European Commission v French Republic.
Date: 2011-05-24
30. As regards, in particular, the objection pleaded by the French Republic against the argument, put forward by the United Kingdom, that the application of the first paragraph of Article 45 EC cannot be extended to all notarial activities, contrary to the view held by the Commission in its application, it cannot be a criticism of the United Kingdom that it has added new forms of order to those submitted by the Commission. That argument is no more than a reference to paragraph 47 of Case 2/74 Reyners  [1974] ECR 631, and the United Kingdom has taken no position on the applicability of that case-law to the specific activities pursued by notaries in France.
67. It must be recalled at the outset that Article 43 EC is one of the fundamental provisions of European Union law (see, to that effect, inter alia, Reyners , paragraph 43).
68. 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 basis, 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).
69. 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).
70. 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).
73. 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 th at 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).
74. 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).
75. 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).
76. 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).
78. 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).
89. Further, the consultation and legal assistance provided by a notary when authenticating a document or agreement cannot be considered as connected with the exercise of official authority, even where a notary is legally obliged to provide such consultation or assistance (see, to that effect, Reyners , paragraph 52).
91. 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. Thus, Article 1319 of the Civil Code, which determines the probative force of an authentic instrument, is part of Chapter VI of that code, headed ‘Of the proof of obligations and 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).