Case C-52/08: Action brought on 12 February 2008 — Commission of the European Communities v Portuguese Republic
Date: 2008-02-12
Institutions: Court of Justice
Subjects: European Commission, Portugal, 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repealed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.