The Law Society Gazette reported a few days ago that the European Court of Justice decided to open up the continental notaries’ profession to all nationalities. That is a big change. But it does not represent the real revolution behind the decision. I wrote about some of the background when the Advocate General’s opinion came out last September, and before that just after the oral hearing. Although the notaries defended the nationality requirement, as did the governments against whom the case was brought (Belgium, France, Luxembourg, Austria, Germany, Greece and Portugal), this was never about that alone – or even mainly about that. I have privately heard from notaries over and over again that they expected to see the nationality requirement go sooner or later, and that it was not defensible. No, the real question was the position of notaries under article 45 of the Treaty, which says that the free movement provisions relating to persons, services and capital should not apply to ‘activities which in that state are connected, even occasionally, with the exercise of official authority’. The notaries have used this provision to escape from the free movement legislation, which has bound lawyers ever since the Reyners case settled it for our profession. Under this argument, notaries have until now claimed exemption from the relevant provisions of the Treaty because their activities are connected with the exercise of official authority. The Member States concerned in the cases supported this proposition. So did the Advocate General in his opinion (who advocated striking down the nationality requirement but still supported their exclusion from Article 45). The only Member State to support the Commission in its claim that this was not true was – don’t fall down with shock – the UK. Interestingly, this was one of those rare cases where the Court of Justice opposed the collective might of the Advocate General’s opinion and the ranks of the Member States to say that notaries do not exercise official authority. The Court analysed the decades-old arguments of the notaries, and demolished them one by one – which means a total change in the declared status of notaries. I notice that the press release of the official body representing notaries, CNUE, pretends to welcome the decision, but in fact they must be reeling with trauma and distress. For the first time, they are now to be treated like any other profession in the EU. The principal argument used has been that notaries authenticate documents, a procedure unknown to the common law, which verifies that all the conditions laid down by law for the drawing up of an instrument are satisfied and that the parties have legal personality and capacity to enter into it. However, the Court notes that these instruments are freely entered into by the parties. They decide themselves, within the limits laid down by law, the extent of their rights and obligations and choose freely the conditions which they wish to be subject to when they produce a document or agreement to the notary for authentication. Therefore, the notary’s intervention presupposes the prior existence of an agreement or consensus. Further, the notary cannot unilaterally alter the agreement without first obtaining the consent of the parties. This does not have the appearance or substance of official authority. The second argument has been that an authentic act has enhanced probative force and is enforceable. But the Court points out that that force derives from the rules of evidence of the Member States and so has no direct effect on the classification of the notarial activity of drawing up those acts. As regards the enforceability of notarial acts, the Court observes that it is based on the intention of the parties appearing before the notary to make it enforceable. Finally, the Court also observes that, within the geographical limits of their office, notaries practise in conditions of competition, which is not characteristic of the exercise of official authority. They are also directly and personally liable to their clients for loss arising from any default in the exercise of their activities, unlike public authorities, liability for whose default is assumed by the State. So, welcome to our world, brothers and sisters of the notarial profession. Expect soon to have all the internal market legislation applied to you. For instance, I wonder what will happen now to perceived obstacles to free movement like the fixed number (‘numerus clausus’) of notaries and the fixed geographical location, to take just two. There will be a rollercoaster ride ahead.
12 June 2021
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