1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Exceptions – Activities connected with the exercise of official authority – Activities of civil-law notaries – Not included – Nationality condition for access to the profession of civil-law notary – Not permissible
(Arts 43 EC and 45, first para., EC)
2. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action – Adaptation following a change in European Union law – Lawfulness – Conditions
(Art. 226 EC)
3. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion – Situation of uncertainty as a result of particular circumstances during the legislative procedure – No failure to fulfil obligations
(Arts 43 EC, 45, first para., EC and 226 EC; European Parliament and Council Directive 2005/36)
1. A Member State fails to fulfil its obligations under Article 43 EC if its legislation imposes a nationality condition for access to the profession of civil-law notary, where the activities entrusted to notaries in that Member State’s legal system are not connected with the exercise of official authority within the meaning of the first paragraph of Article 45 EC. The first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment which must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect. Moreover, the exception must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority.
To ascertain whether the activities entrusted to notaries involve a direct and specific connection with the exercise of official authority, account must be taken of the nature of the activities carried out by notaries. In this respect, the various activities performed by notaries do not involve a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 45 EC, despite the significant legal effects of their acts, in so far as either the wishes of the parties or the supervision or decision of the court are of particular importance.
First, as regards authentic instruments, the only documents and agreements that are authenticated are those which the parties have freely entered into, whereas the notary cannot unilaterally alter the agreement he is called on to authenticate without first obtaining the consent of the parties. Furthermore, while the notary’s obligation of verification indeed pursues an objective in the public interest, the mere pursuit of that objective, however, can neither justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned, nor be sufficient for an activity to be regarded as directly and specifically connected with the exercise of official authority.
Secondly, as regards enforceability, while the notary’s endorsement of the authority to enforce on the authentic instrument does give it enforceable status, that status is based on the intention of the parties to enter into a document or agreement, after its conformity with the law has been checked by the notary, and to make it enforceable. Similarly, the probative force of a notarial act derives from the rules on evidence and has no direct effect on whether the activity which includes the drawing up of the document is in itself directly and specifically connected with the exercise of official authority, especially as a notarial act does not unconditionally bind a court exercising its power of assessment, since the judge decides in accordance with his own firm conviction.
The above considerations apply mutatis mutandis to transactions which must be done by means of a notarial act if they are not to be void, such as contracts for the acquisition and transfer of the ownership of land, agreements for the transfer of assets, promises of gifts, marriage settlements, agreements on future successions and renunciations of inheritances or of the reserved portion of an estate, and the actions of notaries in connection with company law.
Nor can a Member State rely in this respect on the power of notaries, conferred on them in a particular Land , to authenticate the declarations establishing a same-sex civil partnership, since for such a partnership to take effect it must also be entered in the register of civil partnerships by the register authority, which is moreover responsible for the administration of that register.
Finally, as regards the particular status of notaries, it follows, first, from the fact that the quality of the services provided may vary from one notary to another, depending in particular on their professional capabilities, that, within the geographical limits of their office, notaries practise their profession in conditions of competition, which is not characteristic of the exercise of official authority. Secondly, the notary is solely liable for the actions carried out in his professional activity.
(see paras 83, 85-86, 88-89, 91-92, 95-97, 99-101, 103, 106-111, 116)
2. In an action for failure to fulfil obligations, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of a European Union measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new European Union measure. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which have no equivalent in the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings.
(see para. 128)
3. Where, during the legislative procedure, particular circumstances, such as the absence of a clear position on the part of the legislature or the lack of precision in the determination of the scope of a provision of European Union law, give rise to a situation of uncertainty, it is not possible to conclude that, at the close of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose a directive.
(see paras 140-142)