Brussels, 27 June 2007
Nationality requirements for notaries: Commission takes seven Member States to Court of Justice to ensure compliance with the principle of non-discrimination
The Commission has decided to take Belgium, Germany, Greece, France, Luxembourg and Austria to the Court of Justice on the grounds that these Member States permit only their own nationals to practise as notaries. The Commission has also decided to take Portugal to the Court of Justice for its failure to transpose Directive 89/48 EEC for notaries.
In the view of the Commission, this nationality requirement is contrary to the freedom of establishment provided for in Article 43 of the EC Treaty and cannot be justified by reference to Article 45, which exempts activities related to the exercise of official authority.
The Court of Justice has ruled that such participation must be direct and specific. However, the Commission considers that this does not apply in the case of notaries as they cannot impose a decision against the will of one of the parties they are advising. In other words, notaries do not take decisions with regard to State authority and therefore cannot be deemed to exercise such authority.
As the Member States in question have maintained their position in their replies to the Commission's reasoned opinions, the Commission has decided to refer the matter to the Court of Justice.
Meanwhile, the Netherlands has committed itself to complying with the reasoned opinion. It joins Spain, Italy and Portugal in abolishing the nationality requirement previously in force for notaries.
The elimination of this requirement does not imply a change in the status of notaries, particularly in respect of certain activities being reserved for this profession. Moreover, these infringement procedures do not affect the powers of the Member States to regulate the profession of notary, particularly in terms of laying down measures to ensure the quality of notary services, including examinations.
As regards the high level of qualifications required to become a notary,
there is a less restrictive method of ensuring that this level is maintained,
namely by applying Directive 89/48/EEC on the general system for the recognition
of diplomas, which makes it possible to check by means of an aptitude test (or
probationary period) whether candidates possess the necessary level of knowledge
of national law. The failure to transpose this Directive is the Commission's
second objection relating to these Member States, with the exception of France,
which has transposed it. Portugal has still not transposed Directive 89/48/EEC
for the profession of notary. As a result, the Commission has also decided to
refer this matter to the Court of