Free movement or not? – The opinion of Advocate General Cruz Villalón in case C47/08 et al concerning Notaries
On 14th September Advocate General Don Pedro Cruz Villalón (“the AG”) gave his opinion on the 6 cases brought by the European Commission against member states. These are for infringement of the rights of free movement guaranteed under Article 43 of the EC Treaty and for failure to implement Directive 2005/36 on recognition of qualifications.
He found that although, in his view, notaries do exercise official authority, as outlined in Article 45 EC, the nationality condition which states currently impose is disproportionate. However, he did not agree that these states were in breach of Directive 2005/36.
It is submitted that the AG has made not only factual errors, but errors of understanding. Furthermore, by extending and weakening the idea of what constitutes official authority, he has failed to assert and defend the prime right of free movement guaranteed by Article 43 EC, a fundamental freedom. His idea of the nature and effect of notaries’ acts is, I suggest, mistaken, and the result is that he fails to see that notaries, like any other profession must be brought within the ambit of Directive 2005/36 and the other free movement rights granted by the EC Treaty and the Treaty on the Functioning of the European Union. He also failed to notice that free movement of notaries is a right to some extent already enjoyed by 10 civil law based EU nations, including all of the defendants in these cases. He has not noticed that notarial acts have been passing freely from country to country in Europe for centuries, before the creation of the European Community itself, and that notaries from Germany and England have been and are doing conveyancing in Spain, and that English notaries have set up companies in Germany, Austria, Spain and other countries, with their acts fully recognised by the company registrars of all these states.
Another key point that he has ignored is that German and Austrian nationals often use Swiss notaries for their notarial acts which are to be registered in Germany or Austria. If official authority was vital, then these acts would not work outside of Switzerland.
He has failed to notice that, if nationality cannot be applied as a criterion for selection for these activities, then the rule of proportionality must mean that compliance with all EU rights of free movement, including but not limited to Directive 2005/36, must logically follow, as the night the day. This is so whether or not the notaries exercise official authority, since by abolishing the rule of nationality, each state admits that it does not care which country the notary comes from, and whether, for example, a Lithuanian exercises such authority in Spain.
First, some background. Notaries are generally the best paid and most powerful lawyers in the EU. Though their function and the range of matters they work on varies considerably from state to state, (as does the size of their compulsory monopoly) they are typically conveyancers of property, those who set up marriage contracts, deal with lifetime gifts of money or property, set up companies, powers of attorney, gratuitous promises, some wills, formation of companies, transfers of shares, mergers of companies, issuance of shares, acknowledgments of paternity and some shareholders’ resolutions, and protests of bills of exchange. Additionally they deal with mortgage deeds, probate and successions, and all types of contract.
These monopolies sometimes cover many types of legal work, as in Spain and Italy, and sometimes very few, as in France, where a lot of notaries work involves general legal advice, and where much of the legal work that notaries do is also done by other lawyers, such as avocats, with whom they are in competition. Indeed it has been estimated that fully 50% of the work of French notaires does not even fall within their monopoly of legal work and, as we will see, it is work that could not even conceivably fall within the definition of official authority.
The defending governments argue that all aspects of notaries’ work are inseparably bound together, and that official authority is shown in their acts, since a notarial act can be enforced without going to court
Don Pedro Cruz Villalón summarises the work of notaries in the cases in question, i.e. those against Belgium, France, Luxembourg, Austria, Germany and Greece and concludes that there is a common element of authentication of acts, which gives them probative value and allegedly executory force. Despite the great disparity in the size and extent of the monopolies, he suggests that it is possible to give a common answer to the question as to whether these disparate functions can all be said to be the exercise of official authority.
He makes the valid point that the Court of Justice rarely spells out in detail what it means when it speaks of “official authority”. The ECJ has left commentators to eke out the meaning of this idea by inference from the rather scanty expressions in its various judgments. However, the consensus on official authority to date is that it involves the coercive power of the state, and that the matter must involve not individual interests but the general interests of the state.
It is extremely difficult to prove that these elements apply to the case of a profession and as the AG admits in paragraph 87, 50 years of case-law and 15 judgements have not found that it applies.
The AG admits (in paragraph 96) that the most traditional criterion for identifying official authority is the capacity of the body exercising it to impose its will unilaterally, i.e. without the consent of the person subject to the obligation. This is to be contrasted with an individual, who can only have the acceptance of his will secured by gaining the consent of the other. He admits (in paragraph 119) that “Obviously, notaries do not employ coercion or impose any obligations unilaterally”. He also states (in article 93) that the usual interpretation of official authority, the capacity of exercising the irresistible will which is necessary is one held “exclusively by the State”. He also notes that the ECJ, in Commission v. Netherlands the Court found that notaries “are not part of the public administration, but in the form of an independent economic activity carried out in the exercise of a liberal profession” (Opinion paragraph 134).
The reader at this point might be forgiven for thinking that there is no way on Earth that a liberal profession involved in the giving of legal advice and drafting of deeds of gift or transfer for individuals who consent to the signing or doing of such acts could ever be seen to exercise official authority. The liberal profession is not the state, and the rules of the profession, and indeed the requirements of both civil and common law, require consent, fully and freely given for contracts (or other deeds or documents executed by individuals), to be valid. Coercion, the irresistible will of the State, and action for the general purposes of the state are not in the clients’ mind when they give, say, ten thousand euros to a grandson by notarial deed, or recognise an illegitimate child as their own. They are acting only in their private interests and notaries are formulating that private interest and will in a notarial act. True, like many professions, they are appointed by the State, but this only means that the state regulates who can qualify and how they behave, it does not give notaries the power of the state, it simply licenses them, along with teachers and nurses, to carry out a function.
However, the AG manages, partly by relativising the power exercised by the State (which is subject to legal review in many cases) and in part by factual and conceptual mistakes about notaries and their work, to come to the conclusion that notaries do exercise official authority. He argues in paragraph 97 that the will of a democratic State is not so simple since “some form of consent is ultimately required” and that “any act of official authority is open to review”. From this he moves on to say that official authority is relative.
Probably all things, save death, are relative. But let us look at specific examples of State power and see how relative they are, and to what. If a state wants to build roads, it does so and houses in the way get knocked down, whether or not the inhabitants wish this to happen. If a decision to build a road is totally unreasonable, the government may lose the specific route, or it may not, but it will revise the plans and it will usually win in the end. Indeed, if it did not gets its way most of the time, democracy itself would be completely ineffective.
If the government wishes to wage war, and conscript its young to fight there, it can and it will, and without the specific consent of those who go and fight, though of course it may lose the next election. Meanwhile, its authority has been imposed, and unilaterally and the young who have died in the war remain dead. How can a notary or any private individual exercise such a unilateral coercive power, and if they did, what kind of society would we be living in? Surely such a coercive power must be a breach of the right to a proper trial of the issues, the production of evidence, and is this not guaranteed, if not by the human rights laws of the respective states, then at least by their adherence to the rights guaranteed by the European Convention on Human Rights?
What are the mistakes the AG has made?
The first mistake is to misunderstand the nature of what notaries do. Notaries authenticate documents. At its essential level, this means confirming, in the case of a contract or document signed by individuals, that the persons were there, and were who they said they were, that they understood what they were signing and its effects. It does not necessarily mean a lot more. Strictly, at least in French law, the mother of Belgian, Luxembourg, Spanish, Portuguese and Dutch law among others, the probative force only extends to what the notary has heard and seen.
So though parties may state to the notary that they have occupied a property for twenty years, and have this fact recorded in the act, it is not a fact which can then rest unchallenged. It is liable to simple disproof – just as any statement in any text would be, whether notarised or not. The fact that the parties made the declaration IS part of the matters heard by the notaire and so is probative, though since the substance of the declaration is not probative, this is of little help in proving whether occupation took place or not. This distinction drastically limits the effect of the notarial act, and is one often overlooked, as indeed I suggest the AG has in this instance.
The second mistake is not to examine closely enough the actual work done by notaries. As the AG points out, there is often a fixed tariff for different types of work, and it is submitted that would have been easy, in the eleven years of the life of these cases, to determine what percentage of notaries work falls under what category, sales of house, transfers of shares etc. This is vital since the ECJ has continually stressed that the exception under Article 45 applies to activities, not the whole profession. What if we found that only 1% or less of a notary’s work had any connection whatever to official authority? Would it not be separable from the rest? I know from talking to the Commission that they failed to ask the defending states to provide this breakdown, and that a breakdown was not provided in any event.
The third and biggest error is to accept the notaries’ argument that notarial acts can be enforced without a judgment. Even the notaries do not make this claim in respect of all notarial acts. They reserve this claim (as does the AG in paragraph 114) for one single type of act, recovery of a certain and liquid sum of money contracted before a notary by way of debt. Thus if A signs a loan contract with B, borrowing money to be paid to B plus interest in 30 days, and the sum is not paid, a bailiff can be sent to enforce the contract, supposedly without going to court.
Apart from the many problems that the above example throws up, let us note that since this is the only example of a notarial act that notaries quote in their defence, we can be sure that no other examples exist. I have looked high and low, in Spanish, French, Italian and other textbooks, and this is the only example used.
So we can take it that the issue of shares, the transfer of shares, the setting up of companies, the wills and recognition of illegitimate children do not and could not have that executory force which is the only real head quoted by the AG in support of the argument for official authority. A moment’s thought makes this obvious. In civil and common law, a will may grant you property or money, but you are not obliged to receive it. Such a will is not enforceable as a judgment, notarised or not. Indeed, how could a bailiff enforce the issue or transfer of shares, the creation of a company, or the recognition of paternity, to take just a few examples?
Imagine a typical contract for the purchase of an apartment to be constructed, which has been signed in front of a notary. In the contract, money is to be paid in stages, firstly when the foundations are laid, then when the first floor is completed, when the second floor is completed, when the roof is put on, a further payment when the windows and electricity are done, and a final payment when it is ready for habitation. These are reciprocally conditional and bilateral obligations. How would a notary and the bailiff enforce these? How would he know that they had been fulfilled or breached?
Here, as so often in this case and indeed in this Opinion, much is not thought through, or examined for its logical consequences. The notary would need to know everything, and be everywhere, to even attempt to rule on these contracts. He would be not a “preventive judge” as notaries claim, he would be usurping the role of a real judge, minus the witnesses and real proofs that a judge is obliged to consider.
But to return to the supposedly quintessential, cast-iron example of a debt of a certain liquidated sum, how can the notary know that the sum has not been paid and thus issue the note for execution?
In the first place, the only way for a notary to know that the sum had not been paid would be if the debtor admitted this in the presence of the notary, something which one has to say seems unlikely. If the money was to be paid direct to the creditor, the notary would only have the word of the creditor to go on as to whether it had been paid or not. If the money was supposed to be paid to the notary’s account, and was not in fact paid – it could well be that the debtor had paid the sum direct, given a good or chattel to the creditor instead of money, or indeed forgiven an equivalent amount owed to him by the creditor. In short, there are a number of messy and hard to resolve factual issues even in the only example of executive force which is offered to us by notaries and the AG.
What notary would gaily issue an enforcement notice on the mere say so of a creditor, and what civilised legal system would accept to enforce it? The breach of human rights involved here is clear, I suggest. Thus even if this supposed example of official authority were true, it would be a breach of these civilised standards.
Of course, the matter is in any event outside the scope of official authority, since it patently does not involve the interests of the state, and the two parties have consented to the transaction, so no coercion could be involved. In this respect it is noteworthy that, in France and Spain at least, contracts already made and drafted by non notaries can be brought to a notaire’s office, and if the notary confirms the identity of the parties and their signatures, it can be entered into his records and become as valid as any other notarial act.
The AG is Spanish and it somewhat surprising that he does not refer to the question of this type of enforcement of debt in Spanish law. There, the highest Spanish court has clearly stated that no such enforcement via a notarial act could ever be valid outside the court. They repeated this judgment on several occasions, and the ruling is still good Spanish law. In the case 373/2009 on the 25 of May 2009, the Supreme Court of Spain confirmed its previous judgments on such claims on 4th May 1998, 30th January 1999 and 20th April 1999, 13th December 2005, 10th October 2007 and 14th July 2008.
These judgements had declared that the enforcement of such notarial deeds outside of a court, under clause 129.2 of the Mortgage Law, a law which predated the current Spanish constitution, was in violation of the Spanish constitution, in particular article 24.1 (breach of effective legal protection of rights) and article 17.3 (lack of protection for the defenceless).
As the eldest son of a notary, it would be surprising if he was not aware of the decision, and I find it odd he fails to deal with it. It is a clear example from his own country, of an instance where the Supreme Court in the land has declared that the enforcement of notarial acts without going to court is illegal.
In addition to his family background it is important to note that the AG is an expert in constitutional law, and was the President of the Spanish Constitutional Court, Professor of Constitutional Law at the University of Madrid and the author of several books on public law.
Though the general public might well be forgiven for being unaware of developments such as this in Spanish law, it is rather harder to pardon it in a Spanish judge, particularly when we have to assume that he was aware of the judgments mentioned in his own domain of expertise. Indeed, if we cannot trust him to remember and apply the law of his own country, what confidence can we place in his opinion as a whole?
And this point is not just any decision among thousands. It is a ruling, several times recently repeated by the Spanish Supreme Court, that the key argument the AG rests on is null and void. The very lynchpin of his argument is that the ability to enforce a notarial act without going to court proves the notaries’ official authority. His own country’s Supreme Court think this utterly false, and has repeated its statement not once, but seven times, all fairly recently.
It is noteworthy that Spain dropped the nationality condition, though it still claims, as the AG does, that official authority still attaches to the acts of notaries. It therefore refuses to allow any movement of notaries to Spain even under their inherent rights to practice under home title, unless they have passed all the exams that a Spanish notary has. The writer, a qualified English notary, has been refused the right even to visit Spain to give advice under home title.
Indeed, since the AG admits there are great similarities between the notarial systems of the defendant countries, it stands to reason that their courts, if confronted with the same question as to the enforceability of such notarial acts, are very likely to come to the same conclusion i.e. that such practices are feudal, unjust, and have no place in a civilised society based on the rule of law. The defendant states have signed the European Convention on Human Rights, and though not all of them, perhaps, as Spain does, make that Convention directly binding on domestic law, they have all undertaken to observe it, including the right to a fair trial of the issues.
The only national civil law court the AG does refer to is the Conseil d’Etat, which is a court largely filled with politicians, not trained judges. The decision he refers to in note 22 concerned the wish of a French notary to move within France. Article 45 was not relevant to the matter, since it did not involve crossing borders. The case is simply irrelevant. A sceptic would see in this judgment the desire of the French politicians who fill it to defend their notarial profession, even at the price of misinterpreting the law. The current writer simply thinks the court was not well advised.
The pinnacle of the French court system, the Cour de Cassation, is staffed entirely by professional judges. The French government has confirmed that its decision in the Criminal Chamber of 5th January 1935 is still valid law, and this held that notaries have no official rank whatever and are simply private lawyers.
To quote the decision “ Attendu que les notaires ne peuvent être considerés, ni comme functionnaires publiques, ni comme dépostaires ou agents de l’autorité publique, ni comme citoyens charges d’un service publique, au sens de l’art. 31 de la loi du 29 juill. 1881: qu’ils ne sont chargés d’aucune partie de l’administration publique, et n’exercent leur ministère que dans des interest privés..”
A more comprehensive rebuttal of the idea that notaries at least in France exercise any state authority could not be imagined.
Official authority and employment in the public service, and free movement of professions
The other head of exemption from free movement that notaries have always claimed is Article 39(4) EC. This is an exemption to the rule of free movement of workers given by Article 39(1)EC which states:
“1. Free movement for workers shall be secured within the Community”
So far, so good. But the text of Article 39(4) is that:
“4. The provisions of this article shall not apply to employment in the public service”
A commonsense reading of this exception would indicate that all public service jobs, whether in the local government field, or that of central government, are exempt from free movement.
However in Commission v. Belgium (re Public Employees) (case 149/79) the ECJ decided that the concept of public service was a Community concept, it applied only to the case where official authority was exercised, and not at all to the vast array of jobs in Belgium which that state claimed were in the public service, from plumbers and architects to nurses, railwaymen and unskilled workers, who were in fact employed by central and local government.
The ECJ specified that not only did official authority have to be exercised but that the employees had to be safeguarding the general interests of the state.
One notes here that the jobs of keeping people alive (nurses) and making sure that buildings were properly built and did not collapse (architects) were not such jobs.
In Bleis v. Ministère de l’Education Nationale (Case C-4/91) the Court further specified that the concept of public service “ presumes on the part of those occupying such posts the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality”.
The reader will see that the ECJ has implied into the plain exemption given by Article 39(4) a restriction to post involving the exercise of official authority in the general interests of the State and a need for the job to require that it be done only by a national. These tests are so hard to pass that no it is assumed that only the very highest reaches of the civil service and the army and police, fall into this exemption.
I will explain the slight diversion into Article 39(4) in the following way. The freedom in Article 39 was for jobs, the entire gamut of activities carried out in the work involved in the job. The ECJ has restricted even this as described above.
In relation to the exemption in Article 45 however, the exemption if it applies only can be to activities, not the whole of the profession. How much more robust must the ECJ then be when examining a claim for the exemption of an entire profession from the rights of free movement given in Article 43.
Rather than focussing on the exemption, as the AG does, let us focus first on the freedom. Article 43 abolishes restrictions on the freedom of establishment. It is designed to allow non nationals to set up businesses in foreign countries and to allow self employed professionals such as lawyers to create offices there and work.
Why has the ECJ been so fervent in its restrictive application of the exemption in Article 39(4) and why has it never allowed an exemption for a profession under Article 45? Simply because the ECJ thinks teleologically, what is the purpose of the Treaty? Is it to go back to the restrictions on movement we used to have, with jobs jealously guarded for nationals? Or is it seeking to move beyond this, to a new, united Europe, in which citizens of all of its countries are citizens also of one entity, Europe, and in which no discrimination is possible, save only when the vital interests of the state are in issue, and where the job or activity could ONLY be entrusted to a national. In addition such individuals must be exercising official authority, a term derived from public law, and always associated, as it is in previous ECJ judgments, with the exercise of coercion in the general interests of the state.
No such authority is held by notaries.
Free Movement already exists
The AG draws the conclusion that since notaries do exercise official authority, they do not fall within the scope of Directive 2005/36. He states that recital 41 of this Directive is a “new departure from its predecessors” (Opinion clause 10). This is not quite true. Directive 89/48 in its third to last recital did have a provision which stated “Whereas the general system for the recognition of higher-education diplomas is entirely without prejudice to the application of Article 48 (4) and Article 55 of the Treaty;” These are the old equivalents of Articles 39(4) and Article 45.
Although the recital in Directive 89/48 does not go on to say “notably concerning notaries” as does recital 41 of Directive 2005/36, it is submitted that since the Treaty exceptions apply to all activities the specific mention of notaries in Directive 2005/36 is irrelevant.
It is submitted that the AG has misunderstood Article 43. This sets out the freedom or movement, which unless checked by an exception, applies to all EU citizens. The exception in question is Article 45, which, if it applies, allows a state to restrict access to an activity to its own nationals. If that exception is not possible, because a nationality bar is deemed unjustifiable, then free movement is again a right, whether under Directive 2005/36 or indeed under the inherent rights of free movement set out in the EC Treaty and the following jurisprudence.
Indeed Directive 2005/36 is in one sense a red herring. Reyners was decided when there was no recognition of qualifications Directive and Mr Reyners still obtained his right of free movement. There is an obligation on states to take account of the experience and qualifications of professionals even in the absence of a Directive (see Vlassopoulou). There is also a treaty right to supply services, and to do so under home title, one where a lighter regulatory touch has always existed, but the AG ignores this point entirely.
However in the rather long time that the AG has had to consider the matter he might have done well to consider the freedoms that the defendant states, amongst others, have granted themselves. The CNUE is the representative body for many notariats in the EU. In its position paper on the responses of the CNUE to the then proposed system of recognition of professional qualifications the CNUE reveals that 10 EU Member States, including all the defendants in the matters covered by the AG’s opinion, have signed an agreement allowing their notaries to visit other countries to do notarial work. This has been in effect since 1995. For the text of the relevant part of this paper, please see Appendix 1.
It seems odd that such fierce opposition therefore exists to the idea of notaries passing exams under Directive 2005/36, when notaries who have not qualified in the law of the host state gaily accompany their clients to it and do legal work. It is not clear to the writer whether the illogic or the sheer effrontery of this is dominant. Why and how can defendant nations whose notaries are party to such an agreement claim that all other notaries must be barred from joining in this cosy arrangement? If official authority applies, none of these visits surely should be permitted? Instead we find that the clients have a right to have their notaries follow them, give advice and draft acts. If this is not doing notarial work in a foreign country, what is it?
If all activities of the work of a notary are bound up inseparably together, then the fact that a notary can travel to give advice would seem to indicate that the travelling notary can also do any other notarial activity. That is the case according to the AG, who in paragraph 111 of the Opinion agrees that all notarial activities have to be treated as inseparable one from another. Since free movement for their own notaries has been successfully practised for 15 years, is it not strange that the defendant countries have “forgotten” to inform the court of this fact?
Of course, actual movement of the body of the notary is not necessary to supply cross border services. Notarial acts have been travelling freely for centuries, and taking legal effect in a foreign jurisdiction. Indeed this is clearly permitted by the law of the member states, or it would not happen. To take the Spanish example, the civil code of Spain, (which we would imagine the AG to be familiar with) has always permitted the registration and legal effect of foreign notarial acts, if in the proper form, in Spanish, and where legalised by apostille.
Foreign notaries have been registering transfers of Spanish property in Spain since before the creation of the European Community. Indeed, Spanish notaries were so worried about this that they attempted to block the registration of German and English notaries’ acts by passing a new regulation. This attempt was finally blocked and rejected by every single Spanish court it passed through, and lastly by the highest Spanish court. So foreign notaries can still register transfers of property in Spain.
So there is no objection to notaries’ acts travelling across borders and being used and applied there by foreign registries, whether of properties or companies. Nor is there any objection by any of the 10 nations, including the defendants in these matters, having notaries travelling across borders with their clients, giving advice and drafting acts. So, truth to tell, how can the defendants object if other notaries wish to do likewise?
It is submitted that the Opinion of the AG is faulty since it is based on a mistaken understanding of what notaries do, and an incorrect interpretation of the law.
Notaries do authenticate, but few of these acts could even give rise to enforcement, as in fact admitted both by notaries and the AG, since the only example given of such extra-judicial enforcement is for unpaid debts. All the other activities, advice, and acts of a notaire are not so “enforceable” by such extra-judicial acts.
The activity of authentication of other acts is separable from the activity of so-called enforceable acts, which (if they exist at all) are not only a fraction of the work of notaries. Even is such acts were enforceable, they do not involve the power of the State or its general interests, and they are agreed by consent, so no coercion is involved in their creation.
Furthermore, repeated Supreme Court decisions from Spain, the AG’s own country, have denied and refused the supposed rights, proudly claimed by Spanish notaries, of enforcing such debts on the basis of a notarial act, not a judgment. The Spanish court has declared this practice to be unconstitutional and hence illegal. Since the founding principles of civil law based countries are similar, it is submitted that the AG should have been able to work out that if the matter is feudal and unjust in one country, it is likely to be so in all of them. Spain would originally have been in this group of defendants and was only dropped from them since it abandoned the nationality condition. Its notarial system however, was very similar to that of the other defendants.
If the AG feels that he is able to apply one rule to all these defendants, why did he not apply the rule that has been applied to such extra judicial enforcement in his own country? What essential difference is there? If such enforcement is a breach of essential legal rights in Spain, why would it not be so elsewhere?
The AG was probably not aware that all the defendants subject to this opinion, together with Portugal and several others, allow the free movement of notaries via an agreement between themselves which has been operative for fifteen years. I, as the complainant in all these cases, found this out quite easily, by a small amount of legal research, and disclosed it to the Commission years ago.
Court procedure is complicated, but the failure to mention this agreement appears to me, as an English lawyer accustomed to a duty of full disclosure to the court of relevant facts, completely unacceptable. How can such lawyers, who take a vow of truth in office, so misrepresent the situation?
How can countries whose lawyers do travel in this way, demand the continuation of the present status quo, which means that an English notary travelling with his client to France is liable to a heavy fine and a prison sentence. A German notary making the same journey is welcome to do so.
Why one rule for some and not for others? How indeed, can any of the ten notariats party to this agreement even permit their members to travel for notarial work? The point about their claiming of the protection of Article 45 is that this free movement of notaries cannot be permitted. Article 45 is an exception to the rule of free movement. How then can they insistently argue that this freedom does not exist, while they themselves are profiting from it?
If, as notaries and the defendant governments have publicly argued, all activities of a notary are inseparably bound together, then freedom of notaries of these 10 nations to travel and give advice leads inevitably to the conclusion that there is no problem doing any notarial activity abroad. If giving advice and drafting acts abroad is permitted, how can there logically be any restriction on any other activity? If on the other hand, the giving of advice and drafting documents abroad is separable from the other activities of a notary, the lie is given to the argument that all such activities stand or fall together. There is no way out of this logical cleft stick.
I cannot understand how the AG manages to see that nationality can no longer be demanded, and yet deny that the right of free movement exists. Nationality is no longer demanded in Spain, Italy, Portugal, Estonia and the Netherlands, and never has been in the U.K., Ireland, Sweden, Denmark and one or two other countries. So already there is a very uneven playing field for the common market, with some countries (such as the Netherlands, Ireland and the U.K.) being obliged to let in foreign notaries, and other not. I have already, with the permission of the Netherlands government and pursuant to Directive 2005/36 done work under home title in the Netherlands.
The AG’s argument basically boils down to the fact that although notaries do exercise official authority, a nationality bar is a step too far, one that is disproportional in view of its effect on Treaty freedoms. But the Treaty freedoms are not to be construed separately. Discrimination on the bounds of a nationality bar is bad, but not to be able to work even when such discrimination ends, means that greater freedoms, that of the right to supply services cross border, the right to establishment, and the right in short to work in other countries, will effectively be negated. This will be so unless and until the obligation to comply with Directive 2005/36 and the entire corpus of EU law on free movement is enforced.
Let us imagine what would happen if the AG’s solution is adopted. In paragraph 140 the AG suggest that “the member States are authorised to adopt such measures as they consider appropriate outside the scope of the aforementioned freedoms”. My understanding of this is that whilst disallowing nationality as a criterion, the States can use their own discretion to determine how foreign notaries could practice or qualify.
Apart from the market segmenting effects of this discretion, the AG also leaves the door open to further challenges by Portuguese advogados to have themselves exempted from free movement. If, as the AG specifies in his opinion on Portugal in paragraph 53, advogados can now do some notarial work, does this not mean, given the indivisibility of the work, that advogados are also exempted from compliance with free movement of lawyers, or does it on the other hand mean that they can do such notarial work in other EU countries? France is also thinking of bringing in a similar provision for its avocats.
It is submitted that the connection of notaries with official authority is either non existent (in the writer’s view) or so much weaker than the normal case that we find that the nationality bar can be abolished (as the AG argues). In either case, we would find that if by some miracle a foreign notary did work say, in Portugal, the Portuguese state would then find that it’s official authority could be wielded by anyone from Spain to Lithuania (depending on the nationality of the notary). The whole of previous authority on official authority, both in Article 39(4) and in Article 45 indicates that it is only applicable when there MUST be a connection with the state. For employees of the civil service the nationality bar is now restricted to those who advise Ministers, or who hold state secrets of a high order. For professionals, it applies to no one so far examined by the ECJ, and should not apply to notaries.
If there is no objection to a national of any EU member state becoming a Portuguese notary, what possible objection can the Portuguese state have to such a person qualifying via the route set out for any other lawyer? Are we to say that the Portuguese notary doing work transferring fields in a country practice is doing something much more difficult than an English solicitor drafting and advising on deals for billions of pounds in the City of London? Why is it that a German lawyer can qualify to do the English lawyer’s work by passing the examinations set under Directive 89/48, or even by working in London for 3 years as a German lawyer under Directive 98/5 EC, and cannot do so for the Portuguese notary’s work? What logic or sense is there in that?
Indeed, without qualifying at all as an English lawyer, the German lawyer would be able to supply services as a German lawyer in London using home title under the provisions of Directive 77/249/EEC. Even if not a fully qualified lawyer, the rules in Vlassopoulou would apply and the host state would have to examine his application and take into account the knowledge and experience he had already gained and compare it with what was necessary to practise in the home state.
It will be understand that the work of a notary differs from that of a Rechsanwalt, but both jobs involve advice on the law and it is important to note that German notaries, judges and Rechsanwalts all undertake the same legal training. A similar rule applies in many countries, the law learned by notaries and their avocat counterparts is essentially very similar. Indeed, there is really only the law, the professions that practice it similar tend to specialise in different areas.
If notaries are to fall under Directive 2005/36 and the official authority exemption is denied them, qualified notaries will be able to take examinations to become notaries in other states, and notaries from countries not party to the CNUE agreement will be able to provide services abroad, as those who are party to it do already. The second part of this has already happened, and the AG agrees that, somehow or other, foreign notaries could become notaries in a host state.
Why then the timidity, the reluctance to allow the process set out by 20005/36, which has worked successfully for every other profession, to apply to notaries? Here too, it is submitted, proportionality must prevail and Member States cannot simply be allowed to dream up whatever rules they think fit for foreign notaries. The process must be regulated by the Directive and the acquis of existing law on free movement. The defence of official authority should be ruled inapplicable to notaries, and they at last will be regulated like other professions.
Indeed, the Directive is already applied to EU and EEA notaries in England, why not elsewhere?
The Directives on Recognition of Qualifications have been tried and tested. They work for everyone else, why would they not work for notaries?
Le fonctionnement du Marché intérieur et la libre circulation des personnes, des capitaux et
des biens dans les États membres de l’Union européenne a toutefois conduit les notaires
européens à examiner les modalités de leur collaboration en vue d’offrir aux
consommateurs et aux entreprises, assistance et conseil dans les opérations
Aussi les notariats européens rassemblés au sein de la Conférence des Notariats de l’Union
européenne (CNUE)3 ont-ils adopté dès 1995 et ratifié un Code de déontologie commun,
applicable dans l’ensemble de ces notariats. L’article 2.1. de ce Code dispose:
“Toute personne physique ou morale a le droit de choisir son notaire, de requérir ses
conseils et de lui confier la rédaction de ses actes. Elle peut aussi lui demander de l’assister
en collaborant avec le notaire territorialement compétent avec toute la responsabilité
inhérente à leur fonction respective.
Le notaire du pays d’origine qui accompagne son client à l’étranger doit avertir son
confrère territorialement compétent le plus tôt possible et convenir avec lui des modalités
de leur coopération.
En tout état de cause, seul le notaire territorialement compétent est autorisé à
L’article 2.2. précise: “le notaire se conforme lors d’opérations transfrontalières au droit de
son pays d’origine, au droit du pays d’accueil et aux règles du présent code.”
Cette coopération transfrontalière des notaires est jusqu’alors bridée par la nécessité
d’accomplir certaines démarches administratives pour faire reconnaître l’acte authentique
en provenance d’un autre Etat membre; démarches qui ne se justifient plus au regard de la
confiance mutuelle acquise. Ainsi la légalisation de l’acte ou l’apposition de l’apostille de
La Haye reste souvent requise, à défaut de ratification par l’ensemble des Etats membres
de la Convention relative à la suppression de la légalisation des actes dans les Etats
membres de la Communauté européenne, signée à Bruxelles le 25 mars 1987.
Le notariat européen propose à la Commission européenne que cette Convention soit
communautarisée afin de faciliter la coopération notariale transfrontalière.
Il s’agit des notariats allemand, autrichien, belge, espagnol, français, grec, italien, luxembourgeois,
néerlandais, portugais. (cf. http://www.cnue.be)