Brussels, 8 October 2009
Nationality requirement for notaries: the European Commission brings a case before the European Court of Justice to ensure non-discrimination in Portugal
The Commission has decided to take Portugal to the European Court of Justice as it allows only Portuguese nationals to take up and practise the profession of notary.
Nationality requirement contrary to the freedom of establishment
In the Commission’s view, this nationality requirement runs contrary to the freedom of establishment provided for in Article 43 of the EC Treaty and cannot be justified by reference to Article 45, also of the EC Treaty, which exempts activities involving the the exercise of official authority.
The Court of Justice has ruled that such involvement must be direct and specific. 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.
Although Portugal adopted legislation in 1997 which repealed the nationality requirement, it has recently become clear that the authorities are interpreting the Portuguese constitution in such a way as to restrict access to the profession of notary to Portuguese nationals. Given that Portugal maintained its position in its response to the reasoned opinion, the Commission has decided to refer the case to the Court of Justice, the third stage in the infringement proceedings. The Commission has already decided to refer Belgium, Germany, Greece, France, Luxembourg and Austria to the Court (see ).
Infringement proceedings consist of three steps. The first step is that the Member State receives a letter of formal notice and has two months to reply. If further action by the Member State is needed to ensure further compliance with EU legislation, the Commission sends a reasoned opinion. Again the Member State has two months to reply. If there is no satisfactory reply, the Commission can refer the matter to the European Court of Justice in Luxembourg. It can also request that the Court impose a fine on the country concerned if it does not comply with the Court's ruling.
The latest information on infringement proceedings concerning all Member States can be found at: