28 mai 2011
Access to the profession of notary for foreign EU nationals, Commission v 11 States, C-47/08, etc.
Starting from now, any EU citizen can work as a notary anywhere in the EU regardless her nationality. As it was foreseeable for political reasons, the European Commission supported by the UK won its actions against Belgium, France, Austria, Germany, Greece, and Portugal supported by Czech Republic, Latvia, Lithuania, Hungary and Slovakia (11 resisting States in total) before the Grand Chamber of the ECJ.
The ECJ constructed two main reasoning chains:
1) The freedom of establishment is a fundamental provision (§ 77), it must be interpreted very broadly (§ 78), and it embraces the notary activity as an activity of self-employment (§ 79).
2) Contrary to the vision of 11 States, the ECJ did not recognize the notary activity as “exercise of official authority”, since a prohibition to establishment is an exception to be interpreted narrowly. A notary may not work without a prior consensus of the parties (§ 90), she cannot unilaterally alter this consensus (§ 91), and her decision is a subject to judicial supervision (§ 107). The companies acquire legal personality only following the filing of the constituent act with the respective company registry (§ 114). Therefore, there is no “direct and specific connection” with the exercise of official authority.
The exciting legal strategy of the interested parties consisted in filing a complaint against 11 States to the European Commission, and requesting to sue all of them, instead of taking a direct domestic action.