Case C-51/08: Action brought on 12 February 2008 — Commission of the European Communities v Grand Duchy of Luxembourg
Date: 2008-02-12
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, access to a profession, action for failure to fulfil an obligation, discrimination on the basis of nationality, notary, recognition of diplomas, right of establishment

24.5.2008

EN

Official Journal of the European Union

C 128/19

Pleas in law and main arguments

— order the Grand Duchy of Luxembourg to pay the costs.

By its action, the Commission alleges that the defendant, by
laying down a nationality requirement for access to the profes-
sion of notary and its practice, disproportionately restricts the
freedom of establishment laid down in Article 43 EC. Admit-
tedly, Article 45 EC exempts from the application of the chapter
relating to the right of establishment activities connected directly
and specifically with the exercise of public authority. According
to the Commission, the tasks entrusted to notaries under French
law are so distantly connected to the exercise of public authority
that they do not fall within the scope of that article or warrant
such a restriction of the freedom of establishment.

First, those tasks do not in fact confer on notaries a genuine
power of coercion and the respective rights and duties of a
judge and notary are completely separate.

Secondly,
less restrictive measures than a nationality require-
ment could be laid down by the national legislature, such as
subjecting the operators concerned to strict conditions for
access to the profession, specific professional duties and/or a
specific test.

Action brought on 12 February 2008 — Commission of
the European Communities v Grand Duchy of Luxembourg

(Case C-51/08)

(2008/C 128/32)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-P. Keppenne and H. Støvlbæk, agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

The applicant claims that the Court should:

— declare that, by laying down a nationality requirement for
access to the profession of notary and by failing to transpose
Council Directive 89/48/EEC (1) in respect of the occupation
of notary, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under the EC Treaty, in particular Arti-
cles 43 and 45 EC, and Directive 89/48/EEC on a general
system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at least three years' duration;

Pleas in law and main arguments

By its action, the Commission first of all alleges that the defen-
dant, by laying down a nationality requirement for access to the
profession of notary and its practice, disproportionately restricts
freedom of establishment as laid down in Article 43 EC. Admit-
tedly, Article 45 EC exempts from the application of the chapter
relating to the right of establishment activities connected directly
and specifically with the exercise of public authority. According
to the Commission,
the tasks entrusted to notaries under
Luxemburgish law are so distantly connected to the exercise of
public authority that they do not fall within the scope of that
article or warrant such a restriction of the freedom of establish-
ment. Those tasks, in fact, do not confer on notaries a power of
coercion and less restrictive measures than a nationality require-
ment could be laid down by the national legislature, such as
subjecting the operators concerned to strict conditions for
access to the profession, specific professional duties and/or a
specific test.

By its second complaint, the Commission further alleges that
the defendant failed to fulfil its obligations by failing to trans-
pose Directive 89/48/EEC in respect of the profession of notary.
As it is a regulated profession, the directive is fully applicable to
that profession and the high level of qualification required of
notaries could easily be guaranteed by an aptitude test or an
adaptation period.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas awarded on
completion of professional education and training of at least three
years duration (OJ 1989 L 19, p. 16).

Reference for a preliminary ruling from the Unabhängiger
Finanzsenat, Außenstelle Graz
lodged on
15 February 2008 — Dachsberger & Söhne GmbH v
Zollamt Salzburg, Erstattungen

(Austria),

(Case C-77/08)

(2008/C 128/33)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Graz