Case C-54/08: Action brought on 12 February 2008 — Commission of the European Communities v Federal Republic of Germany
Date: 2008-02-12
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, freedom to provide services, notary, recognition of vocational training qualifications, right of establishment

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.

26.4.2008

EN

Official Journal of the European Union

C 107/17

first, to the interpretation at national

In order to reply to the question of what ‘official authority’
means for the purposes of Article 45 EC, reference should be
made,
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
exception, even if the same activities fall within the sphere of
official authority in other Member States. Second, for the inter-
pretation 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 German legislature and the German courts regard activ-
ities of notaries in principle as participation in national official
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 Federal Republic of Germany
for the justification of the nationality requirement — authentica-
tion of legal transactions and agreements, the probative value of
such documents, the insertion of an enforcement clause and the
legal advice connected with the authentication — are not suffi-
cient 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 activ-
ities 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 official 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.

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

Reference for a preliminary ruling from High Court of
(England & Wales), Queen's Bench Division
Justice
(Administrative Court)
(United Kingdom) made on
13 February 2008 — Vodafone Ltd, Telefónica O2 Europe
plc,
Personal
Communications Services Ltd v Secretary of State for
Business, Enterprise and Regulatory Reform

International AG, Orange

T-Mobile

(Case C-58/08)

(2008/C 107/25)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Divi-
sion (Administrative Court)

Parties to the main proceedings

Applicants: Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile
International AG, Orange Personal Communications Services
Ltd

Defendants: Secretary of State for Business, Enterprise and Regu-
latory Reform

Interested parties: Office of Communications, Hutchison 3G (UK)
Limited

Intervener: GSM Association

Questions referred

1. Is Regulation (EC) No 717/2007 (1) invalid, in whole or in
part, by reason of the inadequacy of Article 95 EC as a legal
basis?

2. Is Article 4 of Regulation (EC) No 717/2007 (together with
Articles 2(a) and 6(3) insofar as they refer to the Eurotariff
and obligations relating to the Eurotariff)
invalid on the
grounds that the imposition of a price ceiling in respect of
retail roaming charges infringes the principle of proportion-
ality and/or subsidiarity?

(1) Regulation (EC) No 717/2007 of the European Parliament and of the
Council of 27 June 2007 on roaming on public mobile telephone
networks within
amending Directive
2002/21/EC (OJ L 171, p. 32).

the Community

and