Keywords
Summary

Keywords

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 requirement for access to notary profession – Not permissible

(Arts 43 EC and 45, first para., EC)

Summary

A Member State whose legislation imposes a nationality requirement for access to the profession of notary fails to fulfil its obligations under Article 43 EC, where the activities entrusted to notaries within the legal order of that Member State are not connected with the exercise of official authority within the meaning of the first paragraph of Article 45 EC. In that regard, 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 in order to safeguard the interests which that provision allows the Member States to protect. In addition, that exception must be restricted solely to activities that are, in themselves, directly and specifically connected with the exercise of official authority.

In order to assess 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 that regard, the various activities carried out by notaries lack a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 45 EC, notwithstanding the significant legal effects conferred on their acts, in so far as either the intention of the parties or judicial supervision or decisions have particular importance.

First, as regards authentic instruments, the only documents that may be authenticated are documents and agreements freely entered into by the parties, while a notary cannot unilaterally alter the agreement which he is called on to authenticate without obtaining the prior consent of the parties. Further, while the obligation of verification incumbent on notaries admittedly pursues an objective in the public interest, the mere pursuit of that objective cannot, however, justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned and is not, in itself, sufficient for an activity to be regarded as directly and specifically connected with the exercise of official authority.

Secondly as regards enforceability, while a notary’s endorsement of authority to execute on an authentic instrument does give it enforceable status, that status is based on the intention of the parties to sign a document or agreement, after its conformity with the law has been checked by the notary, and confer enforceability on it. Likewise, the probative force enjoyed by notarial acts derives from the rules on evidence and thus has no direct effect on whether the activity which includes the drawing up of the document in question is in itself directly and specifically connected with the exercise of official authority, the more so when an instrument under private signature, in accordance with the law of the Member State concerned, is as conclusive as an authentic instrument.

The same is true of acts such as gifts, marriage settlements, mortgage instruments, sales of land and buildings to be erected thereon and transferable agricultural leases, which must be executed by notarial act, failing which they are void, acts in which the intention of the parties predominates and the pursuit of a general interest cannot be sufficient for those activities to be regarded as directly and specifically connected with the exercise of official authority. As regards the tasks entrusted to a notary of collecting taxes, those tasks cannot in themselves be regarded as constituting a direct and specific connection with the exercise of official authority. That collection of tax by a notary is on behalf of a debtor, the sums involved being then sent to the competent State authority, and accordingly is not fundamentally different from the collection of value added tax.

Lastly, as regards the specific status of notaries, in the first place, it follows 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 boundaries of their office, notaries practise their profession in conditions of competition, which is not characteristic of the exercise of official authority. In the second place, notaries are directly and personally liable to their clients for harm or loss resulting from any fault committed in the exercise of their activities.

(see paras 72, 74-75, 77-82, 84-86, 90-100, 106, 109)