24.5.2008

Official Journal of the European Union

C 128/19

Action brought on 12 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-51/08)

(2008/C 128/32)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: J.-P. Keppenne and H. Støvlbæk, agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

The applicant claims that the Court should:

—

declare that, by laying down a nationality requirement for access to the profession of notary and by failing to transpose Council Directive 89/48/EEC (1) in respect of the occupation of notary, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty, in particular Articles 43 and 45 EC, and Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration;

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

By its action, the Commission first of all alleges that the defendant, by laying down a nationality requirement for access to the profession of notary and its practice, disproportionately restricts freedom of establishment as laid down in Article 43 EC. Admittedly, Article 45 EC exempts from the application of the chapter relating to the right of establishment activities connected directly and specifically with the exercise of public authority. According to the Commission, the tasks entrusted to notaries under Luxemburgish law are so distantly connected to the exercise of public authority that they do not fall within the scope of that article or warrant such a restriction of the freedom of establishment. Those tasks, in fact, do not confer on notaries a power of coercion and less restrictive measures than a nationality requirement could be laid down by the national legislature, such as subjecting the operators concerned to strict conditions for access to the profession, specific professional duties and/or a specific test.

By its second complaint, the Commission further alleges that the defendant failed to fulfil its obligations by failing to transpose Directive 89/48/EEC in respect of the profession of notary. As it is a regulated profession, the directive is fully applicable to that profession and the high level of qualification required of notaries could easily be guaranteed by an aptitude test or an adaptation period.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration (OJ 1989 L 19, p. 16).