European Commission v Hungary.
Date: 2017-02-01
99


In that regard, it should be recalled that the Court has already held that freedom of establishment, as set out in Article 49 TFEU, is applicable to the notarial profession (judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraph 48 and the case-law cited).
100


According to settled case-law, provision of services for remuneration must be regarded as an economic activity, provided that the work performed is genuine and effective and not such as to be regarded as purely marginal and ancillary (judgment of 20 November 2001, Jany and Others, C‑268/99, EU:C:2001:616, paragraph 33 and the case-law cited).
102


It must also be borne in mind that Article 49 TFEU is intended to ensure that all nationals of all Member States who establish themselves in another Member State for the purpose of pursuing activities there as self-employed persons receive the same treatment as nationals of that State, and it prohibits, as a restriction on freedom of establishment, any discrimination on grounds of nationality resulting from national legislation (see, inter alia, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraph 52 and the case-law cited).
105


As regards the concept of the ‘exercise of official authority’ within the meaning of that provision, its interpretation must take account, in accordance with settled case-law, of the character as EU law of the limits imposed by that provision on the permitted exceptions to the principle of freedom of establishment, so as to ensure that the effectiveness of the Treaty in the field of freedom of establishment is not frustrated by unilateral provisions of the Member States (judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 56 and the case-law cited).
106


It is also settled case-law that the first paragraph of Article 51 TFEU is an exception to the fundamental rule of freedom of establishment. As such, that derogation must be construed in such a way as to limit its scope to what is strictly necessary for safeguarding the interests which it allows the Member States to protect (judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 57 and the case-law cited).
107


In addition, the Court has repeatedly held that the exception in the first paragraph of Article 51 TFEU must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 58 and the case-law cited).
108


In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44).
111


It must therefore be held that a notary’s powers to issue an order for payment, which are based entirely on an alignment of the wishes of the creditor and debtor and leave intact the prerogatives of the courts should the parties fail to reach an agreement as to whether the debt is real, do not have any connection with the exercise of official authority.
116


Since the tasks entrusted to notaries in inheritance matters are carried out on a consensual basis and leave intact the prerogative of the courts in the absence of an agreement between the parties, those tasks cannot, consequently, be regarded as having, in themselves, a direct and specific connection with the exercise of official authority.
117


That conclusion is not called into question by the fact that notaries have, as Hungary argues, the power to adopt certain provisional measures and certain interim measures with a view to the organisation of the succession meeting and to request from various public bodies the communication of certain information and the production of certain documents. It should be stated, in that regard, that those measures are ancillary to the principal task of notaries which is to complete the transfer of the estate (see, by analogy, judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 83). As stated in paragraphs 115 and 116 of the present judgment, that task cannot be regarded as directly and specifically connected with the exercise of official authority.
120


In that regard, the Court has held that the activity of authentication entrusted to notaries does not, of itself, involve a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU (see, by analogy, inter alia, judgment of 24 May 2011, Commission v Belgium, C‑47/08, EU:C:2011:334, paragraph 92).
121


The Court has held, furthermore, that the fact that an activity includes the drawing up of instruments which have probative value and are enforceable does not suffice for that activity to be regarded as directly and specifically connected with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU (see, to that effect, judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 73 and the case-law cited).
122


As far as, in particular, the probative value of notarial instruments is concerned, it must be pointed out that that value derives from the rules on evidence laid down by the Code of Civil Procedure. The probative force conferred by law on a particular document thus has no direct effect on whether the activity which includes the drawing up of the document is in itself directly and specifically connected with the exercise of official authority, as required by the case-law (judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 74 and the case-law cited).
124


It cannot therefore be argued that a notarial instrument, because of its probative value, unconditionally binds a court exercising its power of assessment, since, as is not disputed, the judge decides in accordance with his own firm conviction in the light of all the facts and evidence gathered in the course of the judicial proceedings. The principle that the court is unfettered in its assessment of the evidence is, moreover, enshrined in Article 206 of the Code of Civil Procedure (see, by analogy, judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 76 and the case-law cited).
125


Nor does the enforceability of an authentic instrument reflect powers held by the notary which are directly and specifically connected with the exercise of official authority. While the notary’s endorsement of the authentic instrument with the authority to enforce does give it enforceable status, that status is based on the intention of the parties to enter into an act or agreement, after its compliance with the law has been checked by the notary, and to make it enforceable (judgment of 24 May 2011, Commission v Belgium, C‑47/08, EU:C:2011:334, paragraph 103).
129


As regards the argument of that Member State concerning Regulations No 44/2001 and No 805/2004, the Court has already held that those acts relate to the recognition and enforcement of authentic instruments which are registered and enforceable in a Member State, and do not therefore affect the interpretation of the first paragraph of Article 51 TFEU (see, to that effect, judgment of 24 May 2011, Commission v Belgium, C‑47/08, EU:C:2011:334, paragraph 120). The same is true as regards Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) which replaced Regulation No 44/2001.
135


It must therefore be held that a notary’s powers in matters relating to the dissolution of a registered partnership, 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 connection with the exercise of official authority (see, by analogy, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraphs 68 to 70).
136


As regards the entry of information in the register of declarations of partnership and in the national register of marriage contracts and the national register of partnership contracts, the Court has already held that activities relating to measures for the publicity of deeds do not reflect a direct and specific exercise of official authority by the notary (see, by analogy, judgment of 24 May 2011, Commission v Luxembourg, C‑51/08, EU:C:2011:336, paragraph 113).
139


Finally, as regards the particular status of notaries in the Hungarian legal system, it need only be recalled that it is by reference to the nature of the relevant activities themselves, 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 (judgment of 1 December 2011, Commission v Netherlands, C‑157/09, not published, EU:C:2011:794, paragraph 84).