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IP/09/152

Brussels, 29 January 2009

Nationality requirements for notaries: Commission takes the Netherlands before the Court of Justice to ensure compliance with non-discrimination principle

The European Commission has decided to bring legal proceedings against the Netherlands before the Court of Justice for not yet having adopted the Dutch Government's proposed law abolishing the nationality requirement applicable to those wishing to take up and practise the profession of notary.

In response to the reasoned opinion in December 2006 the Netherlands submitted a draft law which was in compliance and a timetable providing for its adoption by 1 August 2007. Although that draft was tabled before the Dutch Parliament in April 2007, it has not yet been adopted.

Meanwhile, in February 2008 the Commission referred Belgium, Germany, Greece, France, Luxembourg and Austria to the Court of Justice for allowing only their nationals to take up and practise the profession of notary. The Commission also instituted infringement proceedings against all the new Member States, except Cyprus which does not have this requirement. Estonia abolished it in June 2008, following the example of Spain and Italy.

In the Commission's view, this nationality requirement is contrary to the freedom of establishment provided for by Article 43 of the EC Treaty and is not justified under Article 45, which exempts activities connected with the exercise of official authority.

According to Court of Justice case law, such a connection must be direct and specific. The Commission takes the view that this is not the case here because a notary cannot impose a decision against the wishes of a party he is advising. In other words, he does not give rulings and therefore does not exercise authority on behalf of the state.

The latest information on infringement proceedings concerning Member States is available at:

http://ec.europa.eu/community_law/index_en.htm


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