Case C‑109/23 [Jemerak] (i)
GMandON
v
PR
(Request for a preliminary ruling from the Landgericht Berlin)
Judgment of the Court (Second Chamber) of 5 September 2024
( Reference for a preliminary ruling – Common foreign and security policy – Restrictive measures taken in view of Russia’s actions destabilising the situation in Ukraine – Regulation (EU) No 833/2014 – Article 5n(2) and (6) – Prohibition on the direct or indirect provision of legal advisory services to the Russian Government or to legal persons, entities or bodies established in Russia – Exemption concerning the provision of services which are strictly necessary to ensure access to judicial, administrative or arbitration proceedings in a Member State – Authentication and execution, by a notary, of a contract for the sale of immovable property – Assistance provided by an interpreter during such authentication )
Common foreign and security policy – Restrictive measures taken in view of the situation in Ukraine – Prohibition on the provision of legal advisory services to the Russian Government or to legal persons, entities or bodies established in Russia – Meaning – Authentication and execution, by a notary, of a contract for the sale of immovable property – Not included – Assistance of an interpreter during that authentication – Not included
(Council Decision (CSFP) 2022/1909, recitals 5 and 8, Council Regulations No 833/2014, recital 2 and Article 5n(2), No 269/2014 and No 2022/1904, recital 19)
(see paragraphs 38-44, 49-55, 59, 62, 63, operative part)
Résumé
In a reference for a preliminary ruling from the Landgericht Berlin (Regional Court, Berlin, Germany), the Court rules on the scope of the prohibition on the provision of legal advisory services to legal persons established in Russia laid down in Article 5n(2) of Regulation No 833/2014, (1) as amended by Regulation 2022/1904, (2) which concerns restrictive measures adopted by the Council of the European Union in view of Russia’s actions destabilising the situation in Ukraine.
GM and ON, German nationals, were preparing to purchase an apartment located in Berlin (Germany) and owned by Visit-Moscow Ltd, a legal person established in Russia. For the purposes of that transaction, GM, ON and Visit-Moscow approached PR, a notary practising in Germany, asking him to draw up a contract of sale in the form of a notarial act and to arrange subsequently for that contract to be executed. In 2022, PR however refused to authenticate the contract of sale on the ground that it could not rule out the possibility that authentication would infringe the prohibition laid down in Article 5n(2) of Regulation No 833/2014. Since he did not accede to the request to reconsider that refusal made by GM, ON and Visit-Moscow, PR forwarded the appeal brought by them against that refusal to the Berlin Regional Court, which referred various questions to the Court for a preliminary ruling in that regard.
Findings of the Court
In the first place, the Court notes that, according to its ordinary meaning in everyday language, the term ‘legal advice’ generally refers to an opinion on a question of law. The term ‘legal advice’ used in combination with the term ‘services’, expressed as ‘legal advisory services’ in Article 5n(2) of Regulation No 833/2014, refers to the pursuit of an activity of an economic nature, based on a relationship between a service provider and his or her client, the purpose of which is the provision of legal advice, and by which a provider delivers advice on questions of law to persons seeking that advice.
That meaning of the term ‘legal advisory services’ is confirmed by recital 19 of Regulation 2022/1904. First, that recital refers to a relationship between a service provider and his or her ‘customers’ or ‘clients’ and describes the role of that service provider as the provision of assistance and advice to them, in their interest, as regards the legal aspects of their transactions with third parties. Second, it refers to ancillary activities consisting of ‘the preparation, execution and verification of legal documents’.
Thus, the activities covered by the concept of ‘legal advisory services’, within the meaning of Article 5n(2) of Regulation No 833/2014, are clearly different from those which public authorities may be required to perform. Those public authorities do not have the task of providing services consisting in giving opinions on questions of law to persons in order to promote or defend the individual interests of those persons.
In the present case, the Court notes that, in the context of the authentication of a contract for the sale of immovable property, it appears that a notary does not act with the aim of promoting the specific interests of one or the other of the parties concerned, or both, but acts impartially, maintaining an equal distance from those parties and their respective interests, solely in the interests of the law and legal certainty. Therefore, in the light of the specific rules governing the procedure for the notarial authentication of acts and the legal effects deriving from authentic acts in the German legal system, the authentication by a notary – such as that governed by German law – of a contract for the sale of immovable property owned by a legal person established in Russia is not covered by the concept of ‘legal advisory services’ referred to in Article 5n(2) of Regulation No 833/2014 and, consequently, does not fall within the scope of the prohibition on the provision of such services to such a legal person, laid down in subparagraph (b) of that provision.
The Court observes in that regard that, if Article 5n(2) of that regulation were to be interpreted to the contrary, that would lead to inconsistencies, on the one hand, in the application of that regulation and, on the other, between that regulation and Regulation No 269/2014. (3)
Transactions concerning immovable property situated within the territory of the European Union and owned by legal persons established in Russia remain authorised under Regulation No 833/2014. In practice, however, those transactions could be hindered in certain Member States in which the notarial authentication of a contract for the sale of immovable property constitutes an essential condition for the disposal of such property, irrespective of whether or not those legal persons are subject to a prohibition on disposing of their assets in accordance with Regulation No 269/2014.
Such variability in the effects of the prohibition laid down in Article 5n(2) of Regulation No 833/2014 from one Member State to another, depending on the existing notarial system, could not have been the aim of the EU legislature.
Moreover, the interpretation adopted is not contrary to the aim of Regulation No 833/2014 or that of Regulation No 269/2014.
First of all, it is not apparent from either Decision 2022/1909, (4) Regulation No 833/2014 or Regulation 2022/1904 that, by imposing a prohibition on the provision of legal advisory services, the Council intended to ensure that legal persons established in Russia would be unable, in certain Member States, to dispose of their immovable property.
Next, the objective underlying the prohibition laid down in Article 5n(2) of Regulation No 833/2014 was to make it more difficult for Russian legal persons operating in the territory of the European Union to continue their commercial activities in that territory, and, thereby, to have an impact on the Russian economy. The notarial authentication of a contract for the sale of immovable property owned by a legal person established in Russia is not contrary to such an objective.
Lastly, it is not apparent how notarial authentication of a contract for the sale of immovable property owned by a legal person established in Russia could, a priori and generally, contribute to circumventing the restrictive measures adopted.
In the second place, the Court points out that it will be for the referring court to assess, for each of the tasks which a notary carries out to execute an authenticated contract for the sale of immovable property, whether they involve the provision of legal advice to the parties by the notary, in accordance with the interpretation of the concept of ‘legal advisory services’ set out above.
In the last place, as regards the question whether translation services provided by an interpreter during notarial authentication constitute legal advisory services, within the meaning of Article 5n(2) of Regulation No 833/2014, given that the profession of interpreter is not legal in nature, the Court states those services cannot include an element of ‘legal advice’, even where the provision of services concerned consists of providing assistance to a legal professional acting in a legal field. Moreover, it does not appear that the authentication, by a German notary, of a contract for the sale of immovable property situated in Germany and owned by a legal person established in Russia falls within the scope of the prohibition on the provision of legal advisory services laid down in Article 5n(2) of Regulation No 833/2014. It follows that, by providing translation services in the context of the notarial authentication of such an instrument, in order to assist the representative of that legal person who does not have a command of the language of the authentication procedure, the interpreter does not provide ‘legal advisory services’, within the meaning of that provision, to such a legal person.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
1      Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1).
2      Council Regulation (EU) No 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 259 I, p. 3).
3      Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6).
4      Council Decision (CFSP) 2022/1909 of 6 October 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 259 I, p. 122).