Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 22 May 2025 (1)
Case C‑321/24
BC
v
SCP Attal et Associés
(Request for a preliminary ruling from the tribunal judiciaire de Paris (Court of Paris, France))
( Preliminary ruling proceedings – Article 63(1)
TFEU – Free movement of capital – Restriction – Succession – Declaration of succession – Calculation of notary’s remuneration – Estate consisting of assets situated in two Member States – Article 65(1)(a)
TFEU – Tax law provision – Article 65(1)(b)
TFEU – Measures to prevent tax infringements and to lay down a procedure for the declaration of capital movements for the purposes of administrative or statistical information )
1.        In the dispute which has given rise to this reference for a preliminary ruling, the heir (who is resident in France) of a person who died in Belgium, where that person had her habitual residence and whose estate consists of assets in Belgium and France, has contested the remuneration of the French notary who assisted with the declaration of succession lodged in France.
2.        The Member State in which the succession is being dealt with is Belgium and a Belgian notary drew up the declaration of succession in that country in respect of the entire estate. The heir argues that the French notary’s remuneration may not be calculated on the basis of all the assets but only the share of the assets of the estate situated in France. Otherwise, there would be an unjustified double payment.
3.        The court seised of the dispute asks the Court of Justice, in essence, for an interpretation of Articles 63 and 65 TFEU, in order to determine whether they preclude the dual remuneration of notaries of two Member States who act in relation to the same succession, where both calculate their fees on the basis of the total assets of the estate.
4.        The Court has ruled previously on restrictions on the free movement of capital by reason of the taxation of successions having a cross-border dimension. (2) This reference for a preliminary ruling differs from the previous references in terms of its object: the questions concern a national provision which, albeit related to the tax obligations affecting transfers by reason of death, is not, itself, a tax rule.
I.      Legal framework
A.      European Union law
5.        Under Article 1(1) of Directive 88/361/EEC: (3)
‘Without prejudice to the following provisions, Member States shall abolish restrictions on movements of capital taking place between persons resident in Member States. To facilitate application of this Directive, capital movements shall be classified in accordance with the Nomenclature in Annex I.’
6.        The capital movements listed in Annex I to Directive 88/361 include, under heading XI of that annex, personal capital movements, which encompass inheritances and legacies.
B.      French law
1.      Code de commerce (Commercial Code)
7.        In the legislative part of the Code, which includes Title IV bis (‘Certain regulated fee scales’), Article L. 444-1 defines the regulated fees applicable to the services of notaries. In accordance with the third paragraph of that article, the services that notaries provide in competition with the services of other professionals, which are not subject to a fee scale, are not covered by regulated fee scales but rather by unregulated fees.
8.        In the regulatory part of the Code, Article R. 444-2 contains the following definitions:
‘1.      “Fee scale”: all the elements enabling calculation of the amount of fees and flat-rate reimbursements payable to the professionals referred to in the first paragraph of Article L. 444-1 for their regulated services.
2.      “Fee”: amount received by one of those professionals in return for services whose fee scale is governed by Title IV bis of the legislative part of this Code.
…
4.      “Prorated fee”: fee resulting from the application of a percentage to a basic value, or the application of a scale of progressive or decreasing percentages to different bands.
5.      “Unregulated fee”: sum received by one of those professionals in return for services whose amount
is not governed by the title referred to in point 2.
…’
9.        Article R. 444-3 provides:
‘Articles annex 4-7, 4-8 and 4-9 of this title [“Certain regulated fee scales”] specify respectively:
1.      The list of services of … notaries … whose fee scale is governed by this title;
…
3.      An indicative list of services provided under the conditions laid down in the third paragraph of Article L. 444-1 and, where applicable, the rules governing the charging, by the respective professionals, of the fees corresponding to those services.’
10.      In Annex 4-7 of the regulatory part of the Code, which contains the list of services whose regulated fee scales are governed by Title IV bis (regulatory part) of the Code, table 5 annexed to Article R. 444-3 refers to notaries and includes at number 8 the declaration of succession.
11.      In the part of the Code entitled ‘Arretés’, Article A. 444-63 states:
‘A declaration of succession (number 8 of table 5) generates a fee that is proportional to the total gross assets …, in accordance with the following scale …’
2.      Code général des impôts (General Tax Code)
12.      The special provisions on succession include Article 800, which provides:
‘Heirs, legatees or donees, their trustees or guardians are required to file a detailed declaration.
The following are exempt:
1.      Direct successors, surviving spouses and cohabitees in a civil partnership where the gross inherited assets are less than EUR 50 000, on condition that those persons have not previously received from the deceased a gift or an unregistered or undeclared hand-delivered gift;
2.      Persons other than those referred to in paragraph 1, where the gross inherited assets are less than EUR 3 000.’
13.      In accordance with Article 802:
‘Any declaration of a transfer on account of death, signed by the heirs,
donees or legatees, their trustees, guardians or administrators, shall conclude with a note worded as follows:
“The declarant asserts that this declaration is sincere and truthful; the declarant further asserts, subject to the penalties laid down by Article 1837
of the General Tax Code, that this declaration includes the cash, receivables and all other French or foreign securities which, to his or her knowledge, belonged wholly or in part to the deceased.”
…’
II.    The facts, the dispute and the questions referred for a preliminary ruling
14.      The summary of the facts in the order for reference includes the following:
–        Ms XY, a French national who was habitually resident in Belgium, died on
29 July 2020 in that country.
–        Ms BC, a French national who lives and is resident for tax purposes in France, is XY’s heir.
–        Ms XY’s estate consists of movable and immovable property, located in both Belgium and France.
–        The succession was opened on
12 October 2020 by a notary in Uccle (Belgium), who dealt with drafting the declaration of succession in Belgium. That declaration includes all the assets of the estate, regardless of their location.
–        Ms BC paid the Belgian notary a fee calculated on the basis of the total gross inherited assets. (4)
–        In France, Ms BC instructed SCP Attal et Associés (‘Attal et Associés’),
a notary’s office
in Paris,
to draw up the declaration of succession. The declaration was signed on
18 March 2021 and lodged with the competent registry.
–        After registration of the declaration of succession, Attal et Associés applied to the registrar of the tribunal judiciaire de Paris (Court of Paris, France) to obtain a certificate of verification of costs for the purposes of calculation of the notary’s remuneration.
–        The certificate confirmed the figure which Attal et Associés had calculated for the notary’s remuneration, based on the total gross inherited assets.
15.      Ms BC contested the certificate before the tribunal judiciaire de Paris (Court of Paris). She requests that the certificate be annulled and that a new certificate be issued, which calculates the French notary’s remuneration on a basis which represents only the gross value of the assets of the estate situated in France.
16.      In that connection, she puts forward two arguments:
–        The basis for calculation of the notary’s fee must be the same as that
used to calculate inheritance tax. Pursuant to the Franco-Belgian Convention of 20 January 1959 for the avoidance of double taxation, (5) the tax base in France takes into account only the value of the assets located in France.
–        The French notary’s remuneration, calculated on the basis of the total gross inherited assets without taking into account the remuneration of the Belgian notary, (6) calculated on the same basis, constitutes a restriction on the free movement of capital for the purposes of Article 63 TFEU because it reduces the value of the estate.
17.      Attal et Associés requests that the certificate be confirmed. It submits that:
–        In France, the tax on transfers without consideration is calculated on the basis of the total amount of the deceased’s assets but is paid only in respect of the assets situated in France, in accordance with the Franco-Belgian Convention of
20 January 1959.
–        The declaration of succession submitted to the French authorities must refer to the total assets of the deceased, including those located abroad.
–        The basis for calculation of the notary’s fee includes all the assets of the estate, whether located in France or another State. Accordingly, the notary is owed the fee calculated on the basis of the gross value of the entire estate, the assets of which are situated in France and Belgium.
18.      Against that background, the tribunal judiciaire de Paris (Court of Paris) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 63(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding the dual remuneration of the notaries of two Member States of the European Union involved in the same succession, which includes assets in the two Member States, the calculation of which is also based on the total gross assets of the estate, without taking into account the remuneration paid to the other notary, whereas the involvement of the notary is a legal requirement?
(2)      Is Article 63(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding the remuneration of a notary, whose involvement in a succession including assets in two Member States of the European Union is a legal requirement, from being calculated based on the total gross assets of the estate and not just on the gross assets located in his or her Member State?
(3)      Are Articles 63(1) and 65(1)(a) of the Treaty on the Functioning of the European Union to be interpreted as meaning that the dual remuneration of two notaries, involved in the same succession, which is again calculated based on the total gross assets of the estate located in two Member States, can constitute a “relevant provision of their tax law” derogating from the prohibition on restricting movements of capital laid down in the first of those articles, whereas the involvement of the notary is a legal requirement?
(4)      Are Articles 63(1) and 65(1)(b) of the Treaty on the Functioning of the European Union to be interpreted as meaning that the dual remuneration of two notaries, involved in the same succession, which is again calculated based on the total gross assets of the estate located in the two Member States, can constitute an essential measure to thwart tax infringements or a procedure for the declaration of capital movements for administrative or statistical information purposes derogating from the prohibition on restricting capital movements laid down in the first of those articles, whereas the involvement of the notary is a legal requirement?’
III. Procedure before the Court of Justice
19.      The request
for a preliminary ruling was received at the Registry of the Court of Justice on
30 April 2024.
20.      In accordance with Article 101
of the Rules of Procedure of the Court of Justice, the Court sent a request for clarification to the referring court, which provided that clarification by letter of
20 December 2024. (7)
21.      Written observations were lodged by Attal et Associés, the French Government and the Commission.
22.      It was not considered necessary to hold a hearing.
IV.    Analysis
A.      Admissibility
23.      In its written observations, (8) the French Government challenges the admissibility of the reference for a preliminary ruling. In its submission, the premiss on which the referring court’s questions are based (the requirement, under French law, to instruct a notary to draw up the declaration of succession) is incorrect.
24.      The French Government submits that:
–        Under Article 800
of the General Tax Code, heirs, legatees or donees are required to file a declaration of succession with the tax authority. The Finance Ministry website provides forms and detailed instructions to help them to draw up that declaration. (9) The involvement of a notary is not compulsory.
–        However, use of a notary is necessary for certain documents relating to the succession which are governed by other provisions having a different purpose from the declaration of succession, and for which the notary receives different remuneration.
–        The provisions on which the referring court relies in support of its assertion that ‘a notary must necessarily be involved in the case of estates of greater than EUR 5 000 and where the estate includes immovable property’ (10) do not govern the declaration of succession but rather different documents.
–        In certain cases, the declaration of succession must be accompanied by those or other documents for which the involvement of a notary is compulsory. That is the case of estates that include immovable property, for which a certificate relating to ownership of the property must be provided. It is also the case where the value of the estate is equal to or greater than EUR 5 000, since, in order for a person to prove his or her status as an heir, an affidavit signed by a notary is required. Those documents are different from the declaration of succession, for which the involvement of a notary is not necessary.
25.      In response to the request for clarification, the referring court provided the following clarifications to the Court of Justice: (11)
–        ‘The use of a notary to …
draw up the declaration of succession is not stipulated by any specific provision of French law and instead reflects a practical obligation imposed de facto as a result of the simultaneity of other steps which must be carried out before a notary, for which notaries have exclusive competence, and, as of right, by the documents of general scope included on the public information site and the establishment of a regulated fee scale as required by law.
–        Therefore, BC did not, in practice, have the option to draw up the declaration of succession herself.’
26.      In the same letter, the referring court mentions official French websites providing information to the public, (12) which present the involvement of a notary in successions including immovable property as unavoidable, which leads heirs to believe that that involvement is also mandatory for the declaration of succession. The referring court further states that the remuneration of French notaries is regulated by law, without heirs having the opportunity to negotiate, and the remuneration does not take into account the fee already paid to a notary of another Member State in relation to an equivalent document which is calculated, as in France, by reference to the total gross assets of the estate.
27.      In proceedings under Article 267 TFEU, the Court only has jurisdiction to give a preliminary ruling on the interpretation or validity of EU law. It is not for the Court to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of them is correct. (13)
28.      According to settled case-law, ‘the Court, when answering questions referred for a preliminary ruling, must take account, under the division of jurisdiction between the Courts of the European Union and the national courts, of the factual and legislative context of the questions as described in the order for reference’. (14)
29.      The Court is not required to verify the accuracy of the legal framework described in the order for reference and the presumption of relevance enjoyed by the questions referred for a preliminary ruling must be pre-eminent. Those questions may be ruled inadmissible, inter alia, where it is quite clear that the interpretation of EU law sought bears no relation to the actual facts or the subject matter of the dispute. That is not the case in this reference.
30.      Accordingly, it must be found that the French Government’s arguments to the effect that the referring court’s interpretation is incorrect do not affect the admissibility of the questions referred for a preliminary ruling.
B.      Questions 1 and 2
31.      By its first and second questions, which it is appropriate to answer together, the referring court asks whether Article 63(1) TFEU:
–        Precludes the dual remuneration of the notaries of two Member States of the European Union who deal with the same succession, which includes assets in both States, where the involvement of a notary is required by law and such remuneration is calculated ‘based on the total gross assets of the estate, without taking into account the remuneration paid to the other notary’.
–        Precludes the remuneration of a notary, whose involvement, in a succession including assets situated in two Member States, is required by law, from being calculated ‘based on the total gross assets of the estate and not just on the gross assets located in his or her Member State’.
32.      In view of the fact that the Treaties do not contain a definition of the term ‘capital movements’, the Court has recognised the nomenclature which constitutes Annex I to Directive 88/361 as having indicative value. The Court has held, inter alia, that, ‘according to the third paragraph of the introduction to that annex, the nomenclature it contains is not exhaustive as regards the term “movement of capital”’. (15)
33.      After noting that inheritances and legacies appear under heading XI of Annex I
to Directive 88/361, entitled ‘Personal capital movements’, the Court held that ‘an inheritance is a movement of capital within the meaning of Article [63 TFEU], except in cases where its constituent elements are confined within a single Member State.’ (16)
34.      The succession at issue includes assets situated in two Member States. (17) Accordingly, it is necessary to examine whether, in connection with that succession and in the light of its particular features, the remuneration of a notary which is governed by an officially regulated fee scale constitutes a restriction on capital movements prohibited by Article 63(1) TFEU. (18)
35.      In the context of Article 63(1) TFEU, ‘restriction’ means any restriction on the free movement of capital both between Member States and between Member States and third countries, (19) and any restriction of that freedom, however minor, is prohibited. (20)
36.      The measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are liable to dissuade non-residents from making investments in a Member State or to dissuade residents of that Member State from making investments in other States. (21)
37.      In matters of succession, practically all the situations related to Article 63(1) TFEU on which the Court has ruled concerned national measures for the payment of inheritance tax which is levied on the heir or of income tax associated with an inheritance. (22)
38.      As regards the interpretation of Article 63(1) TFEU, the Court has found to be contrary to the free movement of capital provisions pursuant to which successions comprising assets situated outside the Member State of taxation bear a higher tax burden than successions comprising assets situated only in that State, such that the value of the inheritance is reduced. (23)
39.      The main proceedings do not concern the application of a national provision on taxation. The rules governing the fees (subject to a regulated fee scale) of the French notary for the provision of his services are included in the Commercial Code and, I repeat, do not impose a tax burden. The referring court, the French Government and the Commission all agree that those rules are not in the nature of tax rules. (24)
40.      The prohibition in Article 63(1) TFEU applies to ‘all restrictions on the movement of capital’. (25) It is not confined to restrictions derived from national tax legislation or other restrictions of a fiscal nature.
41.      If, as a result of a national measure, an inheritance which includes property abroad undergoes a loss of value which does not occur in the case of a purely domestic inheritance, the deterrent effect of that measure will adversely affect the free movement of capital.
42.      That measure will mean that estates consisting of assets situated in more than one Member State, bear, in economic terms, a higher burden (even if it is not a tax burden) than estates consisting solely of assets situated in a single Member State. (26)
43.      National measures – whether fiscal or another kind – which bring about such a reduction in value deter the exercise of the free movement of capital, which is applicable to successions, and are, therefore, prohibited in principle. (27)
44.      In France, Article 800
of the General Tax Code provides that a succession must be declared. The declaration must give details of the deceased’s estate (assets and liabilities) (28) and state the identity of the heirs. It is submitted to the tax authorities to enable them to calculate the tax payable on the inheritance and in order to prevent tax evasion. It is compulsory to file the declaration, except in the case of certain persons where the value of the inheritance does not exceed an amount laid down by law.
45.      According to the order for reference and information subsequently supplied by the referring court, as a result of either a legal requirement or a practice based on national provisions, the involvement of a notary in a situation like this is compulsory in France. Accordingly, the notary provides a service the remuneration (fee) for which is regulated by law.
46.      The French notary’s fee for dealing with the declaration of succession is proportional to the total gross assets of the estate, calculated in accordance with a specified scale. The rule governing calculation of the fee is the same for any succession for which a declaration is required. It does not make a distinction based on the nationality or place of residence of the heir or the deceased; nor does it change according to where the assets to be declared are located.
47.      However, in an international succession, it is likely, by reason of its composition, that another State where assets of the estate are situated will also require a declaration of succession for tax purposes. It may also be the case that the value of those assets, as a share of the gross assets of the estate, forms part of the basis for calculation of the
remuneration
of the notary (29) who draws up the declaration of succession.
48.      In that context, a measure such as that at issue in this case:
–        Firstly, is liable, per se, to discourage the residents of the Member State where it applies from making investments abroad and to discourage residents abroad from making investments in that State.
–        Secondly, as a result of that measure, an estate which consists of assets located in and outside a State, the total gross value of which is identical to that of an estate consisting solely of assets situated in that State, is ultimately worth less on account of the location of the assets of which it is composed.
49.      The Court has referred to that twofold restrictive effect in its case-law on the effects of tax provisions. In my view, that case-law may be applied to other national provisions even if they are not tax provisions but have the same restrictive effect.
50.      The Court has held in that connection that:
–        ‘National provisions which determine the value of immovable property for the purposes of calculating the amount of tax due when it is acquired through inheritance may not only be such as to discourage the purchase of immovable property situated in the Member State concerned … but may also have the effect of reducing the value of the inheritance of a resident of a Member State other than that in which that property is situated’. (30)
–        ‘Furthermore, as regards inheritances, the case-law has confirmed that the measures prohibited by Article [63(1) TFEU] as being restrictions on the movement of capital include those the effect of which is to reduce the value of the inheritance of a resident of a State other than the Member State in which the assets concerned are situated and which taxes the inheritance of those assets’. (31)
51.      In a case such as the instant case, the disadvantage described cannot be attributed to the parallel exercise by two Member States of their tax competences. (32) Therefore, the judgments of the Court which found that the unfavourable consequences resulting from the exercise of those (dual) tax competences do not constitute restrictions on the freedom of movement, as long as they are not discriminatory, are not applicable to this dispute. (33)
52.      I believe, therefore, that the provision which, for the purposes of calculating the fee of a (French) notary who draws up a declaration of succession, calculates that fee by including in the basis for calculation the value of the assets of the estate situated in another Member State (Belgium), in which the succession is being dealt with, where the legislation of that State also calculates the remuneration of its notaries by reference to the gross assets of the estate, such that dual remuneration is levied on the estate, constitutes a restriction on the free movement of capital, within the meaning of Article 63(1) TFEU.
C.      Questions 3 and 4
53.      By these two questions, which it is also appropriate to answer together, the referring court asks whether:
–        Article 63(1) TFEU and Article 65(1)(a) TFEU may be interpreted as meaning that the dual remuneration of notaries in circumstances like those of the present proceedings constitutes a ‘relevant provision of [the tax law of the Member States]’, derogating from the prohibition on restricting movements of capital.
–         Article 63(1) TFEU and Article 65(1)(a) TFEU may be interpreted as meaning that the dual remuneration of notaries in circumstances like those of the present proceedings constitutes an essential measure to thwart tax infringements or a procedure for the declaration of capital movements for administrative or statistical information purposes.
54.      The two questions refer to both derogations from the prohibition laid down in Article 63(1) TFEU. Pursuant to Article 65(1) TFEU, the provisions of Article 63
are without prejudice to the right of Member States:
–        ‘to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested’ (point (a)); or
–        ‘to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation … or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information …’ (point (b)). (34)
55.      Article 65(1)(a) and (b) TFEU lays down derogations from the fundamental principle of the free movement of capital. As such, it must be interpreted strictly. (35)
56.      The rules governing the fees payable to notaries for their services is not a ‘provision of tax law’, as I have already explained. The referring court, the Commission and the French Government agree with that finding.
57.      It is the case that the national measure at issue lays down the fees (regulated fee scale) of a notary who assists with a declaration of succession which, subsequently, will produce effects for tax purposes. I have no difficulty accepting that that assistance (like other cases of assistance assigned to notaries) is connected to some extent to the tax obligations of heirs.
58.      Taking into account its object and its nature, the fee scale applicable to the service provided by the notary is not fiscal in nature and nor can it be regarded per se as an expression of the State’s tax competences.  It comes within the scope of commercial law and its aim is to regulate the exercise of the profession of notary, by setting the formula for calculation of a notary’s remuneration where he or she draws up a declaration of succession.
59.      A notary’s fee calculated in accordance with the regulated fee scale represents payment for the service provided. It does not constitute the charging by the notary to the debtor of an amount which the notary then passes on to the State to fund the latter’s functions. Furthermore, that fee is unconnected to inheritance tax in so far as the notary’s payment is calculated on the basis of the gross assets of the estate, regardless of whether the tax is ultimately levied on all or only some of the assets.
60.      A measure having those characteristics is not covered by the derogation laid down in Article 65(1)(a) TFEU.
61.      Nor does it fall within the scope of Article 65(1)(b) TFEU. The Court has stated that, for a measure to be regarded as ‘requisite’ within the meaning of that provision, in the field of the prudential supervision of financial institutions, that measure
‘must have the very aim of preventing infringement of the laws and regulations in [that] field’. (36)
62.      I agree with the Commission (37) that that criterion is applicable to measures adopted in ‘the field of taxation’, to which Article 65(1)(b) TFEU refers at the same level as measures for the prudential supervision of financial institutions.
63.      In the light of that criterion, the national provision which requires heirs to submit a declaration of succession, even though the succession includes cross-border elements, may be covered by the derogation laid down in Article 65(1)(b) TFEU. The same applies to the provision laying down penalties for taxpayers for the omission or concealment of assets or the provisions that penalise fraudulent declarations.
64.      However, a national measure adopted for the purpose of calculating the fee of a notary who deals with a declaration of succession falls outside the scope of the derogation relating to the ‘field of taxation’, laid down in Article 65(1)(b) TFEU. That measure is not concerned with fiscal supervision.
65.      In the same vein, the Commission maintains that Article A. 444-63 of the Commercial Code (which calculates notaries’ fees in the terms set out above) is not aimed at the prevention of tax infringements.
66.      In my view, a measure of that kind cannot be covered by the derogation relating to procedures for the declaration of capital movements for administrative or statistical information purposes either.
67.      In short, I believe that the derogations laid down in Article 65(1)(a) and (b) TFEU, to which the order for reference refers, are not applicable to the dispute.
D.      Is the measure justified by other overriding reasons in the public interest?
68.      Although the order for reference does not assert the existence of overriding reasons in the public interest, both the Commission and the French Government argue that such reasons may exist in this case. (38)
69.      If the Court confines itself to the questions as they are formulated, it will not have to address the arguments put forward by the French Government and the Commission. In case it does decide to examine those arguments, I shall set out my views on them.
70.      The Commission submits that notarial activities pursue objectives in the public interest (39) and that the declaration of succession drawn up by the French notary under Articles 800
and 802 of the General Tax Code is intended to define the status of the heir and to prevent tax infringements. (40)
71.      The Commission argues, however, that even if the measure were justified by those objectives, the French legislation imposes an ‘excessive’ burden on heirs by calculating notaries’ fees on a basis proportional to all the assets comprising the estate, including those situated abroad. (41)
72.      The French Government invokes the public interest objectives of notarial activities in similar terms to the Commission (42) and argues that the calculation of notaries’ fees by means of a regulated fee scale avoids ‘price competition …
to the detriment of the quality of services’. (43)
73.      In accordance with the Court’s settled case-law, a restriction on the free movement of capital may be permitted if it is justified by overriding reasons relating to the public interest, is suitable for securing, in a consistent and systematic manner, the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain that objective. (44)
74.      In a number of actions for failure to fulfil obligations, brought by the Commission against Member States that imposed a nationality requirement for access to the profession of notary, the Court held that that requirement was contrary to Article 43 EC (freedom of establishment). The Court did so after pointing out that ‘the fact that notarial activities pursue objectives in the public interest, in particular to guarantee the lawfulness and legal certainty of documents entered into by individuals, constitutes an overriding reason in the public interest capable of justifying restrictions of Article 43 EC deriving from the particular features of the activities of notaries … provided that those restrictions enable those objectives to be attained and are necessary for that purpose.’ (45)
75.      The activities of notaries are of unquestionable importance in legal transactions, in so far as they contribute to ‘guarantee[ing] the lawfulness and legal certainty of documents entered into by individuals’. No one in these proceedings has disputed this.
76.      As regards the involvement of French notaries in declarations of succession, the party submitting that this is not a legal requirement (the French Government) argues, nevertheless, that a notary’s remuneration for involvement in this procedural step pursues an aim relating to the public interest which justifies the restriction of the free movement of capital.
77.      I am not persuaded by that argument: since, in France, the use of a notary to draw up a declaration of succession is not a legal requirement, I do not see how the remuneration of a notary who acts in connection with such a formality can be linked to an overriding reason relating to the public interest.
78.      In the event, as the referring court maintains, that the involvement of a notary in the declaration of succession were unavoidable, either de facto or as a result of a legal requirement, it might be possible to identify overriding reasons relating to the public interest: that involvement would be mandatory in order to guarantee lawfulness and legal certainty.
79.      Even in those circumstances, the justification based on overriding reasons in the public interest would apply to the charging of a notary’s fee, governed by a regulated fee scale, but not to the inclusion of any item in that fee. In particular, I believe that that justification is not sufficient to impose on the heirs in a cross-border succession the burden of payment, in a State in which the succession is not being dealt with, of notarial fees calculated on the basis of the gross assets of the estate, which includes assets situated in another State, in circumstances like those at issue.
80.      Ultimately, if it is found that an overriding reason in the public interest exists, I agree with the Commission that the French legislation goes beyond what is necessary in order to obtain its objective: by calculating the notary’s remuneration on a proportional basis to the assets comprising the estate, including those situated abroad, it imposes an excessive burden on the heir.
V.      Conclusion
81.      In the light of the foregoing considerations, I propose that the Court reply to the tribunal judiciaire de Paris (Court of Paris, France) as follows:
‘Articles 63(1) TFEU and 65(1)(a) and (b) TFEU
must be interpreted as meaning that:
–        A provision or a practice of a Member State (A) in which a succession is not being dealt with, pursuant to which, where the assets of the estate are formed of assets in two Member States, the mandatory involvement of a notary of that Member State (A) for the purposes of filing a declaration of succession is remunerated by means of a regulated fee scale such that the notary’s fees are calculated on the basis of the gross assets of the estate, including the assets situated in another Member State (B), without taking into account the remuneration paid to the notary of that other Member State (B) for an equivalent act, which is also calculated on the basis of the total gross assets of the estate, constitutes a restriction on the movement of capital between Member States, prohibited by Article 63(1) TFEU.
–        That restriction on the movement of capital between Member States cannot benefit from the derogations laid down in Article 65(1)(a) and (b) TFEU, which permit Member States to apply the relevant provisions of their tax law and to take all requisite measures to prevent infringements of national law and regulations or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information.’
1      Original language: Spanish.
2      See, among the most recent, the judgments of
12 October 2023, BA (Inheritance – Public housing policy in the European Union) (C‑670/21, EU:C:2023:763); of
21 December 2021, Finanzamt V (Inheritance – Partial allowance and deduction of reserved portions) (C‑394/20, EU:C:2021:1044); and of
22 November 2018, Huijbrechts (C‑679/17, EU:C:2018:940).
3      Council Directive of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5).
4      In this Opinion, I shall use the terms ‘gross inherited assets’ and ‘gross assets of the estate’ interchangeably.
5      Convention fiscale entre la France et la Belgique tendant à éviter les doubles impositions et à régler certaines autres questions en matière d’impôts sur les successions et de droits d’enregistrement (Tax Convention between France and Belgium for the avoidance of double taxation and the resolution of certain other questions relating to inheritance tax and registration charges), signed on 20 January 1959.
6      The claimant submits that the Belgian notary has territorial competence to deal with the succession, since the deceased was habitually resident in Belgium.
7      See points 25
and 26 of this Opinion.
8      Paragraphs 23
to 33
of the French Government’s written observations.
9      The document entitled ‘Comment remplir une déclaration de succession?’, including explanations and links to a number of forms, may be viewed at https://www.impots.gouv.fr/sites/default/files/formulaires/2705-sd/2023/2705-sd_4288.pdf. In that document, the reply to the question ‘devez-vous faire appel à un notaire?’ is: ‘Faire appel à un notaire n’est pas obligatoire mais peut être utile pour les opérations les plus complexes […] Si vous chargez un notaire de remplir votre déclaration de succession, il devient votre mandataire mais vous restez toujours responsable vis-à-vis de l’administration’ (italics in the original).
10      Paragraphs 31
and 53 of the order for reference.
11      Letter of
20 December 2024.
12      It refers specifically to https://www.impots.gouv.fr/particulier/declarer-une-succesion and to https://www.service-public.fr/particuliers/vosdroits/F80.
13      Judgment of
11 May 2023, Bezirkshauptmannschaft Lilienfeld (C‑155/22, EU:C:2023:394, paragraph 49).
14      Judgment of
2 April 2020, Coty Germany (C‑567/18, EU:C:2020:267, paragraph 21).
15      Judgment of
12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 19), citing judgments of
23 February 2006, van Hilten-van der Heijden (C‑513/03, EU:C:2006:131, paragraph 39), and of 17 January 2008, Jäger (C‑256/06, EU:C:2008:20; ‘the judgment in
Jäger’, paragraph 24).
16      Judgments of
23 February 2006, van Hilten-van der Heijden (C‑513/03, EU:C:2006:131, paragraphs 40 and 42); Jäger, paragraph 25; of 12 February 2009, Block (C‑67/08, EU:C:2009:92, paragraph 20); and of 30 June 2016, Feilen (C‑123/15, EU:C:2016:496, paragraph 16).
17      In this case, these are the Member State where the succession was opened (Belgium) and another Member State (France) whose legislation is in dispute. This Opinion is, logically, confined to the facts as presented in the order for reference.
18      There has been no mention in the reference for
preliminary ruling of the fact that the measure at issue could be regarded as one of ‘the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications’, referred to in recital 7 of
Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).
19      Judgment of
2 March 2023, PrivatBank and Others (C‑78/21, EU:C:2023:137, paragraph 48).
20      Judgment of
6 October 2021, ECOTEX BULGARIA (C‑544/19, EU:C:2021:803, paragraph 65). Article 63(1) TFEU does not prohibit measures whose restrictive effects are too uncertain and indirect, as the judgment of 7 September 2023, Finanzamt G (Development aid projects) (C‑15/22, EU:C:2023:636) held at
paragraph 50.
21      Judgments of
18 January 2024, JD (Residence requirement) (C‑562/22, EU:C:2024:55, paragraph 34); of
20 June 2024, Faurécia (C‑420/23, EU:C:2024:534, paragraph 21); and of 19 December
2024, Credit Suisse Securities (Europe) (C‑601/23, EU:C:2024:1048, paragraph 30).
22      Judgments of
11 December 2003, Barbier (C‑364/01, EU:C:2003:665, paragraph 62); Jäger, paragraph 30; and of
11 September 2008, Arens-Sikken (C‑43/07, EU:C:2008:490, paragraph 36). The prohibition is not confined to rules which discourage the acquisition or retention of assets in a particular Member State:
see, for example, judgments of
31 March 2011, Schröder (C‑450/09, EU:C:2011:198, paragraph 32), and of 24 February 2015, Grünewald (C‑559/13, EU:C:2015:109, paragraph 20), on the naming, as beneficiaries of an anticipated succession inter vivos, of persons resident in a Member State other than that where the asset is located.
23      The judgments in
Jäger
(paragraph 31); of 3 September 2014, Commission v Spain (C‑127/12, EU:C:2014:2130, paragraph 57), and of 30 June 2016, Feilen (C‑123/15, EU:C:2016:496, paragraph 19).
24      Paragraphs 62
of the order for reference, 61 of the French Government’s written observations and 51 of the Commission’s written observations.
25      A provision which lays down limitation periods for the valuation of registered shares in a company for the purposes of inheritance tax is also a ‘restriction’, because ‘[the] heirs will experience a longer period of uncertainty as to the possibility of being subject to a tax adjustment’: judgment of
15 September 2011, Halley (C‑132/10, EU:C:2011:586, paragraph 24). Outside the area of succession, see, for example, judgments of
16 March 1999, Trummer and Mayer (C‑222/97, EU:C:1999:143); of
5 March 2002, Reisch and Others (C‑515/99, C‑519/99 to
C‑524/99 and
C‑526/99 to
C‑540/99, EU:C:2002:135); and of
6 March 2018, SEGRO and Horváth (C‑52/16 and
C‑113/16, EU:C:2018:157).
26      I do not dispute that, as the French Government explains (paragraph 113
of its written observations), the drawing up of a declaration of succession which includes property of any kind abroad may involve greater substantive difficulty than in the case of a domestic succession and generate additional costs, such as translation costs. The passing on of those potential costs to the client is one thing, while the systematic application of a regulated official fee scale, which does not cover that type of costs, to calculate the fees of notaries subject to that fee scale, is another.
27      As I have already pointed out, such measures are not prohibited if their restrictive effect is too uncertain or indirect. Nor are they prohibited if they are justified under EU law.
28      It must list all the assets, including those on which tax is not payable in France in accordance with a double taxation convention. It should be noted that some double taxation conventions permit the States parties to calculate the tax based on an average rate calculated by reference to all the assets of the estate.
29      Whose involvement is mandatory or, although not mandatory, is remunerated in accordance with an official fee scale regulated by law. If not, it is open to the heir to avoid the double cost.
30      The judgment in
Jäger, paragraph 30.
31      The judgment in
Jäger, paragraph 31.
32      Strictly speaking, it cannot be argued that the rules for calculating the regulated fee scale for determining the notary’s fee for the provision of his or her services concern the exercise of tax competences.
33      Judgments of
26 May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph 47), and of 22 September 2022, Admiral Gaming Network and Others (C‑475/20 to
C‑482/20, EU:C:2022:714, paragraph 43). The French Government relies on that argument (paragraph 88
et seq. of its written observations) which, however, does not reflect the wording of its observations in which it categorically denies that the rule under examination is of a fiscal nature.
34      The referring court confines its questions to the provisions and measures of the Member States adopted with the aims indicated in each of the two questions.
35      Judgments of
7 November 2024, XX (Unit-linked contracts) (C‑782/22, EU:C:2024:932, paragraph 43), and of 19 December 2024, Credit Suisse Securities (Europe) (C‑601/23, EU:C:2024:1048, paragraph 51), in relation to Article 65(1)(a) TFEU; and judgments of 6 March 2018, SEGRO and Horváth (C‑52/16 and
C‑113/16, EU:C:2018:157, paragraphs 95 and 96), and of 21 May 2019, Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2019:432, paragraph 103), in relation to Article 65(1)(b) TFEU.
36      Judgment of
2 March 2023, PrivatBank and Others
(C‑78/21, EU:C:2023:137, paragraph 60), citing the judgment of 7 June 2012, VBV – Vorsorgekasse (C‑39/11, EU:C:2012:327, paragraph 30).
37      Paragraph 58
of the Commission’s written observations.
38      In the last paragraph of its written observations, Attal et Associés simply cites a passage from the judgment of
24 May 2011, Commission v France (C‑50/08, EU:C:2011:335; ‘judgment in Commission v France’) on the public interest objectives of notaries’ activities, but does not develop that argument.
39      The Commission cites the judgment in Commission v France, paragraph 87.
40      Paragraphs 38
and 39 of the Commission’s written observations.
41      Paragraph 45
of the Commission’s written observations.
42      Paragraphs 98
to 101 of the French Government’s written observations, referring to the judgment in Commission v France.
43      Paragraphs 102
to 107 of the French Government’s written observations.
44      Judgments of
12 October 2023, BA (Inheritance – Public housing policy in the European Union) (C‑670/21, EU:C:2023:763, paragraph 67), and of 29 July 2024, Keva and Others (C‑39/23, EU:C:2024:648, paragraph 64).
45      Judgments of 24 May 2011, Commission v Belgium (C‑47/08, EU:C:2011:334, paragraph 97); Commission v France, paragraph 87; Commission v Luxembourg (C‑51/08, EU:C:2011:336, paragraph 97); Commission v Austria (C‑53/08, EU:C:2011:338, paragraph 96); Commission v Germany (C‑54/08, EU:C:2011:339, paragraph 98); and Commission v Greece (C‑61/08, EU:C:2011:340, paragraph 89). In those judgments, the Court referred, as an example of the particular features of notarial activities, to the system of remuneration of notaries.