CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ LEGAL STATUS OF THE NOTARIAL PROFESSION AS A SPECIFIC PROFESSION IN EUROPE However, it is evident from the context of Articles 51 and 52 of the TFEU, enshrining a public policy exception in relation to the freedom of establishment, that, during the drafting, Member States foresaw other activities through which they would carry out their internal functions without interference from the then Communities and subsequently the Union. As illustrated by the indicated outcome of the judicial proceedings in Luxembourg, the EU Court of Justice drew on two of its rulings, specifically the Reyners judgment (C-2/74 – here the CJEU defined the scope of Articles 43 and 45 as follows: “… is limited to those activities which […] constitute a direct and specific connection with the exercise of official authority”) and the Thijssen judgment (C-42/92), and stressed that Article 43 of the TEC (now Article 49 of the TFEU) is one of the fundamental provisions of EU law aimed at safeguarding the right to national treatment for each national of a Member State, i.e. the right of establishment, even if only secondarily in another Member State for purposes of self-employment. Furthermore, EU law prohibits any discrimination on grounds of nationality. Any exemption from the right of establishment must then be subject solely to the interpretation of the EU Court of Justice, and the interpretation of exemptions will be purely restrictive, as previously decided by the CJEU in the Sotgiu case. 17 The Court of Justice repudiated entirely the Member States’ arguments that a notary’s activities are linked to the exercise of official authority, nor did it heed the conclusions of the Advocate General Cruz Villalón, 18 who, conversely, inferred that the basic activity of notaries in all of the defendant States, i.e. authentication, truly is an activity directly and specifically connected with the exercise of official authority, as asserted by the Member States in question. To that effect, he pointed out that notaries give instruments and their contents a special status that they would not otherwise have, as they would merely be a manifestation of private will. He also observed that authentication constitutes the inseparable core of the notarial profession in all the defendant States, and that therefore the exemption contained in Article 51 of the TFEU can be applied to the profession of notary taken as a whole. Nevertheless, he also labelled the requirement of nationality unreasonable interference not only with the right of establishment, but also directly with the concept of EU citizenship. From this construct, the ongoing process of neutralising national legal systems is undeniable. These judgments could be said to have ended the first stage of the almost 16-year legal dispute between the Commission and Member States, the essence of which remains a dispute on Member States’ right to define national rules for the exercise of official authority and to retain the option of setting conditions for the competence of those entities that are to be granted the exercise of public prerogatives. Article 51 of the TFEU, providing that the rules on the freedom of establishment shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority , which was of fundamental significance from the point of view of those who engineered the Treaties, has existed unchanged in primary law since the inception thereof, i.e. since 1957, in the EEC Treaty and in the European Free Trade Association Convention. That article now appears to be virtually devoid of meaning. Professor Tichý, who classified notaries’ activities as activities 17 Judgment of the EU Court of Justice in C-152/73 Sotgiu . 18 Opinion of Advocate General Cruz Villalón in the joined cases C-47/08 Commission v Belgium , C-50/08 Commission v France , C-51/08 Commission v Luxembourg , C-52/08 Commission v Portugal , C-53/08 Commission v Austria , C-54/08 Commission v Germany , C-61/08 Commission v Greece .

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