Brussels, 24/05/2011 (Agence Europe) - The main court of the European Court of Justice has ruled that Belgium, France, Luxembourg, Austria, Germany and Greece have failed to meet their responsibilities by reserving access to their respective national notary professions. According to the ECJ, the activities of notaries, as currently defined in the states in question, certainly pursue the objectives of general interest but “do not participate in the exercise of public authority” as in the sense outlined in the EC Treaty. The notary profession is not, therefore, exempt from application of the rules on freedom of establishment. The decision is important because it could introduce appropriate jurisprudence for other regulated professions.
On the other hand, the ECJ rejected the complaint made by the Commission against Portugal and the five above-mentioned states (except France) for not having applied the directive on the recognition of professional qualifications to notaries (89/48/EEC), because it considered that there was still a degree of uncertainty about the existence of a sufficiently clear obligation on member states to transpose the directive.
On these issues, the ECJ is expected to give its opinion on the shortcomings in the appeal made by the Commission against the above-mentioned states. It is due to provide a response on whether the activities involved in exercising the profession of a notary are also part of exercising public authority and as such, to what extent they are exempt from rules on the freedom of establishment (Article 51 of the TFUE).
Above all, it explains that the Commission's appeal focuses exclusively on the conditions of nationality and not on other conditions determining access to the profession or on the status and organisation of of the notariat within the legal framework of the states concerned. Another introductory precision explains that only the activities that are directly and specifically involved in exercising public authority can be exempt from the application of the principle of freedom of establishment.
On this basis, the ECJ is seeking to verify whether the competences of the notaries in the member states “participate directly and specifically in the exercise of public authority”. It notes that in this regard, in the capacity of public servants, notaries should mainly be involved in authenticating legal acts or conventions into which the different parties have freely entered (contracts or otherwise). This activity of authentication does not include direct and specific participation in the exercise of official authority, insofar as a preliminary agreement is necessary between the parties in order for a notary to be required and the latter cannot in any way amend the convention concluded between the different parties without their consent.
In second place, the fact that the activity exercised by notaries pursues an objective in the public interest, in guaranteeing the legality and legal security of the acts concluded between individuals, is not enough, in itself for that activity to be regarded as directly and specifically connected with the exercise of official authority. Activities exercised in the context of other regulated professions involve the same objective, without falling within the exercise of official authority. The probative force of notarial acts and their enforceability are not appropriate characteristics either, with regard to exercising official authority, given that the first results from regimes determining proof in member states and the second is based on the willingness of the different parties to ensure enforceability of the act in question. This is also the case for other activities exercised by notaries (real estate repossessions, inheritance law), given that they are monitored by a judge or comply with the wishes of the client in question. Finally, notaries exercise their profession in conditions of competition, which is not characteristic of the exercise of official authority. Similarly, they are directly and personally responsible for their clients and damages resulting from any mistakes committed in the exercise of their activities, unlike the public authorities, whose liability and mistakes are assumed by the state.
The Council of Notariats of the European Union has responded to this ruling and appreciates that the ECJ recognises the specificities of the role of the notariat in upholding the imperative of the general interest and that member states maintain their power to decide the conditions for exercising the profession of a notary. European notaries also consider the possibility of welcoming non-nationals into their ranks as a positive benefit. (F.G./transl.fl)