Case C‑151/14

European Commission

v

Republic of Latvia

‛Failure of a Member State to fulfil obligations — Article 49 TFEU — Freedom of establishment — Notaries — Nationality requirement — Article 51 TFEU — Connection with the exercise of official authority’

Summary — Judgment of the Court (Seventh Chamber), 10 September 2015

Freedom of establishment — Exceptions — Activities connected with the exercise of official authority — Notarial activities — Not included — Nationality requirement for access to the notarial profession — Not permissible

(Arts 49 TFEU and 51, first para., TFEU)

A Member State whose legislation imposes a nationality requirement for access to the profession of notary fails to fulfil its obligations under Article 49 TFEU, where the activities entrusted to notaries within the legal order of that Member State are not connected with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU.

Firstly, as regards the authentication activity, it is not in dispute that its main characteristic is that the notary must ascertain, inter alia, that all the conditions required by law for drawing up the instrument are satisfied. Furthermore, only the documents or agreements freely signed or entered into by the parties are subject to authentication, while the notary’s intervention thus presupposes the prior existence of an agreement or consensus of the parties. Moreover, while the obligation of verification incumbent on notaries admittedly pursues an objective in the public interest, the mere pursuit of that objective cannot however justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned and is not, in itself, sufficient for an activity to be regarded as directly and specifically connected with the exercise of official authority. What is more, nor can the authentication of signatures of citizens as part of the procedure for lodging citizens’ legislative proposals be regarded as having a connection with the exercise of official authority.

Secondly, with regard to the other activities entrusted to notaries, since the tasks in matters of succession are carried out either on a consensual basis or as preparatory tasks under the supervision of the court, they cannot, consequently, be regarded as having, in themselves, a direct and specific connection with the exercise of official authority. In addition, a notary’s powers in divorce matters, which are based entirely on the wishes of the parties and leave the prerogatives of the courts intact in the absence of agreement between the parties, do not have any direct and specific connection with the exercise of official authority.

Finally, as regards the particular status of notaries in the national legal system, it is by reference to the nature of the activities themselves carried out by notaries, not by reference to that status as such, that it must be ascertained whether those activities fall within the exception in the first paragraph of Article 51 TFEU. In that regard, notaries practise their profession in conditions of competition, which is not characteristic of the exercise of official authority.

(see paras 57, 58, 60, 63, 67, 70, 73, 74, 76, 77)