The European Commission has decided to take the Czech Republic before the Court of Justice of the EU due to the fact that this country only allows Czech nationals to take up and practice the profession of notary in the Czech Republic, thus excluding nationals from other Member States.
In the Commission’s view, this nationality requirement runs contrary to rules on freedom of establishment and cannot be justified under Article 51 of TFEU, which concerns activities linked to official authority.
In a number of cases brought by the Commission to the Court of Justice of the EU, the Court ruled on 24 May 2011 that notaries in Austria (C-53/08), Belgium (C-47/08), Germany (C-54/08), Greece (C-61/08), France (C-50/08), and Luxembourg (C-51/08) do not exercise official authority. On 1 December 2011, the Court confirmed this conclusion as regards the activities of notaries in the Netherlands. The Court found therefore that the nationality requirement these countries imposed on accessing the notarial profession was not in compliance with EU law. According to these judgments, there must be a direct and specific connection of the activity of a notary to the exercise of official authority. Following the rulings of the Court, these Member States amended their legislation, ending the discriminatory practices.
On 10 September 2015, the Court ruled that the same requirement imposed in Latvia (C‑151/14) is contrary to EU law. The Latvian legislation has been amended recently in order to comply with the judgement.
The Commission considers that the activities exercised by Czech notaries do not present any significant differences from those already assessed by the Court of Justice, where the Court concluded that the nationality requirement the countries in question imposed on accessing the notarial profession was not in compliance with EU law. As the Czech Republic has maintained its position, the Commission has decided to refer the matter to the Court of Justice of the EU.
A similar case against Hungary is currently pending in the Court of Justice of the EU.
The Commission is also closely following the situation in the other Member States.
According to the case law of the Court of Justice of the EU, a direct and specific connection of an activity to the exercise of official authority is established if the activity is not just auxiliary or preparatory to its exercise and contains discretionary decision-making powers in contentious cases, powers of constraint or powers of coercion. An activity lacks a direct and specific connection to the exercise of official authority if the parties decided freely to accept the decision imposed on them. Although the scope of activities of Czech notaries is wide, none of the activities performed by Czech notaries seem to fit into the definition of activities listed for the exercise of official authority under Article 51 of TFEU.