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News
Latest News 30-11-2006
CNUE replies to my open letter
The President of the CNUE has replied to my open letter to CNUE. However, the reply actually only says that they are unable to reply, as their status prevents them giving legal consultations.
This is of course nonsense, and I have replied as set out below.
I attach PDFs of their email back and letter and my reply in PDF and my reply in Word.
We all wait to see if CNUE, or indeed any notary in Europe, can defend the absurd nationality requirement with reasoned arguments and proof.
Brussels Press Release – Commission issues a Reasoned Opinion to Member States on the nationality condition. Brussels insists this condition is dropped.
My solution for solving the matter quickly and with as little expense to the taxpayer as possible – an open letter to CNUE
Comments and a challenge to CNUE and continental notaries
On the 12th October 2006, the European Commission announced that it was issuing a reasoned opinion on the question of nationality bars for notaries.
The text of that announcement is here:
I warmly welcome this, especially if the decision is followed through swiftly. As the articles below demonstrate, I initiated the complaint about the nationality restrictions with a letter in 1995, which has finally brought us to this point. Getting the Commission to act at all (which they refused to do initially) was itself a battle. I think it is unlikely anyone anywhere will be happier than me at this point. I have a way of quickly resolving the legal points which I outline in my open letter to CNUE here : -
Open letter to Clarisse Martin (which is also in Word at the end of this introduction]
My concern is that the Member States will do the minimum necessary to avoid prosecution, instead of accepting that notaries are in essence the same as any other legal profession. That is to say, notaries should be subject to the same rules on rights of establishment and freedom to provide services, and with the same rights for lawyers qualified in one jurisdiction to qualify in another, (after passing any necessary, proportionate and reasonable examinations as may be objectively required).
These rules have been shown to work in the case of solicitors, avocats etc in every country in the EU. There is no reason whatever they cannot apply to notaries, and there is every reason to say that they must apply, since the fundamental freedoms and duties granted and imposed by the EU Treaty apply to everyone, unless and until those trying to prevent the exercise of these freedoms can prove they have an exemption. Moreover, such exemptions as may be granted must be limited to what is strictly necessary in the public interest, so that the great aims of the EU Treaties are not frustrated.
So, far, so simple. However, my experience shows that the reality may not work that way.
What will happen next? My experience so far
Since my initial complaint over a decade ago, Spain, Portugal and Italy have dropped the nationality condition. However, not one non national is yet working there as a notary, to my knowledge. I have applied to all three countries to work, with the result that (a) Spain refuses to let me do so (b) Italy refuses to reply (c) Portugal has not replied either.
Spain
Spain argues that I am not allowed to work there because, even though the nationality condition has been dropped, since it believes that notaries are still totally outside the rights to free movement guaranteed by the EU Treaty. The Spanish authorities argue that notaries exercise official authority under Article 45 of the EU Treaty, and that therefore they are not obliged to let me or any other non-Spanish qualified notary work there, even for 5 minutes, as an English and international notary, dealing with matters that have nothing to do with Spanish law. They also state that Directive 89/48 does not apply and that I would have to take exactly the same examination as every Spanish notary, with no allowance being made for my many years’ experience as a notary and solicitor nor for my notarial qualifications.
That Spanish notarial exam is defined to fail as many people as possible, takes around a decade to pass, and guarantees to the tiny few who pass a position for life in a market where the total number of notaries, and the places they may open their offices, is controlled by the state.
To those readers who have looked at the comparable history of solicitors and other lawyers in Europe, the arguments will be tiresomely similar to those formerly used, (and still employed in some quarters) against solicitors working abroad. France used to argue that only French lawyers could give advice on English law in France, and the Spanish position is basically an echo of this.
The particular problem Spain has, however, is that once you have dropped the nationality condition there is no way that you say that the Article 45 defence applies. Article 45 allows a state to restrict certain activities (not professions) to its own citizens if, but only if, the general interests of the state are involved and the activity involves the exercise of coercive power over citizens outside the general law. The idea is that there are some professions where it would not be acceptable to have a non-national doing the work, those involving such exalted State interests, and a power of coercion.
The corollary is obvious. Once, like Spain, you have admitted that any EU national can do the job, you have agreed that it is not a job which needs to be reserved to your own citizens and so Article 45 cannot apply.
Spain will not accept this point because, I suggest, its main brief is to protect Spanish notaries. Indeed the problem with many of the national authorities in the EU is, I suggest, that of regulatory capture. Instead of controlling and regulating notaries for the common good, governments are becoming mouthpieces for the views of the profession.
This is partly why the level of debate is so abysmally poor. Notaries know that the entire body of EU law is against them. The best thing to do with debate is to avoid it altogether, or to take refuge in grand pronouncements, without dealing with the specifics.
Italy and Portugal
Both have not replied to my applications and Italy has been asked to do so by my MEP, Mr John Bowis, a man I heartily commend and thank. His prompting has got me replies on many occasions, (but not from Italy!) but then I think Italy are going for the long game of avoidance, denial and pretence. The Italian authorities, I suggest, do not have the courage to set out their views one way or the other. I have just lodged a further official complaint against them (12th October 2006, five hours before I heard of the news from Brussels!)
The Portuguese will no doubt do the same and I will be reporting them in due course. As I mentioned to the Commission in 1995, I am going to build an EU wide notarial business, and I am not going to let this be stopped by the intransigence of Portugal, Italy, Spain or indeed anyone else.
So what will the EU nations with nationality restrictions do after they are forced to drop the restrictions and notaries from other countries apply to work there?
I suggest the ostrich gambit, i.e. hide and refuse to answer, will be the preferred one for many EU countries.
The infringing countries will:
- like Italy, say that they will drop the nationality condition, take about 8 years to do so, then ignore or lose applications from migrant notaries such as myself.
Then, when forced to reply, they will revert to the Spanish gambit, insisting that
- notaries have to requalify again from scratch,
- that practice under home title is forbidden,
- that migrants have to wait their turn in the queue until current notaries retire or die, before they can be allowed to practise, and that
- notaries can only practice in the areas decreed by the government from time to time. Mysteriously, there will be no vacancies for migrant notaries.
There will be a whole series of cases, dragged out for years, with the sole aim of protecting notaries from competition for as long as possible.
I detect a whiff of support for this in the second part of the press release from Brussels, and will be pushing to ensure that the Commission acts more promptly in dealing with phase 2 of the battle. Let us remember, the nationality condition is a symptom, the disease is the total lack of willingness of nation states to open the market for notarial services to open competition. It is the disease which must be eradicated, not only the symptoms.
So what? Isn’t this just a problem for you migrant notaries?
Lack of competition means a lack of motivation to develop the skills and services which serve the public. I will give just three examples, though many readers will add their own. In Portugal there can be delays of up to three months to see a notary. Italian clients fly to London to get documents notarized to save delay in Italy. Notaries are often only trained in the laws of their own jurisdiction, while the clients are mobile, born in one country, working in another, doing business in yet other countries. They often need the advice that only a foreign trained notary may be able to supply, or they may need the advice of one who has practised in more than one country.
The current structures do not encourage, indeed scarcely permit, the introduction of new skills and perspectives. Free movement will not abolish existing notaries. They will keep their right to work. Free movement simply open that market to competition.
And by the way, you did hear it here first
I add below some references to my earlier steps in this matter.
Articles published in the official magazine for English solicitors - The Law Gazette
Articles on my challenge
http://www.lawgazette.co.uk/news/general/view=newsarticle.law?GAZETTENEWSID=26296
http://www.lawgazette.co.uk/news/general/view=newsarticle.law?GAZETTENEWSID=26460
http://www.lawgazette.co.uk/features/view=feature.law?FEATUREID=265572
My Challenge to CNUE and continental notaries
Open letter to Clarisse Martin, Director of the Conference of the Notariats of the European Union (CNUE):
To view in .pdf click here
KOBER-SMITH & ASSOCIATES
NOTARY PUBLIC
6 CARLOS PLACE LONDON W1K 3AP
TELEPHONE: 020 7499 2605 FAX: 020 7907 9939
E-MAIL: notary@notarypublicinlondon.com
WEBSITE: www.notarypublicinlondon.com
14th October 2006
Ms Clarisse Martin,
Director, CNUE
Email: info@cnue.be
Dear Ms Martin,
Notaries – A quick way to resolve the dispute over nationality barriers
I was interested to see the Press Release from CNUE on 12th October. I would like to have a debate, published on the Internet, as to exactly why CNUE thinks that notaries should be exempt from the free movement provisions of the EU treaty. I am happy to publish my legal arguments in full, and trust that you are too.
As the articles on my website indicate, I see absolutely no evidence whatever that notaries in Europe ever do exercise “official authority” in the only sense which is relevant, i.e. as defined by the Court of Justice.
As you know, such an exemption could only apply to activities, not professions as a whole. Since CNUE represents a multitude of nations, it would be interesting to see exactly what notarial activities you claim do demonstrate the exercise of such coercive authority. I cannot think of one.
If you can - could you please provide details of exactly what notarial activities are supposed to show the use of official authority, how the coercive power is exercised, how the State’s own power is involved, and what percentage of a notary’s time and activity is spent in such acts?
Could you do this for each country, on a case by case basis?
I do not think such an exercise will take you very long, since I do not think there are any such acts. But if time is short, let us restrict the examples to France, Italy and Spain.
As you know, the case law specifying that only activities are covered by Article 45 has been established since the case of Reyners. You would have needed to prepare the statistics I am asking for years ago, to answer any case in the Court of Justice.
As it stands, you seem to be arguing that, since the European Parliament thinks that notaries are public officials this means they are exempt from free movement. As a matter of law, of course, the opinion of the European Parliament is irrelevant when it comes to deciding what the Treaty means. I trust you will welcome my invitation to a debate, and publish some reasons , if you have one, which have some legal weight.
I invite you to welcome with open arms the court case which will hopefully follow shortly. Evidently, if you are sure of your argument, this will be your chance to prove it. If CNUE is right, it will be proved so in Court, and will be entirely vindicated.
However, cases the Commission takes to court take longer to get to the Court of Justice than referrals from private cases and I have a suggestion which will save us all in the EU a lot of time and money.
Would you like to save the taxpayers money by agreeing that I sue France for not allowing me to practise there, and agreeing that I and the French government and the French notarial profession and any other interested party make a joint appeal to the judge at first instance in France to refer the matter to the Court of Justice immediately? CNUE would pay all costs, and the matter would then be heard relatively swiftly.
That would be quicker than a Commission case (which could drag on for years and might not get to the Court of Justice for a long while) , and you would, if right, be vindicated earlier. If CNUE and the French government and other infringing States are wrong, on the other hand, it seems clear that the code of ethics your press release refers to must insist that the interests of the taxpayers in each country and the EU generally are best served by dropping the barriers to free movement and competition immediately.
Why is this so? Firstly, because otherwise would-be migrant notaries will be entitled to damages against each nation state which refuses to admit migrants for the migrants’ loss of income and profits. This will amount to millions, since the number of migrants will be many. Secondly, there is also the cost in time and money of the court cases themselves. Thirdly, and much more importantly, the fact is that notaries are bound to uphold the law, and it is in everyone’s interest to ensure that the court rules swiftly. I am sure you would not wish to condone law-breaking, especially by our profession. If the Commission is right, as I believe it is, the nationality bars are a breach of EU law, from which notaries are currently profiting.
Notaries, with their exalted ethical standards, would surely not wish to see the taxpayer pay damages for infringements caused by restrictive practices which essentially benefit only notaries, but are in any event illegal?
Of course, notaries or the CNUE or the notarial professions could undertake to pay any such damages personally. That would save the taxpayer paying directly, but the monies may have to be recouped from fees charged to clients, which could be equally unfair. Are you intending to pay any such damages?
You have the ear of the French notarial delegation to CNUE and would be grateful if you could put this suggestion to them, and if they in turn could put the matter to the French Minister of Justice. We could ask the French court to rule on Article 45, Directive 89/48, the right to work under home title, damages, and all the other relevant questions, and sort the matter out quickly, allowing other valuable cases to proceed.
I would be grateful for your reply to this as soon as possible, but in any event by the end of this month.
Yours faithfully,
Mark Kober-Smith
Notaries
are not much in the news, but should be. They are the most dominant
legal profession in continental Europe, with monopolies in key areas,
such as the transfer of property.
However, they not only do not feature much in the media, but have managed
to escape inclusion in any European legislation that might threaten them
with competition of any sort.
In particular, one cannot be a notary in 19 of the 25 EU states unless
one is a national of that country. So to be a notary in France, you must
be French, to be one in Germany, you must be German. Further, if you
are a notary in one country, you cannot move to another and set up business
there. Advertising is forbidden, or tightly controlled, as is price competition.
Often the consumer is forced to put up with whatever notary happens to
be the one allowed to practice in their town or area.
Criticism of notaries, however, is by no means absent, it simply has
not yet become mainstream, and has not been acted on.
There are now moves to change the current rather antiquated situated,
and bring notaries into line with European norms of free movement, competition
and service to the public. This matter may initially seem obscure, but
if one takes into account the fact that millions of UK citizens now own
or will inherit property abroad, and hence will deal with notaries, its
relevance, and increasing importance, may more easily be appreciated.
The potential market for legal services is vast, dwarfing the current
export earnings for UK legal services, which are already very considerable.
My request for action
I am a notary public, and raised the key complaints about continental
notaries by a request to the European Commission to act. I did this in
1996 and was initially refused any action whatever. The Commission simply
told me it had no intention to do anything about notaries. The reader
may think, after reading what is set out below, that the Commission's
first answer was perhaps its most honest one on the subject.
After forcing the point with the Commission, they launched proceedings
against the then 10 infringing states in late 1999. The first step was
for the Commission to write to the states concerned and ask for their
reasons. The states then sent in their replies. These were duly translated
and studied. The Commission then decided it had forgotten to mention
which EU Treaty provision was being infringed, so wrote again to the
countries and received further replies and these were translated in their
turn.
Several years had already passed going through the above stages and I
asked for a progress report from the Commission. I was told that the
Commission had decided not to proceed, since it thought that notaries
would be excluded from the right to work in other countries under the
proposed new Recognition of Qualifications Directive.
A group of English notaries decided to fight for the inclusion of notaries
in the new Recognition of Qualifications Directive. We won, at least
in the eyes of the Commission, since notaries are not excluded from the
Directive. The continental notaries think they are excluded, since the
Directive is without prejudice to the provisions of the Treaty with regard
to “official authority”, but they have yet to demonstrate
that such provisions include themselves.
We are now in the situation where notaries in continental Europe still
continue to argue that they do not have to let foreigners work in their
country and it remains currently illegal for an English notary to work
in France, an offence punishable by prison. French notaries are free
under English law to work in the U.K., subject to complying with the
registration and compensatory educational requirements. Indeed the French
consul to Portsmouth informed a group of English notaries that he was
in the process of qualifying as an English notary. For some reason, this
did not go down well with the assembled notaries.
The Commission has stated in writing that it believes continental notaries
must comply with the Directive on Mutual Recognition of Qualifications.
However, faced with the fact that notaries have been in breach of the
relevant Directive 89/48 since before I made my complaint, it has yet
to back these words with enforcement action.
Of course, to waste yet more time, the Commission claims that it now
must examine the situation of notaries in the newly admitted states such
as Latvia. The reader will of course notice that France and Germany,
meanwhile, continue to be in breach of the EU Treaty, and have been now
since 1991 at the latest, with no enforcement by legal proceedings at
all.
No doubt, once Bulgaria joins next year, their dossiers too will need
to be examined. That will keep someone busy doing nothing while the wrong
remains.
The paradox of Europe
My own preference is for a united, democratic, open Europe. What we have
in this area is one in which the Commission has admitted to me that it
should act, but it will not sue since so many of the EU states are themselves
breaking the law. It says I should sue. So does the UK government, and
the chair of the Internal Market group in the European Parliament.
I find this not only absurd, but deeply dishonest. If Europe means something,
it must mean a level playing field, where the rules are enforced without
fear or favourites. Files and key issues should not be buried for
a decade, with every excuse found not to act. Those who hide and refuse
to comply with EU law need to be brought out into the open, and obliged
to explain themselves. It cannot simply be left to individuals to sue
on matters like this.
“Go to the Court of Justice yourself, at your own expense”. Thank
you for your support. The UK government is basically as connected with reality
as was Marie Antoinette. Just as the starving citizens of Paris, deprived
of bread, were unlikely to be able to offer themselves cake, so it is with taking
a court case to the European Court of Justice. If the UK cannot afford
the time or money to sue, how can an individual?
The second point is that though an individual may even find the money
to sue, and win, the victory will accrue to everyone, not just themselves.
Why do we have governments and civil servants, if not to concern themselves
with matters that go beyond the purely private interests of individuals?
How much money are we paying civil servants and politicians to tell us
that we need to do their job for them, and at our own expense?
It may be, of course, that continental notaries are right. I find it
highly unlikely, but it is possible. But the only institution that can
decide whether EU rules on free movement an competition apply to notaries
is the European Court of Justice. I ask that the prosecution be brought
and a decision obtained, now. The Commission has allegedly been working
on this file since 1999 to nil effect.
Indeed, one wonders what has been happening. The reader will see from
my points raised with Commissioner McCreevy that many points of law and
fact seem to have been missed in the Commission's long but it would seem
not very deep, investigation of the subject. I have asked for copies
of the points submitted to the Commission, but have been refused access
of any kind to this information.
The UK government
The UK government appears to be entirely ineffectual in this matter.
I have asked repeatedly for it to take action, as it can under the Treaty,
either by suing just one of the offending countries direct or by supporting
legal action by notaries from England. Indeed it could also help by allowing
the use of its consular offices abroad for notary offices until we are
allowed to work abroad. Since such offices are technically on UK soil,
we would not be committing an offence.
It has refused to do any of the above and is happy only to write a letter
in support of our own court action, leaving us free for a fair fight
with 19 states with unlimited legal expertise. Thank you, for nothing.
The UK government suggests that I do the suing myself, and is unwilling
to put any of its own resources into the matter. Why, it will not say.
The following papers set out the matter in more detail: (all are in adobe
pdf - below is the same list all viewable in word.)
Here is the same documents viewable in word (only the letters I sent not the responses):
-
Final refusal by the Commission of my request for access to the arguments produced by notaries to defend the nationality bar. It is interesting to see that the Commission feels that legal arguments cannot be disclosed. What is so secret about them? Is it only their absurdity? -
Refusal of help from the DTI dated 5th July 2006.
Following my complaint to the Commission about the nationality restriction, three countries decided to abandon it. These were Spain, Italy and Portugal.
I applied to both Spain and Italy to work both as an English Notary and with the aim of becoming a Spanish notary at a later date.
I intend practising as an English notary without further examination, giving advice on English law and certifying documents for use in England and internationally. I would then study to become a Spanish notary taking any necessary and proportionate examinations under Directive 89/48 (Mutual Recognition of Qualifications).
Click below to view the correspondence in .pdf:
Application to Spain : 21/12/05
Spanish Government Letter : 25/01/06
Spanish Government Reply : 17/02/06
The situation in Germany and Austria
I applied to Germany and Austria to work as an English notary and with the intent to later become a German or Austrian notary under Directive 89/48. As is usual with such staunch supporters of Europe, they have refused.
Click below to view the correspondence in .pdf:
Application to German Ministry of Justice
First Refusal from German Ministry of Justice
Reply to First Refusal from German Ministry of Justice
The situation in Italy (La situazione in Italia)
A seguito del mio ricorso alla Commissione Europea sulle restrizioni di cittadinanza, tre paesi hanno deciso di abbandonarle: Spagna, Italia e Portogallo.
Ho inoltrato una richiesta in Italia per praticare in qualità di notaio inglese e con l’intenzione di diventare notaio italiano in futuro.
Desidero praticare come notaio inglese senza dover sostenere ulteriori esami, dando consulenza sul diritto inglese e certificando documenti da utilizzare in Inghilterra o altri paesi. Successivamente desidero studiare per diventare notaio italiano, sostenendo qualsiasi esame sia reputato necessario, purché in linea con il criterio di proporzionalità, secondo la direttiva 89/48 sul riconoscimento dei diplomi.
Le lettere inviate risultano dai link sotto indicati e rimangono senza risposta da entrambi, sia il vecchio che il nuovo governo.
I notai italiani hanno monopolio su un gran numero di attività, e sono riusciti a mantenersi in numero estremamente limitato rispetto alla popolazione. Questo ha significato ingenti profitti per sé, ma un servizio più scadente per i clienti. Gli italiani regolarmente si recano in altri paesi per andare dai notai e avere i propri documenti in tempi brevi. Forse sarebbe il caso di pensare ad una riforma del settore?
Notai e barriere illegali alla concorrenza
Application to Ministry of Justice Roberto Castelli
France is the very heart of the modern European notarial tradition. It was France and Napoleon who exported the French legal system, which, with many variations here and there, forms the backbone of many European legal codes.
The notaire is a key person, but he does not exercise official authority. France’s highest court knows that, as does its Minister for Justice (Garde des Sceaux). I applied to him to work there and have chased him up and had the UK government apply on my behalf. All correspondence has been ignored or dismissed with a two line “We do not have to let you in since notaries are exempt from EU provisions on free movement because they exercise official authority”. No argument is made or followed through.
The correspondence is the following:
- Application to the Garde des Sceaux
- Letter to John Bowis my MEP chasing the application
- Further letter to the Garde des Sceaux on 2nd June
- Rejection by France of my application to work there
- Cour de Cassation decision showing clearly that France knows that notaries do not exercise official authority ( the case was specifically brought to the French government’s attention by myself and the UK government)
- Letter from Garde des Sceaux
View the reporting upon the campaign at the following: