CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ services on the notarial profession is such that it has come up against the exercise of certain administrative functions, specifically in Austria. The Czech Republic submitted an opinion rejecting Austria’s obligation to recognise the declaration of the signature’s authenticity as made by a Czech lawyer who was not the person to have engaged in movement, thereby encroaching on Austria’s cadastral agenda. A reservation to safeguard the legality and legal certainty of instruments relating to legal acts used for overriding reasons relating to the public interest is now being invoked by Advocate General Szpunar, who is proposing that the EU Court of Justice rule that neither the provisions of the Directive to facilitate the free movement of lawyers 44 nor Article 56 of the Treaty on the Functioning of the European Union prevent a Member State from reserving for a notary the authentication of signatures on instruments intended for the transfer of rights attaching to real estate. The final ruling handed down by the EU Court of Justice on 9 March 2017 can clearly be summed up as inferring that Member States may reserve certain activities only for notaries. These are very significant activities for the national organisation of administrative activities and functions; some of them can unquestionably only being carried out by entities permitted to do so by the State. 45 Conclusion The leeway in the Court’s approach to traditional activities historically or substantively connected with the exercise of official authority could result in the further blurring of the limits as to what does or does not constitute an internal State function. In the future, as so many times in the past, these will be articulated in the only correct way not by the State, but by the Union. Although current primary and secondary EU legislation does not facilitate the full takeover of Member States’ sovereignty by the Union, as is also evident from the constitutional foundations of the EU’s democratic members, sovereignty could be eroded slowly but surely by the Court’s effective steps. The question remains, in the context of the Czech and Hungarian cases, whether it was necessary for the Commission and the Court of Justice to be so uncompromising when seeking the liberalisation of the notarial profession, which is traditionally and historically associated with the preventive administration of justice, and whether it was necessary to give continental Europe’s Member States another slap in a situation where, for example, other commitments under the Treaties (e.g. the joining of the euro area and the reintroduction 44 Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services. 45 Operative part of the Court of Justice in response to the request for a preliminary ruling: The second subparagraph of Article 1(1) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services must be interpreted as not applying to legislation of a Member State, such as that at issue in the main proceedings, under which authentication of signatures appended to the instruments necessary for the creation or transfer of rights to property is reserved to notaries, and as consequently excluding the possibility of recognising in that Member State such authentication carried out by a lawyer established in another Member State. Article 56 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which authentication of signatures appended to the instruments necessary for the creation or transfer of rights to property is reserved to notaries, and as consequently excluding the possibility of recognition in that Member State of such authentication carried out, in accordance with his or her national law, by a lawyer established in another Member State.

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