European Commission v Kingdom of Belgium.
Date: 2011-05-24
77. Article 43 EC is one of the fundamental provisions of European Union law (see, to that effect, inter alia, Reyners , paragraph 43).
78. The concept of establishment within the meaning of that provision is a very broad one, allowing a national of the European Union to participate, on a stable and continuous b asis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Union in the sphere of activities of self-employed persons (see, inter alia, Case C‑161/07 Commission  v Austria  [2008] ECR I‑10671, paragraph 24).
79. The freedom of establishment conferred on nationals of one Member State in the territory of another Member State includes in particular access to and exercise of activities of self-employed persons under the same conditions as are laid down by the law of the Member State of establishment for its own nationals (see, inter alia, Case 270/83 Commission  v France  [1986] ECR 273, paragraph 13, and, to that effect, Commission  v Austria , paragraph 27). In other words, Article 43 EC prohibits the Member States from laying down in their laws conditions for the pursuit of activities by persons exercising their right of establishment there which differ from those laid down for its own nationals ( Commission  v Austria , paragraph 28).
80. Article 43 EC is thus 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 ( Commission  v France , paragraph 14).
83. As regards the concept of the ‘exercise of official authority’ within the meaning of the first paragraph of Article 45 EC, the assessment of that concept must take account, in accordance with settled case-law, of the character as European Union 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 (see, to that effect, Reyners , paragraph 50; Commission  v Greece , paragraph 8; and Case C‑438/08 Commission  v Portugal  [2009] ECR I‑10219, paragraph 35).
84. It is also settled case-law that the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment. As such, the exception must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect ( Commission  v Greece , paragraph 7; Commission  v Spain , paragraph 34; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 45; Case C‑393/05 Commission  v Austria  [2007] ECR I‑10195, paragraph 35; Case C‑404/05 Commission  v Germany  [2007] ECR I‑10239, paragraphs 37 and 46; and Commission  v Portugal , paragraph 34).
85. In addition, the Court has repeatedly held that the exception in the first paragraph of Article 45 EC must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority ( Reyners , paragraph 45; Thijssen , paragraph 8; Commission  v Spain , paragraph 35; Servizi Ausiliari Dottori Commercialisti , paragraph 46; Commission  v Germany , paragraph 38; and Commission  v Portugal , paragraph 36).
86. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission  v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission  v Germany , paragraph 38; and Commission  v Portugal , 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, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen , paragraphs 21 and 22; Case C‑393/05 Commission  v Austria , paragraphs 36 and 42; Commission  v Germany , paragraphs 38 and 44; and Commission  v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission  v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others  [2003] ECR I‑10447, paragraph 61, and Commission  v Portugal , paragraph 44).
88. Account must be taken of the nature of the activities carried out by the members of the profession at issue (see, to that effect, Thijssen , paragraph 9).
92. The activity of authentication entrusted to notaries does not therefore, as such, involve a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 45 EC.
94. The obligation of notaries to ascertain, before carrying out the authentication of a document or agreement, that all the conditions required by law for drawing up that document or agreement have been satisfied and, if that is not the case, to refuse to perform the authentication cannot call the above conclusion into question either.
95. It is true that, as the Kingdom of Belgium observes, the notary’s verification of those facts pursues an objective in the public interest, namely to guarantee the lawfulness and legal certainty of documents entered into by individuals. However, the mere pursuit of that objective cannot justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned.
98. It is also true that a notary must refuse to authenticate a document or agreement which does not satisfy the conditions laid down by law, regardless of the wishes of the parties. However, following such a refusal, the parties remain free to remedy the unlawfulness, amend the conditions in the document or agreement, or abandon the document or agreement.
100. Thus, in particular, as far as the probative force of notarial acts is concerned, it must be pointed out that that force derives from the rules on evidence laid down by law in the legal system in question. Paragraph 1319 of the Civil Code, which determines the probative force of an authentic instrument, forms part of Chapter VI of that code, ‘Proof of obligations and proof of payment’. 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 (see, to that effect, Thijssen , paragraph 8, and Commission  v Spain , paragraph 35).
103. The enforceability of an authentic instrument does not, however, derive from powers possessed by the notary which are directly and specifically connected with the exercise of official authority. While the notary’s endorsement of the authority to enforce on the authentic instrument does give it enforceable status, that status is based on the intention of the parties to enter into a document or agreement, after its conformity with the law has been checked by the notary, and to make it enforceable.
107. The functions of notaries in connection with the attachment of immovable property can thus be seen to be exercised under the supervision of the court, to which the notary must refer any disputes, and which takes the final decision. Those functions cannot therefore be regarded as directly and specifically connected, as such, with the exercise of official authority (see, to that effect, Thijssen , paragraph 21; Case C‑393/05 Commission  v Austria , paragraphs 41 and 42; Commission  v Germany , paragraphs 43 and 44; and Commission  v Portugal , paragraphs 37 and 41).
112. It should also be pointed out, as regards the activities of notaries mentioned in paragraphs 105 to 111 above, that, as recalled in paragraph 86 above, professional activities cooperating, even on a compulsory basis, with the functioning of the courts are not as such connected with the exercise of official authority ( Reyners , paragraph 51).
117. Two points must be made here, however. The first is that it is not disputed that, apart from the cases in which a notary is appointed by law, every party can choose a notary freely, in accordance with Article 9 of the Law of Ventôse. While notaries’ fees are indeed fixed by law, the quality of the services they provide may none the less vary from one notary to another, depending in particular on their professional capabilities. It follows that, within the geographical limits of their office, notaries practise their profession, as the Advocate General observes in point 18 of his Opinion, in conditions of competition, which is not characteristic of the exercise of official authority.
119. Moreover, the argument which the Kingdom of Belgium bases on certain European Union acts also fails to convince. As regards the acts mentioned in paragraph 54 above, it must be stated that the fact that the legislature chose to exclude the activities of notaries from the scope of a particular act does not mean that those activities necessarily fall within the exception in the first paragraph of Article 45 EC. With respect to Directive 2005/36 in particular, the very wording of recital 41 in the preamble, according to which the directive ‘is without prejudice to the application of Articles … 45 [EC] concerning notably notaries’, shows that the European Union legislature precisely did not take a position on the applicability of the first paragraph of Article 45 EC to the profession of notary.
120. The argument based on the regulations mentioned in paragraph 55 above is also immaterial. Those regulations relate to the recognition and enforcement of authentic instruments formally drawn up or registered and enforceable in a Member State, and do not therefore affect the interpretation of the first paragraph of Article 45 EC. It follows, moreover, from the case-law, applicable by analogy to Regulation No 44/2001, that for an instrument to be authentic within the meaning of that regulation the involvement of a public authority or any other authority empowered by the State is necessary (see, to that effect, Case C‑260/97 Unibank  [1999] ECR I‑3715, paragraphs 15 and 21).
131. It is settled case-law that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the European Union legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C‑365/97 Commission  v Italy  [1999] ECR I‑7773, paragraph 32; Case C‑275/04 Commission  v Belgium  [2006] ECR I‑9883, paragraph 34; and Case C‑270/07 Commission  v Germany  [2009] ECR I‑1983, paragraph 49).
132. In the present case, that period ended on 18 December 2006. On that date Directive 89/48 was still in force, since Directive 2005/36 repealed it only with effect from 20 October 2007. Consequently, a claim based on failure to transpose Directive 89/48 is not devoid of purpose (see, by analogy, judgment of 11 June 2009 in Case C‑327/08 Commission  v France , paragraph 23).