CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ Further to the ruling in CILFIT (C-283/81), it must be emphasised that legal concepts do not necessarily have the same meaning in Union law and in the law of the various Member States. Each provision of EU law must be put into context and interpreted in the light of EU law as a whole, with respect for the objectives thereof. The conceptual and semantic autonomy of concepts under EU law is also in keeping with this. 12 The above judgments of the CJEU stemmed from the European Commission’s actions concerning an infringement of the obligation under Article 258 of the TFEU (ex Article 226 of the TEC), i.e. substantive proceedings or non-conforming infringement , on the basis of which the Court of Justice ruled that these Member States had infringed the obligations incumbent on them under Article 43 of the TEC (now Article 49 of the TFEU) and Article 45 of the TEC (now Article 51 of the TFEU – this has direct effect) in that only their own nationals were privileged to have access to the notarial profession. The Commission asserted that, in this respect, they had breached the prohibition of discrimination on grounds of nationality 13 and had infringed the right of establishment, 14 for which an extensive interpretation is essentially foreseen. The Court of Justice thus determined that the liberal notarial profession of the continental type, in the form common in many EU Member States, falls within the scope of the freedom of establishment as it is not linked to the “exercise of official authority”. Interestingly, especially in view of the forthcoming activation of Article 50 of the TFEU to trigger the UK’s withdrawal from the EU, the Commission’s actions against all Member States in continental Europe were spurred on solely by the UK, whose notarial system is built on completely different foundations. With the exception of Portugal, which did not prescribe the requirement of nationality, and Italy and Spain, which waived this condition of their own accord, essentially all EU countries found themselves in the Commission’s sights. In adversarial procedure on an infringement of the Treaty, only the UK stood on the Commission’s side in all cases as an intervener, 15 while on the other hand each individual State with the status of defendant was fully supported by the other Member States having the same or similar rules on the status of a notary. Again, it is interesting to note that this was the situation in virtually all cases spearheaded by the Czech Republic, which, along with the others, drew on sophisticated arguments in dialogue with the Commission and subsequently with the CJEU to claim that the notaries in their systems hold office associated with the exercise of official authority and, as such, fall within the scope of the exemption set out in the first paragraph of Article 51 of the TFEU. The States insisted stricto sensu on their discretionary powers and on a reasonable interpretation of Article 51 of the TFEU which, as also mentioned, among other things, by Professor Daniel-Erasmus Khan in his Comments on the TFEU, 16 should enable Member States to reserve activities for their own nationals where particular “civil” loyalty to the state is required. 12 TOMÁŠEK, M., TÝČ, V., PELIKÁNOVÁ, I., KUNERTOVÁ, T., PÍTROVÁ, L., SMOLEK, M., MALE- NOVSKÝ, J., KŘEPELKA, F., SEHNÁLEK, D., Právo Evropské uni e. First edition. Praha: Leges, 2013. 13 FOREJTOVÁ, M., Občanství v judikatuře Soudního dvora Evropské unie v Evropském roce aktivního občan- ství . Acta Universitatis Carolinae – Iuridica 2/2013. 14 CRAIG, P., de BÚRCA G., EU Law, Texts, Cases and Materials , Fifth Edition, Oxford University Press, 2008. 15 E.g. Case C-53/08 Commission v Austria , C-54/08 Commission v Germany . 16 GEIGER. R., KHAN, D.-E., KOTZUR, M., European Union Treaties, A Commentary, Treaty on European Union, Treaty on the Functioning of the European Union, Charter of Fundamental Rights of the European Union , C.H. Beck-Hart Publishing, 2015, p. 363.

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