# C_2008092EN.01002002.xml

| 12.4.2008 | EN | Official Journal of the European Union | C 92/20 |
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12.4.2008

EN

Official Journal of the European Union

C 92/20

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Action brought on 18 February 2008 — Commission of the European Communities v Hellenic Republic

(Case C-61/08)

(2008/C 92/38)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos and H. Støvlbæk)

Applicant:

Defendant: Hellenic Republic

Defendant:

Form of order sought

The Court is asked to:

| — | declare that, by laying down and maintaining in operation Article 19(1) of the Notaries' Code (Law 2830/2000), the Hellenic Republic is in breach of its obligations pursuant to the Treaty establishing the European Community, in particular under Articles 43 and 45 EC and Council Directive 89/48/EEC (1) of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration; |
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declare that, by laying down and maintaining in operation Article 19(1) of the Notaries' Code (Law 2830/2000), the Hellenic Republic is in breach of its obligations pursuant to the Treaty establishing the European Community, in particular under Articles 43 and 45 EC and Council Directive 89/48/EEC (1) of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration;

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| — | order the Hellenic Republic to pay the costs. |
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order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | The Greek authorities maintain that the activities of notaries are excluded from the application of Article 43 EC because they fall with the scope of application of Article 45 EC. They rely upon the status of notaries as public officials who confer on a notarised document increased evidential and executory force, similar to that of a judicial decision, with the use of the State seal, the status of notaries as judicial officials, their role as legal advisers, and a whole series of other activities. They also rely on the principle of territoriality, whereby Greek notaries are not permitted to establish themselves in other districts. |
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1.

The Greek authorities maintain that the activities of notaries are excluded from the application of Article 43 EC because they fall with the scope of application of Article 45 EC. They rely upon the status of notaries as public officials who confer on a notarised document increased evidential and executory force, similar to that of a judicial decision, with the use of the State seal, the status of notaries as judicial officials, their role as legal advisers, and a whole series of other activities. They also rely on the principle of territoriality, whereby Greek notaries are not permitted to establish themselves in other districts.

| 2. | The Commission considers that Article 43 EC constitutes one of the fundamental provisions of the Community and has direct application in the Member States from the end of the transitional period. It is aimed at ensuring the benefit of national treatment to every citizen of a Member State who establishes him or herself in another Member State, even as a secondary residence, to exercise a liberal profession and prohibits any discrimination on the ground of nationality created by national legislation. |
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2.

The Commission considers that Article 43 EC constitutes one of the fundamental provisions of the Community and has direct application in the Member States from the end of the transitional period. It is aimed at ensuring the benefit of national treatment to every citizen of a Member State who establishes him or herself in another Member State, even as a secondary residence, to exercise a liberal profession and prohibits any discrimination on the ground of nationality created by national legislation.

| 3. | The derogation to freedom of establishment provided for in the first paragraph of Article 45 must be restricted to activities which in themselves ‘are directly and specifically connected with the exercise of official authority’ (2). In the Commission's view, none of the special features or activities relied upon by the Greek authorities constitute a direct and specific connection with the exercise of official authority as referred to in the case-law of the Court of Justice of the European Communities and accordingly could not justify the nationality requirement. |
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3.

The derogation to freedom of establishment provided for in the first paragraph of Article 45 must be restricted to activities which in themselves ‘are directly and specifically connected with the exercise of official authority’ (2). In the Commission's view, none of the special features or activities relied upon by the Greek authorities constitute a direct and specific connection with the exercise of official authority as referred to in the case-law of the Court of Justice of the European Communities and accordingly could not justify the nationality requirement.

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| 4. | The Court of Justice considers that the criterion of being ‘directly and specifically connected’ does not cover the exercise of ancillary and preparatory duties in relation to those of the public authority, which takes the final decision. In addition, the Court of Justice, examining the regime of firms supplying private security, has held that in order for them to be directly and specifically connected to the exercise of official authority, those involved had to have been given ‘powers of constraint’ (3), which is not the case in this instance. |
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4.

The Court of Justice considers that the criterion of being ‘directly and specifically connected’ does not cover the exercise of ancillary and preparatory duties in relation to those of the public authority, which takes the final decision. In addition, the Court of Justice, examining the regime of firms supplying private security, has held that in order for them to be directly and specifically connected to the exercise of official authority, those involved had to have been given ‘powers of constraint’ (3), which is not the case in this instance.

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| 5. | As is clear from an examination of the case-law of the Court of Justice, the exercise of official authority should not be confused with an activity which is merely carried out on behalf of the public interest. The mere fact that an individual or an undertaking is to some degree bound to act on behalf of the public interest is not sufficient to characterise that function as the exercise of official authority. |
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5.

As is clear from an examination of the case-law of the Court of Justice, the exercise of official authority should not be confused with an activity which is merely carried out on behalf of the public interest. The mere fact that an individual or an undertaking is to some degree bound to act on behalf of the public interest is not sufficient to characterise that function as the exercise of official authority.

| 6. | According to the Commission, Directive 89/48 applies to the profession of notary in so far as it is a profession the required qualifications for which are laid down by legislation, and its application cannot be circumvented by citing the assigning of sovereign rights to notaries for the following reasons:






  (a) | such assignment does not constitute a direct and specific connection with the exercise of official authority which would justify imposition of the nationality condition; and |
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6.

According to the Commission, Directive 89/48 applies to the profession of notary in so far as it is a profession the required qualifications for which are laid down by legislation, and its application cannot be circumvented by citing the assigning of sovereign rights to notaries for the following reasons:

(a)

such assignment does not constitute a direct and specific connection with the exercise of official authority which would justify imposition of the nationality condition; and

| (b) | even supposing that notaries could be regarded as proper civil servants, which they are not, there is no relationship of dependency and salary as public servants and indeed they would not be exempted from the application of that directive, since that directive applies also, in principle, to the public service. |
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(b)

even supposing that notaries could be regarded as proper civil servants, which they are not, there is no relationship of dependency and salary as public servants and indeed they would not be exempted from the application of that directive, since that directive applies also, in principle, to the public service.

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(1)  OJ L 19 of 24.1.1989, p. 16.

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(2)  Case C-114/97 Commission v Spain [1998] ECR I-6717, paragrap 35.

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Commission

Spain

(3)  Ibid., paragraph 37.

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