The Court of Justice ends the nationality bar
On Tuesday the 24th May 2011, the European Court of Justice gave its judgments on the cases before it concerning notaries. Fifteen nations were told that it was not possible to restrict work as a notary in France to French nationals, or Germans in Germany. Any qualified EU national can from now be appointed as a notary in any EU country, the nationality bar that had reigned for nearly 60 years was dead.
These judgments are momentous, since notaries in continental Europe had avoided compliance with the rules of free movement and non discrimination ever since the European Community was first created . I was particularly pleased about the judgments, since I was the complainant, in 1999 and then in 2000, who led to all the cases being brought. The reader of this site will see that I have published an extensive amount on this question, available for all to see. I have written a great deal more to the European Commission to persuade them to take the case, and to counter the arguments produced to defend the nationality bar, and a large amount more in applications to the various countries in Europe in which I wished to work.
Normally a case of this nature should take between one and a half years and 3 years to come to court. A wonderful book by Britain’s most senior judge, the late Tom Bingham, called “The Rule of Law” talks, rightly, of justice delayed being justice denied. He quotes as an absurd example of delay a case taking 9 years to get to the Court of Justice. Mine took rather longer.
Why have these cases taken so long, from 2000 until today, a total of 11 years almost to the day? From my dealings with the Commission, I know this is because the defendant countries and their notarial professions were so incensed that their privileges and exclusion were at last being attacked, that they at first tried to have the case thrown out, then, successfully, tried every trick possible to delay the date in which the countries would finally have to appear in court. I was deeply involved in the struggles to keep the case alive, and to counter all the defendants’ arguments, and finally led the charge to push the Commission to go for trial. I lobbied a large number of MEPs, and also members of the European Commission, to make sure that the case stayed intact, and on course for the result we have just had, victory. I also hired some student lawyers, over a period of a couple of years, to examine the laws of some of the defendant countries in order to find arguments to counter the notaries.
I had always known the main notary arguments for retention of the nationality bar. These centered on the claim that notaries exercised official authority as defined in Article 45 of the EU Treaty. This Article states that although generally all professional activities should comply with the free movement provisions of the EU Treaty (which allow solicitors, doctors, accountants, architects and almost every other type of worker to work in countries other than that in which they qualified), activities which involve the exercise of “official authority” are an exception to the rule. These can be reserved to a country’s own nationals – and notaries claimed they exercised this authority.
I had studied a lot of EU law as a student, and thought this claim ridiculous. I had seen that this claim almost never succeeds, since to prove that you do exercise it you must be exercising powers of coercion over individuals outside the general law, and in the interests of the state. It was thus, at first and last glance, ridiculous to say that a private lawyer, chosen freely by the client, could exercise such power over his client. In addition, the lawyer is not working for the state, even though the state may regulate the appointment of lawyers, as it does the appointment of teachers and firemen. I had also seen that this because this defence was basically the only defence available to those who wanted to stop foreigners working on their patch, it was trotted out in the available cases (no matter what the profession, from teachers to whatever else) almost routinely, in the always vain hope that the European Court would take note of it. But whatever the profession in question – the argument always failed.
Indeed, the article 45 defence was initially put forward by avocats and other lawyers in Europe to defend their exclusion of foreigners from their own profession (that of solicitor or barrister in the UK), but in the case of Reyners in 1974 the Court of Justice had already ruled that legal advice, and having a high professional status did not grant exclusion to avocats and similar lawyers under Article 45.
It was thus inherently unlikely that the article 45 defence would win, but the Commission initially rejected my complaint in 1999, basically because it believed it would not win, and because it feared the ferocious opposition of notaries. I decided not to take no for an answer, and was fresh from persuading the UK government to end the monopoly of Scrivener notaries in London. I had also already persuaded the UK government to implement Directive 89/48 in respect of notaries, over the wishes of the profession and its regulatory body, who had argued that English notaries too, were exempt from compliance with that Directive due to Article 45. I had thus had a lot of experience going through the arguments and presenting the for and against. I found that there was a great deal against believing Article 45 applied to notaries, and no arguments at all for thinking that it did.
When the ECJ announced its decisions, I was surprised to see that the quality of argument from the defendants was so poor. It seems to me that the defendants were either not intelligent enough to realise that these arguments were ineffective, or that they had simply produced a lot of arguments to waste time and delay the final result. Given what I know about the plotting to delay the case, the second alternative seems more plausible.
Some of the arguments I found on my side of the argument were rather interesting. The highest French court, the Cour de Cassation, had stated in a case the French government knew was still binding, that notaries have no public authority at all, no any mission of public service, but were simply private lawyers. Of course the French government “forgot”, as I understand it, to mention this to the European Court. The lobbying body for so called Latin notaries in Europe, the CNUE, records on one of the papers on its website that 10 nations, (including key defendants in the principal cases just decided) had signed an agreement in 1995 that allowed notaries from one country, say France for example, to accompany his client to the foreign country. Indeed, this is claimed to be a right of the client:
“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.”
Il s’agit des notariats allemand, autrichien, belge, espagnol, français, grec, italien, luxembourgeois,
néerlandais, portugais. (cf. http://www.cnue.be) ”
The significance of this is that if the Article 45 defence were true, no such visits would be possible. They would be an infringement of the rights of the host country, since non nationals were doing notarial work in another country, the very thing that the defendants states were saying was impossible. And they had been doing this since 1995, before the cases were even opened.
Of course, to my knowledge, none of the defendant states mentioned this agreement to the Court of Justice either.
Nor did they mention that under Spanish law and that of other Member states, the acts of foreign notaries can be and are registered, every day, in official registries of countries not their own. English notaries have been transfering Spanish property, from their offices in England, for about a century. English notaries are also registering companies all over Europe and those who perhaps do exercise official authority, the registering authorities in the defendant states, have been happily registering these acts, equivalent in effect to those of native notaries. The law of each defendant country permits this, since even before the European Union, Europeans have always lived all over the world, and needed to notarise documents, when abroad, for their home country.
What next for the notarial professions? It seems clear that since France had put the recognition of at least one of the qualifications Directives into force, but only for their own nationals, that free movement of notaries should happen there quite quickly. This is of course if France complies with ruling of the Court of Justice, which is not very certain.
Given the opposition to date for any kind of free movement I suggest that notaries will now try to ensure that the next Directive on Recognition of Qualifications excludes notaries explicitly. This must be resisted, since there is no sign whatever that the bulk of the defendants have any wish to comply with free movement to notaries unless they are legally obliged to do so.
In the longer term, I predict a bright future for an open modernized profession which represents the multi ethnic and highly diverse nature of Europe, one much more open to women and minorities than it has been. But since history is made, and does not just happen, we will have to make sure that it does, by watchfulness and effort.