CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ – the relevant judgments of the Court of Justice have been handed down in proceedings held against other Member States; neither the Czech Republic nor any other State yet to be judged is under any obligation to adopt measures deriving from those judgments within the meaning of Article 260(1) of the Treaty on the Functioning of the European Union; (b) substantial differences between legislation on the status of notaries in the Czech Republic and in Member States affected by the relevant judgments of the Court of Justice of 24 May 2011; these differences primarily lay in the fact that notaries: – authenticate the legal acts of persons; – act as the judicial commissariat in succession proceedings, where the notary is essentially the first-instance court and, without an ex-ante or ex-post inspection by the court, issues orders, including the final order. The president of the court has the same authorisation in relation to the notary as he or she does in relation to a judge in civil proceedings; – make direct entries in public registers in accordance with Act No 304/2013 – this competence was conferred on notaries when it was hived off from the jurisdiction of registration courts, and has helped to streamline activities in this area; – have a link to official authority via Act No 300/2008 on electronic acts and the conversion of documents, according to which notaries are public authorities and a data box is set up for them as it would be for a public authority; (c) State liability for economic and non-economic damage caused by a notary in the performance of notarial activities where the State is liable for the activities of a judicial commissariat, including authentication, under Act No 82/1996 on liability for damage caused in the exercise of official authority by means of a decision or maladministration. Commission infringement procedure against Hungary In September 2016, Luxembourg hosted proceedings in Commission v Hungary (C-392/15), in which the Commission raised another argument in support of a restrictive interpretation of Article 15 of the TFEU, i.e. the argument of competition between notaries within the meaning of EU competition rules. 40 It is worth noting an apt observation by one of the members of the chamber, Eugene Regan, appointed as a judge in 2015, 41 who questioned whether the Commission had taken into account the fact that the numerus clausus principle, rules on the geographical jurisdiction of motorists, the fact of being bound by public law, the impossibility of choosing clients and the fact that fees are set according to a scale of fees precluded competition. Despite this, the Commission kept to its position and even claimed that the rotation of notaries in the assignment of agendas in succession proceedings constituted competition. However, the European Commission maintains that the reservation of the notarial profession solely for Hungary’s own citizens, as prescribed by Hungarian national law, is incompatible with EU law. This means that Hungary does not comply with an obligation incumbent on it under EU law and discriminates against other EU citizens by applying the differentiation criterion of nationality. Crucial questions in the oral hearing can therefore

40 Article 101 et seq . of the Treaty on the Functioning of the European Union. 41 Judge Eugene Regan has been a judge of the EU Court of Justice since 2015.

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