FREEDOM OF ESTABLISHMENT : ECJ: ACCESS TO PROFESSION OF NOTARY MAY NOT BE RESERVED TO NATIONALS.

• Position: European Union Court of Justice

The EU Court of Justice issued long-awaited judgements, on 23 May, against seven member states for discrimination on grounds of nationality because they reserve access to the profession of notary to their own nationals(1).

The issue for these states and for the ten others that supported them was to defend the claim that notaries exercise official authority and are therefore exempted from rules on freedom of establishment. The court ruled otherwise, finding that while notaries pursue objectives in the public interest, their activities are not connected with the exercise of official authority within the meaning of the EC Treaty.

The Commission brought actions for failure to fulfil obligations against six member states (Belgium, Germany, Greece, France, Luxembourg and Austria) because they reserve access to the profession of notary to their own nationals. It also complained that Portugal and these member states, other than France, do not apply the directive on recognition of professional qualifications (Council Directive 89/48/EEC of 21 December 1988) to notaries.

EXERCISE OF OFFICIAL AUTHORITY

The court explained first that the actions concern solely the nationality condition imposed by the national laws in question for access to the profession of notary and not the organisation of the notarial profession as such. Analysing the powers of notaries in the states concerned, it observed that, as public officials, the main function of notaries is to authenticate legal instruments and their intervention supposes the prior existence of consent of the parties. Notwithstanding the fact that this is mandatory for certain acts, which is a mere formal requirement, the authentication activity cannot be regarded as directly and specifically connected with the exercise of official authority. The fact that the activity of this profession pursues an objective in the public interest does not change this conclusion because other professions pursue such an objective without falling within the exercise of official authority. Similarly, the probative force of notarial acts or their enforceability has no direct impact on the classification of the notarial...