Opinion of the Advocate General — ECLI:EU:C:2010:521
Date: 2010-09-14

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Exceptions – Activities connected with the exercise of official authority – Activities of Civil-law notaries – Not included – Nationality requirement for access to the profession of notary – Not permissible (Arts 43 EC and 45, first para., EC) 2. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion – Situation of uncertainty as a result of particular circumstances during the legislative procedure – No failure to fulfil obligations (Arts 43 EC, 45, first para., EC and 226 EC; European Parliament and Council Directive 2005/36) 1. A Member State whose legislation imposes a nationality requirement for access to the profession of notary fails to fulfil its obligations under Article 43 EC, where the activities entrusted to notaries within the legal order of that Member State are not connected with the exercise of official authority within the meaning of the first paragraph of Article 45 EC. In that regard, the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment which must be interpreted in a manner which limits its scope to what is strictly necessary in order to safeguard the interests which that provision allows the Member States to protect. In addition, that exception must be restricted solely to activities that are, in themselves, directly and specifically connected with the exercise of official authority. In order to assess whether the activities entrusted to notaries involve a direct and specific connection with the exercise of official authority, account must be taken of the nature of the activities carried out by notaries. In that regard, the various activities carried out by notaries lack a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 45 EC, notwithstanding the significant legal effects conferred on their acts, in so far as either the intention of the parties or judicial supervision or decisions have particular importance. First, as regards authentic instruments, the only documents that may be authenticated are documents and agreements freely entered into by the parties, while a notary cannot unilaterally alter the agreement which he is called on to authenticate without obtaining the prior consent of the parties. Further, while the obligation of verification incumbent on notaries admittedly pursues an objective in the public interest, the mere pursuit of that objective cannot however justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned and is not, in itself, sufficient for an activity to be regarded as directly and specifically connected with the exercise of official authority. Secondly as regards enforceability, while a notary’s endorsement of authority to execute on an authentic instrument does give it enforceable status, that status is based on the intention of the parties to sign a document or agreement, after its conformity with the law has been checked by the notary, and confer enforceability on it. Likewise, the probative force enjoyed by notarial acts derives from the rules on evidence and thus has no direct effect on whether the activity which includes the drawing up of the document in question is in itself directly and specifically connected with the exercise of official authority, the more so when a notarial act does not unconditionally bind a court exercising its power of assessment, since the judge decides in accordance with his own firm conviction. The same is true of other activities entrusted to notaries, such as tasks entrusted to a notary in connection with enforcement, when the notary’s main responsibility is to carry out the auction and, in cases of compulsory sale, to draw up the bidding papers, activities carried out by a notary in the special liquidation of companies in difficulty, involvement in cases of non‑acceptance or non‑payment of bills or cheques, transactions and acts such as the constitution and transfer of real rights in immoveable property, gifts of immoveable property, voluntary acknowledgement of paternity and bequests, and acts constituting companies and trusts. Lastly, as regards the specific status of notaries, in the first place, it follows from the fact that the quality of the services provided may vary from one notary to another, depending in particular on their professional capabilities, that, within the geographical boundaries of their office, notaries practise their profession in conditions of competition, which is not characteristic of the exercise of official authority. In the second place, notaries are directly and personally liable to their clients for harm or loss resulting from any fault committed in the exercise of their activities. (see paras 74, 76-77, 79-84, 86-88, 91-97, 99-100, 102-107, 110) 2. When, in the course of the legislative procedure, particular circumstances, such as the failure of the legislature to adopt a clear position or the failure clearly to determine the scope of a provision of Union law, give rise to a situation of uncertainty, it is not possible to conclude that, at the end of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose a directive. (see paras 130-132)