European Commission v Republic of Austria.
Date: 2011-05-24
77. 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).
78. 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).
79. 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).
82. 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).
83. 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).
84. 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; Case C‑42/92 Thijssen  [1993] ECR I‑4047, paragraph 8; Commission  v Spain , paragraph 35; Servizi Ausiliari Dottori Commercialisti , paragraph 46; Commission  v Germany , paragraph 38; and Commission  v Portugal , paragraph 36).
85. 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).
91. 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.
92. The fact that some documents and agreements are subject to mandatory authentication, in default of which they are void, cannot call that conclusion into question. It is normal for the validity of various documents to be subject, in national legal systems and in accordance with the rules laid down, to formal requirements or even compulsory validation procedures.
96. However, the fact that notarial activities pursue objectives in the public interest, in particular to guarantee the lawfulness and legal certainty of documents entered into by individuals, constitutes an overriding reason in the public interest capable of justifying restrictions of Article 43 EC deriving from the particular features of the activities of notaries, such as the restrictions which derive from the procedures by which they are appointed, the limitation of their numbers and their territorial jurisdiction, or the rules governing their remuneration, independence, disqualification from other offices and protection against removal, provided that those restrictions enable those objectives to be attained and are necessary for that purpose.
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. As follows from Paragraph 3 of the NO, the enforceability of a notarial act is conditional in particular on the debtor’s agreement to submit to enforcement of the act with no prior proceedings being brought. It follows that the notarial act is not enforceable without the consent of the debtor. So, 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.
104. Secondly, as regards the power of notaries to draw up private documents and represent the parties in certain clearly defined cases, it must be recalled that the legal advice and assistance provided by a notary, even if compulsory or the subject of a statutory monopoly, cannot be regarded as connected with the exercise of official authority (see, to that effect, Reyners , paragraph 52).
108. The tasks assigned to notaries in connection with the law of succession are thus performed under the supervision of the court, to which the notary must refer any disputes, and which moreover takes the final decision. Those tasks cannot therefore be regarded, as such, as directly and specifically connected 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).
118. As to the Unibank  case, also relied on by the Republic of Austria, it is clear that that case had nothing to do with the interpretation of the first paragraph of Article 45 EC. Moreover, the Court held, in paragraph 15 of Unibank , that for a document to be an ‘authentic’ instrument within the meaning of Article 50 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), the involvement of a public authority or any other authority empowered by the State of origin is necessary.
128. In accordance with its case-law, the Court may of its own motion examine whether the conditions laid down in Article 226 EC for bringing an action for failure to fulfil obligations are satisfied (Case C‑362/90 Commission  v Italy  [1992] ECR I‑2353, paragraph 8, and Case C‑417/02 Commission  v Greece  [2004] ECR I‑7973, paragraph 16).
129. 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).
130. 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, in so far as the present claim is based on the alleged failure to transpose Directive 89/48, it is not devoid of purpose (see, by analogy, judgment of 11 June 2009 in Case C‑327/08 Commission  v France , paragraph 23).
131. As to the admissibility of the claim in so far as it concerns the alleged failure to transpose Directive 2005/36, it must be recalled that, as the Court has previously held, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of a European Union measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new European Union measure. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which have no equivalent in the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see, to that effect, Case C‑365/97 Commission  v Italy , paragraph 36; Case C‑363/00 Commission  v Italy  [2003] ECR I‑5767, paragraph 22; and Case C‑416/07 Commission  v Greece  [2009] ECR I‑7883, paragraph 28).
132. Consequently, the claims in the Commission’s application seeking a declaration that the Republic of Austria has failed to fulfil its obligations under Directive 2005/36 are in principle admissible, on condition that those obligations are analogous to those arising under Directive 89/48 (see, by analogy, Case C‑416/07 Commission  v Greece , paragraph 29).