European Commission v Grand Duchy of Luxemburg.
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 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).
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).
99. Moreover, the legal advice and assistance provided by a notary when authenticating a document or agreement cannot be regarded as connected with the exercise of official authority, even if there is a legal obligation for him to provide such advice or assistance (see, to that effect, Reyners , paragraph 52).
101. 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).
108. 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 106 to 111 above, that, as recalled in paragraph 86 above, professional activities cooperating, even on a compulsory basis, with the functioning of the courts do not as such constitute a connection with the exercise of official authority ( Reyners , paragraph 51).
113. Fifthly, the fact that authentic instruments transferring immovable property rights are registered in the registry of charges over land is not directly relevant to the outcome of the present dispute. That registration, which is moreover the responsibility of the registrar of charges, relates to measures for the publicity of those documents and does not therefore reflect the direct and specific exercise of official authority on the part of the notary.
124. As to the need relied on by the Grand Duchy of Luxembourg to ensure the use of the Luxemburgish language in the performance of the activities of notaries, it is clear that the first head of claim in the present dispute relates exclusively to the nationality condition at issue. While the preservation of the national identities of the Member States is a legitimate aim respected by the legal order of the European Union, as is indeed acknowledged by Article 4(2) TEU, the interest pleaded by the Grand Duchy can, however, be effectively safeguarded otherwise than by a general exclusion of nationals of the other Member States (see, to that effect, Case C‑473/93 Commission  v Luxembourg  [1996] ECR I‑3207, paragraph 35).
133. 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).
134. 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).