Opinion of the Advocate General — ECLI:EU:C:2016:710
Date: 2016-09-21
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Fifth Chamber), 9 March 2017 1. Freedom to provide services — Lawyers — Directive 77/249 — Scope — Exceptions — Option for Member States to reserve to prescribed categories of lawyers the drafting of formal documents relating to immovable property — Application in the case of national legislation requiring notarial certification of the authenticity of the signature of a request for entry in the land register — Precluded (Art. 56 TFEU; Council Directive 77/249, Art. 1(1), second para.) 2. Freedom to provide services — Exceptions — Activities connected with the exercise of official authority — Definition — Notarial certification of the authenticity of the signature of a request for entry in the land register — Precluded (Arts 51 TFEU, 52 TFEU and 62 TFEU) 3. Freedom to provide services — Restrictions — Legal services — National legislation requiring notarial certification of the authenticity of the signature of a request for entry in the land register — Lawfulness (Art. 56 TFEU) 1. The second subparagraph of Article 1(1) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services must be interpreted as not applying to legislation of a Member State, such as that at issue in the main proceedings, under which authentication of signatures appended to the instruments necessary for the creation or transfer of rights to property is reserved to notaries, and as consequently excluding the possibility of recognising in that Member State such authentication carried out by a lawyer established in another Member State. It must be stated, however, that the derogation provided for in the second subparagraph of Article 1(1) of Directive 77/249 does not cover, in general terms, the various categories of legal professions, with the result that Member States would have the right, relying on that provision, to limit the pursuit of the activity of drafting formal documents for the creation or transfer of rights to property to certain categories of legal professionals — such as notaries — and thus to prohibit foreign lawyers from exercising the activities in question within the territory of those Member States. The purpose of that derogation, as the Advocate General notes in point 34 of his Opinion, is thus to prevent lawyers from other Member States from pursuing the activities concerned in the United Kingdom or in Ireland. That interpretation is supported by recital 10 of Directive 98/5, according to which provision should be made, as in Directive 77/249, for the option of excluding from the activities of lawyers practising under their home-country professional titles in the United Kingdom and Ireland the preparation of certain formal documents in the conveyancing and probate spheres. In those circumstances, given that the derogation introduced by the second subparagraph of Directive 77/249 is aimed only at prescribed categories of lawyers, authorised by the Member State concerned to pursue their professional activities under one of the designations specifically identified by the directive itself, and not at professions other than that of lawyer, it must be concluded that that provision does not apply in the circumstances of the case in the main proceedings. (see paras 40, 44, 46, 47, operative part 1) 2. See the text of the decision. (see paras 53-55) 3. Article 56 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which authentication of signatures appended to the instruments necessary for the creation or transfer of rights to property is reserved to notaries, and as consequently excluding the possibility of recognition in that Member State of such authentication carried out, in accordance with his or her national law, by a lawyer established in another Member State. In so far as it does not permit recognition of signature authentication carried out by a lawyer established in another Member State, in this case the Czech Republic, where, in accordance with national law, that lawyer lawfully provides similar services, such a reservation of competence is liable to prevent such a professional from offering that kind of service to clients minded to avail of it in Austria. In addition, having regard to the case-law cited in paragraphs 34 and 35 of the present judgment, such a reservation of competence also restricts the freedom of an Austrian national, as the recipient of such a service, to travel to the Czech Republic in order to avail there of a service which cannot be used in Austria for the purposes of making an entry in the land register. Therefore, it must be held that the national provision at issue in the main proceedings constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU. First, however, as the Austrian and German Governments, among others, have noted, it should be stated that the land register is of crucial importance especially in certain Member States which operate a system of civil-law notaries, particularly in property transactions. In particular, each entry in a land register — such as the Austrian land register — alters rights, in so far as the rights of the person who has requested that entry arise only after the corresponding entry has been made therein. Maintaining the land register thus constitutes an essential component of the preventive administration of justice in the sense that it seeks to ensure proper application of the law and legal certainty of documents concluded between individuals, which are matters coming within the scope of the tasks and responsibilities of the State. In those conditions, national provisions which require verification, by recourse to sworn professionals — such as notaries — of the accuracy of entries made in a land register contribute to guaranteeing the legal certainty of property transactions and the proper functioning of the land register and relate, more generally, to the safeguarding of the sound administration of justice, which, in accordance with the case-law of the Court, constitutes an overriding reason in the public interest (see, to that effect, judgment of 12 December 1996, Reisebüro Broede, C‑3/95, EU:C:1996:487, paragraph 36). It must be considered, by analogy with what the Court held in that judgment, that such considerations also apply in relation to a restriction on the freedom to provide services, within the meaning of Article 56 TFEU. In the present case, as is apparent from the observations made by the Austrian authorities during the hearing, the notary’s involvement is important and necessary for the purposes of entry in the land register, since the participation of that professional is not limited to confirming the identity of a person who has appended a signature to an instrument, but also involves the notary’s becoming acquainted with the content of the instrument in question in order to ensure that the proposed transaction is lawful as well as verifying that the applicant enjoys legal capacity. In those conditions, the act of reserving activities relating to the authentication of instruments for creating or transferring rights to property to a particular category of professionals in which there is public trust and over which the Member State concerned exercises particular control constitutes an appropriate measure for attaining the objectives of proper functioning of the land register system and for ensuring the legality and legal certainty of documents concluded between individuals. Moreover, it is important to bear in mind that the activity of lawyers consisting in certifying the authenticity of signatures appended to instruments is not comparable to the authentication activity carried out by notaries and that stricter provisions govern the system of authentications. In those circumstances, the act of dispensing in a general manner, for reasons relating to the freedom of lawyers to provide services, with State control functions and with an effective guarantee of control over entries in the land register would lead to disruption of the smooth functioning of the land register and of the legality and legal certainty of documents concluded between individuals. (see paras 51, 52, 58, 59, 62, 64-66, 69, 71, operative part 2)