CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ LEGAL STATUS OF THE NOTARIAL PROFESSION AS A SPECIFIC PROFESSION IN EUROPE minister or the grand duke), they are irremovable and non-transferable, they are subject to the system of incompatibility, their remuneration is set by law/implementing decree, and they are governed by regulations equivalent to those corresponding to the procedure and regime for judges. They are entrusted with the “preventive administration of justice”, where the State transfers the exercise of certain powers to them, typically in succession proceedings. 7 In the Czech Republic, a notary’s activities are closely linked to the exercise of official authority. 8 A court-appointed notary acts as a judicial commissioner and, in accordance with Section 100 of the Act on Special Judicial Proceedings, 9 engages in all acts of a first-instance court in succession proceedings, including autonomous decision-making and the issuance of all succession orders, without ex-ante or ex-post checks by the court. The role of the notary as a judicial commissioner in succession proceedings has been established in the Czech legal landscape since 1850, 10 when the first modern proper notarial rules were adopted. Even in today’s national legal arena, a notary’s principal activities include the drawing-up of authentic instruments endowed with public trust ( fides publica ). Notarial activities are steeped in long- standing tradition inspired by Austrian legislation (in particular the Austrian codification of civil procedure from 1895-1896) and the incorporation thereof into Czech law after 1918. Section 7(1) of the Notarial Rules prescribes that a notary in the Czech Republic must be a national of this country, as is (or was) the case in a further 21 EU Member States. Countries such as Belgium, France, Luxembourg, Germany, Austria, Greece, Lithuania, Latvia, Italy, Spain, Hungary, Slovenia and Slovakia all established the condition by law (typically in the form of notarial rules) that anyone pursuing the notarial profession had to be a national. Actions and CJEU judgments on infringements of primary law in 2011 The string of judgments handed down by the Court of Justice of the European Union on 24 May 2011 against seven Member States – Belgium, France, Luxembourg, Germany, Portugal, Austria and Greece – serve as an example of how this matter (by no means a rhetorical question) has been tackled. At the heart of these proceedings lay a host of questions, spearheaded by the interpretation of the freedom of establishment as one of the fundamental freedoms and the issue of whether notaries exercise official authority. Though the term “official authority” used in the Treaties was not interpreted by the Court of Justice, it was inclined to believe that there must be a direct and specific link with the exercise of official authority and it came up with the definition that it must concern the sufficiently qualified exercise of prerogatives outside the general law, privileges of official power or powers of coercion . 11 7 WINTEROVÁ, A. et al., Občanský soudní řád a předpisy související. Praha: Linde Praha, 2001. 8 NUHLÍČEK, J., Veřejní notáři v českých městech, zvláště v městech pražských až do husitské revoluce (historie a sou- časnost) . Praha: Notarial Chamber of the Czech Republic, 2011. Series of textbooks of the Faculty of Law, Masaryk University, Brno. 9 Act No 292/2013 of 12 September 2013 on special judicial proceedings, as amended by Act No 87/2015, Act No 189/2016, Act No 189/2016, Act No 298/2016, Finding of the Constitutional Court No 334/2016, and Act No 460/2016. 10 BALÍK, S., Dějiny notářství v českých zemích. Praha: Notarial Chamber of the Czech Republic in conjunction with the National Gallery, 2014. 11 For a discussion on official authority in Czech law see, for example, MATES, P., SEVERA, J., Odpovědnost státu za výkon veřejné moci , Praha Leges, 2014, pp. 79-84.

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