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 : –
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 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: