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.
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.