Brussels, 19 February 2009
Nationality requirement for notaries: the Commission takes new steps to ensure compliance with the principle of non-discrimination in Portugal
The European Commission has decided to send a reasoned opinion to Portugal as it allows only its own nationals to take up and practise the profession of notary.
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 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Although Portugal adopted legislation in 1997 which repealed the nationality requirement, it has recently become clear that the authorities are interpreting the Portuguese constitution in such a way as to restrict access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. As Portugal maintained its position in its reply to the letter of formal notice, the Commission has decided to send it a reasoned opinion, the second stage in the infringement procedure. The Commission has already decided to refer Belgium, Germany, Greece, France, Luxembourg and Austria to the Court of Justice, which is the third stage in the procedure (see IP/07/915).