Case C-53/08: Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria
Date: 2008-02-12
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, freedom to provide services, notary, recognition of vocational training qualifications, right of establishment

26.4.2008

EN

Official Journal of the European Union

C 107/15

Action brought on 12 February 2008 — Commission of
the European Communities v Portuguese Republic

Action brought on 12 February 2008 — Commission of
the European Communities v Republic of Austria

(Case C-52/08)

(2008/C 107/22)

Language of the case: Portuguese

(Case C-53/08)

(2008/C 107/23)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and P. Andrade, acting as Agents)

Parties

Defendant: Portuguese Republic

Form of order sought

— Declare that, by failing to transpose, with regard to access to
the profession of notary, Directive 2005/36/EC (1), which
repealed
the
Portuguese Republic has failed to fulfil its obligation under
Directive 2005/36/EC.

replaced Directive

89/48/EEC (2),

and

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that, by failing to permit notaries
from other Member States to exercise their profession in
Portugal although they have the right to exercise that profession
in a Member State in which it is a regulated profession or where
they have exercised that profession in accordance with the
applicable rules in a Member State in which it is not a regulated
profession, the Portuguese State has failed to fulfil its obligations
under Article 13 of Directive 2005/36.

In any event, by requiring those intending to practise as notaries
to have a degree in law from a Portuguese university or an
academic qualification equivalent to that required under the
Portuguese law, Portugal has also failed to fulfil its obligations
under Articles 13 and 14 of that directive.

Moreover, by requiring that, before commencing their training,
those intending to practise as notaries should pass public exami-
nations intended to test their general knowledge of
law, the
Portuguese State has also failed to fulfil
its obligations under
Article 14(3) and 14(3)(h) of Directive 2005/36.

The Commission therefore considers that the Portuguese State
has failed to transpose into its domestic law Directive 2005/36
so far as concerns the profession of notary.

(1) Directive 2005/36/EC of

the
Council of 7 September 2005 on the recognition of professional
qualifications (OJ 2005 L 255, p. 22).

the European Parliament and of

(2) OJ 1989 L 19, p. 16.

Applicant: Commission of the European Communities (repre-
sented by: G. Braun und H. Støvlbæk, Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by making access to the profession of notary
conditional on possession of Austrian nationality, in Para-
graph 6(1) of the Notariatsordnung (Code on notaries), the
Republic of Austria has infringed Articles 43 and 45 EC;

— declare that, by failing to transpose Directive 89/48/EC (or
Directive 2005/36/EC)
the profession of
notary, the Republic of Austria has infringed that directive
and Articles 43 and 45 EC;

in respect of

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 43 EC prohibits any discrimination based on nationality
which results from legislation in the form of restrictions on
freedom of establishment. Pursuant to the first paragraph of
Article 45 EC, the chapter on the right of establishment does
not apply to activities which in a Member State are connected,
even occasionally, with the exercise of official authority.

Pursuant to the Notariatsordnung only Austrian nationals may
be appointed notaries in Austria. The provision in question
therefore discriminates on the basis of nationality and infringes
the freedom of establishment of nationals of other Member
States, by preventing them from exercising the profession of
notary.

The Commission takes the view that the activities of notaries do
not fall within the exception of Article 45 EC so that freedom
of establishment is applicable to that profession.

C 107/16

EN

Official Journal of the European Union

26.4.2008

In order to reply to the question of what ‘official authority’ means
for the purposes of Article 45 EC, reference should be made,
first, to the interpretation at national level. Activities which, in
one Member State, do not fall within the sphere of official
authority cannot be relied upon for the purposes of the excep-
tion, even if the same activities fall within the sphere of official
authority in other Member States. Second, for the interpretation
within the meaning of Article 45 EC, the concept and scope of
official authority must be determined from the point of view of
Community law and its meaning must be interpreted by the
Court in an independent and uniform manner. The fact that the
Austrian legislature and the Austrian courts regard activities of
in principle as participation in national official
notaries
authority does not mean that those activities may therefore be
excluded from freedom of establishment according to the
stricter Community law assessment. As an exception to a funda-
mental freedom, the first paragraph of Article 45 EC must be
interpreted restrictively.

In the current state of integration, it is extremely difficult to find
a substantive justification for the nationality condition in rela-
tion to the activities of notaries. None of those activities, even if
they are of a sovereign nature, requires the relationship of a par-
ticular connection with the State, as in the case of nationality. In
addition, none of those activities risks, through the exercise of
sovereign authority and the deployment of State powers,
creating conflicts with nationals.

The activities put forward by the Republic of Austria for the
justification of the nationality requirement — authentication of
legal transactions and agreements, the insertion of an enforce-
ment clause, legal advice and the activity of the ‘Gerichtskom-
missar’
(notary appointed by the court to carry out certain
procedural acts) — are not sufficient to justify the application of
Article 45 EC. In so far as those activities actually participate in
the exercise of official authority, they do so only in an indirect
manner. The exercise of official authority should moreover not
be confused with activities in the public interest. Public benefit
does not necessarily form part of official authority; activities
which seek to promote the general interest and not the interest
of individuals do not necessarily presuppose the transfer of offi-
cial authority. Whilst the actual exercise of official authority
may continue to be reserved for a Member State's own
nationals, the exercise of a given activity in the general interest
which, for example, is the case in respect of the administration
of justice for preventive purposes may also be guaranteed by
making access to the profession and the professional duties
subject to specific rules and control.

Action brought on 12 February 2008 — Commission of
the European Communities v Federal Republic of Germany

(Case C-54/08)

(2008/C 107/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and G. Braun, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare that, by making access to the profession of notary
in Para-
conditional on possession of German nationality,
graph 5 of
the Bundesnotarordnung (Federal code on
notaries), the Federal Republic of Germany has infringed
Articles 43 and 45 EC;

— declare that, by failing to transpose Directive 89/48/EC (or
Directive 2005/36/EC)
the profession of
notary, the Federal Republic of Germany has infringed that
directive and Articles 43 and 45 EC;

in respect of

— order the defendant to pay the costs.

Pleas in law and main arguments

Article 43 EC prohibits any discrimination based on nationality
which results from legislation in the form of restrictions on
freedom of establishment. Pursuant to the first paragraph of
Article 45 EC, the chapter on the right of establishment does
not apply to activities which in a Member State are connected,
even occasionally, with the exercise of official authority.

The Commission therefore takes the view that none of the activ-
ities, considered separately or altogether, with which notaries in
Austria are concerned, constitutes direct and specific participa-
tion in the exercise of official authority within the meaning of
the case-law.

Pursuant to the Bundesnotarordnung only German nationals
may be appointed notaries in Germany. The provision in ques-
tion therefore discriminates on the basis of nationality and
infringes the freedom of establishment of nationals of other
Member States, by preventing them from exercising the profes-
sion of notary.

The Commission takes the view that the activities of notaries do
not fall within the exception of Article 45 EC so that freedom
of establishment is applicable to that profession.