European Commission v Republic of Latvia.
Date: 2015-09-10
47. Furthermore, the fact that the divorces are registered in the registers of births, marriages and deaths confirms that the notarial activity in those matters is connected with the exercise of official authority (judgment in Colegio de Oficiales de la Marina Mercante Española , C‑405/01, EU:C:2003:515, paragraph 42).
Findings of the Court
48. It must be noted first of all that, in the judgments referred to in paragraph 21 of the present judgment, the Court considered that the freedom of establishment, as set out in Article 49 TFEU, is applicable to the notarial profession.
52. Next, it must 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, the judgments in Commission  v France , 270/83, EU:C:1986:37, paragraph 14, and Commission  v Netherlands , C‑157/09, EU:C:2011:794, paragraph 53).
59. In that regard, the Court has held that the activity of authentication entrusted to notaries therefore does not, in 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 in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 92).
60. It is true that, as submitted by the Republic of Latvia, the notary’s ascertainment, 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, 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 (judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraphs 94 and 95).
61. 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 (see judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 98).
68. With regard, thirdly, to the activities carried out by notaries in divorce matters, it must be noted that, in accordance with Articles 325 and 327 of the Law on the notarial profession, a notary has powers to dissolve a marriage where the spouses have expressed their agreement on the principle of the divorce and where, if they have a child in common or jointly own a property, they have concluded a prior contract concerning the custody of the child, the arrangements for visiting rights and the means necessary for its maintenance or the division of the property.
69. Furthermore, with regard to other divorce cases, it is clear from Article 233 of the Code of Civil Procedure, which forms part of Chapter 29 entitled ‘Aspects concerning the annulment and dissolution of marriage’, that handling such cases falls within the powers of the courts.
70. Clearly, therefore, a notary’s powers in divorce matters, 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.
71. As regards the argument which the Republic of Latvia derives from the judgment in Colegio de Oficiales de la Marina Mercante Española (C‑405/01, EU:C:2003:515), relating to the fact that, in Latvia, divorce by mutual consent pronounced by a notary is registered by the Registrar of births, marriages and deaths, it is apparent from paragraph 42 of that judgment that, when the Court ruled that the duties conferred on masters and chief mates of merchant ships flying the Spanish flag constitute participation in the exercise of rights under powers conferred by public law, it was referring to all the duties performed by them, including rights connected to the maintenance of safety and to the exercise of police powers, together with, in appropriate cases, powers of investigation, coercion and punishment, and not merely the authority held by those masters and chief mates in respect of the registration of births, marriages and deaths.
73. Thirdly, as regards the particular status of notaries in the Latvian 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 (see, inter alia, judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 85).
74. Furthermore, it is not in dispute, as has been stated in paragraph 51 of the present judgment, that notaries practise their profession in conditions of competition, which is not characteristic of the exercise of official authority (see, by analogy, judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 117).
75. Finally, the argument which the Republic of Latvia bases on Directive 2005/36 not being applicable to notaries also fails to convince. The fact that the legislature has chosen to exclude notarial activities from the scope of a given measure, in this case that directive, does not mean that those activities necessarily fall under the exception provided for in the first paragraph of Article 51 TFEU (see, to that effect, inter alia, judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 119).