CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ closely connected with the exercise of official authority in the monograph Evropské právo , 19 even goes so far as to suggest that Article 51 of the TFEU is obsolete considering the level of integration that has been achieved, even though it has remained in force in the consolidated text (as a result of the Treaty of Amsterdam). In the light of further developments, below I will courteously disagree with that conclusion. In its decision-making, the Court of Justice again applied the teleological interpretation most conducive to the fulfilment of the headline targets of integration, while entirely disregarding the fact that the 2000 Directive of the European Parliament and of the Council on electronic commerce 20 does not apply to the activities of notaries to the extent that they involve a direct and specific connection with the exercise of public authority. The European Parliament resolutions, issued in 1994 and then in 2006, on the legal professions and the general interest in the functioning of legal systems, as published in the Official Journal, 21 in which the European Parliament directly stated that an exemption from the right of establishment was to be applied expressly to the status of notary, were degraded by the CJEU to a purely political non-binding act. The Court of Justice also refused to apply its previous ruling in Colegio de Oficiales de la Marina Mercante Española, 22 according to which the master and chief mate of a vessel engage in notarial activities, i.e. the authentication of wills, which constitutes involvement in the exercise of official authority. In other words, the Court of Justice rejected its own case-law, in which it had ruled that notarial activities are connected with the exercise of official authority. In more than half a century of case-law, the EU Court of Justice has never handed down a ruling concluding that a particular activity is directly and specifically connected with the exercise of official authority. For example, public ambulance services, entities entrusted to inspect organic farming and the Greek issue of government bonds are not connected with the exercise of official authority in the Court’s opinion. Hence no single case exists where the Court has found that the Member State in question has invoked an exemption under Article 51 of the TFEU legitimately, and in this respect it has essentially neutralised the legal systems of the EU’s Member States. The Court of Justice should really be looking to strike a fair balance between the objectives pursued by EU freedoms 23 and the preservation of Member States’ powers. 24 Its rulings should be judicious and, in view of the significance of the notarial profession in Member States, rationally reticent. However, even in the sensitive matter of the exercise of States’ internal functions, the Court has applied an interpretation calculated to be most conducive in achieving the objectives set out in the Treaty, and in arriving at a uniform interpretation and application of European law using the doctrine of the special effects of EU law and the autonomous nature of European legal terminology. 19 TICHÝ, L., ARNOLD, R., ZEMÁNEK, J., KRÁL, R., DUMBROVSKÝ, T., Evropské právo , 2011. 20 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). 21 European Parliament resolution on the legal professions and the general interest in the functioning of legal systems. 22 Judgment of the Court of Justice in Case C-405/01 Colegio de Oficiales de la Marina Mercante Española . 23 Article 2 of the Treaty on European Union. 24 Article 4(2) of the Treaty on the Functioning of the European Union.

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