none of them justifies a measure as severe and drastic. In particular, with regard to the oath taken by notaries before they take up their duties, the Advocate General considers that the concept of loyalty does not necessarily require a bond of nationality. Therefore, he proposes that the Court of Justice declare that, by limiting access to the profession of notary exclusively to their nationals, the six defendant Member States have failed to fulfil their obligations under the Treaty.
On infringement of Directive 2005/36 on recognition of professional qualifications, he took the view that the Commission had not raised sufficient arguments in relation to the applicability of the directive to the profession of notary and, therefore, the Court of Justice should dismiss the remainder of the action. (F.G./transl.rt)