Case C‑392/15

European Commission

v

Hungary

(Failure of a Member State to fulfil obligations — Article 49 TFEU — Freedom of establishment — Notaries — Nationality requirement — Article 51 TFEU — Connection with the exercise of official authority)

Summary — Judgment of the Court (First Chamber), 1 February 2017

1. Freedom of establishment—Exceptions—Activities connected with the exercise of official authority—Concept—Activities constituting a direct and specific participation in the exercise of official authority

   (Art. 51, first para., TFEU)

2. Freedom of establishment—Exceptions—Activities connected with the exercise of official authority—Notarial activities—Not included—Nationality requirement for access to the notarial profession—Not permissible

   (Arts 49 TFEU and 51, first para., TFEU)

1.  See the text of the decision.

   (see paras 105-108)

2.  By imposing a nationality requirement for access to the notarial profession, a Member State fails to fulfil its obligations under Article 49 TFEU where the activities carried out by notaries in the legal order of that Member State have no connection with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU.

   First, as regards the activity of issuing orders for payment, it must be held that a notary’s powers in that regard, which are based entirely on an alignment of the wishes of the creditor and debtor and leave intact the prerogatives of the courts should the parties fail to reach an agreement as to whether the debt is outstanding, do not have any connection with the exercise of official authority.

   Secondly, in inheritance matters, since the tasks entrusted to notaries are carried out on a consensual basis and have no impact on the power of the courts in the absence of an agreement between the parties, nor may those tasks, consequently, be regarded as having, in themselves, a direct and specific connection with the exercise of official authority.

   Thirdly, as regards the depositing of monies with a notary, that activity does not involve the exercise of decision-making powers, since the role of notaries is limited to verifying compliance with legal requirements.

   Fourthly, as regards the activity of authentication entrusted to notaries, it does not, of itself, involve a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU, since the notary’s intervention thus presupposes the prior existence of an agreement or consensus between the parties. Similarly, nor does the enforceability of an authentic instrument reflect powers held by the notary which are directly and specifically connected with the exercise of official authority, since that enforceability is based on the intention of the parties to enter into an act or agreement, after its compliance with the law has been checked by the notary, and to make it enforceable.

   With respect, fifthly, to notaries’ powers with respect to the prior gathering of evidence and the appointment of a judicial expert, they constitute ancillary or preparatory activities with respect to the exercise of official authority.

   As regards, sixthly, the notary’s power to annul negotiable instruments and certificates which have been lost, stolen or destroyed, it does not involve the exercise of decision-making powers since it does not entail the avoidance, in civil law, of the legal relationship underpinning the instrument, but only creates the possibility of issuing a new instrument, which replaces the previous one.

   Finally, with respect to the activities carried out in connection with the dissolution of registered partnerships, a notary’s powers are based entirely on the wishes of the parties and do not affect the powers of the courts in the absence of an agreement between the parties, and accordingly do not have any connection with the exercise of official authority. As regards the entry of information in the register of declarations of partnership and in the national register of marriage contracts and the national register of partnership contracts, the Court has already held that activities relating to measures for the publicity of deeds do not reflect a direct and specific exercise of official authority by the notary.

   (see paras 111, 116, 118-120, 125, 130-132, 135, 136, 140, 143, operative part)