Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria

(Case C-53/08)

(2008/C 107/23)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Braun und H. Støvlbæk, Agents)

Defendant: Republic of Austria

Form of order sought

Pleas in law and main arguments

Article 43 EC prohibits any discrimination based on nationality which results from legislation in the form of restrictions on freedom of establishment. Pursuant to the first paragraph of Article 45 EC, the chapter on the right of establishment does not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority.

Pursuant to the Notariatsordnung only Austrian nationals may be appointed notaries in Austria. The provision in question therefore discriminates on the basis of nationality and infringes the freedom of establishment of nationals of other Member States, by preventing them from exercising the profession of notary.

The Commission takes the view that the activities of notaries do not fall within the exception of Article 45 EC so that freedom of establishment is applicable to that profession.

In order to reply to the question of what ‘official authority’ means for the purposes of Article 45 EC, reference should be made, first, to the interpretation at national level. Activities which, in one Member State, do not fall within the sphere of official authority cannot be relied upon for the purposes of the exception, even if the same activities fall within the sphere of official authority in other Member States. Second, for the interpretation within the meaning of Article 45 EC, the concept and scope of official authority must be determined from the point of view of Community law and its meaning must be interpreted by the Court in an independent and uniform manner. The fact that the Austrian legislature and the Austrian courts regard activities of notaries in principle as participation in national official authority does not mean that those activities may therefore be excluded from freedom of establishment according to the stricter Community law assessment. As an exception to a fundamental freedom, the first paragraph of Article 45 EC must be interpreted restrictively.

In the current state of integration, it is extremely difficult to find a substantive justification for the nationality condition in relation to the activities of notaries. None of those activities, even if they are of a sovereign nature, requires the relationship of a particular connection with the State, as in the case of nationality. In addition, none of those activities risks, through the exercise of sovereign authority and the deployment of State powers, creating conflicts with nationals.

The activities put forward by the Republic of Austria for the justification of the nationality requirement — authentication of legal transactions and agreements, the insertion of an enforcement clause, legal advice and the activity of the ‘Gerichtskommissar’ (notary appointed by the court to carry out certain procedural acts) — are not sufficient to justify the application of Article 45 EC. In so far as those activities actually participate in the exercise of official authority, they do so only in an indirect manner. The exercise of official authority should moreover not be confused with activities in the public interest. Public benefit does not necessarily form part of official authority; activities which seek to promote the general interest and not the interest of individuals do not necessarily presuppose the transfer of official authority. Whilst the actual exercise of official authority may continue to be reserved for a Member State's own nationals, the exercise of a given activity in the general interest which, for example, is the case in respect of the administration of justice for preventive purposes may also be guaranteed by making access to the profession and the professional duties subject to specific rules and control.

The Commission therefore takes the view that none of the activities, considered separately or altogether, with which notaries in Austria are concerned, constitutes direct and specific participation in the exercise of official authority within the meaning of the case-law.