Summary;Judgment — ECLI:EU:C:2024:901
Date: 2024-10-17
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-408/23 – 1 
Case C-408/23 
Request for a preliminary ruling 
Date lodged: 
4 July 2023 
Referring court: 
Oberlandesgericht Köln (Germany) 
Date of the decision to refer: 
27 June 2023 
Applicant: 
Rechtsanwältin and Notarin 
Defendant: 
President of the Oberlandesgerichts Hamm 
  
Oberlandesgericht Köln (Cologne Higher Regional Court) 
Decision 
In the administrative matter concerning a notary 
of a Rechtsanwältin (lawyer) and Notarin (notary) from North Rhine-Westphalia, 
applicant, 
[…] 
v 
the President of the Oberlandesgericht Hamm (Hamm Higher Regional Court) 
[…] 59065 Hamm, 
defendant, 
the Senat für Notarsachen (Division for Matters Concerning Notaries) of the 
Oberlandesgericht Köln (Cologne Higher Regional Court) […], 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 6. 2023 – CASE C-408/23 
 
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on 27 June 2023, 
decided as follows: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
1. Are Article 21 of the Charter of Fundamental Rights of the European Union 
and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 
establishing a general framework for equal treatment in employment and 
occupation to be interpreted as precluding national legislation which provides in 
mandatory terms that a person who has reached the age of 60 on expiry of the 
deadline for applications to the notary post in question cannot be appointed for the 
first time to the role of Anwaltsnotar (lawyer commissioned as notary), even if 
more than one post must remain vacant because there are no suitable younger 
candidates in the local court district in which the application procedure took place 
and candidates from other local court districts are not permitted to apply? 
2. Is question 1 to be answered in the affirmative if it is to be expected that 
more than one advertised post of lawyer commissioned as notary will be 
impossible to fill with suitable candidates younger than 60 in the same local court 
district in the following year? 
3. Is question 1 to be answered in the affirmative in any event because it is also 
to be expected that, also in other local court districts outside large urban centres, it 
will repeatedly prove impossible to fill all advertised posts of lawyer 
commissioned as notary with suitable candidates younger than 60? 
4. Is no infringement of Article 21 of the Charter of Fundamental Rights of the 
European Union and Article 6(1) of Council Directive 2000/78/EC of 
27 November 2000 present if the supply of notarial services is assured in a local 
court district even though an applicant over 60 years of age has not been 
appointed to the post of lawyer commissioned as notary solely on account of his 
or her age and more than one post has remained vacant? 
II. The proceedings are stayed. 
Grounds 
A. Subject matter and facts of the main proceedings 
1 The applicant applied for a post of Anwaltsnotarin (lawyer commissioned as 
notary) in the local court district in which she has been practising as a 
Rechtsanwältin (lawyer) for more than three years. Her application was rejected 
because she was over 60 years of age on expiry of the deadline for applications. 
She satisfies all the other requirements for admission to the post of lawyer 
commissioned as notary in the local court district. In particular, she has passed the 
lawyers’ professional examination required for the office of notary. She had 
RECHTSANWÄLTIN AND NOTARIN 
 
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previously applied for an advertised notary post in the same district in 2017. The 
application was also rejected in that instance on the grounds that the applicant had 
already reached the age of 60. The action brought against that rejection was 
unsuccessful, both before the Division (2 VA (Not) 8/17) and before the 
Bundesgerichtshof (Federal Court of Justice) (NotZ(Brfg) 7/18). 
2 The number of notary posts in a given local court district is based on the demand 
for notarial services and maintenance of an orderly age structure (Paragraph 4 of 
the Bundesnotarordnung (Federal Code for Notaries)). A total of four posts were 
advertised in the local court district in question in 2022. Only one post was filled. 
The other posts remained vacant for lack of candidates. 
3 It is expected that it will remain impossible in future to fill all the posts in the 
local court district in question, because of a lack of sufficient numbers of 
candidates who satisfy the requirements for appointment to the post of lawyer 
commissioned as notary. In 2023, five notary posts were advertised for the local 
court district in question. In view of the information held about passes in the 
lawyers’ professional examination which is a requirement for appointment to the 
post of lawyer commissioned as notary (Paragraph 5b(1)(3) of the Federal Code 
for Notaries), it is probable that three of those posts will remain vacant for lack of 
candidates. Regarding all the local court districts within the jurisdiction of the 
defendant for which lawyers commissioned as notaries are to be appointed, there 
are likely to be only 39 candidates for the 69 posts advertised in 2023. Regarding 
the federal territory as a whole, it can likewise be assumed that notary posts 
outside large urban centres will, on a similar scale, remain impossible to fill. In 
any event, the failure to fill advertised notary posts has not yet resulted in an 
inability to provide notarial recording at all or without considerable delay. 
4 The office of lawyer commissioned as notary is exercised by lawyers concurrently 
with their legal practice (Paragraph 3(2) of the Federal Code for Notaries). In 
principle, they can only apply for posts of lawyer commissioned as notary in the 
local court district in which they have been working as lawyers for at least three 
years (Paragraph 5b(1)(2) of the Federal Code for Notaries). Notaries charge their 
clients fees for their notarial work. Remunerative and pensions provision is not 
made by the State. The office of an appointed lawyer commissioned as notary 
ends when he or she reaches the age of 70 (Paragraph 48a of the Federal Code for 
Notaries); the effectiveness of that provision is currently the subject of appeal 
proceedings pending before the Federal Court of Justice (NotZ(Brfg) 4/22). 
5 The applicant brought an action before the Cologne Higher Regional Court 
against the defendant’s rejection of the applicant’s appointment to the post of 
lawyer commissioned as notary and contended that the court should 
order the defendant to make a fresh decision on the applicant’s 
application for the post of lawyer commissioned as notary, taking into 
account the legal opinion of the Cologne Higher Regional Court, by 
amending the defendant’s decision rejecting that application. 
REQUEST FOR A PRELIMINARY RULING OF 27. 6. 2023 – CASE C-408/23 
 
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6 The defendant contends that the court should 
dismiss the action. 
B. The national legal context 
7 Paragraph 5b(1) of the Federal Code for Notaries provides as follows: 
‘Only those persons are, as a rule, to be appointed as lawyers commissioned 
as notary who, upon expiry of the deadline for applications, have 
1. worked as a lawyer on a not insignificant scale for various clients for 
at least five years, 
2. pursued the activity referred to in no. 1 for at least three years without 
interruption in the intended notarial jurisdiction, 
3. passed the professional examination for notaries […] and 
4.  […]’ 
8 Paragraph 5(4) of the Federal Code of Notaries provides as follows: 
‘Whoever has reached the age of 60 years on the expiry of the deadline for 
applications for a notarial position cannot be appointed as notary for the first 
time.’ 
9 The explanatory memorandum (Bundestag printed paper 11/6007) to that 
provision states as follows: 
‘The introduction of the upper age limit of 60 years is intended – not least in 
view of the age-related increase in difficulty associated with learning the 
profession of notary – to combat a frequent turnover of office holders in the 
interests of continuity. At the same time, it serves to counteract the risk of 
population ageing within the profession of notary. 
Since learning the profession is not a factor when a former notary seeks 
reappointment or a notary seeks appointment in a different location, the 
upper age limit is intended only to apply in respect of first-time 
appointments.’ 
10 Paragraph 48a of the Federal Code for Notaries provides as follows: 
‘Notaries reach retirement age at the end of that month in which they reach 
the age of 70.’ 
11 The judgment of the Federal Court of Justice of 27 May 2019 – NotZ(Brfg) – in 
the dispute already involving the applicant contains, inter alia, the following two 
guidelines on the second sentence of Paragraph 6(1) of the Federal Code for 
RECHTSANWÄLTIN AND NOTARIN 
 
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Notaries, which is identical in wording to the current Paragraph 5(4) of the 
Federal Code for Notaries: 
‘2. The second sentence of Paragraph 6(1) of the Federal Code for Notaries 
leaves the judiciary no margin of discretion; it is in principle not authorised 
to refrain on the basis of special features inherent in the person of the 
applicant from applying the age limit. 
3. The age limit laid down in the second sentence of Paragraph 6(1) of the 
Federal Code for Notaries does not constitute prohibited discrimination 
within the meaning of Article 1 of Council Directive 2000/78/EC of 
27 November 2000 establishing a general framework for equal treatment in 
employment and occupation (OJ 2000 L 303, p. 16). Nor does it infringe the 
principle of non-discrimination laid down in Article 21(1) of the EU Charter 
of Fundamental Rights (continuation of panel judgment of 26 November 
2007 – NotZ 23/07, BGHZ 174, 273, paragraph 29 et seq.).’ 
C. Reason for reference and relevance of the questions submitted 
12 In view of the age limit of 60 years laid down in Paragraph 5(4) of the Federal 
Code for Notaries for first-time appointments to the post of lawyer commissioned 
as notary, the Cologne Higher Regional Court cannot grant the form of order 
sought by the applicant and order the defendant to make a fresh decision on the 
applicant’s application and not to reject her application on the grounds of her age, 
The provision leaves the court no margin of discretion and permits no exceptions. 
Unless it is unequivocally established on the basis of a decision of the Court of 
Justice of the European Union that Paragraph 5(4) of the Federal Code for 
Notaries is contrary to EU law, the applicant’s action must necessarily be 
dismissed. 
13 With regard to the judgment of the Court of Justice of the European Union of 
3 June 2021 in Case C-914/19, Ministero della Giustizia (Notaries), there are 
doubts as to whether the age limit laid down in Paragraph 5(4) of the Federal 
Code for Notaries in respect of first-time appointments to the post of lawyer 
commissioned as notary is consistent with Article 21 of the Charter of 
Fundamental Rights of the European Union. and Article 6(1) of Council Directive 
2000/78/EC of 27 November 2000, because it does not even allow exceptions in 
the event of more than one post being impossible to fill with candidates younger 
than the age limit. As a result, the German age limit for first-time appointments to 
the post of lawyer commissioned as notary may also exceed the level permissible 
for achieving the legitimate purpose of promoting generational change and 
rejuvenation. 
14 However, because the age limit laid down in Paragraph 5(4) of the Federal Code 
for Notaries in respect of first-time appointments to the post of lawyer 
commissioned as notary is set comparatively high, at 60 years of age, and only 
10 years of service remain until the age of 70, at which the office must be 
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resigned, there is also a possibility, in the view of the referring court, that an 
interpretation of Article 21 of the Charter of Fundamental Rights of the European 
Union and Article 6(1) of Directive 2000/78/EC will show that Paragraph 5(4) of 
the Federal Code for Notaries is consistent with protection against discrimination 
under EU law. 
[…]