Leopoldine Gertraud Piringer.
Date: 2017-03-09
19


In that regard, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 60 and the case-law cited).
20


As a consequence, the fact that a party disagrees with that Opinion, irrespective of the questions examined therein, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 61 and the case-law cited).
26


In this regard, it must be borne in mind that Directive 77/249, the purpose of which is to facilitate the effective exercise by lawyers of the freedom to provide services (judgment of 19 January 1988, Gullung, 292/86, EU:C:1988:15, paragraph 15), applies, in accordance with the wording of Article 1(1) thereof, to the activities of lawyers pursued by way of provision of services.
28


In the first place, it must be stated that Directive 77/249 does not expressly define what is covered by the term ‘lawyer’s activity’ within its meaning. Even though that directive draws a distinction between, on the one hand, activities relating to the representation of a client in legal proceedings or before public authorities and, on the other hand, all other activities, pursuant to, inter alia, Article 4(4) thereof (see judgment of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 14), it does not define the scope of those expressions.
34


In that regard, it is necessary to recall, as the Court has held on numerous occasions, that, in order to enable services to be provided, the person providing the service may go to the Member State where the person for whom it is provided is established or else the latter may go to the State in which the person providing the service is established. Whilst the former case is explicitly mentioned in the third paragraph of Article 57 TFEU, which permits the person providing the service to pursue his activity temporarily in the Member State where the service is provided under the same conditions as are imposed by that State on its own nationals, the latter case, which fulfils the objective of making all gainful activity not covered by the free movement of goods, persons and capital subject to the freedom to provide services, is the necessary corollary thereof (see, inter alia, judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 34).
35


Accordingly, it is the Court’s established case-law that the freedom to provide services conferred by Article 56 TFEU on Member State nationals, and thus on European Union citizens, includes ‘passive’ freedom to provide services, namely the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions (see, inter alia, judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 35 and the case-law cited).
49


In order to answer that question, it is necessary, in the first place, to bear in mind that Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction on the freedom to provide services, even if that restriction applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less attractive the activities of a service provider established in another Member State where it lawfully provides similar services (judgments of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 35 and the case-law cited, and of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 35).
53


In the second place, it is appropriate to recall that, in accordance with the case-law of the Court, such a restriction may nevertheless be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 51 and 52 TFEU, which are also applicable in the area of freedom to provide services by virtue of Article 62 TFEU or may, if applied in a non-discriminatory manner, be justified by overriding reasons in the public interest (see judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 31 and the case-law cited), provided that it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, judgment of 17 March 2011, Peñarroja Fa, C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 54 and the case-law cited).
54


In that regard, it must be noted, as the Advocate General does in point 48 of his Opinion, that the Court has already found, in its judgment of 24 May 2011, Commission v Austria (C‑53/08, EU:C:2011:338, paragraphs 91 and 92), that the activity of authentication pursued by notaries does not, as such, involve a direct and specific connection with the exercise of official authority within the meaning of the first paragraph of Article 51 TFEU. Moreover, the fact that some documents or agreements are subject to mandatory authentication, failing which they are void, cannot call that finding into question.
59


In those conditions, national provisions which require verification, by recourse to sworn professionals — such as notaries — of the accuracy of entries made in a land register contribute to guaranteeing the legal certainty of property transactions and the proper functioning of the land register and relate, more generally, to the safeguarding of the sound administration of justice, which, in accordance with the case-law of the Court, constitutes an overriding reason in the public interest (see, to that effect, judgment of 12 December 1996, Reisebüro Broede, C‑3/95, EU:C:1996:487, paragraph 36).
60


Second, it is necessary to recall that the Court has already held, in its judgment of 24 May 2011, Commission v Austria, (C‑53/08, EU:C:2011:338, paragraph 96), in relation to the freedom of establishment, that the fact that notarial activities pursue objectives in the public interest, in particular that of guaranteeing the legality and legal certainty of documents concluded between individuals, constitutes an overriding reason in the public interest capable of justifying restrictions of Article 49 TFEU resulting from the particular features of the activities of public 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 make it possible for those objectives to be attained and are necessary for that purpose.