Consumer protection in the digital environment and the transfer of head offices in the EU: these are the themes chosen by the Council of the Notariats of the European Union (CNEU) for its 4th Council of the Notariats of the European Union (CNEU) on 5-7 October in Santiago de Compostella. Its President, Mr José Manuel García Collantes, provided EUROPE with an overview of the main projects in this field. This occasion also provided him with an opportunity to highlight the legal security provided by the notary profession. (Interview by Marion Fontana)
Agence Europe - What are the issues currently being debated in the EU and on which the CNUE has taken a position?
Mr José Manuel García Collantes - In the 22 countries of the European Union where they are present, notaries exercise their function on behalf of the state which appoints them and grants them the status of public office holder within the framework of precise regulation.
It is therefore with great interest that we have taken note of the European Commission's package of proposals on the regulation of professional services. We are following the ongoing interinstitutional negotiations and we welcome the fact that notaries' services are excluded from the scope of these initiatives, which is a recognition of the ‘public service’ of the law we offer.
Another of our priorities is work on combating money laundering and terrorist financing. Notaries are directly concerned because they are at the heart of the legal framework for real estate transactions and official company documents, which are among the most significant channels for money laundering operations. Notaries are obliged to report their suspicions to the competent governmental bodies for any transaction that could be linked to money laundering.
Agence Europe - You have chosen “EU law at the service of citizens” as your theme for this fourth Congress. What are the major European legal projects you would like to see completed and why?
As more and more citizens are living, working, getting married and buying a house in a Member State other than their own, we are finding that too often their rights stop at borders.
However, significant progress has been made and we fully support this. A European regulation on international successions has now been in force since August 2015. Two regulations, one on matrimonial property regimes and the other on registered partnerships, will come into force in early 2019. These regulations aim to harmonise the rules on conflict of laws at European level and will therefore greatly facilitate the lives of citizens.
For the future, in family law and civil status law, other areas also require a common approach: legal capacity and protecting the vulnerable, filiation, adoption, marriage, etc.
Agence Europe - The Estonian Presidency of the Council of the EU has set a busy agenda for digitalisation. Do technological developments threaten the community of European notaries or are they an asset?
They are obviously an asset! Notaries have fully committed themselves to the digitalisation of their activities through the creation in some countries, for example, of the electronic authentic instrument, the use of the electronic signature or the creation of electronic registers of wills. At European level, we are the instigators of the interconnection of these registers. In addition, we encourage debate on the issue of digital identities and digital heritage.
However, let us not forget that notaries provide legal certainty for their clients. From the moment when technology is no longer a support but a constraint with potential negative effects for the state and the various economic actors, then it is necessary to evaluate its merits. For example, while states are mobilising to fight against terrorist financing and tax evasion through the creation of ‘letterbox" companies, should we commit ourselves to digitalising the process of creating companies in Europe and take the risk of undermining proven safeguards?
Agence Europe - The European Commission will present its legislative package on company law in November. What do you expect from this package? It will include measures relating to the transfer of head offices within the EU, measures of interest to European notaries, since you have made them one of the discussion areas of this Congress. What are the stakes?
In many countries, the legislator wanted to make economic life as secure as possible by entrusting the notary with exclusive competence to draft the constituent and amending acts of companies. As I said, while the international community is committed to greater transparency for companies, these proposals should not weaken the controls put in place by states in the founding process.
With regard to the transfer of company seats, we intend to present proposals for a possible directive at our Congress. This would put an end to the legal uncertainties that negatively affect European companies. At present, a transfer of seat is subject to national laws, taking into account the principles established by the Court of Justice of the European Union.
The issue of cross-border transfer of seats is particularly relevant in the context of Brexit. Many companies currently based in the United Kingdom are planning to transfer their seats to another Member State in order to maintain their status as European companies.
Agence Europe - How may the UK leaving the European Union affect your sector, for example, regarding the recognition of notarial documents? What kind of cooperation do you recommend for the future?
There are two main types of legal system in Europe: continental law, which is the most commonly shared, and common law. In the latter, the figure of the notary, a public officer holder, does not exist. That is why we do not have a UK representative among the members of the CNUE. The notarial act is an ‘authentic’ instrument, with specific effects that make it the equivalent of a court decision. This type of act does not exist in the United Kingdom.
In the context of Brexit, the definition of an authentic instrument by the Court of Justice of the European Union in its Unibank judgment (C-260/97) could naturally be imposed in the various European legislative texts.
With regard to the movement of notarial acts and the type of cooperation to be set up, it is still too early to decide. If the United Kingdom were to be considered a third country, then this would require settling conflicts of laws with the EU through bilateral conventions and, possibly, the reinstatement of intermediate measures such as exequatur and legalisation for the recognition of acts coming from that country.