CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ LEGAL STATUS OF THE NOTARIAL PROFESSION AS A SPECIFIC PROFESSION IN EUROPE be worded as follows: “Does Article 49 of the TFEU encompass notarial activities? Is the State liable for notarial activities?” and “What is the role of notaries in succession proceedings? Or: does Article 51 of the TFEU apply to notarial activities?” In the Commission’s opinion, the scope of Article 49 of the TFEU does include notarial activities because, if there is a dispute, a decision is taken by a court, not a notary as a self- employed person. The Commission therefore insisted on a restrictive interpretation of Article 49 of the TFEU. The Commission concluded that, in a situation where notaries in Hungary have to take out liability insurance themselves, that means that any damage is the liability of the notary and not the State. As for the arguments stemming from succession proceedings, the Commission alleges that a notary in succession proceedings does not fall within the scope of Article 51 of the TFEU because notarial proceedings are only temporary and, as a preventive activity, are intended to avert judicial proceedings, which could be unduly protracted. Hungary’s opinion was that, although the nub of the dispute is the same as in the judgments from 2011, the status of public officeholders differs from one Member State to another. Notaries in different States have different powers, which means that the requirement of nationality should not be demanded indiscriminately for each State. Hungary maintains that the European Court of Justice should not be precedential in its decision-making. According to Hungary, notaries take exactly the same decisions as first-instance courts. In first-instance successions, the courts play no role at all. These are public civil non-contentious proceedings in which the notary hands down rulings and may also impose penalties. Furthermore, a notary exercises official authority in the authentication of instruments, supervised by the justice minister, who may initiate disciplinary proceedings. Consequently, Hungary takes the view that notarial activity cannot be compared with ordinary economic activities. In defiance of these arguments, on 1 February 2017 the European Court of Justice ultimately pronounced that, by requiring Hungarian nationality for access to the notarial profession, Hungary had failed to comply with the obligations incumbent on it under Article 49 of the TFEU. 42 The obligation of States that are found guilty to open up access to notarial activity to the nationals of other EU Member States also gives rise to the new issue of the expansion of the freedom to provide services. As a result, this throws up another serious theoretical and practical problem concerning the exercise of areas of official authority in Member States. This matter came fully to the fore when an Austrian court requested a preliminary ruling in the Leopoldine Piringer Case (C-342/15) concerning the entry of a property right in rem in the Austrian property register on the basis of a document to which Ms Piringer had a declaration attached by a Czech lawyer, authenticating her signature, during a visit to České Budějovice. In other words, the fledgling influence of lawyers’ freedom to provide 42 “[…] restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies […] by nationals of any Member State established in the territory of any Member State.” 43 Reference for a preliminary ruling in Case C-342/15 Piringer . Consequences of extending the freedom to provide services – reference for a preliminary ruling in Piringer 43

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