CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ LEGAL STATUS OF THE NOTARIAL PROFESSION AS A SPECIFIC PROFESSION IN EUROPE In this respect, the Court of Justice has distanced itself from traditional contractual or customary methods of interpreting international law (which the Treaties undoubtedly are), in which the in dubio mitius (or de minimis ) rule, defined in the 1924 judgment handed down by the Permanent Court of International Justice in the Mavrommatis Case, 25 or, in other words, the obligation of a narrow interpretation of all provisions restricting State sovereignty, still has a role to play. In view of its exclusive status, which, if anything, is akin to the position of supreme national courts, and in view of the specific status of European integration law versus international law, the Court of Justice is in a position to justify its lack of respect for the de minimis principle. Foreign literature on methods for the interpretation of European law by the Court of Justice, represented by the likes of the German lawyer Hans Kutscher, 26 a member of Germany’s Federal Constitutional Court and subsequently a member and the president of the European Court of Justice, refuses to establish the principle of in dubio pro comunitate. The application of the effet utile principle and the effet nécessaire principle peaked with the well-known rulings in van Duyn (C-41/74) and AETR (C-22/70), in which the Court even inferred that the Community could enter into agreements with third countries as an essential power to meet the objectives of the common transport policy. We could make the provisional conclusion that all notarial judgments are ground breaking not only in relation to the notarial profession but also – and in particular – in terms of the scope of the freedom of establishment as part of the internal market, the internal potential of which the Court of Justice is constantly expanding. The gradual commodification of public and private goods is a process of staged transformation of everything into goods or activities that need to move around freely, as discussed by Habermas in The Structural Transformation of the Public Sphere (2000). 27 Henceforth then, the architecture of the notarial profession traditionally associated with the State could be shaped not only by requirements related to the freedom of establishment, but subsequently also by the required freedom to provide services. I will demonstrate this below on a pending reference for a preliminary ruling. Theory of exemptions from free-movement rules under EU law The European Union is striving steadfastly for the most seamless possible unification of the internal market. In practice, it mainly achieves this by gradually dismantling barriers (these are often the Member States’ differing legal systems) that hamper the economic prosperity of the European Union as a whole, stifle its economic potential, and inhibit closer cooperation among Member States as one of the objectives of European integration. EU Member States’ obstruction of the freedom to provide services is therefore prohibited as a matter of principle. The definition of such an obstruction stems from CJEU case-law, specifically Costa (C-6/64): 28 “ …so long as no new measure subjects the establishment of nationals of other Member States to more severe rules than those prescribed for nationals of the country of establishment, whatever 25 Permanent Court of International Justice, the Mavrommatis Palestine Concessions, Greece v Britain, Judgment, 1924 P.C.I.J. (ser. B) No 3 (Aug. 30). 26 Hans Kutscher was a judge of the Germany’s Federal Constitutional Court (1955-63) and then a judge of the European Court of Justice (1976-80). 27 HABERMAS, J., Strukturální přeměna veřejnosti: zkoumání jedné kategorie občanské společnosti . First edition. Praha: Filosofia, 2000. 28 Judgment of the EU Court of Justice in Costa v ENEL (C-6/64).

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