Opinion of the Advocate General — ECLI:EU:C:2023:16
Date: 2023-01-12
Language of the case: Lithuanian
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
26 February 2021  
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the decision to refer:  
17 February 2021  
Applicants at first instance and other parties in the appeal:  
Lietuvos notarų rūmai 
M. S. 
S. Š. 
D. V. 
V. P. 
J. P. 
D. L.-B. 
D. P. 
R. O. I. 
Defendant at first instance and appellant:  
Lietuvos Respublikos konkurencijos taryba 
  
Subject matter of the main proceedings 
Application for annulment of a decision of the Lietuvos Respublikos 
konkurencijos taryba (Competition Council of the Republic of Lithuania; ‘the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-128/21 
 
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Competition Council’) of 26 April 2018 (‘the contested decision’) in so far as that 
decision found that the Notarų rūmai (Chamber of Notaries) and notaries who 
were members of the Presidium of the Chamber of Notaries (hereinafter also ‘the 
Presidium’) (together, ‘the applicants’) infringed requirements laid down in point 
1 of Article 5(1) of the Lietuvos Respublikos konkurencijos įstatymas (Law of the 
Republic of Lithuania on competition) and in Article 101(1)(a) of the Treaty on 
the Functioning of the European Union, ordered them to cease the infringement 
and imposed fines on them. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 101 of the Treaty on the Functioning of the European 
Union (‘TFEU’). 
Basis – third paragraph of Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Is Article 101(1) TFEU to be interpreted as meaning that notaries in the 
Republic of Lithuania, when carrying out activity related to the clarifications 
adopted by the Chamber of Notaries that are described in the present case, are 
undertakings within the meaning of Article 101 TFEU? 
2. Is Article 101(1) TFEU to be interpreted as meaning that the clarifications 
adopted by the Lithuanian Chamber of Notaries that are described in the present 
case constitute a decision of an association within the meaning of Article 101(1) 
TFEU? 
3. If the answer to the second question is in the affirmative, do those 
clarifications have as their object or effect the prevention, restriction or distortion 
of competition in the internal market for the purposes of Article 101(1) TFEU? 
4. When ruling on a possible infringement of Article 101(1) TFEU, are those 
clarifications, described in the present case, to be assessed in accordance with the 
criteria set out in paragraph 97 of the judgment in Wouters? 
5. If the answer to the fourth question is in the affirmative, do the objectives 
referred to by the applicants, that is to say, making notarial practice uniform, 
filling a regulatory gap, protecting the interests of consumers, safeguarding the 
principles of equal treatment of consumers and proportionality, and protecting 
notaries against unjustified civil liability, constitute legitimate objectives when 
assessing those clarifications in accordance with the criteria set out in 
paragraph 97 of the judgment in Wouters? 
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6. If the answer to the fifth question is in the affirmative, are the restrictions 
imposed in those clarifications to be regarded as not going beyond what is 
necessary in order to ensure that legitimate objectives are attained? 
7. Is Article 101 TFEU to be interpreted as meaning that notaries who were 
members of the presidium may be regarded as having infringed that article and 
may be fined on the ground that they participated in the adoption of the 
clarifications described in the present case while working as notaries? 
Provisions of EU law and case-law of the Court of Justice of the European 
Union that are cited 
Article 4(3) of the Treaty on European Union (‘TEU’). 
Article 101 TFEU. 
Judgment of 19 February 2002, Wouters and Others, C-309/99, EU:C:2002:98 
(‘the judgment in Wouters’), paragraphs 46, 47, 57, 67 to 69 and 97. 
Judgment of 18 July 2013, Consiglio nazionale dei geologi, C-136/12, 
EU:C:2013:489 (‘the judgment in Consiglio nazionale dei geologi’), 
paragraphs 35, 36, 42, 53 and 54. 
Judgment of 18 July 2006, Meca-Medina and Majcen v Commission, C-519/04 P, 
EU:C:2006:492 (‘the judgment in Meca-Medina and Majcen v Commission’), 
paragraph 47. 
Judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx 
International, C-427/16 and C-428/16, EU:C:2017:890 (‘the judgment in CHEZ 
Elektro Bulgaria’), paragraphs 42, 43 and 46. 
Judgment of 4 September 2014, API and Others, C-184/13 to C-187/13, 
C-194/13, C-195/13 and C-208/13, EU:C:2014:2147, paragraphs 31 and 41. 
Judgment of 24 October 2002, Aéroports de Paris v Commission, C-82/01 P, 
EU:C:2002:617 (‘the judgment in Aéroports de Paris v Commission’), 
paragraph 74. 
Judgment of 1 July 2008, MOTOE, C-49/07, EU:C:2008:376 (‘the judgment in 
MOTOE’), paragraph 25. 
Judgment of 28 February 2013, Ordem dos Técnicos Oficiais de Contas v 
Autoridade da Concorrência, C-1/12, EU:C:2013:127 
Judgment of 15 March 2018, Commission v Czech Republic, C-575/16, not 
published, EU:C:2018:186. 
Judgment of 24 May 2011, Commission v Belgium, C-47/08, EU:C:2011:334. 
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Provisions of national law cited 
Point 1 of Article 5(1) and Article 3(19) and (22) of the Lietuvos Respublikos 
konkurencijos įstatymas (Law of the Republic of Lithuania on competition; ‘the 
Law on competition’) (as amended by Law No XIII-193 of 12 January 2017). 
Article 2, Article 6(1), Article 62(1) and (6), Article 8, Article 9, points 4 and 7 of 
Article 10, Article 11(2) and (3), Article 12, Article 13, Article 16, Article 19(1) 
and (2), Article 191, Article 201(1), Article 21, Article 26, Article 28 and 
Article 45 of the Lietuvos Respublikos notariato įstatymas (Law of the Republic 
of Lithuania on the notarial profession; ‘the Law on the notarial profession’) (as 
amended by Law No XIII-570 of 29 June 2017). 
Article 8(6) and (7), point 4 of Article 10, Article 18(1), Article 19(1), (2), (4) and 
(6), Article 20(1), Article 23, Article 25, Article 26(3) and Article 28(3) of the 
Lietuvos notarų rūmų statutas (Statute of the Lithuanian Chamber of Notaries; 
‘the Statute’) approved by Order No 1R-3 of the Minister for Justice of the 
Republic of Lithuania of 3 January 2008. 
Points 1.7 and 2.6 (as amended by Order No 1R-182 of 29 June 2012) and 
points 1.2, 1.6 and 2.2 (as amended by Order No 1R-386 of 31 December 2014) of 
the Notarų imamo atlyginimo už notarinių veiksmų atlikimą, sandorių projektų 
parengimą, konsultacijas ir technines paslaugas laikinieji dydžiai (Provisional 
rates of fees charged by notaries for the performance of notarial acts, the drafting 
of transactions, consultation, and technical services; ‘the Provisional Rates’) 
approved by Order No 57 of the Minister for Justice of the Republic of Lithuania 
of 12 September 1996. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Pursuant to Article 19 of the Law on the notarial profession, a notary charges a fee 
for the performance of notarial acts, the drafting of transactions, consultation, and 
technical services, the rate of which is to be set by the Minister for Justice of the 
Republic of Lithuania, upon agreement with the Minister for Finance of the 
Republic of Lithuania and the Chamber of Notaries. 
2 In the Provisional Rates approved by Order No 57 of the Minister for Justice of 
12 September 1996, fees for the performance of notarial acts at the material time 
were mainly specified within a range by setting minimum and maximum rates. In 
this legal measure (in the versions relevant to the present case), fees are set at the 
following rates: 
– notarisation of a mortgage on an item of immovable property is to be 
charged at a rate of 0.2 to 0.3 per cent of the value of the item, but not 
less than LTL 50 and not more than LTL 500 (correspondingly, from 
1 January 2015, at a rate of 0.2 to 0.3 per cent of the value of the item, 
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but not less than EUR 14.48 and not more than EUR 144.80) 
(point 1.7);  
– notarisation of a pledge is to be charged at a rate of 0.2 to 0.3 per cent 
of the value of the item, but not less than LTL 50 and not more than 
LTL 500 (correspondingly, from 1 January 2015, at a rate of 0.2 to 0.3 
per cent of the value of the item, but not less than EUR 14.48 and not 
more than EUR 144.81) (point 2.6); 
– notarisation of a contract concerning the right of servitude, the right of 
usufruct or the right of superficies , or concerning arrangements for the 
use of an item of property, is to be charged at a rate of EUR 28.96 to 
EUR 86.89 (point 1.6); 
– notarisation of a contract for the exchange of an item of immovable 
property, including cases of exchange of an item of immovable 
property for a movable item or another object of civil-law rights, is to 
be charged at a rate of 0.4 to 0.5 per cent of the value of the exchanged 
item with a higher value, but not less than EUR 28.96 and not more 
than EUR 5 792.40) (point 1.2), and notarisation of a contract for the 
exchange of movable items is to be charged at a rate of 0.3 to 0.4 per 
cent of the value of the exchanged item or other object of civil-law 
rights with a higher value, but not less than EUR 14.48 (point 2.2). 
3 By resolution of 30 August 2012, the Presidium of the Chamber of Notaries 
established that, where the value of the mortgaged or pledged item is not specified 
by the parties to the transaction, the maximum amount of the notarial fee specified 
in points 1.7 and 2.6 of the Provisional Rates is to be charged for the notarisation 
of a mortgage or pledge transaction. 
4 In its resolution of 23 April 2015, the Presidium of the Chamber of Notaries 
specified how the notarial fee is to be calculated where a servitude is created on 
several items of immovable property by a single contract. The Presidium decided 
that it would be recommended to multiply the fee rate set in point 1.6 of the 
Provisional Rates by the number of properties on which the servitude(s) is (are) 
created. 
5 By its resolution of 26 May 2016, the Presidium of the Chamber of Notaries 
confirmed that, where parts of several items are exchanged under a single 
contract, the notarial fee may be calculated by calculating the amount of the fee 
set in point 1.2 of the Provisional Rates on the basis of the price of each item 
transferred under the transaction, and then adding the sums together. 
6 By its resolution of 26 January 2017, the Presidium of the Chamber of Notaries 
established that, where several items of immovable property are mortgaged under 
a single mortgage transaction, the amount of the notarial fee set in the Provisional 
Rates ‘shall be calculated on the basis of the value of each mortgaged property, 
and then the sums calculated shall be added together’. 
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7 The abovementioned resolutions of the Presidium of the Chamber of Notaries 
(hereinafter also ‘the clarifications’) were adopted by consensus of the members 
of the Presidium who attended the meetings (unanimously) and published on the 
intranet of the Chamber of Notaries. 
8 In the contested decision, the Competition Council stated that, by the 
clarifications, the applicants had laid down a mechanism for calculating notarial 
fees which in all cases set the maximum amounts under the Provisional Rates that 
ir was possible to charge for the notarisation of mortgage, exchange and servitude 
transactions whereby several items are mortgaged, transferred or encumbered; as a 
result, the amounts of fees to be charged by notaries had been set indirectly, 
although prior to the adoption of those clarifications notaries were free in specific 
cases to set lower fees as well. The Competition Council also found that the 
applicants had directly set the amount of the fee – namely the maximum rate 
within the range of fees – to be charged by notaries for the notarisation of a 
mortgage or pledge where the value of the mortgaged or pledged item is not 
specified by the parties. 
9 In the contested decision, it was concluded that, when adopting the clarifications, 
the Chamber of Notaries – acting through its management body, the presidium – 
and the notaries entered into an agreement restricting competition, thereby 
infringing the requirements of point 1 of Article 5(1) of the Law on competition 
and Article 101(1)(a) TFEU. Under Article 3(19) of the Law on competition, an 
agreement is defined as covering the concept of a decision of an association. The 
contested decision states that the Chamber of Notaries is an association of 
economic entities, namely notaries. Thus, for the purposes of Article 101(1) 
TFEU, the contested decision determined that the clarifications adopted by the 
Chamber of Notaries constitute a decision of an association adopted with the 
participation of eight notaries, who were members of the Presidium of the 
Chamber of Notaries. 
10 In the contested decision, the Competition Council defined the relevant market as 
the notarial acts market in the Republic of Lithuania and treated the clarifications 
as a single infringement, which had lasted from 30 August 2012 to at least 
16 November 2017; it also regarded those actions as being an agreement having as 
its object the restriction of competition between all notaries. 
11 The applicants brought an action against the contested decision before the 
Vilniaus apygardos administracinis teismas (Regional Administrative Court, 
Vilnius). By judgment of 19 February 2019, that court upheld the action and 
annulled the parts of the contested decision under challenge. 
12 By its appeal, the Competition Council requests the Lietuvos Vyriausiasis 
Administracinis Teismas (Supreme Administrative Court of Lithuania; ‘the 
referring court’) to set aside that judgment and to rule that the applicants’ action 
be dismissed. 
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Principal arguments of the parties in the main proceedings 
13 In the present case, the applicants argue that notaries are in essence officials 
exercising public authority, and agents or representatives of official authority. 
According to the applicants, notaries compete with each other on the quality of 
services, not on price. As stated in their application to the court of first instance, 
there were 262 notaries who carried on activities in Lithuania at that time. 
14 According to the applicants, in adopting the clarifications, they sought to perform 
the task of the Chamber of Notaries set out in point 5 of Article 9 of the Law on 
the notarial profession, namely making notarial practice uniform, and the 
functions of the Chamber of Notaries referred to in points 6 and 7 of Article 8 of 
the Statute, namely summarising notarial practice and submitting the conclusions 
to notaries (they thus had legislative powers in the present case). The applicants 
submit that the clarifications were also aimed at filling a regulatory gap, 
protecting the interests of consumers, safeguarding the principles of equal 
treatment of consumers and proportionality, and protecting notaries against 
unjustified civil liability. During the investigation conducted by the Competition 
Council, the Chamber of Notaries stated that the value of the subject matter of a 
mortgage is an important criterion for the weaker party – that is to say, the 
mortgagor – in order to assess to what extent his assets will be encumbered; 
therefore, the intention of setting the maximum amount of the notarial fee where 
the value of the subject matter of a mortgage or pledge is not specified was to 
encourage the parties to the transaction to indicate the value of the subject matter 
of the mortgage or pledge in all cases, and thereby to ensure balance between the 
interests of the parties. 
15 The applicants also point out that Article 191 of the Law on the notarial profession 
lays down criteria to be taken into consideration in determining rates of fees for 
notarial acts. Furthermore, if the Minister for Justice disagreed with the adopted 
clarifications, he could have supplemented the Provisional Rates, as he was aware 
of those clarifications; however, he has not taken any actions provided for in 
Article 11 of the Law on the notarial profession, that is to say, he has not applied 
to the court requesting the annulment of measures which are not in conformity 
with legislative requirements, nor has he taken any initiative to amend the 
Provisional Rates. The applicants assert that the TFEU is not applicable in this 
case, as there is no common market of notarial services of EU Member States. 
16 The defendant, the Competition Council, maintains that notaries are economic 
entities and are able to compete on price within the limits set in the Provisional 
Rates, and that notaries are also able to compete with each other on fees in cases 
where it is possible to calculate the amount of the fee set in the Provisional Rates 
by different methods. The defendant contends that both the Law on competition 
and the TFEU prohibit price-fixing agreements; therefore, the applicants do not 
have the right to make notarial practice uniform in such a way that that prohibition 
would be infringed. It does not agree that there were regulatory gaps. The 
defendant maintains that the TFEU is applicable in the present case, given that the 
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applicants’ actions cover the entire territory of Lithuania, and points out that 
notarial fee rates are applicable not only to Lithuanian entities, but also to entities 
of other Member States using notarial services in Lithuania. 
Succinct presentation of the reasons for the request for a preliminary ruling 
17 According to the referring court, the Court of Justice has already ruled in relation 
to the functions exercised by notaries in some other Member States in the context 
of the freedom of establishment, but it has not yet decided whether the functions 
of notaries such as those attributed to notaries in the Republic of Lithuania in the 
present case constitute an economic activity for the purposes of Article 101(1) 
TFEU and whether, in a situation such as that at issue in the present case, notaries 
are undertakings within the meaning of Article 101 TFEU. 
18 It notes in particular that, according to settled case-law of the Court of Justice, 
although, in the field of competition law, the concept of an undertaking covers any 
entity engaged in an economic activity, regardless of its legal status and the way 
in which it is financed, and any activity consisting of offering goods and services 
on a given market is an economic activity (judgment in Wouters, paragraphs 46 
and 47 and the case-law cited), the Treaty rules on competition do not apply to 
activity which, by its nature, its aim and the rules to which it is subject does not 
belong to the sphere of economic activity or which is connected with the exercise 
of the powers of a public authority (judgment in Wouters, paragraph 57, and 
judgment in Consiglio nazionale dei geologi, paragraph 42).  
19 It points out that the Court of Justice stated in paragraphs 67 to 69 of the judgment 
in Wouters that a distinction must be drawn between two approaches with regard 
to the principle of institutional autonomy. The first is that a Member State, when it 
grants regulatory powers to a professional association, is careful to define the 
public-interest criteria and the essential principles with which its rules must 
comply and also retains its power to adopt decisions in the last resort. In that case 
the rules adopted by the professional association remain State measures and are 
not covered by the Treaty rules applicable to undertakings. The second approach 
is that the rules adopted by the professional association are attributable to it alone. 
Moreover, the Court of Justice noted, in paragraph 97 of the judgment in Wouters, 
that ‘not every agreement between undertakings or every decision of an 
association of undertakings which restricts the freedom of action of the parties or 
of one of them necessarily falls within the prohibition laid down in Article 85(1) 
of the Treaty. For the purposes of application of that provision to a particular case, 
account must first of all be taken of the overall context in which the decision of 
the association of undertakings was taken or produces its effects. More 
particularly, account must be taken of its objectives, which are here connected 
with the need to make rules relating to organisation, qualifications, professional 
ethics, supervision and liability, in order to ensure that the ultimate consumers of 
legal services and the sound administration of justice are provided with the 
necessary guarantees in relation to integrity and experience. … It has then to be 
LIETUVOS NOTARŲ RŪMAI AND OTHERS 
 
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considered whether the consequential effects restrictive of competition are 
inherent in the pursuit of those objectives.’  
20 The referring court recalls in particular the case-law of the Court of Justice in 
which it is stated that it is important to verify whether the restrictions imposed by 
the rules at issue in the main proceedings are limited to what is necessary to 
ensure the implementation of legitimate objectives (judgment in Meca-Medina 
and Majcen v Commission, paragraph 47, and judgment in Consiglio nazionale 
dei geologi, paragraph 54), that the fact that, for the exercise of part of its 
activities, an entity is vested with public powers does not, in itself, prevent it from 
being classified as an undertaking for the purposes of Community competition law 
in respect of the remainder of its economic activities (judgment in Aéroports de 
Paris v Commission, paragraph 74), and that the classification as an activity 
falling within the exercise of public powers or as an economic activity must be 
carried out separately for each activity exercised by a given entity (judgment in 
MOTOE, paragraph 25). 
21 The present court has doubts as to whether, in the light of Article 101 TFEU (read 
separately or in conjunction with Article 4(3) TEU), the right ‘to make notarial 
practice uniform’ conferred on the Chamber of Notaries may/should be interpreted 
as also including the right to standardise the fee rates applicable to notaries in so 
far as notarial fees (or their method of calculation) for the performance of notarial 
acts in specific cases are not specified in the Provisional Rates approved by the 
Minister for Justice. At the same time, it raises the question whether a situation, 
such as that at issue in the present case, where the Chamber of Notaries adopts the 
clarifications concerning the amount of notarial fees or the method of calculating 
them in those specific cases – which are not specifically addressed in the 
Provisional Rates approved by the Minister for Justice – may be regarded as 
meeting the criterion set out in paragraph 68 of the judgment in Wouters that ‘a 
Member State … retains its power to adopt decisions in the last resort’ or the 
criterion set out in paragraph 46 of the judgment in CHEZ Elektro Bulgaria that 
‘there must be actual review and the State must have the power to adopt decisions 
in the last resort’, where the Minister for Justice has the right, within one month 
after receipt of the relevant decision, to make an application to the court for 
annulment of a decision of the Chamber of Notaries that could be unlawful 
(Article 11(3) of the Law on the notarial profession) and also may supplement the 
Provisional Rates by determining how notarial fees should be calculated in those 
specific cases. 
22 The referring court therefore has doubts as to whether the criteria set out in 
paragraph 68 of the judgment in Wouters are met in the present case, or whether 
the clarifications adopted by the Chamber of Notaries are nevertheless attributable 
to it alone (judgment in Wouters, paragraph 69), that is to say, whether the 
clarifications adopted by the Chamber of Notaries should be regarded as a 
decision by an association of undertakings within the meaning of Article 101(1) 
TFEU. 
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23 The clarifications set the specific amount of fees chargeable by notaries (in the 
first clarification) or the method of calculating them (in the other three 
clarifications). As already mentioned, the Competition Council considers that, in 
cases which are not specified in the Provisional Rates, notaries should themselves 
decide on the notarial fee to be charged or on the method of calculating it. The 
question therefore arises as to whether Article 101 TFEU is to be interpreted as 
meaning that these clarifications have as their object or effect the prevention, 
restriction or distortion of competition within the internal market. 
24 The applicants point out a number of objectives of the adoption of the 
clarifications, which, in their view, justify their adoption. The referring court has 
doubts as to whether, in the light of Article 101(1) TFEU, the criteria set out in 
paragraph 97 of the judgment in Wouters should apply in the present case and 
whether these objectives indicated by the applicants may be regarded as legitimate 
objectives, as set out in paragraph 97 of the judgment in Wouters. 
25 If that last question is answered in the affirmative, the referring court is also faced 
with the question as to whether, in the light of the criteria set out in paragraph 97 
of the judgment in Wouters, the restrictions imposed in the clarifications do not go 
beyond what is necessary in order to ensure that legitimate objectives are attained. 
26 In the contested decision, as already mentioned, eight notaries, who were 
members of the Presidium of the Chamber of Notaries, which adopted the 
clarifications, have also been found to have infringed Article 101(1)(a) TFEU and 
point 1 of Article 5(1) of the Law on competition. The question arises for the 
referring court as to whether Article 101 TFEU is to be interpreted as meaning 
that notaries who were members of the presidium (members of an association) 
may be regarded as having infringed Article 101 TFEU and may be fined on the 
ground that they participated in the adoption of the clarifications, that is to say, 
whether they may be held liable for also having worked as notaries while being 
members of the Presidium of the Chamber of Notaries. 
27 As is apparent from the foregoing considerations, answers to those questions are 
crucial in examining the present case, that is to say, in deciding whether the 
applicants, by adopting the clarifications, have infringed Article 101(1) TFEU.