CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ The European Union and its internal market were formed to increase and maintain economic prosperity and to forge links among the peoples of Europe. This integration would have been impossible had the Member States not voluntarily given up some of their sovereignty to make it work. Even so, the Treaties themselves guarantee Member States the preservation of their sovereignty per se . As provided for in Article 4(2) of the TFEU: “ The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional… It shall respect their essential State functions…” 4 Yet, at the same time, overarching objectives of the European Union include the closest possible cooperation between Member States and, as such, the creation of the most efficient and simplest possible community (or unions). These two essentially conflicting aspects cause clashes between bodies of the European Union and Member States striving to preserve their sovereignty. Consequently, there has to be a balance between these two needs and it is imperative to find a solution that is conducive both to European integration and to the preservation of the integrating States’ sovereignty. In practice, this balance is achieved, for example, by the freedom of movement discussed below, facilitating the cross- border movement of services and the freedom of establishment, while allowing for certain restrictions on free movement to protect security, health and public policy, including respect for other constitutional aspects of Member States’ sovereignty. Linked to developments in the freedom to provide services and freedom of establishment is the notarial profession, which is a fundamental component of the European legal community. The history of the notarial profession is distinguished above all by the evolution and the significance of instruments in the legal life of the community and by the importance of the profession itself. The notarial profession as we broadly know it today started in mediaeval Italian communes, where notai were a direct continuation of the Antique and Late Antique tabelliones – private officials drawing up instruments. 5 It was learned 11th-century Bologna that established the traditional notion of the classic Latin (civil-law) notary, signifying the difference between the continental and Anglo-American concept of the profession of notary. Whereas, in the Anglo-American system, the notarial agenda is usually in the hands of lawyers, or scrivener notaries, 6 in the continental legal system a State appoints a natural person to notarial office and the notary holds a State function, which affects the way this profession is approached. Continental Europe based the specific status of notary on the “Latin” principle. It granted notaries special status in the internal system of State functions in that notaries hold public office, their authentication activity is endowed with public trust ( fides publica ), and a notarial deed has full probative value in judicial proceedings and is enforceable throughout the Member State. In numerous EU countries, notaries enjoy special status guaranteeing their independence, they are appointed to office by a representative of official authority (the justice Politics and Society. Gdansk: Research Institute for European Policy & University of Gdansk, 2015, pp. 177-195, FOREJTOVÁ, M., Recognition and Enforcement of Judgments within the EU – or is it really so easy to achieve them? The Lawyer Quarterly , No 1, 2015, pp. 59-72. 4 HAMUĽÁK, O., National Sovereignty in the European Union, View from the Czech Republic, SpringerBriefs in Law, p. 45. 5 SKŘEJPEK, M., KINCL, J., URFUS, V., Římské právo. Second edition. Praha: C. H. Beck, 1995. 6 https://www.thenotariessociety.org.uk/pages/what-a-notary-does.

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